|From:||"Kenneth S. Kamlet" <email@example.com>|
|Date:||11 Feb 2005 21:56:20 -0000|
|Subject:||[CPEO-BIF] Vapor Intrusion and Redevelopment (Larry Schnapf... and others)|
Larry Schnapf wrote:|
My view of the VI issue is somewhat different from my esteemed colleagues of the bar. I think that vapor intrusion should be addressed like any other media (e.g., groundwater and soil) and then an appropriate remedy be included as part of the development to address the on-site exposure. If a developer is building a structure and will either be inviting persons onto the property or selling/leasing the parcel, it is only fair for the developer to address VI.
Like any other remediation issue, I think the main concern here is uncertainty. If a developer knows discovers that there is a VI issue, then they can engineer that into the development and price it into the project. I dont think the public fisc should be depleted for on-site VI issues that could be address by engineering solutions as part of the development.
Barry Trilling's endorsement is appreciated. And thanks to Susan Neuman for her reminder about the role of insurance.
And, although my revered colleague (I had to one-up his reference to "esteemed" colleagues), Larry Schnapf, has made a commendable effort to distance himself from our position, in fact I have no disagreement with his proposition that, going forward, the VI pathway should be addressed in the same way as any other environmental pathway. He is correct that "the main concern... is uncertainty" and that known costs--if not exorbitant--can be engineered into the development and priced into the project.
That's why Jesse Hiney and I, in our BNA article, argued for public or RP funding of new VI investigations and remedial actions only when retrofitted after-the-fact onto already completed and already approved Voluntary Cleanup Program projects--a subset of the so-called pre-2003 "legacy" sites. Once a developer has irretrievably purchased the land, invested in cleanup, and has initiated (or even completed) redevelopment of a brownfield site, it is too late to price these unplanned-for costs into the project. Plus, by then the developer has detrimentally relied on a liability release that said he was "done" (subject only to narrow re-openers).
Even if it is legitimate to re-open such a liability release where it can be shown that there is now a previously unrecognized imminent and substantial endangerment (or at least significant threat) to public health and the environment--based on a newly completed or newly detected VI pathway--as Ev Paull has noted, a mere change in VI policy by DEC or DOH should not be enough to force an innocent redeveloper who has played by the rules to resolve, at potentially significant expense, a previously unidentified VI concern. (As we stated in our article, most Voluntary Cleanup Agreements under the old DEC program did not include a re-opener for changed standards.)
----------------------------------- 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 firstname.lastname@example.org
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