Re: [CPEO-BIF] All Appropriate Inquiry rulemaking report

[cpeo <cpeo@cpeo.org>]

The following response was posted by Emery Graham
<EGRAHAM@ci.wilmington.de.us>
_________________________________________________________________________

 Lenny,

 The new law posed a proposition to those interested in developing
 brownfield sites, i.e., if you want relief from certain liabilities
 associated with your desire to develop this site you must carry out
 certain activities. Without prior consideration or assessment of the
 cost of those activities,including information gathering activities,
 the Congress stated what had to be done to get liability relief.

 It seems that the reg-neg community, under the authority and guidance
 of EPA, is negotiating the scope, content, and meaning of the intent
 of Congress. In the act of creating this meaning the reg-neg and EPA
 communities seem to be substituting private interest considerations
 for the public interest considerations of Congress,i.e., the
 containment of liability is, most immediately, a private interest and
 the further containment of negative externalities of private action is
 a public interest.

 The increased private costs of data gathering and sharing that serve
 the localized public's (neighborhood residents's) interests seem to
 reasonably be related to the increased amount of liability protection
 afforded private interests who pay those costs.  If the
 representatives of the public's interests fail to require, convince,
 persuade EPA to include those increased costs in the private
 interest's development project pro forma, the public will have to
 continue to bear the negative externality costs not included in the
 private interest's pro forma for the project.

 The market for urban contaminated property is already
 inefficient,i.e.,  information is not readily and freely available to
 all parties in a timely manner and therefore someone bears a
 disproportionate amount of costs of action in relation to their
 benefits derived and projects are not sited in the most economically
 efficient locations. The insistence on the part of Congress and EPA
 that the public participate in these brownfield development processes
 may be perceived as public efforts to make the marketplace more
 efficient and as such require the redistribution of the costs and
 benefits of private project activity.

 This redistribution effort is first and foremost on the public agenda,
 i.e., its the reason for EPA, Brownfields programs, public
 participation, etc; otherwise why bother? Why not let the private
 sector use its resources to influence any and all decisions in a
 direction that maximizes the difference between the private party's
 income and expenses on a project basis?

 I see what  you mean by "ideological" disputes.

 Issue 1:

 With regard to professionals doing the Phase I studies; a license is a
 designation attesting to the interested public that certain conditions
 have been met by the license holder and that the licensing body's
 representative  attests to these conditions having been met and
 therefore the license holder is deemed authorized to conduct some
 activity for some time period. The issue here is one of liabiity if
 the licensee fails to perform as the license leads others to believe
 or rely upon, e.g., doctors, dentists, teachers, etc. We're now down
 to an insurance and litigation situation.

 The alternative is for the public's representatives, the government,
 to train and license environmental professionals and assume the
 liabilty for performance disputes. This would reduce uncertainty,
 minimize insurance costs, and limit liabilty damages. The Federal
 Housing Administration uses a licensing process as part of the support
 system for its underwriting process for government insured, privately
 funded, mortgages.

 Issue 2:

 This issue seems to have a built in bias not to act, i.e, why must one
 notify potentially effected members of the public? The answer, from my
 position, is that there is a potential for the proposed development
 action to effect the well being of the impacted public. And for the
 potential benefits to that public to be realized, given that some cost
 burdens have been previously imposed upon that public without
 corresponding benefit, that public must be made aware of pending
 development actions and their implications in order for them to play
 their proper economic role in the commerce of the situation.

 This brownfields legislation, and its inquiry requirements, in effect,
 reestablishes the chain of liability, the field of continuity,
 existing between the polluters and those that incurred damages from
 the pollution. The project developers are being told that in exchange
 for immunity from prosecution, they must establish who the most likely
 polluters were. The arguements for not sharing information about the
 potential development activities or assessment activities is one that
 esssentially argues for market inefficiency and continued ambiguity
 regarding the accurate assessment of value and location of project
 cost liability.

 This act seems to call for some "deconstruction" of its text in order
 to get the practical meaning of its propositions.

 Issue 3:

 This one seems ideally suited for application of the "precautionary
 principle,"i.e.,  when in doubt act to unequivocally remove the
 potential for harm. If verifiable, valid, and reliable data can't be
 found then the site should be cleaned to a health or residential
 level. If there are mitigating circumstances such as no residential
 pathways to contaminants, a deed restriction on population density on
 the site and relevant surrounding area, and liability insurance on the
 site, then proceeding to develop the site without valid prior use data
 may be acceptable to the relevant public interests. This type of site
 obviously would have to entertain a project whose potential use had
 high revenue projections.

 Issue 4:

 How much is liability relief worth? It seems relatively straight
 forward: if the cost of doing the Phase I is high, then either abandon
 the project or do the analysis to the level necessary to receive the
 relief. If it's sufficently high, do sampling.

 I can't wait to share this info. with the members of the "faith based
 community." These people really believe that the government has done
 them a favor. I've found in many cases that these well meaning people
 can't easily grasp the weight and potential impact of their taking
 ownership of a brownfield. I know their congregants reflect the
 general public's level of sophistication and awareness of brownfields
 that one experiences in typical community education activities funded
 in Brownfield agreements, i.e., little to none.

 Emery

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