| From: | kkamlet@hotmail.com |
| Date: | 2 Jul 2003 21:54:28 -0000 |
| Reply: | cpeo-brownfields |
| Subject: | Re: [CPEO-BIF] All Appropriate Inquity rulemaking report |
|
I feel the need to respond to Emery Graham's comments regarding the update
by Lenny Siegel and Bob Hersh on the status of the "all appropriate inquiry"
negotiated rulemaking. I do so, not only as an environmental lawyer and
from the vantage point of my firm, which has converted a number of unsightly
and environmentally unfriendly brownfield sites into clean and productive
shopping centers in the Southern Tier of New York, but also from the
standpoint of a long-term public interest environmental advocate who sees
brownfields redevelopment as a win-win proposition for both economic
development and the environment. 1. Mr. Graham begins with the erroneous premise that developers are stomping at the bit to develop brownfield sites and that, in return for this privilege (and the grant of certain liability limitations), they should be willing to go to the considerable extra time, effort, and expense necessary to gather data and share it with neighborhood residents. In fact, for the most part, developers want to have nothing to do with brownfield sites and require little prodding to head for the nearest "greenfield." Liability relief is not a gratuitous reward for which a quid pro quo must be extracted, but a recognition that brownfields redevelopment must be incentivized for the benefit of both the environment and the economy. 2. In passing Brownfields amendments in late 2001, Congress was endorsing this view of the public interest. It never contemplated that EPA would be forming a negotiated rulemaking committee that would recast the appropriate public interest balance. 3. Mr. Graham is correct that "the market for urban contaminated property is already inefficient." In fact, it is inefficient to the point of being virtually non-existent. This inefficiency will persist as long as the potential environmental liability associated with the property exceeds the anticipated return on investment. While it is true that the perceived environmental liability sometimes exceeds the actual environmental liability as a result of insufficient information about the nature and extent of contamination, the solution to this problem is not endless data gathering and public participation. The solution is a streamlined investigation and cleanup program that yields enough information and action to reasonably assure protection of public health and the environment. Piling on excessive procedures in a vain quest for Garden of Eden pristineness will serve only to shift the risk-benefit balance into the realm of non-viability. 4. The primary thrust of the federal Brownfields program is to maximize the use of private resources in promoting the beneficial reuse of brownfield sites--not to increase governmental or public involvement in private investment and development decisions. Where government is involved, it is primarily to provide financial incentives and reduce regulatory disincentives--while guarding against adverse impacts to public health and the environment. EPA and Congress have recognized (although Mr. Graham evidently does not) that promoting private investment in brownfield sites is the best way to get them cleaned up. 5. On the issue (Issue #1) of defining an "environmental professional," the extreme position taken by New York State illustrates the problem of limiting this designation to those with an "official" license. New York requires certain Brownfields certifications to be made, and reports submitted, only by state-licensed professional engineers--because engineers are the only relevant environmental professionals currently licensed by New York State. Not only does this deprive the would-be brownfields redeveloper of his/her preferred choice of environmental professional, but it deprives the state environmental agency of the expertise of numerous other highly relevant environmental disciplines, such as hydrogeology, toxicology, biochemistry, and other environmental sciences. If the environmental professional fails to perform to the requisite level of competence, the state environmental agency doesn't need the threat of license revocation to very quickly identify substandard performers. The development community will learn quickly not to rely on consultants who lack credibility with the environmental agency and who are unable to obtain expeditious agency sign-offs. There are many alternatives to state licensing. They include: licenses and certifications by recognized professional associations; advanced educational degrees; training and experience in relevant disciplines that evidence knowledge and competence. If necessary, the state environmental agency could issue a Request for Qualifications and assemble a list of "approved" environmental professionals. Attempting to formalize the requirements excessively not only stifles the free operation of the marketplace, but is likely to be environmentally counter-productive. 