Re: [CPEO-BIF] When. where, and how? - continuing the debate

["Trilling, Barry" <BTrilling@wiggin.com>]

I'm not convinced that there is a problem here that needs to be fixed, or that if there is one, the solution suggested matches the problem described.  My experience does not include clients trying to hide or cover up (although they would love to have the ability to walk away from their problems), consultants looking to deceive or provide only advice the client wants to hear (although they would love to find only sites that will not result in unhappiness to their clients), lenders lowering standards (in fact, their standards have only become more stringent), or the other list of horrors posed.  Moreover, the ASTM E1527-05 Standard for Phase I Environmental Site Assessments represents a significant tightening, rather than loosening of standards and has served to put the consultants feet to the fire (as well as the appropriate appendages of their errors and omissions carriers).  The 2001 amendments to CERCLA that clarified the Innocent Purchaser Defense and established defenses for Bona Fide Prospective Purchasers and Contiguous Property Owners did more to encourage the expansion and use of responsible due diligence at contaminated sites than the anything in the previous history of Superfund and has resulted in thousands of properties receiving inspections and remediation's that would not have otherwise occurred.  Further, merely performing "all appropriate inquiry" does not result in establishing a defense: one must also "exercise appropriate care with respect to hazardous substances found," which includes, in appropriate cases performing Phase II intrusive sampling.  If a party seeks to establish the CERCLA defense it will have to demonstrate satisfaction of these tests.

Some state voluntary compliance programs, such as New York and Connecticut, already require formal application and entry with state or LSP/LEP approval of the site characterizations and remedial plans. Programs such as Connecticut's Act 2 does not require formal application, but obtaining liability release does require DEP approval of both site characterization and the cleanup results. Where is the problem here with disclosure and agency approval?

If it is the amended CERCLA program that causes the difficulty where is the evidence that cleanups resulting in liability release have not met appropriate standards?    What a crazy world of conspiracy-- let's try to get innocent parties to use their private funds to clean up risky sites and entice them with  the promise of liability relief, but lets lets do so only if they agree to put themselves at risk for cleanup of the contamination they did not create!  This is not how the real world works.  Larry asserts that disclosure will make no difference, they'll still have their defenses to liability:  sure, but why should they have stuck out their necks to evaluate a problem and try to solve it when doing so risks putting them in a situation where they need the defense before their projects ever get started? Prudent business would probably put their money elsewhere.   We need to entice volunteers to clean up sites whose contamination has made most of the world walk away from them so that we won't have to spend public funds to clean them up. Making it more difficult for parties to invest in these sites will not make them any cleaner.



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 Schnapf, Lawrence
Sent: Monday, April 27, 2009 2:33 PM
To: Brownfields Internet Forum
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate

In may be that she shock of what has happened on Wall Street has not
fully set in for many people. I have witnessed first hand the mispricing
and allocation of risk that was committed by wall street and it is
important to understand that that the mismanagement of risk is not
limited to Wall Street but is embebbed in all other parts of our
economy.

We need to re-evaluate how we as a society identify and allocate risk
and that includes environmental risks. Without greater transparency and
greater oversight we are not going to be able to properly manage the
environmental risks that continue to exist in this country.

Larry

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Schnapf,
Lawrence
Sent: Monday, April 27, 2009 2:13 PM
To: Samford, Jerrold; Brownfields Internet Forum
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate

disclosure should not be a "business decision". If a party wants to have
the benefit of liability protection, they should be required to do more
than eyeball the site and look at some incomplete records. If these are
the rules going-forward, the business community will adjust.

My point is that the practice of environmental law and remediation as
devolved to the point where we are essentially falling into the "Tragedy
of the Commons" scenario.

Disclosure of contamination will not create NEW liability. If the site
is contaminated, there is liability. The more transparent the process,
the better off we all will be. There will be plenty of opportunistic
investors who would be willing to swoop up contaminated sites that their
proprietary decision-making processes tell them are over-stigmatized.

If we are going to finally put behind us this legacy of contaminated
sites, we need to embrace an approach outside the current approach. We
can list a parade of horribles why my suggestions may not work but it is
clear that the current system is not working. I would suggest that my
ideas are the kind of change many of us would believe in and that we
voted for in November.

Larry



-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Samford,
Jerrold
Sent: Monday, April 27, 2009 1:53 PM
To: Brownfields Internet Forum
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate

We should not make business descisions out of the hands of our clients.
There is no obligation to sample anytime there is a suspected release
identified in a Phase I because not everyone wants to spend that money.
Someone may be content to let the site go; they may be content to manage
the site as if they had confirmed the release, or a variety of other
considerations may be made. With the ILD, you have a liability
protection when you have no reason to suspect contamination. With BFFP,
when you know what's there; with the CLO, also when you know what's next
door. If you suspect something, you can't be innocent, by definition.

