What Happens to the Property in an Ebola Case

Sometimes fear can be dispersed with good, solid information. I’m not a health care professional, but I am an environmental lawyer, so I will focus on the part of the process and law about which I have expertise. This post is a timeline of what happens to a person’s property when that person is diagnosed with Ebola, with details from the local cases as examples. Here’s what will happen, probably mostly the same in every case.

1. A test result indicates someone has tested positive for the Ebola virus. You don’t have to worry about not knowing the identity of someone who has tested positive for Ebola. The activities described below, and the knowledge of the neighbors as to who lives in what residence, should provide plenty enough information to disclose the identity of the patient.

2. Within one to three hours, police and first responders will set up a staging area close to the person’s residence. They first stand guard at the residence to prevent ingress and egress. Nobody in, nobody out. If other persons are there, they probably will load them up in an ambulance and send them to a health care facility to be tested for Ebola. This will take time, depending on how the first responders want to isolate these individuals.

3. During this same time frame, police will begin making autocalls, passing out fliers, and going door to door to contact the neighbors of the infected person. In Nina Pham’s case, they contacted a 4 block area. The police will tell the neighbors about the Ebola diagnosis and warn them that a hazmat crew will be on the scene shortly, do not be alarmed. In Amber Vinson’s case, the notice said:

THIS IS AN IMPORTANT MESSAGE FROM THE CITY OF DALLAS. Please be advised that a health care worker who lives in your area has tested positive for Ebola. This individual is in the hospital and isolated. Precautions are already in process to clean all known potential areas of contact to ensure public health. While this may be concerning, there is no ongoing danger to your health. The virus does not spread through casual contact. The City of Dallas is working closely with the Centers for Disease Control and Prevention, Dallas County, Dallas Independent School District, and Community Leaders to protect your health. For more information please call 311 or Dallas County Health and Human Services at 214-819-2004. The reverse side of this flier contains relevant information regarding the Ebola virus. [the reverse contains 11 bullets of information about Ebola, from the CDC]

4. In a few more hours, a hazmat crew will decontaminate the exterior of the patient’s building.

5. During this same time period, a hazmat crew will show up at the hospital and decontaminate the vehicle the patient used to drive to the health care facility.

6. Several more hours will pass while the police continue to prevent ingress and egress to the building, then the hazmat crew that will decontaminate the interior of the residence will arrive, and begin their work. For the Liberian Duncan, this took 15 people 4 days. They filled 140 55-gallon barrels with everything-EVERYTHING-inside the residence, down to the concrete floors and paint on the walls. They cut up the mattresses and large items of furniture so they would fit in the barrel. The hazmat crew then fit the barrels into 27 containers, and sealed them shut.

7. A biohazard materials shipping company will then come, load the containers, and ship them via truck, over roads, to a disposal company. They will load the sealed containers into the incinerator, and the incinerator, reaching temps of 1,500 to 2100 degrees, will reduce the sealed containers and their contents to ash, plenty hot enough to destroy any Ebola. The disposal company will then load the ash in required packaging, and ship it to a landfill that holds a permit authorizing it to accept biohazardous material.

8. Meanwhile, the patient will hopefully be recovering. Upon being discharged, however, the patient will walk back into a residence with literally nothing inside. No furniture, curtains, carpet, blinds, TVs, phones, food, small appliances, dishes, pots, pans, plates, memorabilia, pictures, art, wall hangings, clothes, shoes, belts, jewelry, literally nothing.

9. The health department will send the bill for the decontaminations (residence and vehicle) to the person whose residence and car was just decontaminated. But at least the former patient has their life.

All through this process, the owners and occupants of these buildings have rights, but they must be asserted at the right time, and that means very quickly. If you become the patient, I suggest you keep the focus on restoring your health.

If, on the other hand, you are the landlord of the contaminated property, or the investor, or maybe the lender, you may want to consider engaging a qualified environmental attorney immediately upon learning your property is going to be decontaminated, to protect your property (and pocketbook) as much as possible.

This is a continuing series of blog posts on the Ebola outbreak in Texas. Please subscribe to this blog for notice of future posts.


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Enviropinions are original writings of Mark McPherson.
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Livestock Emissions: Capture that Biogas!

If you think city folk are the only ones getting hit by the slew of new EPA proposed rules, you don’t know…manure. The EPA has been trying to figure out how to require farmers and ranchers to change their cattle management processes to better “capture” the methane emitted by cattle, in the forms of cow burps, flatulence and manure. All in the name of reducing greenhouse gasses (GHG). Here’s the story.

