By Dave Hanson
Published in the October 2011 issue of Today’s Facility Manager
For many reasons, reducing water waste is a top priority for leading companies that own and operate their corporate facilities. Dwindling resources, rising water rates, and new regulatory compliances are just a few of the many reasons facility managers (fms) are finding ways to handle this particular challenge.
Those fms tasked with building new corporate campuses or involved in the operation of existing facilities shouldn’t avoid embracing advanced irrigation or treatment techniques, because adopting trending technology early on may save money for them down the road.
Sustainable Water Practices
Smart water management programs can help facilities operate at peak efficiency at all times. Since the price of water is rising every year—a trend not expected to slow any time soon—it is essential for fms to get a handle on some of the latest strategies available to them.
California’s Proposition 65: Private bounty hunters and facility compliance in the Wild, Wild West
By Cordon T. Baesel, Esq.
In California, facility managers (fms) contend with traditional compliance issues like their peers in other states (i.e., government agencies). But California adds additional factors to the compliance equation: Proposition 65 and Private Bounty Hunters. Proposition 65 is a California law that creates specific duties and legal risks for fms (and building/business owners). The private bounty hunters are certain environmental groups and lawyers that use Proposition 65 private enforcement rights to deliver their own brand of California justice (i.e., monetary settlements). California-based fms overwhelmed by Proposition 65 can follow the tips in this article to safeguard themselves against the actions of these relentless bounty hunters.
What Is Proposition 65?
Passed by voters in 1986 as “The Safe Drinking Water and Toxic Enforcement Act,” Proposition 65 (“Prop 65”) evokes the Wild, Wild West of 1886; it provides private bounty hunters with a government badge that enables them to litigate “in the public interest” with California businesses. Specifically, Prop 65 (California Health and Safety Code section 25249.6) provides:
No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.
Prop 65 also prohibits discharges of such chemicals into sources of drinking water.
For A Few Dollars More, Proposition 65 Lawsuits
Relying on this simple statutory scheme, suits are filed under Prop 65 that primarily focus on whether the Prop 65 warnings are provided. The warning is arguably required when a facility (or a product or service) exposes individuals to trace amounts of carcinogens or reproductive toxins. The warning is likely familiar to most Californians:
WARNING: This area [or product] contains a chemical known to the State of California to cause cancer, birth defects, or other reproductive harm.
If these 25 words are not properly provided, and the bounty hunter can show possible human exposure to carcinogens or reproductive toxins, the Prop 65 settlement will be far more than a fistful of dollars. Prop 65 violators are potentially liable for civil penalties of up to $2,500 per day for each violation.
The Good, The Bad, And The Ugly Of Proposition 65
Despite the noble goals of Prop 65, the private enforcement mechanism has generally devolved into a cottage industry for certain environmental attorneys. In the last 10 years alone, Prop 65 enforcement has resulted in more than 2200 settlements and more than $125 million in damages paid by California businesses. And almost 70% of that amount—$86 million—has gone to plaintiffs’ attorney fees. The California Attorney General’s Office is the primary Prop 65 enforcer, but bounty hunters can sue if they give proper notice to the Attorney General…a common occurrence 99% of the time.
While Prop 65 settlements can be identified as a “cost” of doing business in the State, fear not. Fms can run these private Clint Eastwoods off their respective properties through an understanding of how to comply with Prop 65.
How To Comply With Prop 65
Prop 65 compliance is usually achieved through specific warnings posted in a facility. Whether posted, and/or provided to employees through hazard communication, the warnings cover potential exposure to the 700 plus harmful chemicals currently identified by California (www.oehha.ca.gov/prop65.html). Likewise, a facility cannot discharge these chemicals into the water. It all sounds pretty simple. However, the legal issues, such as the meaning of “knowingly and intentionally,” “exposure,” and “clear and reasonable” warnings can be key factors.
More importantly, successful Prop 65 compliance is premised on facility and operations knowledge. What chemicals are used? Where and how? Are chemicals discharged? What is the actual composition of a facility’s indoor air? Are goods that emit Prop 65 chemicals stored or shipped to/from your facility?
Know The Parameters Of Your Facility
Prop 65 compliance problems often arise because targeted facilities or businesses neither knew about nor intended exposures to carcinogens or reproductive toxins. Ongoing advancements in chemical testing and detection methodologies have provided the bounty hunters with a ready source of data showing potential exposures to detectible levels of Prop 65 listed chemicals.
Facility exposure problems can arise because Prop 65 warning obligations apply to employees, visitors, or other occupants, regardless of the amount of the chemical in a facility emission or workplace exposure. Minute or trace amounts arguably trigger the warning requirement—even if there is virtually no risk of cancer or reproductive harm from the exposure.
Compliance with Prop 65 in the facility setting thus requires careful consideration of property uses, chemical exposure pathways, and analyses of human health risks. California fms should understand Prop 65 requirements because the Prop 65 bounty hunters have demonstrated their strong tracking skills for the scent of settlements.
An integrated approach to sustainability water usage achieves a number of important goals for organizations. First, conservation can lead to reduced costs and smaller environmental footprints, thus illustrating how going green can be about saving money—not just about spending it. Second, an integrated approach may help to align sustainable and financial objectives for some organizations.
