RE: [CPEO-BIF] RBCA again

[rgfp@mail.utexas.edu]

Larry and Emery,

My view probably falls somewhere between the two of you.  RBCA is great
when you're right Larry. The problem is when you are wrong. The various
institutional and engineering controls that disrupt the pathways of
exposure are NOT bullet proof. States and local governments are not
geared up for enforcement of future land use -- period! Restrictive
covenants need monitoring and zoning enforcement is not going to be
effective.

Code enforcement VERY rarely even considers zoning use and class -- they
are too busy keeping up with NEW development, not existing development
uses -- I should know, we did a national study on building code
enforcement a few years ago. I can dig out the data set and tell you how
many localities typically look at approved  "land use" on existing
development and it will be VERY low. They rely on complaints to find
these for the most part.  Plus, in a few states, there is no zoning in
unincorporated areas -- period. No one regulates land use in those
settings -- period.

Example in Texas. The East Austin Tank Farm cleaned up to commercial and
industrial future use standard. Problem: a Church with day care
purchases and locates there, kids in yard running around in bare feet
where they should not be...lawsuit ensues....have not seen the outcome
from that yet.

How about this hypo.  RBCA based cleanup of a site with pavement capping
the exposure pathway.  Owner gives a 10 yr lease to tenant, not a
terribly vigilant landlord in watching site....tenant there a few years,
now decides planters in some places on the parking lot would be nice,
knows owner would not pay for it, so he contracts for the minor changes
(out of own pocket). They tore up the "cap" and dig where they should
not, we now have exposure pathways....

You can dream up other situations I'm sure -- sublease situations
perhaps? 

RBCA promises more than it can deliver.  Some controls are safer than
others, so we should probably look harder with all VCPs as to which
controls for various contaminants -- truly are the most "bullet proof"
(none will be perfect) -- and under the precautionary principle -- use
"just" those until we have betters ways to "ensure" enforcement for
other controls.

Kind regards

Bob

Robert G. Paterson, Ph.D.
Associate Dean for Research and Operations
Director, Graduate Program in Community and Regional Planning
School of Architecture and Planning
The University of Texas at Austin
1 University Station B7500 
Austin, Texas 78712-0222
512.471.0734/Fax 512.471.0716
paterson@uts.cc.utexas.edu


-----Original Message-----
From: LSchnapf@aol.com [mailto:LSchnapf@aol.com] 
Sent: Thursday, July 24, 2003 5:02 PM
To: cpeo-brownfields
Subject: [CPEO-BIF]

Hi Emery,

I cannot talk about the criminal enforcement issues but I do think it is
unconscionable for an agency to allow exposed arsenic to be left in
areas where children and others can be exposed to it. I think it is
great that you and others are standing up for those with little voice
and keeping a watchful eye over an agency that might not be adequately
carrying out its obligations.

The key behind risk-based (or as I prefer to call it, land-use based)
cleanups is to eliminate exposures to contaminants. I do not think it is
a good use of our nation's limited  resources to require pristine
cleanups if the exposure can be eliminated using less costly means and
the additional cleanup would provide very little if no additional
cleanup when those resources can be directed at other social problems.
That being said, an agency should not view this approach as a license to
disregard the health of the local community to accomodate
politically-powerful interests.

The debate gets a little distorted when people view the issues as a
battle between polluters and powerless people. Alot of times, the sites
are being remediated by parties who had nothing to do with the
contamination but are considered liable simply because of their status
as landowners. The redevelopment projects can bring new jobs or housing
to an area and can also improve the conditions of the community since
before the development there is uncontrolled exposure to contaminants. 

If these innocent parties are required to remove all of the
contamination with the inherent delays and costs when less costly but
protective remedies are available, the projects will not get done, the
jobs will not come and the community will continue to be exposed to
unhealthy conditions. That to me is just as morally reprehensible as
allowing policially influencial interests from paying for their fair
share of the contamination. 

Larry

Larry Schnapf
55 E.87th Street #8B/8C
New York, NY 10128
212-996-5395 phone
212-593-5955 fax
www.environmental-law.net website

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