2009 CPEO Brownfields List Archive

From: "Bill McClenney" <WMcClenney@environcorp.com>
Date: Tue, 28 Apr 2009 20:53:59 -0700 (PDT)
Reply: cpeo-brownfields
Subject: [CPEO-BIF] continuing the debate, was: When. where, and how?
 
Absolutely great discussion.  I am loving it although I am leaving on
vacation tomorrow, I anticipate catching up on all the comments a few
weeks from now.  Way to go Lenny!

 
William F. McClenney  PG  REA | Senior Manager | ENVIRON | V:
949.798.3629 | M: 949.878.2273 | F: 949.261.6202 | 
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Sent: Tuesday, April 28, 2009 6:56 PM
To: brownfields@lists.cpeo.org
Subject: Brownfields Digest, Vol 56, Issue 33

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Today's Topics:

   1. continuing the debate, was:  When. where, and how? -
      (Hickey, Joe (ECY))
   2. Re: continuing the debate, was:  When. where, and how? -
      (Lawrence Malizzi)
   3. Re: When. where, and how? - continuing the debate (Peter Strauss)


----------------------------------------------------------------------

Message: 1
Date: Tue, 28 Apr 2009 15:53:53 -0700
From: "Hickey, Joe (ECY)" <JHIC461@ECY.WA.GOV>
Subject: [CPEO-BIF] continuing the debate, was:  When. where, and how?
	-
To: <brownfields@lists.cpeo.org>
Message-ID:
	<5A09A64D50128E4BAA8965ECFC7D0965043B16E4@ecymxblv.ecy.wa.lcl>
Content-Type: text/plain; charset="utf-8"

I view the discussion as one of the legitimate purposes of the list.  I
haven?t read it all, but for the most part of what I have read, it is
quite a good discussion.  If you don?t want to read it, just delete it?.

 

Joseph M. Hickey 
Periodic Reviews and Brownfields Coordinator 
Northwest Regional Office 
Washington Department of Ecology 

425-649-7202, fax 425-649-7098 

 

From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Gunnell, Lenard
P LRL
Sent: Tuesday, April 28, 2009 3:25 PM
To: cathy.knudsen@planteco.com; Jerry.Samford@troutmansanders.com;
Lawrence.Schnapf@srz.com; reshen@mindspring.com; WALSHW@pepperlaw.com;
lsiegel@cpeo.org; LSchnapf@aol.com
Cc: brownfields@lists.cpeo.org
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate

 

Ditto


Thanks,
    Lenny


----- Original Message -----
From: brownfields-bounces@lists.cpeo.org
<brownfields-bounces@lists.cpeo.org>
To: 'Samford, Jerrold' <Jerry.Samford@troutmansanders.com>; 'Schnapf,
Lawrence' <Lawrence.Schnapf@srz.com>; reshen@mindspring.com
<reshen@mindspring.com>; 'Walsh, William' <WALSHW@pepperlaw.com>;
lsiegel@cpeo.org <lsiegel@cpeo.org>; 'Larry Schnapf' <LSchnapf@aol.com>
Cc: 'Brownfields Internet Forum' <brownfields@lists.cpeo.org>
Sent: Tue Apr 28 14:00:20 2009
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate

Gentlemen!
Is there any chance you can now take this off line.  Maybe I am in the
minority but this continuing debate is now getting a bit annoying!
Thanks!

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Samford,
Jerrold
Sent: Tuesday, April 28, 2009 3:59 PM
To: 'Schnapf, Lawrence'; reshen@mindspring.com; Walsh, William;
lsiegel@cpeo.org; Larry Schnapf
Cc: Brownfields Internet Forum
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate
[snip] 

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Message: 2
Date: Tue, 28 Apr 2009 19:10:38 -0400
From: Lawrence Malizzi <lmalizzi@matrixneworld.com>
Subject: Re: [CPEO-BIF] continuing the debate, was:  When. where, and
	how? -
To: "'JHIC461@ECY.WA.GOV'" <JHIC461@ECY.WA.GOV>,
	"'brownfields@lists.cpeo.org'" <brownfields@lists.cpeo.org>
Message-ID:
	
<DDB833E92E8E2F40BDFF871AF5C38653121A2CD8E5@matrix-srv06.matrixengineeri
ng.com>
	
Content-Type: text/plain; charset="utf-8"

I think a good comprise is to formally take it off line and send a note
so that interested parties can join in. My two cents...

________________________________
From: brownfields-bounces@lists.cpeo.org
To: brownfields@lists.cpeo.org
Sent: Tue Apr 28 18:53:53 2009
Subject: [CPEO-BIF] continuing the debate, was: When. where, and how? -
I view the discussion as one of the legitimate purposes of the list.  I
haven?t read it all, but for the most part of what I have read, it is
quite a good discussion.  If you don?t want to read it, just delete it?.