Operating facilities in today’s economic climate requires fms who truly know how to squeeze every last unnecessary dollar from the budget. Fortunately, managing water use more efficiently can make a significant positive impact on a bottom line.
The pursuit of sustainability has become a shared concern for fms and landscape professionals to achieve best outcomes. The result of this collaborative effort is that landscape contractors and fms now communicate with greater regularity to achieve water management, conservation, and plant health goals. Fms are now beginning to recognize the long-term benefits of a more holistic approach.
Sustainable water management practices can do more than simply conserve resources. They can improve plant health, prevent water damage to roads and sidewalks, and help safeguard precious natural resources.
Storm Water Management
Increasingly, water and conservation are becoming synonymous with smart landscape planning. As a result, a new addition to the mix of considerations is storm water management.
Professionals involved in the design and planning process can avoid landscapes that are costly and difficult to maintain. At the same time, they can enhance an fm’s ability to manage and treat storm water on the property.
Any landscape undergoing extensive rework typically involves professionals who understand aesthetic appeal. By including members of the groundskeeping team in the design process, fms can receive input about post-installation cost impacts and address any potential long-term maintenance problems while still delivering the desired quality and curb appeal.
This strategy will allow fms to allocate the proper budget and establish an installation time frame that is in line with expectations. In doing so, conflicts can be reduced and value engineering can be introduced earlier—which could positively impact the facilities operating bottom line.
New, smart landscaping technology is making its way to market. One of the latest trends is improved irrigation systems that incorporate “intelligent” or ET (Evapo-transpiration) controllers.
ET controllers are Internet enabled, centralized systems that eliminate landscape irrigation water waste and achieve savings. These devices adjust watering times based on actual weather conditions—less when cloudy and cool, more when warmer and drier—thereby establishing more efficient usage patterns. ET programs have been known to save more than 180 million gallons of water annually.
Regardless of the situation, a major component of the landscape plan today involves managing water with repairs or upgrades to irrigation systems. Other water saving measures include:
- Installing grids of inline drip irrigation in place of spray heads on small landscape areas.
- Removing decorative turf and replacing it with turf on which people sit or play.
- Incorporating storm water retention areas or bioswales to mitigate runoff, manage and treat water better, and recharge ground water.
Wise water management choices come about as a result of fms looking at each element of a landscape first and determining how much water is needed for each. Hydrozoning might be one solution, since plants with similar water requirements are grouped together on the same irrigation valve.
Another example might be a smart irrigation plan, which can be designed to include large areas with high volume, high output spray heads to water turf areas or shrubs. It can also accommodate ornamentals that require a drip or bubbler system, so water application is controlled. Fms should explore design changes that will reduce the amount of water needed in existing landscapes—whether that means adding bubblers around trees or installing an ET controller or moisture sensors to manage water.
Fms must address turf challenges as well. Many managers have eliminated the turf around mowing obstacles (such as sign posts, lights, under groves of trees, meters and backflows) placed in the middle of a turf area. These often narrow turf areas and acute angles make mowing and irrigation more difficult.
Under these circumstances, irrigation is often laid out without taking into account elevation changes, thus resulting in too much water down slope and too little water upslope. To ensure proper irrigation once plants mature, the system must be designed and adjusted so the heads pop up higher than the plants, which means that the heads, plant placement, and plant growth must be considered together.
Trees planted in turf areas tend to interfere with mowing and even more importantly, often grow poorly. It is better to plant trees in turf free groves with their own irrigation valve.
Today’s water conservation measures typically include the use of recycled water for irrigation. An unintended consequence of using recycled water is that it contains heavy metals and salts that may negatively impact the original potable water dependent landscape. As a result, the facility may be required to change its plant palette over time to adjust to recycled water usage.
Fms can save time or significant expense later if they plan for this up front. This allows managers to examine the total cost of ownership (including understanding how many resources are required) and the ongoing cost to maintain the landscape properly.
Ideally, the plan can minimize inputs such as water, fertilizer, pesticides, and even fuel for equipment and trucks. Additional savings can be realized by minimizing output, including such items as green waste and other debris as well as water runoff by way of treatment systems.
The Value Of Bioswales
Bioswales or on-site storm water quality treatment systems are increasing in priority and popularity as a technique for a facility to achieve a more sustainable landscape and manage storm water runoff. Fms must examine the reasons and challenges of incorporating them on a site in order to realize the value of this type of water quality systems.
Traditional urban development uses underground pipes and large detention facilities that do not necessarily maintain or restore the integrity of riparian habitats. Low impact development (LID) techniques such as bioswales work to decrease the quantity of impervious surface on the site, remove pollutants from runoff, and increase infiltration of storm water directly back into the ground. The benefit of this approach is a reduction in the volume of flow off the site and a decrease in the need for maintenance of the municipal storm water system.
By incorporating simple landscape solutions, these easily identifiable challenges to water management, conservation, and treatment can be mitigated. Fms can achieve positive economic results, as well.
The landscape may not be the first place a manager looks to find efficiencies and savings, but it is an area in which a strategic plan can being called upon to help meet financial objectives. Working to achieve corporate sustainability goals may also protect and preserve precious natural resources, meet regulatory compliances, and result in more positive opinions about a company.
Hanson is a senior vice president at ValleyCrest Landscape Maintenance. For more than 40 years, he has been involved in all aspects of landscape maintenance including horticultural and technical services.