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Title: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing
I read the study and will search my files. It was also referenced in the NY Times article.
Larry Schnapf
Schulte Roth & Zabel
919 Third Avenue
New York, NY 10022
212-756-2205 (p)
212-593-5955 (f)
----- Original Message -----
From: Peter Strauss <petestrauss1@comcast.net>
To: Trilling, Barry <BTrilling@wiggin.com>
Cc: Schnapf, Lawrence; lsiegel@cpeo.org <lsiegel@cpeo.org>; Brownfields Internet Forum <brownfields@lists.cpeo.org>
Sent: Sat Apr 25 21:08:30 2009
Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing
This dialogue is worthy of a panel session at the Brownfields
conference in New Orleans.
I have not seen any real academic studies on the matter. Does anyone
know if there are some, and what the conclusions are?
As for the site in question, even if the City prevails and the site is
not listed, it seems to me that the cat is out of the bag, but with
much less rigor in cleaning the the problem. I think that this
uncertainty would make the properties less desirable. The community
folks that I tend to work with generally prefer the certainty of
having sites listed, so that they have discreet boundaries, and
somewhat definite lines of responsibility. But I acknowledge that
this is a complex question. If on the NPL, what happens to the values
of adjacent properties?
Larry, you lost me with your reference to Keynesian "animal
spirits". Not having read Keynes, do you mean that without
regulation or controls, the owners of contaminated properties would
try their hardest to keep everything hidden, thus overvaluing the
property?
Barry, it is not clear to me that the strict command and control that
you refer to led to boarded up brownfields. In fact, the lack of
regulation (control) that we had until RCRA and CERCLA became law led
to the lack of responsibility that owners had towards for the care of
their properties.
Peter Strauss
On Apr 24, 2009, at 12:58 PM, Trilling, Barry wrote:
> I have never advocated an unrestrained and unregulated "free
> market." Where the market does work, however, we ought to allow it
> to do so. Years of the regulatory pendulum resting firmly at
> "command and control," strict/retroactive/ and joint/several
> liability brought us boarded up brownfields, blight, and cynicism.
> I've seen no convincing evidence that the loosening of the pendulum
> to allow it to reach equilibrium with the market doing its work has
> resulted in material endangerment to human health and the
> environment. Quite the contrary: properties have been made safe for
> appropriate use and brought back on the tax rolls, providing new
> jobs and hope to communities. That's something I can and do
> "categorically" believe in!
>
> Barry J. Trilling
> W I G G I N A N D D A N A
>
>
> -----Original Message-----
> From: Schnapf, Lawrence [mailto:Lawrence.Schnapf@srz.com]
> Sent: Friday, April 24, 2009 12:27 PM
> To: Trilling, Barry; lsiegel@cpeo.org; Brownfields Internet Forum
> Subject: RE: Gowanus Canal, Brooklyn, New York listing
>
> If we have learned anything over the past two years is that the market
> does not work efficiently. Without adequate rules, the Keynesian
> "animal
> spirits" take charge. If they are REQUIRED to disclose contamination,
> there'd be a level playing field between known contaminated sites,
> suspected contaminated sites and unknown contaminated sites (very
> Rumsfeldian). If the contamination is known, somebody will have to
> remediate the site and then market will make sure the site is
> developed.
>
>
> I don't think anyone can ever make a categorical statement.:) (sort of
> never saying never)
>
> -----Original Message-----
> From: Trilling, Barry [mailto:BTrilling@wiggin.com]
> Sent: Friday, April 24, 2009 12:21 PM
> To: Schnapf, Lawrence; lsiegel@cpeo.org; Brownfields Internet Forum
> Subject: RE: Gowanus Canal, Brooklyn, New York listing
>
>
> Let's be careful to distinguish a healthy dose of sunshine and harmful
> sunburn and other unnecessary over-exposure. Listing on governmental
> watch lists such as the NPL does more than draw attention to already
> known conditions: it serves to discourage lending and frequently
> overstates risk. This results in discouraging cleanups that should be
> undertaken voluntarily. There is no incentive for a buyer to
> purchase a
> contaminated property that may come back to haunt; hence, the market
> encourages discovery and remediation. Most lenders require an
> assurance
> of cleanup meeting regulatory standards, even if not mandated by an
> enforcement action. Insurers also require cleanups to protect them
> from
> trailing liabilities. Listing and enforcement have their place when
> liability can be fixed or emergencies arise, but they are poor overall
> substitutes for the market forces that result in cleanup and
> redevelopment. I disagree categorically with the proposition that
> listing benefits a property that would be remediated without the
> listing. While some may argue that the use of voluntary brownfield
> cleanup programs has hidden contamination from public disclosure, the
> record of recent years suggests that such programs have resulted in
> the
> remediation of thousands of sites that would not otherwise have
> received
> needed attention had they been on some "target list" that scares away
> both investors and lenders. Beware the law of unintended
> consequences.
