Re: [CPEO-BIF] FW: US Mayors Brownfield Report

Larry: I suggest that a better way to address the problem you raise would be to allow respondents/defendants in any sort of environmental dispute with EPA that would result in fines or other assessments to direct such funds in the manner you suggest or to allow these respondents/defendants to engage in an expanded definition of "supplemental environmental project" related to assessment and cleanup of unrelated sites that would help resolve their liability. That way you knock off more than one bird with your very limited stone.

Barry J. Trilling

W I G G I N A N D D A N A

From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of larry@schnapflaw.com
Sent: Friday, November 12, 2010 3:06 PM
To: Samford, Jerrold; brownfields@lists.cpeo.org
Subject: Re: [CPEO-BIF] FW: US Mayors Brownfield Report

I generally agree with Jerry. However, I dont think we would need to change the HRS to implement my proposal since there is precedent for recovering funds for non-NPL sites. In the traditional CERCLA NCP process, EPA can spend and recover removal costs for non-NPL sites. The removal costs are capped in terms of time/amount.

In an era of limited public resources, we need to think creatively about tools in our toolbox to ensure that the brownfield program remains viable during what appears to be an extended economic downturn. Federal enforcement in the form of cost recovery should not be overlooked as a source of replenishment.

At the very least, we should be developing data to find out how many viable PRPs are benefitting from public brownfield $$ being used to assess and cleanup the mess they have left to the taxpayers. From my extrapolations derived from CERCLA contribution and cost recovery actions, I suspect the results would be surprising to policymakers.

Schnapf Law Offices
55 East 87th Street, Ste. 8B
New York, NY 10128
212-756-2205 (p)
646-468-8483 (c)
Larry@SchnapfLaw.com
http://www.SchnapfLaw.com/

-----Original Message-----
From: Samford, Jerrold [mailto:Jerry.Samford@troutmansanders.com]
Sent: Friday, November 12, 2010 02:22 PM
To: brownfields@lists.cpeo.org
Subject: [CPEO-BIF] FW: US Mayors Brownfield Report

A. The "polluter pays" framework hasn't changed. A site that is contaminated is still the responsibility of the entities -- if they exist -- that caused the contamination in the first place, regardless. The Brownfield Grant programs take some of those sites out of that framework because another entity has offered to take responsibility to clean the place up, such as a local governing body which wants to put the site back into productive use. Most, if not all, of those sites would not qualify as a "superfund" site if ranked according to the hazard ranking system (HRS), and consequently, EPA does not make them a priority. Change the HRS to lower that bar to entry if you want to get the EPA "potentially responsible party" system to kick in.

B. Michael - the "windfall" that you speak of is phyrric at best. The typical environmental consulting firm is making far less than 10% profit annually. If the firms that are doing the work aren't hiring the graduates, talk to them and get them to help examine the curriculum. The program might not be teaching the students what the firms need them to know. Today, there is barely enough work to keep experienced staff busy, much less hire new staff with no experience. A consulting firm invests a tremendous amount of time and money into each new hire, for training, medical monitoring, benefits, etc. They are slow to hire and often quick to fire as the economy shifts to and fro.

C. I think the perception that CERCLA has "caused" brownfields is in part true, but not, Barry, because companies that caused pollution locked their doors in the middle of the night and slipped out to avoid liability. They folded for all the normal reasons - relocation, bad economy, shifting workforce, death of the founder, etc. The brownfield site developed because there were no buyers for the contaminated property who wanted to accept responsibility for cleanup in the completely open-ended-clean-it-up-to-background-whatever-that-takes mindset that EPA (and some states) has historically had.

Jerry.

--------------------------------------------
W. Jerrold Samford, P.G., LEED AP
Environmental Compliance Specialist
Troutman Sanders, LLP
1001 Haxall Point
Richmond, Virginia 23219
(804) 697-2225 (direct)
(804) 698-6451 (fax)

ATLANTA ? CHICAGO ? HONG KONG ? NEW YORK ? NEWARK ? NORFOLK ? ORANGE COUNTY ? PORTLAND ? RALEIGH ? RICHMOND ? SAN DIEGO ? SHANGHAI ? TYSONS CORNER ? VIRGINIA BEACH ? WASHINGTON, D.C.

This e-mail message and its attachments are for the sole use of the designated recipient(s). If you are not a designated recipient of this message, please notify the sender by replying to this message and delete or destroy all copies of this message and attachments.

