Re: [CPEO-BIF] Re: Brownfields Digest, Vol 6, Issue 10 - clarification

[Bruce-Sean Reshen <reshen@mindspring.com>]

KC raises a number of interesting and valid points concerning the inherent
responsibilities of property owners and citizens in our society.  I believe
there is truth in almost all of his arguments.  I just wish he hadn't based
his analysis of fairness on a reference to  CERCLA.  While I accept that
this legislation is the law of the land and at times produces a desirable
outcome, it does great disservice to Locke and Rousseau to reference CERCLA
as an epitomy of fairness.

I do not believe anyone in this discussion has ever suggested that a
property owner could or should ever legitimately ignore a clear and imminent
danger to human health and the environment on his property.  No matter who
caused the situation, the owner has a responsibility to mitigate the
dangerous situation.  This is also true, in given situations, of the
responsible party and even the government.  The issue is not who should
mitigate, but who should bare the ultimate financial burden.

If environmental contamination was analogous to snow, the answer is simple.
Every property owner has a responsibility to expeditiously clear the
sidewalks of snow.  Though even in this case local governments recognize the
responsibility to assist individual property owners in instances of major
snow storms.  But snow is not environmental contamination.  The reference
point for our discussion is environmental contamination that resulted from
intentional or unintentional activities of a prior property owner.  The
brownfield developer undertook appropriate good faith due diligence and
remedial activities and obtained regulatory closure in the distant past.
Now an issue such as VI arises (no pun intended). While that developer may
be the one who takes responsibility to conduct further analysis and
remediation, that developer should not necessarily bare the financial
burden.  Note examples such as: 1)the use of statewide funds available for
remediation of old USTs; 2)an oil tanker runs aground, leaks and despoils
the nearby shore.  The government organizes and supervises the cleanup based
on technical expertise and police powers; and 3)a major natural disaster
devastates a region, killing hundreds of thousands of people.  We do not
say, "Well they owned the property, it's their individual responsibility and
property law makes it an owner's responsibility."  No, we expect and applaud
that our government assumes responsibility to organize and lead the relief
effort.   Maybe all analogies (even mine) have their limits and one size
does not fit all situations.  Maybe even property rights and
responsibilities and legal refinements are not always the appropriate
arguments.  Maybe it's simply a question of basic fairness and what seems
right in a particular case.

p.s.:  If the FDA fails to appropriately review and analyze the submission
of a pharmaceutical company for their new medication, and that medication
then harms people, then I believe that the FDA should be held both
financially and politically responsible.  We each have a responsibility to
read medication information, but when a subject is extremely technical, then
we must rely on the competence and integrity of our regulators.  There are
limits to the concept of laissez-faire.


Schefski.Kenneth@epamail.epa.gov wrote:

> This is a very interesting discussion to which I'd like to add a couple
> of thoughts.  Up front, let me clarify that the opinions that I express
> in this email are mine and do not represent the position of the US
> government or EPA.
>
> I think a large body of the law has not been considered.  Owners of
> property have certain obligations that go beyond federal and state
> cleanup laws.  While property ownership comes with a significant bundle
> of rights it also comes with some duties, including a duty to exercise
> some level of reasonable care to protect people on your property from
> bodily injury.  This duty, based in the common law of torts, dates to
> many, many, many years before our current cleanup laws.  Interestingly,
> CERCLA's Bona Fide Prospective Purchaser, Contiguous Property Owner, and
> Innocent Landowner provisions include a standard much like the common
> law standard -- i.e. take reasonable steps to exercise appropriate care
> with respect to contamination on your property.  Thus, irrespective of
> CERCLA every property owner essentially was already subject to this
> responsibility.
>
> Now, consider this obligation outside the contamination context.  Take
> for example ice and snow on your walkways.  Most property owners are
> diligent about clearing ice and snow from their walkways because they
> fear that someone may slip and fall.  Of course, if someone does slip
> and fall, we all have property insurance that would usually cover the
> associated liability.  Nobody insists that the government should be
> responsible for clearing ice and snow from private property.  Even
> though an owner has nothing to do with accumulation of ice and snow
> (i.e., they're innocent) most still accept the responsibility to take
> care of it.
>
> Over simplified and not analogous?  True, contamination is a different
> beast in many ways -- most notably when an owner is truly innocent it
> means that the cause of the contamination was another human being and
> also VI is more costly.  But should these differences alleviate an owner
> from taking responsibility to ensure that people are protected from the
> harm on their property?  What if the ice on your property was the result
> of your idiot neighbor running the hose outside for hours in the
> freezing cold causing water to spill all over your walks.  I believe
> most people would still take steps to eliminate any harm to people on
> their property and if some harm was done you would ask that the neighbor
> take responsibility for the harm caused.  Again, no one would ask the
> government to bear the cost.  Also, just because eliminating VI may be
> more expensive, I don't see how this is relevant to the question of who
> should bear that cost; although, it may affect the determination of what
> are "reasonable steps" or "appropriate care."
>
> Maybe people believe the government should be responsible because the
> government sets the standard for what is safe with respect to VI and
> can't seem to make up it's mind.  To me this might affect what would be
> considered "reasonable steps" or "appropriate care," and I believe it
> does under tort law, but it should not mean that the owner has no
> responsibility to do something based on whatever is the current standard
> and to do something else if that standard changes.  Should the
> government be responsible for a lack of scientific understanding?  Think
> about the recent findings regarding certain pain medications and the
> risks they pose -- should the FDA be held responsible?  With ownership
> comes responsibility.
>
> My point is that owners of property accept certain obligations regarding
> the condition of their property and why should contamination be treated
> differently?  Prior to the 2001 amendments to CERCLA, I think there was
> a decent argument that an innocent owner should not be held responsible
> for the full cost of cleaning up a problem that was caused by someone
> else -- this would be unreasonable steps.  However, I don't think that
> an owner of property should just be able to turn their back on a problem
> that could cause someone harm and say it's the government's
> responsibility.  I believe CERCLA now strikes a fair balance, which is
> very similar to what the courts developed over a couple of hundred years
> -- a property owner must do what is reasonable to protect people on
> their property and to eliminate any further harm.
>
> KC Schefski, Attorney-Advisor
> US EPA, Office of Site Remediation Enforcement
> Phone: (202) 564-8213
> Fax: (202) 564-0091
>
> NOTICE:  This communication may contain privileged or other confidential
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>
>
>              Bruce-Sean
>              Reshen
>              <reshen@mindspri                                        To
>              ng.com>                  Phyllis Bross
>              Sent by:                 <Phyllis.Bross@law.dol.lps.state.
>              brownfields-boun         nj.us>
>              ces@list.cpeo.or                                        cc
>              g                        LSchnapf@aol.com,
>                                       brownfields@list.cpeo.org
>                                                                 Subject
>              02/15/2005 02:48         Re: [CPEO-BIF] Re: Brownfields
>              PM                       Digest, Vol 6, Issue 10 -
>                                       clarification
>
>
>
>
>
>
>
> New Jersey is a brownfields leader as a state which has devised a system
> of
> protective cleanups linked to innovative redevelopment.  But such a
> program
> is also highly dependent on the rationality and creativity of the people
> like
> you who operate the program.  Several states have better programs on
> paper,
> but have had less success than NJ due to the mindset of the people on
> the
> firing lines; and some of my friends in the development community would
> say
> that success in NJ is also dependent on winning the lottery and getting
> your
> project assigned to the folks with common sense and creative energy.
>
> p.s.: Thank you for the example of such creative guidance and input at
> yesterday's meeting.
>
> Bruce
>
> Phyllis Bross wrote:
>
> > Hello - I am the Deputy Attorney General for NJDEP's Office of
> > Brownfield Reuse, and also the State's attorney for the New Jersey
> > Brownfields Redevelopment Task Force, the entity with statutory
> > authority to identify and inventory "brownfields."  This is not a
> formal
> > Opinion, but it may help to clarify some Issues in these e-mails, as
> it
> > appears to me that some may believe there to be a tension between
> reuse
> > of brownfields on the one hand and protection of health and the
> > environment on the other hand. Clearly, New Jersey does not make such
> a
> > distinction.  In fact, brownfield reuse projects often lead to
> > voluntary, protective cleanup commitments by private parties that may
> > not otherwise have been available. These few questions/responses may
> > help:
> >                      1. Who decides what will be a "brownfields" and
> is
> > a brownfields then given special treatment?  It is true that there are
> > several statutory, regulatory and other incentives available in New