6. On the issue (Issue #2) of the need to supplement the current ASTM Phase I standard with a requirement to interview neighbors near or adjacent to a potentially contaminated site, I agree with the concern that such a requirement could jeopardize efforts by developers to assemble necessary land parcels by inflating the price demanded for key parcels. The idea of linking interviews of neighbors to specific objectives as a way to fill key data gaps seems sensible and appropriate. Mr. Graham attempts to transform the need, recognized by ASTM, to gather enough information about the site to draw intelligent conclusions about the likely presence of "recognized environmental conditions" justifying or compelling the conduct of Phase II studies, into a broad public participation requirement. Why must prospective developers who are (usually) innocent of any connection to the contamination present on a brownfield site have to bargain for "immunity from prosecution" (on what grounds?) by being forced to identify the actual polluters and get involved in a survey of the entire neighborhood? 7. On the issue (Issue #3) of how far the Phase I analysis must go to "prove" the site is clean, I think we need to remember that the purpose of the ASTM Phase I standard, and of the "all appropriate inquiry" requirement it was seeking to interpret, was NOT to conclusively demonstrate the absence of contamination, but merely to demonstrate that the prospective purchaser was justified in not regarding the property as contaminated. (As a member of the drafting task force that developed the ASTM Phase I standard, I can say with some authority that a great deal of time and attention, and debate, were devoted to this issue.) Some data gaps are inevitable at some sites. If there is no hint of contamination or of hazardous substance handling activities, why should the environmental professional have to keep looking until the data gaps are closed? One can satisfy the "all appropriate inquiry" standard without necessarily satisfying a state environmental agency's site investigation requirements for purposes of receiving a liability release and covenant not to sue. Applying the "precautionary principle" (guilty until proven innocent) as advocated by Mr. Graham would only serve to ensure that sites with hidden contamination do not get redeveloped and, therefore, remain contaminated. 8. On the last issue (Issue #4), whether the benefits of the Phase I process should be withheld if the original assessment is inconclusive, necessitating actual sampling normally reserved for Phase II, I would remind people of one of the main factors in the genesis of the ASTM Phase I standard. Federal prosecutors were denying developers the benefits of the "innocent landowner" defense in every instance. If contamination (or hazardous substance handling) was found, the purchaser could not claim to have "no reason to know" of the existence of the contamination. If contamination was not found during the investigation, but cropped up after the property changed hands, the fact that contamination was present was taken as evidence that sufficient inquiry had not been made and that the purchaser should have had reason to know that contamination was present. It was the classic "Catch 22." That's why the Phase I standard set up an objective set of information gathering activites to document the conduct of "all appropriate inquiry." The existence of data gaps, despite diligent inquiry, is not a sufficient reason to require MORE THAN appropriate inquiry. The interests of the public are protected because granting liability relief to the innocent purchaser doesn't let those who caused or contributed to the contamination off the hook. After an innocent purchaser has done all that is appropriate, anything more that is required should be exacted from responsible parties. Again, Mr. Graham misses the point. He asks "How much is liability relief worth?" To someone who has no legal responsibility for the contamination, very little. If the cost of being excused for someone else's polluting activities is too high, the prospective redeveloper will simply go elsewhere. I look forward to hearing the views of other members of this Discussion Group. Ken Kamlet ----------------------------------- Kenneth S. Kamlet, Esquire Director of Legal Affairs Newman Development Grp., L.L.C. 3101 Shippers Road, P.O. Box 678 Vestal, New York 13851-0678 607-770-1010, FAX: 607-770-3482 kkamlet@hotmail.com _________________________________________________________________From: CPEO Moderator <cpeo@cpeo.org> Reply-To: cpeo@cpeo.org To: cpeo-brownfields@igc.topica.com Subject: Re: [CPEO-BIF] All Appropriate Inquity rulemaking report Date: Wed, 02 Jul 2003 13:21:55 -0400The following response was posted by Emery Graham Protect your PC - get McAfee.com VirusScan Online http://clinic.mcafee.com/clinic/ibuy/campaign.asp?cid=3963 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ To read CPEO's archived Brownfields messages visit http://www.cpeo.org/lists/brownfields If this email has been forwarded to you and you'd like to subscribe, please send a message to cpeo-brownfields-subscribe@igc.topica.com ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ | |
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