In March of 2014 the Obama White House announced a strategy to reduce cattle methane emissions, alleging they make up almost 9% of all GHGs emitted as a result of human activity in the US. How can cattle emissions possibly be human activity? Because all agriculture is deemed human activity, and cattle are agriculture. There are around 88 million cattle in the US. A typical cow emits around 250-300 liters of methane each day. Multiply that out, and the numbers say that the GHGs cattle emit when they burp, fart and crap produce more methane gas than landfill sites, natural gas leaks, or even fracking.

There is even such a thing as a Cow of the Future project. It is run at the Innovation Centre for US Dairy in Illinois. They think the answer to reducing cattle GHG is a combination of good diet and good digestion: anti-methane gourmet grains processed by the best possible bovine digestive system selective breeding can produce. Imagine how expensive that diet would be!

There is also a National Biogas Roadmap on the way. This is a joint effort between USDA, EPA and the U.S. Department of Energy set for release in June of 2014. The Roadmap will outline voluntary strategies to accelerate adoption of methane digesters and other cost-effective technologies, with a goal to reduce U.S. dairy sector greenhouse gas emissions by 25 percent by 2020.

This Roadmap is intended to speed installation of biogas digesters in slaughterhouses, dairies, and ranches to capture methane gas released by the cows’ manure. The methane can then be used on-site as natural gas, or converted into electricity, at least that’s the theory. There are already 2,000 biodigesters in operation across the country. Another 12,000 of these digesters are planned for agricultural, landfill and wastewater sites.

So far, these biogas digesters can only capture biogas from manure. No one has apparently invented the biogas digester that can also capture cow burps and flatulence, but I can just imagine seeing one of those in action sometime in the near future.

In 2008, as part of its advanced notice of proposed rulemaking to regulate GHGs under the Clean Air Act, the EPA considered regulating agriculture-related emissions, which would have required farmers to purchase expensive permits. It was estimated that these regulations would have cost medium-sized dairy farms with 75 to 125 cows between $13,000 and $22,000 a year per head, and medium-sized cattle farms with 200 to 300 cows between $17,000 and $27,000 per year per head. That’s between a minimum of $975,000 per year for the 75 cow operation, to a maximum of $8.1 million per year for 300 cows. You know those costs would mostly have been passed on to the consumer. And we’d all be eating more chicken, pork, and fish by now. Maybe even some tofu as well.

Beyond its environmental hazards, dairy cow methane gas has been responsible for some strange incidents in recent months. On January 27, 2014, in the town of Rasdorf, Germany (Central part of that picturesque country), 90 dairy cows were minding their own business, happily flatulencing and burping away inside a shed, when a static electricity charge ignited the methane, which spurted a flame or two, nearly blew off the roof, and burned one of the cows (talk about wrong place, wrong time-he only had 89 chances to be right).

And during the first week of April, 2014, a Boeing 747 carrying 400 dairy cattle in the confines of its pressurized hold (not the brightest idea, it turns out) made a ‘mayday’ call and emergency-landed at London’s Heathrow Airport. Sensors onboard mistook heat which built up from cattle methane (again, burps and flatulence) for a catastrophic fire onboard. Now that’s some potent exhaust!

Some experts have suggested that significantly reducing the number of cattle would be the most effective solution. Now, it seems to me there would really be only one way to do this. Eat more cows than are replaced.

So be on the lookout for the National Biogas Roadmap this summer (2014). It may just mean that more beef is what’s for dinner!

Travails of CERCLA: How a $600 Purchase Turned into a $70,000 Cost

This true story reads more like a parable, since there wasn’t so much on the line.  But understand that the CERCLA remedation required in this case cost just over 11,600% MORE than the cost of the asset.  And that truth is yet again stranger than fiction.

In 2006, a small screen print shop owner advertised a semi-trailer for sale on Craigslist.  So innocuous an ad, was it.  For $900, a buyer could purchase the trailer by itself.   But for the truly bargain conscious, the trailer could be purchased “as is” for $300 less.  “As-is” turned out to be a trailer filled with various containers of screen printing materials (some of which were hazardous materials).  Surely you are not surprised that someone bought the trailer “as-is”.

The purchaser then went to work emptying the contents of the trailer onto what is now known as the Cherokee Print Shop Wastes Superfund Site in Denver, Colorado.   The EPA incurred in excess of $70,000 to remediate the site contamination from the now empty trailer.  That’s one hundred and sixteen times the $600 cost of the trailer and its precious cargo.

The EPA filed an eforcement proceeding against the print shop owner to recover its response costs.  But it ultimately entered into an ability to pay consent order which required the print shop owner to contribute $600 (the amount received for the trailer) to the $70,000 site cleanup.

