Re: [CPEO-BIF] RE: Brownfields Digest, Vol 6, Issue 17 - clarification (Schefski.Kenneth@epama

[Lenny Siegel <lsiegel@cpeo.org>]

In response to Ken Kamlet's latest note:

I don't know enough about New York's old Voluntary Cleanup Program to
know what the state promised developers, so I'm not going to argue that point.

Rather, I want to address what the government SHOULD promise potential
developers. I don't think government agencies should provide an ironclad
"no further action" promise, no matter what health threat emerges
unexpectedly, unless the government is willing to bear the costs of
protecting the public - particularly buyers or users of the property -
from those health threats. And in today's fiscal climate, I don't expect
many governmental jurisdictions to come up with the money.

I think it is possible to encourage developers to take on impaired
properties in such circumstances, because environmental insurance is
available to spread the risk. It should be clear, however, the sweeping
contamination under the figurative rug is not as likely to be protective
of public health, in the long run, as treatment or removal, and
insurance providers can be expected to charge higher premiums for
greater residual risk.

The consequence of not providing for re-openers due to public health
risk is ugly. It may simply mean more people are exposed to hazardous
substances.  More troublesome to the Brownfields concept, in many cases
homebuyers or other users of redeveloped property will seek redress
through the courts, not only for the potential impact on their
children's  health but for the impact of unaddressed risk on the value
of their properties. Perhaps the impact of a litigation free-for-all
could be minimized by the adoption of strong, practical standards for
pre-sale disclosure. But the problems will not go away just because we
close our eyes.

I want housing to be built on brownfields, but I believe any site with
shallow contamination with volatile compounds merits extra care. The
brownfields ideal is large enough to encompass that care, whether now or
in the future.

Lenny



"Kenneth S. Kamlet" wrote:
> 
> I think Ken Schefski seeks to over-generalize and over-analogize the earlier
> discussion.
> 
> No one was suggesting that, anytime a previously undetected vapor intrusion
> problem was found beneath a property, the burden should shift from the owner
> to the government to pay to address it.  And no one was disputing the
> general duty of property owners to protect from harm invitees to their
> property, including the duty to clear ice and snow from their sidewalks.
> 
> I and others merely pointed out that, in the narrow context of brownfield
> sites that were previously cleaned up (in New York State, prior to 2003,
> under the Department of Environmental Conservation's old Voluntary Cleanup
> Program) to the State's satisfaction, where the prospective purchaser or
> redeveloper (who later became the owner) was granted a liability release,
> there are special considerations that come into play.  When a Voluntary
> Cleanup Agreement was entered into between the prospective purchaser and the
> State DEC, the prospective purchaser (who was at that point not only NOT a
> Responsible Party, but not even an owner) agreed to undertake certain
> investigation and cleanup obligations, in return for the promise of a
> liability release--which, once issued, could only be re-opened under limited
> circumstances defined in the Agreement.
> 
> The Government's bargain with that totally innocent cleanup volunteer was
> that, if you carry out your obligations under the Agreement, we will allow
> you to develop your property in peace.  The bargain was not that, "we'll
> promise you anything to get you to clean the site and consummate the
> purchase, but once you become the owner, we reserve the right to throw the
> book at you--including all of Mr. Schefski's tort law, property law, CERCLA,
> and philosophical arguments."  The bargain was that, if the cleanup
> volunteer did its share, the Government would grant it a measure of
> protection thereafter.
> 
> This was not corporate welfare for developers.  It was the result of a
> decade-and-a-half of experience under CERCLA (and under State law
> counterparts) that demonstrated that you can't get brownfields cleaned up by
> punishing the innocent.
> 
> Property owners have all the rights and responsibilities of property owners.
>   But, when an owner becomes an owner after carrying out a gratuitous
> cleanup under an Agreement with the Government, the terms of that Agreement
> must be honored--even if it means that the Government must expend some
> additional effort to try to find viable responsible parties, and if RPs
> cannot be found, even if it means that the Government must step in itself to
> address the problem in order to protect public health and the environment.
> 
> If Mr. Schefski needs a metaphor, it would be more akin to the Government's
> duty to send an Animal Control Officer to remove a rabid animal (not owned
> or controlled by me) from my property, or to send Police officers to
> apprehend armed robbers from the bank's property--pursuant to the "social
> contract" under which local residents pay taxes so that their government
> will protect the general welfare.  Brownfield programs that stimulate
> voluntary cleanups similarly promote the public interest by cleaning up
> contamination and beneficially reusing sites--where otherwise this would not
> take place.  The Government's duty in that instance is surely no less to
> hold up its end of the bargain.
> 
> Legal arguments (and spurious metaphors) to justify making innocent owners
> pay for newly discovered VI contamination, in derogation of a faithfully
> implemented cleanup agreement and liability release, are unworthy of the
> Government and of fair-minded people.
> 
> 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
> 
> Ken Schefski wrote, in part:
> 
> 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.
> 
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-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org
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