I have long wished that there could be a "repository" of some kind for
Phase I and Phase II reports, HOWEVER, that would be a very
inappropriate idea from a liability standpoint. Consultants performing
the Phase II work rightfully limit who can use their data and to what
use it may be put. Any consultant who would willingly support a proposal
to archive all phase II reports where the public could access them would
not have any appreciation for the risks that would pose. Secondly, the
person paying for the report should not want them archived either. Why
should the data that they paid for be made freely available to someone
else? Thirdly, there is a significant issue with regard to timing of
reporting of data to regulatory agencies. Depending upon how
requirements are constructed, consultants need to be able to confirm
initial findings, and clients need to make sure they have reached a
comfort level with their processes before any reporting could even be
considered. The only exception would be identification of an imminent
and substantial endangerment. Regardless of the intent of the proposal,
the idea does not work.

--------------------------------------------
W. Jerrold Samford, P.G.
Environmental Compliance Specialist
Troutman Sanders, LLP
1001 Haxall Point
Richmond, Virginia 23219
(804) 697-2225 (direct)
(804) 698-6451 (fax)
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-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Schnapf,
Lawrence
Sent: Monday, April 27, 2009 1:33 PM
To: lsiegel@cpeo.org; Brownfields Internet Forum
Subject: [CPEO-BIF] When. where, and how? - continuing the debate


I would like to supplement Lenny's comments about AAI with my favorite
rant about that rulemaking. I know Barry will vehemently argue against
this but I believe that the AAI rule be amended to require:

1. Sampling be performed when a release or suspected release is
identified in a phase 1.

2. The sampling results (and phase 2) should be disclosed to Spill
Center and a national database created of all phase two reports.

My rationale for this is multi-fold:

A. If an owner is going to get liability protection it should at the
very least determine if there is contamination at a site and disclose it
to the regulator. This is in my opinion a minor burden in exchange for
liability relief. Moreover, once the contamination is known to the
regulator, a decision can be made to either use public money or pursue
the responsible party. The purchaser would still be able to assert its
defenses to liability.

B. How can an owner claim they are exercising due care or appropriate
care with respect to releases at a site if they do not go thru the
trouble of finding out what contamination is present. Remember, AAI by
its plain terms only requires identification of release, not further
investigation. There was so suggestion in the preamble that sampling
might be appropriate but I would have preferred a more affirmative
statement be placed in the regulatory text.

C. Talk about burdens, just think about the thousands of phase 2 reports
that are done each year because prior phase 2 reports are not available.
If there was a database of phase 2 reports, then local governments
seeking to redevelop sites as well as private prospective purchasers
would not have to spend needless sums repeating investigative work that
was already done but that is not available for a plethora of legal and
business reasons.

I am certainly suggesting a new paradymn in how we approach contaminated
sites but I would suggest that is far better than waiting another 30
years for  market-driven brownfield or voluntary cleanup programs to
whittle down our inventory of historically-contaminated sites.

Larry

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
Sent: Monday, April 27, 2009 1:16 PM
To: Brownfields Internet Forum
Subject: [CPEO-BIF] When. where, and how? - continuing the debate

To me the debate between compliance-based cleanup programs and voluntary

programs is a question of WHEN and WHERE voluntary responses are
appropriate, as well as what level of oversight and disclosure should
apply to voluntary cleanups (HOW). The requirements applied to voluntary

cleanup vary enormously among the states, and within some states, such
as California, among programs.

I support a tiered system of oversight, in which the level of government

involvement is keyed to the complexity and severity of the site, as well

as the exposure pathways and the receptors (such as schoolkids).

Over the last decade or so, many sites across the country that merit
more oversight have been addressed under voluntary programs, largely
because environmental agencies have lacked the will or the resources to
use their regulatory authority properly.

I have seen problems at sites where:

1) Developers have escaped oversight by dividing up property.

2) Housing and schools are building on capped contamination.

3) Groundwater contamination is migrating off the development site, but
the response has been focused only on that property.

4) Groundwater contamination is migrating onto the development site, but

there is no cleanup upgradient.

5) Contaminated sediment is considered "off-property."

I don't argue that every such site should be addressed under a Superfund

or RCRA-type program. RATHER, THE DECISION ABOUT WHICH TIER OF OVERSIGHT

IS REQUIRED SHOULD BE MADE BY THE REGULATORY AGENCY WITH FULL PUBLIC
TRANSPARENCY.

I remember when some of us on the All Appropriate Inquiries Negotiated
Rulemaking Committee suggested that some form of public notice be
required for environmental site assessments. Industry participants
shuddered. One even warned that it would make it difficult for a
manufacturer to close a plant without tipping off its employees. (Not a
good argument, from my perspective!)

But I don't think the neighbors and eventual occupants of redeveloping
contaminated property should be kept in the dark. In my experience,
their involvement in the oversight of a cleanup and redevelopment is the

best guarantee that things will be done right. Community involvement may

lead to better protection of public health, but it also may overcome
bureaucratic conditions that government agencies want to impose.

Initially, additional disclosure may discourage or slow some projects,
but as transparency becomes routine I believe the public will recognize
which sites are problematic and which are being addressed properly.

For a few years now I have been trumpeting the success of the Voluntary
Cleanup Advisory Board at the Gates Rubber Site in Denver. This site was

addressed under Colorado's voluntary cleanup program, but with public
oversight (as well as the developer's agreement to provide other public
benefits) the community ended up promoting the project.

A developer does not have to be a "bad apple" for a project to benefit
from public scrutiny of its environmental strategy.

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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