1998 CPEO Brownfields List Archive

From: TommeY <TommeY@aol.com>
Date: 26 May 1998 10:11:21
Reply: cpeo-brownfields
Subject: Re: Lots of questions...
As a lawyer/consultant on this issue, my experiential knowledge of these is
limited, at best.   What I can tell you is what people are asking me, in
answer to your questions: 

> 1.  Why are people reluctant to list properties even with confidentiality?

The entities you are asking appear not to be the owners of properties so much
as people who know where the properties are.  You are in effect, asking them
to court libel suits on one hand and risk direct liability for non-disclosure
and other, unless they get specific permission from the owner first.  
   And that's the rub.  The spectre of public liability under CERCLA or other
legal theories, and exposure to potential complaints by public groups is still
troubling to lots of people I speak to.  Some large companies balk at
including even general statements about their environmental liabilities in
securities disclosure documents (Federally mandated disclosure.)  
    I suspect that gratuitous public listing of their property in a context
that constitutes an admission of its problems is still a touchy issue to
companies and individuals who are still getting over the litigation hassles of
the last dozen or so years.  Even when the contamination of a site is a matter
of general knowledge, owners (rightly) feel that its generally better
(although less efficient) to avoid public listing of this type, and to wait
for some person-to-person contact by someone who wants the specific piece of
property and is willing to take it with its faults.
    I am not sure a general assurance of your intent to deal with the
information in a confidential manner (which is not an assurance of
confidentiality, or any type of protection against mandatory disclosure in
response to legal legal process) will have much dent in this, until other
changes in their legal position alleviate their fears.  (However, it might be
wise to reconsider the making of this promise, because it could put you in a
difficult position -- contractually bound to "confidentiality", but legally
bound to give information.)

> 2.  Are people distrustful of a "Free Listing Service" thinking it's too
> good to be true?

Generally, with regard to such services, the people I talk to are pretty
   Nothing is "free."  I have not had anyone specifically ask me about free
listing services (from the user's perspective), but I think you will have to
do a lot of explaining about the nature of the service, what they will get out
of it, what you get out of it, and how (legally) they can be protected, before
you can get past their initial suspicions.  

> 3.  Would Clean-Start as a non-profit entity find it easier to access
> properties to list, success stories, articles, and information to put on
> our site?
> 4.  Why don't people follow through with our offer to go on location and
> list even when they control the property?

I'm not sure I understand these.  I doubt if non-profit status would alleviate
the concerns raised.  Certainly it would not insulate you against threats to
the confidentiality of the owners of listed properties (summonses, etc.), nor
would it be enough of a bona fides, by itself, for increasing trust (just
browse through a listing of non-profit organizations and their purposes and
you'll see why.)
    I have organized a lot of non-profits in my career (and helped to dissolve
a number of them as well.)  In general, unless you can find another reason why
non-profit status is necessary, it is probably not a great step, as it may
restrict your future activities and increase some of your costs, without
really providing a benefit.

Tomme R. Young
MERIT Enterprises 
Mailing address: 3145 Geary Blvd. #280, San Francisco, CA 94118
Note:  I am currently working in Eastern Europe, so the office is closed and
the best way to reach me is via e-mail.

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