Real Estate Industry Comments on EPA Guidance, March 2002

NYC 9/11 Public Portal Document

Ms. Elissa Feldman March 25, 2002 Page 2

Preliminary Nature of the Initial Guidance Document

We recognize that the Guidance is just the first, and perhaps most general, of a series of documents contemplated by the Workgroup that will focus on chemical, biological or radiological attacks (CBRs). As indicated in the “Background” section, the Guidance is focused “on shorter-term goals” while “more comprehensive guidance is being developed.” Despite the fact that the document is apparently not intended to be a definitive or comprehensive statement of federal policy, it still has important legal, policy and practical implications. We are, therefore, glad to have an opportunity to comment and do so with the expectation that the additional “comprehensive” guidance ultimately will be developed. In fact, some of our specific comments may best be addressed in that more definitive set of recommendations. Industry’s Ongoing Efforts to Address CBRs

A number of comments included a discussion of company and trade association efforts - many of which began prior to September 11, 2001 - to increase industry awareness of the same issues addressed in the Guidance. In addition, the point was made by one trade association that existing emergency plans at many properties, as well as regional building codes, include elements of the Workgroup’s recommendations. At the same time, one major retail company expressed the view that the Workgroup’s recommendations would add to the quality of industry-wide dialogue and education. Examples of ongoing educational and information exchange efforts include BOMA’s task force and educational programs on building security issues; national and regional workshops and conferences sponsored by The International Coimcil of Shopping Centers (ICSC); and ASHRAE’s preliminary recommendations in this area. Market-driven security practices are also being influenced by extensive portfolio-wide risk-assessments of existing properties being undertaken by leading companies in all industry sectors. In addition, current practices are being affected constructively by the expert advice many companies are receiving on the best ways to design and build out new properties to mitigate the risk of airborne bio-hazards.

Issue: Limitations on Owners’ Expertise in Diagnosing a Possible Attack A number of comments expressed concern that parts of the Guidance reflect unrealistic assumptions about the ability of building owners to quickly identify when and how a CBR may be occurring. For example, were there to be a more general release of contaminants in the neighborhood of a building, there will often be no public alert system to communicate that fact quickly and authoritatively to owners. In the case of many types of contaminants there are simply no CBR sensors, monitors or other technologies capable of forewarning owners of an incident. In many situations, the owner’s on-site management team (if there is one) will have a very limited ability to determine if the source of the contamination is inside or outside of the building. The ramifications of these inevitable knowledge gaps will be substantial. For example, while closing air intakes will be appropriate when the contamination is outside the building, the opposite response may be indicated when there is an internal source. In light of this insight it would appear that the last sentence in Section 1 stating that securing air intakes is the “first line of defense” against CBRs will not always be true. In this same regard, the references in the Guidance to the need to train personnel to respond to CBRs may be somewhat simplistic. Even the highly trained staff at the World Trade Center had no idea those buildings were under attack until after the arrival of the second plane. At a minimum, the “responsibilities” of staff, referred to on the last line of pg. 11 (Emergency Plans section) should be limited to “known” events.

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