From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Trilling, Barry
Sent: Thursday, November 11, 2010 7:58 PM
To: 'Larry Schnapf'; michael.goldstein@akerman.com
Cc: brownfields@lists.cpeo.org
Subject: Re: [CPEO-BIF] US Mayors Brownfield Report

Larry and I really do not disagree-- we just look at the problem from different perspectives. I'm not aware of any empirical study that supports my point of view that a draconian system of liability has perversely encouraged people and businesses who know (or even suspect) that their properties contain historical contamination that they did not cause to "board up" or even abandon those properties. Its only common sense that people and business take paths that avoid pain. I also do not doubt that Larry is correct that bad-actor businesses out there have consciously, or in reckless disregard of the consequences, put the environment at risk by abandoning their properties. Larry's right that the time to argue over philosophy has passed; let's just drop the name-calling, abandon the simplistic formulas, and go after the bad guys. I could support Larry's idea if the strict and joint-and-several liability standard were not to apply to the Preps the government would pursue.

Barry J. Trilling

W I G G I N A N D D A N A

From: Larry Schnapf [mailto:larry@schnapflaw.com]
Sent: Thursday, November 11, 2010 7:45 PM
To: Trilling, Barry; michael.goldstein@akerman.com
Cc: brownfields@lists.cpeo.org
Subject: RE: [CPEO-BIF] US Mayors Brownfield Report

The idea that the formation of brownfields is largely due to CERCLA is more mythology than truth. I think the real reason for brownfields was the large economic dislocations of the 1980s-1990s as well as the recent Great Recession. Companies abandoned sites not because of CERCLA but because they could export their jobs overseas without being held accountable for the mess they left behind. CERCLA did create obstacles to redevelopment of those abandoned sites and I fully support incentives to bring those properties make into sustainable reuse.

However, we do not have unlimited resources and it would not surprise anyone if the new Congress decides not to fully appropriate the federal brownfield program. In the face of such fiscal constraints, I think it is time for EPA to look around for viable PRPs who have caused brownfield sites. There is simply no fear on the part of corporate owners to abandon sites. They know that state government budgetary issues have eviscerated environmental enforcement (the memo by former DEC Commissioner Pete Grannis is a great illustration of the challenges facing state governments). The corporate owners are willing to roll the dice and abandon sites, figuring the local and state governments are going to fall over themselves to try to find developers to reposition these sites using as many public resources as possible. And those entities are unlikely to pursue the parties that caused the problem. EPA needs to fill this breach or else we are creating an incredible moral hazard.

I agree with Barry that we should not pursue small businesses and truly innocent parties. One of the problems is that we are talking yet again about anecdotal evidence. I have been trying to find out how many sites that have attracted public brownfield funding are associated with viable PRPs but there is no empirical data nor does it appear possible to obtain this information from EPA since it apparently does not track this kind of info. Thus, we are left arguing over beliefs and convictions rather than objective data

Lawrence Schnapf

Schnapf Law Office

55 East 87th Street #8B

New York, New York 10128

212-756-2205 (p)

212-646-8483 (c)

Larry@SchnapfLaw.com

www.SchnapfLaw.com

Blog: Visit Schnapf Judgment on the commonground community at http://commonground.edrnet.com/resources/9d51c3f88e/summary

TWITTER: Follow me at www.twitter.com/LSchnapf

Linked-In: http://www.linkedin.com/in/lschnapf

From: Trilling, Barry [mailto:BTrilling@wiggin.com]
Sent: Thursday, November 11, 2010 7:31 PM
To: 'michael.goldstein@akerman.com'; larry@schnapflaw.com
Cc: brownfields@lists.cpeo.org
Subject: RE: [CPEO-BIF] US Mayors Brownfield Report

Larry's at it again! Reliance on the so-called "polluter pays" principal is largely responsible for increasing the number of, if not being primarily accountable for creating, the tens of thousands (if not more) abandoned and boarded up former industrial and commercial properties that make up much of the nation's stockpile of brownfield properties. As long as federal law and that of some states considers to be "polluters" the innocent parties who complied with procedures that were "industry standard" when carried out, violated no contemporary standard of care, and acted without intent to pollute, those parties will continue to have no incentive to discover (let alone disclose or voluntarily remediate) historical adverse environmental conditions on their properties. Similarly, to reach into the pockets of such parties to finance current federal or state brownfield grant programs is equally unjust. I would be sympathetic to an approach that allows recourse against true "scoff-laws," but inasmuch as society as a whole benefited from the prosperity spawned by law-abiding businesses, society as a whole should bear the burden or correcting the problems created by such activities if they met the standards of the time.

Barry

Barry J. Trilling

Partner, Wiggin and Dana, LLP

400 Atlantic Street

P.O. Box 110325

Stamford, Connecticut 06911-0325

Office: 203 363-7670

Fax: 203 363-7676

Cell: 203 556-3764

From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of michael.goldstein@akerman.com
Sent: Thursday, November 11, 2010 10:03 AM
To: larry@schnapflaw.com
Cc: brownfields@lists.cpeo.org
Subject: Re: [CPEO-BIF] US Mayors Brownfield Report

Larry, keep stirring the pot! I happen to disagree with you on this one - strongly - and think this would create a huge chilling effect on redevelopment activity, killing an important percentage of it in the starting gate. In fact, I can think of a number of valid public policy reasons why federal resources should not be allocated for this type of activity. Not even for a minute.

