Real Estate Industry Comments on EPA Guidance, March 2002

NYC 9/11 Public Portal Document

Ms. Elissa Feldman March 25, 2002 Page 4

Issue: Preventing Access to Outdoor Air Intakes The guidance recommends the relocation of intake vents, located at or below ground level, as the “preferable” approach to the security of outdoor inlets. It then, wisely, suggests alternatives in the event that a particular retrofit is “infeasible.” We appreciate the sensitivity shown by the Workgroup to the need for a series of increasingly less burdensome alternatives. Still, we would strongly suggest that the words “or impractical” be added to ensure there is no implication that if the retrofit can theoretically be done (without cost as a factor) it should be done. In many cases, fresh air inlets located below the “roof’ or high sidewall” have been incorporated into significant architectural elements of the building. In all but the most security sensitive multi-tenanted buildings it may require consent of all the building tenants — both as to the importance of the security retrofit and its related expense---- before that kind of project is “feasible.” Certainly, this type of retrofit of an existing building is not fairly characterized by the summary statement in the Conclusion (p.l2) that “the recommendations presented here are ones that can be implemented reasonably quickly.”

Similarly, even the recommendation to secure air intakes might be infeasible in more cases than the Workgroup may imagine. For example, many such inlets draw air from public rights-of-way which will be impractical to secure. To address that scenario one commenter suggested that closed circuit television together with a mechanism to close the intake louvers upon discovery of suspicious behavior may be appropriate in some instances. Issue: Isolation of Mail Rooms

A major retail shopping center’s security expert was generally very impressed with the Guidance. The one recommendation, however, that he (and a number of others) suggested might be “a stretch for most [retail] properties, given how the typical management offices are designed, would be the isolation of the reception/lobby/mail handling areas from the balance of the office complex.” According to the commenter, “this would not be a typical ‘price tag’ issue” because the new mail room (a non­ revenue producing space) would need to be carved out of otherwise rentable area designed for retail uses. Issue: Abuse of Guidance by Insurers or Plaintiff’s Attorneys A number of comments reflected concern that despite the intent of the Workgroup to provide guidance and not a definitive standard of care, others including plaintiffs’ attorneys and insurance companies might not use the document in that way. Some attorneys can be expected to try and demonstrate that the guidance is actually a hard and fast “standard of care” and insurers to use compliance or non-compliance with all elements of the guidance in coverage (or policy pricing) decisions. To address this concern one commenter proposes language at or near the end of the “Conclusion” section as follows: The suggestions set forth in this Guidance are not intended to be a standard of care that every building owner and manager should implement for every building. Rather, the decision concerning which, if any, of the protective measures should be implemented for any building should be based on several factors, including the perceived risk associated with the building and its tenants, engineering and architectural feasibility and cost.

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