> > Jersey to promote reuse of "brownfields," including grants, loans,
> > assistance with projects and even statutory defenses to liability for
> > mere landowners who did not contaminate property that they acquired.
> > However, many of those incentives, including liability protections,
> are
> > also available for sites not designated as formal brownfields.
> >                       2. Are those who are responsible for
> investigating
> > and cleaning up a brownfields (or a  non-brownfields site under a
> > brownfields program)  permitted to do a less protective cleanup
> because
> > they are addressing a brownfield property or because they are using
> > brownfields incentives? No, in New Jersey, there is no distinction
> > between the required level of investigation, cleanup, closure and site
> > control work,  based upon the fact that a site is a State-designated
> > brownfields or part of a brownfields-related project.   Statutory
> > defenses for mere landowners exist with respect to pre-acquisition
> > contamination, and a level of cleanup finality is available through
> > statutory law, but those incentives are not confined to "brownfields
> > only."
> >                                                   3. If brownfields
> > cleanups must be just as protective as non-brownfields cleanups,  then
> > why are NJ's brownfields programs flourishing? In my unofficial (yet
> > educated ) view,  one reason why developers are taking advantage of
> this
> > State's brownfields and smart growth incentives is because while the
> > Task Force and the Brownfields Redevelopment Interagency Team ("BRIT")
> > are working together with the Legislature under the Governor and the
> > Attorney General to make sure that properties are safely and
> > protectively addressed, we are also constantly finding ways to provide
> > help and comfort to those who are willing to acquire, remediate and
> > reuse abandoned and underutilized properties pursuant to the State
> Plan
> > and Smart Growth principles.  All levels of government work
> > cooperatively with developers and landowners to create partnerships to
> > address "brownfields"contamination while, at the same time, providing
> > support and incentives that will ultimately draw new jobs and economic
> > growth for the State. Reuse projects (including in some cases
> important
> > open space preservation) do not take the place of cleanup in this
> State.
> > Rather, in NJ, those who volunteer for protective cleanups are often
> > rewarded for their efforts, especially those who also create reuse
> > projects that qualify for cleanup of closure cost reimbursement. I
> hope
> > this helps. -Phyllis Bross                 > "peter "
> > <petestrauss1@comcast.net> 02/12/05 09:30PM >>>
> > Bruce:
> >
> > There has always been a tension between development of Brownfield
> sites
> > and
> > protection of public health.  Setting aside the issue of
> responsibility
> > for
> > a moment ("who pays for what"), I think that most of us come down on
> > the
> > side of protecting public health.  So if the brownfields revolution
> > must
> > stop because of inadequate protection of public health built into the
> > program, then so be it.
> >
> > Now for the issue of responsibility.  I think it will be a rare case
> if
> > a
> > developer undertakes a thorough and diligent investigation plus has
> > some
> > type of insurance to manage the risks, and still is stuck with major
> > unanticipated cleanup costs.  Developers have to be held responsible
> > for
> > managing this properly.  The aim of the Brownfield legislation is to
> > encourage developers to take on these properties, providing a carrot
> of
> > some
> > public funding to investigate the property and possibly help clean it
> > up.
> > But I have never seen a policy statement that would let developers off
> > the
> > hook if there were a public health risk created by their actions. I
> > contend
> > that even previously closed sites should be the responsibility of the
> > developer if there is a legitimate threat to human health.
> >
> > In the case at hand, Lenny raised the issue that through development
> of
> > a
> > property, a pathway (vapor intrusion) could be opened up.  I tend to
> > agree
> > with Larry Schnapf that the potential for this pathway should be
> > assessed
> > prior to any development. But I'll add the caveat that it should have
> > been
> > assessed even before VI became such a public issue.  Most property
> > investigations that I am aware of would take this into consideration.
> > The
> > issue of vapor intrusion is not altogether new; it's only that more
> > sophisticated tools are available to assess its potential, combined
> > with
> > changing cancer risks.
> >
> > Hope all is well.
> >
> > Peter Strauss
> > -----Original Message-----
> > From: brownfields-bounces@list.cpeo.org
> > [mailto:brownfields-bounces@list.cpeo.org] On Behalf Of Bruce-Sean
> > Reshen
> > Sent: Friday, February 11, 2005 1:43 PM
> > To: brownfields@list.cpeo.org; Larry Schnapf
> > Subject: Re: [CPEO-BIF] Re: Brownfields Digest, Vol 6, Issue 10
> >
> > I suggest we distinguish between those sites that were previously
> > "closed"
> > and current sites undergoing remediation and closure.  For current
> > sites
> > developers should be well aware of VI issues and potential costs can
> > be
> > rationally included into the costing process.  If developers choose
> not
> > to
> > deal with such issues (and assuming the regulators do not insist),
> then
> > they
> > should clearly bare those costs if and when further remediation
> > becomes
> > necessary.
> >
> > However, we must realize that previously closed sites fall into a
> > separate
> > and distinct category.  Developers who completed all appropriate
> > inquiry
> > under the rules at that time without uncovering any VI issues and did
> > all
> > required remediation, could not possibly factor VI issues into their
> > cost
> > analysis.  The implicit brownfields bargain is that a developer should
> > be
> > able to rely on the brownfields agreement for protection.  While the
> > developer should be
> > expected to obtain insurance coverage for reopener issues related to
> > the
> > remediation work ,  issues unrelated to prior cleanup activities
> should
> > not
> > be the responsibility of the developer.  If environmental purists wish
> > to
> > hold the development community to such unrealistic standards, then the
> > brownfields revolution is over.  Development will come to a halt and
> we
> > can
> > all obsess about the future destruction of "greenfields" and wonder
> why
> > no
> > one want to take on
> > the responsibility of reviving unutilized brownfield sites.
> > Brownfields
> > development requires a measure of finality.  To deny this reality is
> > shortsighted and extremely poor public policy.
> >
> > LSchnapf@aol.com 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.
> > >
> > > Larry
> > >
> > > --
> > > Larry Schnapf
> > > 55 E.87th Street #8B/8C
> > > New York, NY 10128
> > > 212-876-3189 home
> > > 212-756-2205 office
> > > 212-593-5955 fax
> > > www.environmental-law.net website
> > >
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