That said, I would like to switch gears and raise another issue implicated by the huge federal investment in assessment and cleanup grants, which investment is channeling hundreds of millions of dollars into the coffers of environmental engineering and consulting firms.

The issue is this: Given the windfall that these firms are enjoying, how many have turned around and made a point to hire graduates from EPA's Brownfield Job Training Grant Program? I've been participating in a BJTG Program here in South Florida, and we are having a heck of a time getting firms to even attend our job fairs, much less hire our graduates.

I'm wondering what others are seeing across the country.

For the EPA folks on this listserv, is the Agency collecting this type of data (and, if so, is an attempt being made to correlate the firms that are receiving EPA assessment/cleanup grant funded work with the number of hires these same firms make out of the BJTG Program)?

It would be illuminating to know which firms are getting the most grant funded assessment and cleanup work and what their BJGT Program hiring record is.

In our part of the world - and I'm confident this is true all over the country - we are graduating bright, eager, enthusiastic students who emerge from the program with high expectations and great need. We need to get them gainfully employed, and the firms that are the beneficiaries of EPA's assessment and cleanup grants should be lining up to do the hiring. This may, in fact, be happening elsewhere; unfortunately, we're seeing very little of it in South Florida. Again, what are others seeing?

Best regards,

Michael

Michael R. Goldstein, Esq.

Akerman Senterfitt

One Southeast Third Avenue, 28th Floor

Miami, FL 33131

Direct Line: 305.982.5570

Direct Facsimile: 305.349.4787

Mobile Phone: 305.962.7669

michael.goldstein@akerman.com

"Recycle, Reuse, and Restore Environmentally Impacted Properties: Rebuild Your Community One Brownfield at a Time"

V Card | Bio | akerman.com

CONFIDENTIALITY NOTE: The information contained in this transmission may be privileged and confidential information, and is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you.

CIRCULAR 230 NOTICE: To comply with U.S. Treasury Department and IRS regulations, we are required to advise you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this transmittal, is not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this e-mail or attachment.

From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of larry@schnapflaw.com
Sent: Wednesday, November 10, 2010 3:32 PM
To: brownfields@lists.cpeo.org
Subject: [CPEO-BIF] US Mayors Brownfield Report

I think an unaddressed question is how much of brownfield assessment or cleanup grant funds have been used at former corporate facilities for which there are still viable PRPs? I think the federal government should seriously consider seeking cost recovery from viable PRPs for brownfield sites where EPA has awarded brownfield assessment or cleanup grants. In a time of diminishing federal resources, this could help assure there will be sufficient funds in the future for more brownfield funding as well as help replenish the superfund account.

I am not suggesting using cost recovery up front since this would delay redevelopment. Nor am I suggesting that EPA pursue small businesses or disqualify an application/grantee because a viable PRP is around. However, when brownfield grants are used to assess former corporate facilities-especially those abandoned in the past 20 years (i.e, after the passage of CERCLA)- it seems to be we are creating yet another moral hazard to those that have occurred in the past decade since cmpanies can export jobs to Asia and abandoned their facilities figuring that the local government will apply for brownfield funds to clean up the mess they left behind.

It would be interesting to see if EPA even tracks how many sites that received brownfield funding have viable PRPs associated with them. If I was a betting man, I'd wager that EPA does not compile such info.

Yet another example of the erosion of the "polluter should pay" framework.

Schnapf Law Offices
55 East 87th Street, Ste. 8B
New York, NY 10128
212-756-2205 (p)
646-468-8483 (c)
Larry@SchnapfLaw.com
http://www.SchnapfLaw.com/

**********************************************************************

This transmittal is intended for a particular addressee(s). It

may constitute a confidential attorney-client communication.

If it is not clear that you are the intended recipient, you are

hereby notified that you have received this transmittal in error;

any review, copying or distribution or dissemination is strictly

prohibited. If you suspect that you have received this

transmittal in error, please notify Wiggin and Dana

immediately at 203-498-4400, or by email, reply to the sender

and delete the transmittal and any attachments.

Neither this message nor the documents attached to this

message are encrypted.

**********************************************************************

**********************************************************************

This transmittal is intended for a particular addressee(s). It

may constitute a confidential attorney-client communication.

If it is not clear that you are the intended recipient, you are

hereby notified that you have received this transmittal in error;

any review, copying or distribution or dissemination is strictly

prohibited. If you suspect that you have received this

transmittal in error, please notify Wiggin and Dana

immediately at 203-498-4400, or by email, reply to the sender

and delete the transmittal and any attachments.

Neither this message nor the documents attached to this

message are encrypted.

**********************************************************************

IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice that may be contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction(s) or tax-related matter(s) that may be addressed herein.

This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately stop reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited.