Drones Could Be Boon in Site Assessments But Legal Status Remains Hazy, Parties Say

Author:  Pat Ware, BNA Reporter

Reproduced with permission from Daily Environment Report, 171 DEN B-1 (Sept. 4, 2014). Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033)

Bloomberg
Drones Could Be Boon in Site Assessments But Legal Status Remains Hazy, Parties Say

The use of small commercial drones to conduct environmental assessments of potentially contaminated sites is a nascent practice with significant potential, but their use is currently shrouded in regulatory uncertainty, parties told Bloomberg BNA.

Although their ability to conduct thorough site assessments has been proven, environmental consultants say, the Federal Aviation Administration maintains, based on a 2007 policy statement, that they must be licensed by the agency to be legal. But since the agency has yet to issue a regulation on drones, this authority remains unclear.

The FAA has been striving for nearly a decade to integrate the safe use of commercial drones into the national airspace but faces many hurdles in doing so. In the absence of FAA regulations, the agency’s authority has begun to be tested through the courts.

Meanwhile, some environmental consulting companies are already buying and using these unmanned aerial vehicles for site assessments, in part because of the novelty factor of drones and the competitive edge they may give a company.

“Environmental assessment will be a huge use,” Brendan Schulman, special counsel to Kramer Levin Naftalis & Frankel LLP, told Bloomberg BNA. “Drones are cheaper, expendable, environmentally friendly and can get into places people can’t, such as the Fukushima nuclear plant. We are only beginning to understand how useful these devices will be.”

In Use Worldwide

Commercial drones are already being used worldwide for wildlife tracking, anti-poaching, infrastructure inspection, search and rescue missions and other applications, Schulman said.

David Jermakian, president of Dynamic Environmental Associates Inc., located in Macon, Ga., said that drones, which he calls “unmanned aerial platforms/systems (UASs),” can be useful in conducting environmental assessments because they have the advantage of allowing a broad view of large tracts of land, such as farmland and large industrial tracts. They can be used to see rooftops and can peer across property lines onto adjacent property. Drones also are being envisioned for wider environmental uses, such as monitoring and collecting water samples, he said.

Different From Military Drones

Jermakian and some other environmental professionals don’t use the term drone because of the word’s association with military drones. Aircraft-sized military drones can fly thousands of feet above the ground, stay aloft for hours or days and drop missiles and bombs with a great deal of precision, he said.

In contrast, commercial drones and quadcopters used to conduct Phase I environmental assessments are much more like model airplanes. Typically they weigh less than 10 pounds, fit in a suitcase, fly a few hundred feet in the air, and can stay airborne for 20 minutes, he said. Quadcopters are helicopters that are lifted and propelled by four rotors.

Phase I environmental assessments are reviews of a brownfield or other site designed to determine its potential contamination to inform potential buyers, lenders, insurers and others of the risks and liabilities they may assume with a property purchase.

The assessments are intended to satisfy “all appropriate inquiry” requirements for certain liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act.

Eliminating ‘A Lot of Guesswork’

James Whittington, a compliance officer with Metropolitan Solutions in Texarkana, Texas, told Bloomberg BNA he sees many potential benefits of using drones for site assessments.

For one thing, it would allow an environmental professional to access more of the site in a shorter time and with less potential exposure to site hazards. Often, sites are overgrown and difficult to navigate in a single visit, he said.

“Drones would eliminate a lot of the guesswork, helping us identify areas that need further hands-on evaluation,” he said. “It will allow a large area to be ‘reconned’ in a much shorter time,” he said.

Aerial photography by drones already is being used in performing environmental site assessments, Whittington said. “The drones are really about filling the gap between aerial imagery and the person on the ground.”

“We are only beginning to understand how useful these devices will be.'”
Brendan Schulman, Kramer Levin Naftalis & Frankel

Won’t Replace On-Site Inspections

Even with their ability to eliminate guesswork, inspections by drones will always be complementary to the on-site inspection by an environmental professional, Jermakian said.

“Aside from the obvious need to have trained and experienced eyes on the project site, instead of viewing things through a monitor, UASs have limited range and flight time, which would make any thorough site inspection impossible,” he said.