Environmental laws don’t just apply to land.  They can apply to all sorts of moveable containers.  The biggest moral to this story is simply “Manage Your Business’s Wastes Until Their Ultimate Disposal.”  Trust no one but knowledgeable professionals to do this for you.  Or not, and take the risk of paying exponentially more than you ever thought you would save.

My Theory of Negotiating and Drafting Contracts: Pragmatism Over Perfection

Over my career I’ve experienced lawyers who negotiate deals and draft contracts with primarily one of two general guiding principles: perfectionists and pragmatists.  Perfectionists draft provisions that are completely favorable to their client, taking into account yesterday’s research on the most recent case law.  Obviously these generate objections and proposed revisions.  But then perfectionists defend them to the hilt in negotiations, often relying on the market power of their client to “win” the point.  Can you just imagine what happens when both parties are represented by perfectionist lawyers?

My worst experience with a perfectionist lawyer came when I was representing a buyer of an ongoing business, purchasing one of their competitors.  The selling company had improved real estate, business personal property, vehicles and other heavy equipment.  The owner was retiring, and this sale was his family’s retirement nest egg.  Pop operated the company and mom did the bookkeeping.  Unfortunately, for this deal they hired a lawyer who had just left a downtown Dallas big law firm, whose almost-only client for his career, as best I could determine, was Bank of America.  I had represented the buyer for years.

And so we embarked on what eventually seemed like an interminable negotiation that eventually wound up with parties and counsel in my conference room to hash out the final agreement.  As we began to work our way through the contract, the response to the first change I addressed was “well, that’s a deal breaker” and I could see the sadness in the sellers’ eyes and mannerisms.  Trying to make this deal seemed to be torturing them emotionally, and their lawyer wasn’t helping to ease any of their fears.  In fact he was making them worse.

Fortunately my client knew how to make a deal, so he grabbed control of the conversation for a moment and made sure the sellers understood we were here to make a deal, and we would work to find mutually acceptable ground, but this “everything’s a deal killer” mentality had to go.  And so we labored through the proposed changes, the reasons for the change, the reasons not to change (other than ‘because there’s no deal unless my client agrees’), and several hours later we had a final agreement subject to typing the edits.

The sellers and their lawyer then walked to their cars, which happened to be on the top floor of the building’s parking garage.  My office at the time looked over this parking garage, and so when I retreated to my office to begin the final edits, I saw this lawyer standing with the sellers, engaged in conversation, and the sellers were signing a series of documents.  Later I learned that this lawyer had prepared documents that basically said “I advised you to reject this change, you chose to accept this change over my advice, therefore I have no liability to you if this causes you damage in the future.”  One document for every change they accepted.  Imagine how much this had to destroy the sellers’ faith and confidence in the deal, and ultimately in their decisions about their retirement nest egg.  And how much it cost them in legal fees.

Another time I was representing a seller of real estate improved with mini-warehouses.  So the deal included the real property, the buildings, storage unit leases, and some of the receivables.  My client wanted an “as is” sale.  The buyer had a national portfolio of mini-warehouses and was expanding.  There was no mini-warehouse franchise involved; it was just private parties all around.

In this case the prospective buyer was represented by a lawyer in California with experience in securities law. This lawyer kept demanding terms in the contract practically guaranteeing a minimum value of the ongoing business, including for some period of time after the closing (when the seller would have no control or even influence over how the business was run).  These unusual terms were based on securities laws concepts.  Talk about a perfect deal for the buyer.  My client had built a profitable business, but after closing, all bets would be off.  My client wisely wouldn’t agree to that, and the deal died.

There are a library’s worth of books written about how to pragmatically make a deal.  Let me save you the time.  Understand the risks, and what it takes to succeed, in your business.  Figure out how much risk you are willing to take.  Communicate that to your lawyer.  Hold your lawyer accountable for “overlawyering” the deal.  How do you know what that is?  When the lawyer spends too much time negotiating for less risk than you are willing to take.  It may not hurt to ask, but continuing to push it wastes both time and money.  And when real estate is involved, time IS money.

Have clear, genuine, reasons for proposed changes, and be able to explain them as needed.  Let the explanation serve the larger part of persuasion.  Work to understand the other side’s genuine concerns, and see where both parties say “I can accept that” overlaps.  Move on to the next issue.  And at the end, determine if it’s a deal within your tolerance for risk.  In my opinion, pragmatism closes more deals than perfectionism, and does so less expensively for the client (albeit less profitably for the lawyer).

Suggestions from an Auditor-Financial Controls for Dumping/Landfill Operations

Review of 5 deficiencies of internal financial controls at City of Dallas landfill operations (audit dated 9-7-12); these apply to any business that relies on tipping or dumping fees-construction sites, land reclamation projects, etc. Helpful info to know in negotiating contracts and otherwise counseling these businesses.