2009 CPEO Brownfields List Archive

From: "Walsh, William" <WALSHW@pepperlaw.com>
Date: Tue, 28 Apr 2009 08:05:50 -0700 (PDT)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate
 
I agree with Bruce that time is essential.  In addition, the fact that
the resources available to the regulators is limited is also essential.
The inevitable result of limiting voluntary cleanups is that less
cleanups will be done. Regulatory agencies simply do not have the
resources to implement only mandatory cleanups, even in the best of
economic times. Voluntary programs were initiated prior to the last
Administration and the motivation was not as a means of making cleanups
less stringent, but to increase the number of sites that could be
addressed with the finite amount of funds available. States generally do
have the resources to oversee such a program.

I believe that voluntary clean up programs if properly overseen will
result in more expeditious cleanup, less costly clean up, without the
cleanup being inadequate (or secret).  

As noted by Lenny, the clean up criteria are relatively routinized in
most states for most chemicals, but there are site specific decisions
still needed.  The time and cost comes from having thousands of
documents evaluate essentially the same factors in a Kabuki like format.

Companies make construction decisions all of the time.  Such decisions
are documented, but they do not need all of the time consuming
documentation required in a mandatory clean up program.  What needs to
be documented is what the remedy is, how it is protective, and the
reasons that it meets whatever the state remedy selection criteria are.

These remedy selection criteria provide broad discretion as long as the
cleanup is protective.  That is, a cap can be used, if institutional
controls are implemented to prevent future exposure or the contaminated
soil can be excavated and either landfilled or treated.  Even in
Superfund, the vast majority of sites end up having some contamination
(and sometimes most of the contamination) contained on site.

The question is how to properly oversee a voluntary program.  The
components include clear rules, periodic audits of the voluntary
cleanups, and enforcement when someone selects an improper cleanup.  It
may be my EPA enforcement past, but I suspect that it would not take
more than one, well publicized enforcement action against a consultant
who ignored the voluntary program rules to make sure that the vast
majority of the consultants followed those rules.

I think that the animus toward voluntary programs is misplaced and
counter productive.  The energy should be focused on making sure that
the state has the tools necessary to oversee the program.   

I understand Lenny's perspective about transparency.  If I were a
developer, I would voluntarily make documentation of the remedy and how
it meets the voluntary program criteria public.  The regulations of some
voluntary programs require some public outreach.  If the developer wants
to preserve a CERCLA contribution action, one needs to have such pubic
involvement.  

Certainly, if a voluntary cleanup is performed and the regulatory agency
reviews the documentation as part of its oversight of the program, the
documentation becomes, in essence, public.  It might be useful for the
regulatory agency to keep on the Internet, a list of voluntary cleanups.
Obviously, if institutional controls are required, there would be public
records of such controls.

I see no reason to make it easier for plaintiffs attorney's to become
richer by creating a public repository.  It is simply more
cost-effective to settle a scientifically unsupported lawsuit than
litigation.  

I also see no reason to protect anyone would in fact injures another.
If some one brings a lawsuit, I suspect that such documentation will be
discoverable, so it is not secret.  I am not convinced that creating
repositories for documents is worth the effort.

William J. Walsh
Pepper Hamilton LLP
600 Fourteenth Street, NW
Suite 500
Washington, D.C.  20005
(202) 220-1424 -direct
(202) 220-1665 - fax
walshw@pepperlaw.com


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--- Begin Message ---
Bruce,

I agree that time is a critical consideration in cleanup, not just to 
suit developers, but to protect communities. I therefore support reforms 
that streamline oversight, such as look-up tables for routine soil 
contamination.

But I won't accept inadequate cleanup as the price of speed. And I won't 
accept secrecy as the price of development.

Lenny (with a Y)

Bruce-Sean Reshen wrote:
> Lennie is only partially correct in stating that the debate is between 
> compliance-based cleanup programs and voluntary cleanup programs and 
> he is only partially correct when he says that its a question of of WHEN 
> and WHERE voluntary programs are appropriate.
>  
> For some reason no one wants to mention the six hundred pound gorilla in 
> the room whose name in TIME.  The level of cleanup and the level of 
> oversight can be the same among compliance-based and voluntary 
> programs.  The difference is that in highly structured programs such as 
> Superfund, the legally mandated processes such as the RI/FS process 
> consume huge amounts of time and cannot be attenuated.  To spend years 
> analyzing all possible alternative cleanup strategies when everyone 
> knows which one is most applicable, is both a legal mandate and evidence 
> of logical insanity.  This process destroys all incentive for a 
> developer whose interest is redevelopment of the property.  If we are 
> the gain the attractive features of such compliance-based programs, we 
> must inject a note of sanity and revise them to allow for fast-tracting 
> the process.  Alas, this would require a legislative approval which 
> often throws out the baby with the bathwater. 
>  
> The attractiveness of voluntary state cleanup programs in not only that 
> they tend to minimize oversight (which is not a good thing), but that 
> they consume less time and therefore are more amenable to market driven 
> redevelopment efforts by developers.
>  
> Until we effectively address the issue of flexibly telescoping the time 
> involved in structured cleanup programs, they will never be an attrative 
> option for market driven redevelopment.
>  
> Those who believe this debate is about the degree of stigma attached to 
> compliance-based programs vs. voluntary programs have missed the mark.  
> Both types of programs involve public awareness and consequential stigma 
> of sorts.  But smart folks will judge the quality of the cleanup and the 
> quality of the administrative oversight, no matter what the program.
>  
> The real question among both types of programs is the degree of 
> flexibility and the time involved in the process.
> 
> 
>  
> On Mon, Apr 27, 2009 at 1:15 PM, Lenny Siegel <lsiegel@cpeo.org 
> <mailto:lsiegel@cpeo.org>> wrote:
> 
>     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 <mailto:lsiegel@cpeo.org>>
>     http://www.cpeo.org <http://www.cpeo.org/>
> 
> 
> 
>     _______________________________________________
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> 
> 
> 
> 
> -- 
> Bruce
> 
> Bruce-Sean Reshen
> The MGP Group
> 733 Summer Street - Suite 405
> Stamford, CT 06901
> (p) 203-327-2888, X 18
> (f) 203-327-2999
> (c) 017-757-5925
> breshen@mgppartners.com <mailto:breshen@mgppartners.com>
> www.mgppartners.com <http://www.mgppartners.com>
> www.theguardiantrust.org <http://www.theguardiantrust.org>
> 
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-- 


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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