Although drones can make site assessments more thorough, on the downside, they could make them more cursory if the inspector lets them do most of the work, Jermakian said. “However, this would be a reflection on the environmental professional and not the UAS,” Jermakian said.

Other downsides to using drones are their expense, as well as their limited ability to collect detailed information from inaccessible areas, such as inside buildings and thick vegetation, Whittington said. “It will not replace boots on the ground yet, but it could be a valuable time-saving tool,” he said.

FAA Says License Necessary

Despite the obvious potential of drones, the FAA told Bloomberg BNA the use of any unmanned aerial vehicles for commercial purposes is illegal without agency authorization. Commercial flights require a certified aircraft, a licensed pilot and operation approval, it said.

“The good news is that Section 333 of the FAA’s 2012 Modernization and Reform Act can allow some commercial operations to be approved by the FAA on a case-by-case basis,” the agency told Bloomberg BNA. For approval, operations must be in low-risk, controlled environments, it said.

Section 333 requires FAA to determine if certain drones may operate safely in the national airspace system.

To date, two commercial operations have met criteria under Section 333 and authorization was limited to the Arctic, according to FAA. Many commercial operators, including aerial photo and video production companies, have requested exemptions under Section 333, which are being reviewed as they are received, the agency said.
FAA Has Never Regulated Drones.

To date, the FAA hasn’t issued any regulations on drones. Schulman attributed this to the FAA’s underestimating how much interest there would be in the technology, “even though a lot of people in the model aircraft community had been saying it for a long time.”

The agency took a first step in 1981, when it issued an advisory circular with voluntary safety guidelines for recreational use of model aircraft.

In 2007, the agency released a policy statement banning the commercial use of drones, saying it would soon propose a rule. The rule, however, has yet to be proposed.

Frustrated by the agency’s slowness in getting drones into the U.S. airspace, Congress addressed the issue in the Modernization and Reform Act of 2012 (Pub. L. No. 112-95).

The act required the FAA to release guidelines within a year and have a plan for commercial drones to begin flying no later than Sept. 30, 2015. The agency has missed the first deadline.

Road Map Provides Clues

The law also required the FAA to publish annually a five-year “roadmap” outlining efforts needed to safely integrate drones into U.S. airspace. The agency released its first roadmap in November 2013.

Although FAA is restricted from disclosing anything about its regulations until they are proposed, Schulman said the roadmap provides a sense of the agency’s overall framework and conception for how it plans to regulate commercial drones. “If you read between the lines you can get a sense of what types of regulations are being contemplated,” he said.

Small commercial drones usually weigh less than 55 pounds and some weigh no more than a few pounds, he said. “Yet it seems from the roadmap that all these devices will be treated like full-sized passenger aircraft, with requirements for pilot certification, airworthiness certification, air traffic control clearance and other limitations,” Schulman said.

“These seem very burdensome to me in light of how small UASs most often are used–low to the ground, with no one on board,” he said.

Another provision of the Modernization and Reform Act required the FAA to publish a final rule on small drones by August 2014. The agency told Bloomberg BNA it expects to propose the rule by the end of 2014 but could not predict when it might become final.

Inspector General Questions Readiness

On June 26, the Department of Transportation’s inspector general released an audit report finding that the FAA would not meet a Sept. 30, 2015, deadline imposed by Congress to establish a legal framework for flying commercial drones. The report also said the agency faces significant barriers in safely integrating drones into the national air space.

Forecasting about 7,500 drones in the U.S. in five years, the inspector general said they still have a limited ability to detect, sense and avoid other air traffic. And the FAA has yet to reach consensus on standards for technology that would allow detection and avoidance, the report said.

In addition, the FAA has not established a regulatory framework for integrating unmanned aerial vehicles into the air space and is not effectively collecting and analyzing UAS safety data to identify risks, according to the inspector general. Finally, FAA is not effectively managing its oversight of UAS operations, the report said.

In its most recent development on the use of commercial drones, the FAA published on June 25 an interpretation of the 2012 Modernization and Reform Act that expresses its authority to take enforcement action against unsafe aerial vehicles. The FAA said its interpretation follows recent incidents involving the reckless use of unmanned model aircraft near airports and involving large crowds of people (79 Fed. Reg. 36,171).