Joseph M. Hickey
Periodic Reviews and Brownfields Coordinator
Northwest Regional Office
Washington Department of Ecology
425-649-7202, fax 425-649-7098

From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Gunnell, Lenard
P LRL
Sent: Tuesday, April 28, 2009 3:25 PM
To: cathy.knudsen@planteco.com; Jerry.Samford@troutmansanders.com;
Lawrence.Schnapf@srz.com; reshen@mindspring.com; WALSHW@pepperlaw.com;
lsiegel@cpeo.org; LSchnapf@aol.com
Cc: brownfields@lists.cpeo.org
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate


Ditto


Thanks,
    Lenny


----- Original Message -----
From: brownfields-bounces@lists.cpeo.org
<brownfields-bounces@lists.cpeo.org>
To: 'Samford, Jerrold' <Jerry.Samford@troutmansanders.com>; 'Schnapf,
Lawrence' <Lawrence.Schnapf@srz.com>; reshen@mindspring.com
<reshen@mindspring.com>; 'Walsh, William' <WALSHW@pepperlaw.com>;
lsiegel@cpeo.org <lsiegel@cpeo.org>; 'Larry Schnapf' <LSchnapf@aol.com>
Cc: 'Brownfields Internet Forum' <brownfields@lists.cpeo.org>
Sent: Tue Apr 28 14:00:20 2009
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate

Gentlemen!
Is there any chance you can now take this off line.  Maybe I am in the
minority but this continuing debate is now getting a bit annoying!
Thanks!

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Samford,
Jerrold
Sent: Tuesday, April 28, 2009 3:59 PM
To: 'Schnapf, Lawrence'; reshen@mindspring.com; Walsh, William;
lsiegel@cpeo.org; Larry Schnapf
Cc: Brownfields Internet Forum
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate
[snip]
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------------------------------

Message: 3
Date: Tue, 28 Apr 2009 17:33:31 -0700
From: Peter Strauss <petestrauss1@comcast.net>
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate
To: "Catherine J. Knudsen" <cathy.knudsen@planteco.com>
Cc: "'Schnapf, Lawrence'" <Lawrence.Schnapf@srz.com>, "'Walsh,
	William'" <WALSHW@pepperlaw.com>, reshen@mindspring.com,
"'Samford,
	Jerrold'" <Jerry.Samford@troutmansanders.com>,	'Larry Schnapf'
	<LSchnapf@aol.com>,	'Brownfields Internet Forum'
	<brownfields@lists.cpeo.org>
Message-ID: <E413D000-D85B-4EFC-A9B4-6DBF72B264D8@comcast.net>
Content-Type: text/plain; charset=US-ASCII; format=flowed; delsp=yes

Katherine:

 From my point of view this is the most interesting discussion that we  
have had on this list serve for some time.  Keep it going!

Peter Strauss
On Apr 28, 2009, at 2:00 PM, Catherine J. Knudsen wrote:

