Re: Definition, VCPs, and Brownfields -Reply

[CHARLES PATRIZIA <CAPATRIZIA@phjw.com>]

Emery's view is a little too cynical. even for an old Washington hand like
me.   I think the underlying issues are close to the core of many ideas
that we have discussed before in this group:

1.  What ought to be the role/authority of local decisionmakers as
opposed to federal or state decisionmakers? 

2.  Who speaks for the locality -- local government? Community groups? 

3.  Should the closest geographic interest trump larger regional interests
(e.g., the issue of disparate environmental impacts)? 

4.  What is the balance between placing economic growth in particular
areas and allowing communities choose growth strategies (e.g, much of
the brownfields analysis looks to reusing properties in urban areas,
keeping growth in those areas, rather than allowing growth in exurban
areas with the accompanying "sprawl".  Should state or federal
decisionmakers have the authority to prevent  exurban communities from
seeking growth at the expense of existing urban cores?  Why?)?

5.  I don't know that local decisionmakers are more subject to influence. 
Anyone reading the press should know that federal decisionmakers are
also subject to all kinds of influence and pressure.  To put it in a different
framework, any lawyer seeking a decision from an agency actor -- local,
state or federal, should understand one key difference between
agencies and courts.  Agency decision makers don't have to be
professedly neutral and are entitled to have policy preferences which
must be addressed in the advocacy.   Saying locals are more easily
subject to influence just says that there is a suspicion that they are more
inclined to agree with one side or the other.

6.  The law doesn't say that PRPs are liable.  The phrase after all is
potentially responsible parties.  The problem is that defenses are few,
and most of the fight ends up being over how much responsibility.  But
that is in many cases a fight well worth having, from both the
perspective of a de minimis or de micromis participant, and the
perspective a major PRP, for whom the contribution of many small
players can make a significant reduction in the final cost.  The problem in
CERCLA litigation to date has been the high transaction and decision
costs.  Remediation can be expensive, God knows, but many of those
decisions, particularly in the brownfields context are becoming
reasonable -- if one assumes that use controls, attenuation, etc. are
reasonable.  Many communities close to sites don't think so.  A major
advantage of voluntary programs is not just that the decisions seem to
PRPs to be reasonable, they also lower transaction and decision costs
substantially.  Many of my clients go to voluntary programs not because
they expect remediation costs to be less, but because they expect
transaction and decision costs to be much less and certainty to occur
more quickly.

Chuck Patrizia


>>> Emery Graham <"egraham"@ci.wilmington.de.us> 05/19/99 09:42am
>>>

Potentially Responsible Parties would rather work in a regulatory
environment
where the regulators acts of "discretion" are more accessible to the
PRP's
influence. In cases where the EPA is the decision maker, the cost of
influencing
decisions are higher than when a local decision maker is involved. I
suggest that
the operating principle focus on the control of the regulatory decision
makers
decision.

It is very interesting to observe the dialog that attempts to frame the
periphery
of the age old question of power and control. How many ways can one
disguise a
situation? After all, the law says that the PRP is liable. The governmental
apparatus, the bureaucracy, must act to enforce the law. It is in this
enforcement
stage that the PRP seems to find relief and the marginal socio-cultural
groups
experience environmental justice's denial. Mr. Bartsch's article on
brownfields in
a European setting seems to provide a more detailed description of this
denial
process. The article is available in another message on the CPEO
listserv.

Emery

Charles Bartsch wrote:

> Another response...
>         In a few cases, the credibility of the state VCP makes it worth
going
> through; I have looked at a couple of site situations in Minnesota where
> the site owners ttok their sites through the state VIC program, because
the
> state's sign off was viewed as an advantage when approaching
financiers
there.
>
> At 09:43 AM 5/17/99 -0700, you wrote:
> >Peter,
> >
> >I was looking through the recent discussion on definitions and these
> >paragraphs stuck out:
> >
> >
> >>      However, under the EPA brownfield definition we have read
again
> >> today, the occurrence Peter Strauss describes is simply not
possible,
> >> except for previously residential sites:
> >>     Q   -- why would any site go through a VCP if it did not have to?
> >>     A   -- when its "expansion or redevelopment is complicated by
real or
> >> PERCEIVED environmental                 contamination." (-- my
emphasis.)
> >> Thus, what Peter S. described involves a definition of a brownfield
very
> >> different from that used by EPA (and, increasingly, by the other
related
> >> agencies, both state and federal.)
> >
> >My experience in California leads to a different answer to the
question
> >you posed. I would say that owners of property that are
contaminated are
> >motivated by easier and less burdensome regulatory oversight. In one
> >instance where I have been very involved, the owner of the property
> >(i.e., the Federal Gov't) has entered into a VCP not because of
> >development pressure but because it wants to avoid stricter
regulation,
> >and avoid being cast into the CERCLA net.  In another instance, due to
> >litigation by a community group that alleged that developing a dirty
> >site would lead to contaminant migration, the private owner of the site
> >entered into a VCP which was less stringent than if it fell under
> >another jurisdiction.
> >
> >In the broad definition of brownfields (i.e., Abandoned,idled, or
> >under-used industrial and commercial facilities where
> >expansion or redevelopment is complicated by real or perceived
> >environmental contamination), one could say that these VCPs dealt
with
> >"brownfields". However, in the first case, the motive was to avoid
> >stricter oversight - there were no plans for expansion or
redevelopment.
> >In the latter case, the VCP was entered into before the term
> >"brownfields" had found its way into common lexicon. The VCP got
the
> >developer out of a hole by avoiding cleanup requirements that the
> >community had requested.
> >
> >Peter Strauss
> >
> >
> >
> >