“The drones are really about filling the gap between aerial imagery and the person on the ground.”

–James Whittington, Metropolitan Solutions

Courts Deciding Legality

Despite FAA’s stance that the use of unlicensed commercial drones is illegal, the first test case in the courts suggests otherwise.

In June 2013, FAA issued a $10,000 civil penalty to Swiss drone operator Raphael Pirker for “careless and reckless operation and other issues,” the agency told Bloomberg BNA. Pirker had used a drone to film a commercial for the University of Virginia’s medical school.

An administrative law judge with the National Transportation Safety Board (NTSB) ruled in March that flying commercial drones was not illegal since there was no regulation banning their use and dismissed the fine (Pirker v. Huerta, NTSB, Docket CP-217, 3/6/14). Schulman represented Pirker in the case.

The FAA immediately appealed the ruling to the full five-member NTSB, saying in a statement it was “concerned that this decision could impact the safe operation of the national airspace system and the safety of people and property on the ground.” A stay is in effect until the board rules.

First Ruling on Issue

“It is the first time a judge has spoken on the issue, so I think that has at least caused people to look more closely at what the regulations actually say,” Schulman said, referring to the FAA’s policy statements, guidelines and interpretations.

After the board’s ruling, either party could appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

Schulman said he hasn’t heard of a single serious accident involving the use of a commercial drone. “I think there have been one or two mishaps involving bumps and scrapes, but that’s the kind of thing that happens no matter what tools you use,” he said.

“Compare that to a manned aircraft, where every mishap places at least the life of one person in imminent danger,” Schulman said.

Companies Buying Fleets

Even with the legal issue up in the air, Jermakian said his and several other companies have purchased drones and are using them on a limited basis to aid inspection work.

“Right now they are a novel item with a ‘cool’ factor,” he said. He predicted their use would always be limited as they should never be used in populated areas or near airports and will not be needed for small properties.

“However, I think they have already proven that they can be a useful tool,” he said. If FAA makes their use a “reasonably easy process,” if the technology continues to improve and the cost stays reasonable, they could become a common tool for conducting environmental assessments, he said.

Dianne Crocker, principal analyst of the environmental services group EDR Insight, told Bloomberg BNA, “The Phase I ESA industry is so uber-competitive right now that the firms that are succeeding are the ones open to adopting new technologies, taking them past the ‘wow!’ factor and putting them into practice.”

“The ability to cheaply fly over a property and get data especially on sites that are inaccessible by foot can be a major selling point on some projects. Only a handful of firms have embraced it thus far, so the field is wide open, keeping an eye out for what the FAA does to regulate, of course,” she said.

Schulman said, “The very slow pace of rulemaking has resulted in great uncertainty for countless high-tech companies, just at the time when the technology is reaching critical mass in terms of beneficial applications and customer interest.”

“The longer the delay, the more of this market will be developed overseas instead, and the United States will lose out competitively,” he said.

‘Simply Be Careful’

Jermakian urged environmental professionals to “simply be careful” in their decisions to use drones and not “spend a lot of money” until their legal status is clarified.

Since commercial drones also are a new technology, their possible uses have yet to be fully realized, Jermakian said. They “don’t need to be limited to taking pretty pictures” but can be equipped with a variety of sensors and detectors for use in scientific applications, he said.

Examples include air quality monitoring at landfills and hazardous waste sites, collecting water samples from locations that cannot be easily accessed by humans, determining hydrology or soil moisture with infrared filters and other sensors, and monitoring and observing wildlife, he said.

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FOR MORE INFORMATION

Links to the sources referenced in the article above are below:

FAA’s 1981 advisory circular issuing basic voluntary guidelines for model aircraft 

FAA’s 2007 policy statement banning the use of commercial drones

FAA’s roadmap for integrating commercial drones into the air space

FAA’s June 25 special interpretation of the 2012 Modernization and Reform Act

June 26 report from the Transportation Department’s inspector general

March decision by NSTB Administrative Law Judge Patrick G. Geraghty

Copyright 2014, The Bureau of National Affairs, Inc.