> Gentlemen!
> Is there any chance you can now take this off line.  Maybe I am in the
> minority but this continuing debate is now getting a bit annoying!
> Thanks!
>
> -----Original Message-----
> From: brownfields-bounces@lists.cpeo.org
> [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Samford,  
> Jerrold
> Sent: Tuesday, April 28, 2009 3:59 PM
> To: 'Schnapf, Lawrence'; reshen@mindspring.com; Walsh, William;
> lsiegel@cpeo.org; Larry Schnapf
> Cc: Brownfields Internet Forum
> Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate
>
> Based on your numbering (below):
>
> 1. aaargh. I'm not even going to consider purchasing a piece of  
> commerical
> real estate under the constraint of being forced to do sampling if  
> there is
> a suspicion of a release. I MAY choose to, or I MAY choose to walk.  
> That
> MUST be MY decision. Not YOURS.
>
>
> 2. Historical contamination that meets reportable thresholds is  
> already
> required to be reported when discovered.
>
> 3. Secured creditor exemptions are designed to facilitate loans and
> distinguish between lenders who have engaged in active management  
> and those
> that don't. Your suggested revision would pretty much doom commercial
> mortgages. Why would we do that? The liability belongs with the
> owner/operator who released the contaminants, not with the bank.
>
> 4. See previous posts
>
> 5. Have to get educated regulators hired. States don't have the  
> staff to
> enforce things now.....
>
> 6. Not sure what this means.
>
> 7. Requiring source removal obviates the risk-based approach. Why  
> remove the
> source area if a) other alternatives such as treatment in-situ or b)
> "natural attenuation" meet risk-based goals? Why calculate risk? Don't
> understand the nexus between groundwater and water resources under a  
> climate
> change scenario. We'll be better off treating sea-water for drinking
> purposes.
>
> 8. dis-incentive to developers who need to put up their money, sell  
> the
> property, and get out.
>
> 9. Or at the very least some way of easily tracking where they are  
> and who
> is responsible for them.
>
> 10. Incentive for a state to do all that?
>
> --------------------------------------------
> 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)
> ~~~~~~~   Effective January 2009, Troutman Sanders will operate  
> offices in
> Chicago, San Diego and Orange County, as well as have an expanded  
> presence
> in Washington, DC as part of the addition of Ross, Dixon, and Bell  
> LLP.
> Learn more at www.troutmansanders.com ~~~~~~~~~~~
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>
> -----Original Message-----
> From: brownfields-bounces@lists.cpeo.org
> [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Schnapf,  
> Lawrence
> Sent: Tuesday, April 28, 2009 1:43 PM
> To: reshen@mindspring.com; Walsh, William; lsiegel@cpeo.org; Larry  
> Schnapf
> Cc: Brownfields Internet Forum
> Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate
>
>
> In an ideal world, the regulators would supervise all the cleanups  
> butwe
> will be living in an era of constrained budgets and limited government
> resources for quite awhile.
>
> Thus, I have to swallow hard and grudgingly admit that the future is
> probably going to be voluntary cleanups conducted by licensed  
> professionals
> that are audited by the government. The key to me is to make sure we  
> have
> robust programs that do not incentivize a race to the
> bottom    but instead encourage better quality cleanups.
>
> I believe a key to this approach is greater transparency. If I was  
> king,
> following would be my top ten reforms that I think could accomplish  
> these
> goals:
>
> (1) revise AAI to require phase 2 reports when RECs or releases are
> identified;
>
> (2) reporting of historical contamination when discovered so we no  
> longer
> have "no hunt" or "no look" contracts (may require amending CERCLA  
> 103(C);
>
> (3) Revise lender liability so that banks that originate and sell  
> loans like
> CMBS do not qualify for secured creditor exemption as they are not  
> holding
> "indicia of ownership" primarily to proect security interest but  
> instead are
> being driven by fee profits (but allowed to assert applicable CERCLA  
> LLPs);
>
> (4) a database of phase 2 reports both to provide enhance community
> information, oversight of the regulators/regulated and reduce  
> transactional
> costs for future deals;
>
> (5) strong enforcement focus and penalties for non-disclosure;
>
> (6) An AAI-like rule for Continuing Obligations;
>
> (7) Source removal for groundwater contamination as part of any risk- 
> based
> cleanup approach as water resources are going to be the KEY concern  
> for
> climate change;
>
> (8) Financial assurance for all post-remedial obligations exceeding  
> two
> years;
>
> (9) Periodic Compliance Monitoring For IC/EC (likely privatized as  
> well);and
>
> (10)EPA should be required to certify that state remedial programs  
> qualify
> as "state response programs" under CERCLA 128 as it is currently  
> ambiguous
> if a EPA is required to officially "bless these programs. EPA  
> delegates
> other environmental programs to states and given the growing  
> importance of
> state voluntary cleanup programs it seems important that EPA ensures  
> these
> programs or their LSP programs are sufficiently robust. States would  
> have to
> adopt the minimal CERCLA reforms above to be designated a "state  
> response
> program".
>
>
> Larry
> -----Original Message-----
> From: Bruce-Sean Reshen [mailto:reshen@mindspring.com]
> Sent: Tuesday, April 28, 2009 12:40 PM
> To: Schnapf, Lawrence; 'Walsh, William'; lsiegel@cpeo.org; Larry  
> Schnapf
> Cc: 'Brownfields Internet Forum'
> Subject: RE: [CPEO-BIF] When. where, and how? - continuing the debate
>
> Larry,
>
> Your email has finally shifted the debate.  We are no longer debating
> voluntary programs vs. what Lenny refers to as compliance-based  
> regulatory
> programs.
>
> The issue is whether or not our society is willing to understand and  
> fund
> regulatory oversight, no matter what we call the program.  Without  
> such
> funding for oversight, the unscrupulous among us will evade their
> responsibilities.  Most compliance-based programs incorporate such
> oversight, but are chronically under funded and unable to effectuate  
> their
> mission.  Most voluntary programs need stronger oversight mandates  
> as well
> as increased funding.
>
> Note the NJ DEP program that on paper is excellent.  However, a self- 
> study
> showed that a huge number of participants simply never filed or  
> inadequately
> filed the required forms and no one noticed.  We are not talking bad
> regulators, we are simply observing the impact of inadequate funding.
>
> No program can be effective without proper funding.  This is  
> actually the
> major issue before us.
>
> Bruce
>
> Bruce-Sean Reshen
> p. 203-259-1850
> c. 917-757-5925
>
> This communication may contain information that is legally privileged,
> confidential or exempt from disclosure.  If you are not the intended
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>
>
> -----Original Message-----
> From: Schnapf, Lawrence [mailto:Lawrence.Schnapf@srz.com]
> Sent: Tuesday, April 28, 2009 11:41 AM
> To: Walsh, William; lsiegel@cpeo.org; Bruce-Sean Reshen
> Cc: Brownfields Internet Forum
> Subject: RE: [CPEO-BIF] When. where, and how? - continuing the debate
>
> The key statement in William Walsh's email is the following:
>
> "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)"
>
> I agree with that statement. The critical question to me is how best  
> can we
> accomplish or incentivize that outcome. We have seen that the market  
> cannot
> discipline itself and will unleash the "animal spirits" if not  
> properly
> regulated. Without proper controls, there's just the law of the jungle
> because there is greed. Greed has to be tempered by fear and  
> regulation. I
> think we need to move back towards more oversight. That does not mean
> telling developers how many holes to dig or where to dig them but to  
> make
> sure that sites are properly characterized and remediated.
>
> Larry
>
>
>
>
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