>
> Barry J. Trilling
> W I G G I N A N D D A N A
>
>
> -----Original Message-----
> From: Schnapf, Lawrence [mailto:Lawrence.Schnapf@srz.com]
> Sent: Friday, April 24, 2009 12:05 PM
> To: Trilling, Barry; lsiegel@cpeo.org; Brownfields Internet Forum
> Subject: Gowanus Canal, Brooklyn, New York listing
>
> I suppose that if the contamination was not previously known, listing
> could stigmatize a property. And it is true that all things being
> equal
> (which is a big "if"), a developer or purchaser would prefer to pay
> more
> for a clean site than a "dirty" site.
>
> However, in many cases it is well known to local business community
> that
> a site has environmental problems so I don't think listing per se
> would
> necessarily stigmatize a site.
> Indeed, I've seen many cases where the listing was actually a benefit
> because people now know it will be getting some attention and cleanup.
>
> The concern about potential stigmatization and cleanup costs is a
> reason
> why parties to a deal often are able to manipulate the archaic CERCLA
> reporting obligations, and negotiate terms that prevent a purchaser
> from
> reporting or investigating historical contamination. So while the
> contamination goes unreported, it might also migrate and then become
> an
> NPL site because the contamination was not addressed earlier.
>
> In my view, property with unreported contamination is being over-
> valued.
> If a site gets disclosed or listed,and its value gets depressed maybe
> that is just the site finding its appropriate valuation.
>
> As Justice Brandeis once said "Sunshine is the best disinfectant".
>
> Larry
>
> -----Original Message-----
> From: brownfields-bounces@lists.cpeo.org
> [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Trilling,
> Barry
> Sent: Friday, April 24, 2009 10:57 AM
> To: lsiegel@cpeo.org; Brownfields Internet Forum
> Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing
>
> Lenny: I disagree that listing on the NPL does not further
> stigmatize a
> contaminated site. Furher, adding a site on the NPL does not assure
> that
> it will be cleaned up any more thoroughly, and almost certainly not as
> promptly as if not on the NPL. Isn't the solution that the cleanup
> risk
> for intended use should be adequately protective? If so, then listing
> should not be a factor. Further stigmatization results in needless
> delay and cost with no additional benefit.
>
> Barry J. Trilling
> W I G G I N A N D D A N A
>
> -----Original Message-----
> From: brownfields-bounces@lists.cpeo.org
> [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
> Sent: Friday, April 24, 2009 9:49 AM
> To: Brownfields Internet Forum
> Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing
>
> I believe the Times article about the proposed Superfund listing of
> the
> Gowanus Canal raises a key issue about the future of environmental
> cleanup, and I would urge members of this list to respond to my
> comments.
>
> In my "Brownfields 101" presentations, I describe the two basic models
> of cleanup: Superfund, in which remediation is funded by responsible
> parties or the government, and Brownfields, in which cleanup is funded
> from the income generated by the future use. Both have their place.
>
> I - and most of the community activists with which I work - have been
> discouraged by the trend, over the last decade, to address
> Superfund-caliber sites as Brownfields. When sites that pose the
> greatest threat to public health and the environment are treated as
> Brownfields, there is a tendency to leave contamination in place.
> While
> usually this provides short-term protection, it may lead to
> unacceptable
> risks in the long run.
>
> I assume, based upon the findings of both the New York Department of
> Conservation and U.S. EPA Region 2, that the Gowanus Canal is indeed a
> Superfund-caliber site. The city of New York and the developers it is
> working with claim that placing the site on the Superfund National
> Priorities List (NPL) will make it difficult to develop property
> because
> of the stigma associated with Superfund.
>
> I believe the opposite. The stigma exists because of the
> contamination.
> Unless knowledge of that site is hidden improperly, the act of listing
> and the associated additional environmental responses may actually
> reduce the stigma of building on and occupying the property. Sweeping
> environmental problems under the rug, foundation, or building is
> likely
> to create future exposure risks and/or litigation from inadequately
> protected site occupants.
>
> No doubt adding a site to the NPL creates a hiccough in the process,
> as
> new rules and regulators are brought to bear on the site. But if
> indeed
> a site, because of the level of contamination, likelihood of pathways,
> and presence of receptors qualifies for Superfund listing, then the
> public deserves the protection that Superfund oversight provides.
>
> Lenny
>
> --
>
>
> Lenny Siegel
> Executive Director, Center for Public Environmental Oversight
> a project of the Pacific Studies Center
> 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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