[CPEO-BIF] Vapor Intrusion and Redevelopment (Lenny Siegel)

["Kenneth S. Kamlet" <kkamlet@hotmail.com>]

I'd like to respond briefly to Lenny's comment on the article co-authored by 
me and Jesse Hiney.  Lenny wrote, in part:
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They are invoking the basic concept of brownfields. By relaxing the
procedures required to redevelop property contaminated, or even possibly
contaminated, but lacking a viable responsible party, government makes
it possible for both public and private parties  to redevelop such
property, making it safe for human use. In essence, the expenses of
investigation, mitigation, and/or remediation are paid for out of the
increased value of the property generated by redevelopment.

I support that concept, but what happens when its implementation
conflicts with the imperative to protect public health?

That is, at some level, the presence of toxic vapors, such as TCE, PCE,
or petroleum products in indoor air is likely to pose an unacceptable
risk to the people who live, work, or study inside. The authors and I
appear to disagree about where that threshold of acceptability lies, but
it's likely that most observers of the vapor intrusion phenomenon agree
that there are numerous buildings in this country where indoor air
readings exceed the legally safe level. In addition, some of those
buildings have been constructed after the property was "cleaned up" by
an innocent party - that is, someone other than the polluter - under a
state voluntary or Brownfields cleanup program.

So, let's assume that there are people living in new homes, on property
that supposedly was cleaned up to the satisfaction of regulatory
authorities, and that these people are breathing air which may be
harmful, particularly to children, if exposure continues. What do we do?

Do we beg for Superfund-type money from state or federal legislatures? I
don't oppose this tack, but I'm not optimistic, either.

Or do we require those who have created the situation to go back and
conduct further work? Where there is a viable responsible party - the
original polluter - this is relatively easy. That's what we've done in
Mountain View, with some success. But what if the only parties capable
of funding a response are the developers - perhaps with the help of
their insurance companies. (In a sense, they have created the situation
by opening up the vapor intrusion pathway.) If the answer is no, then
the Brownfields model has broken down. The process that was supposed to
make underutilized properties ready for reuse has not made them
suitable, and the residents must pay the price.
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Lenny says he supports "the basic concept of brownfields," but when the 
health and well-being of people living in buildings built on a brownfield 
site "that supposedly was cleaned up to the satisfaction" of regulators is 
put on the scales against that concept, it is clear which one he believes 
must give way.  While I agree that protection of public health must be 
paramount, that interest can be vindicated without sacrificing brownfield 
(voluntary cleanup) principles.  As the Brownfield law provides in the case 
of offsite migration of contaminants, or where a site contributes to 
areawide groundwater contamination, or natural resource damages, an innocent 
cleanup volunteer is not held responsible.  In such cases, the liability and 
cost burden are placed on the responsible parties who caused or contributed 
to the contamination.  If viable RPs cannot be found and further action is 
required, it must be carried out by DEC at public expense.  The same 
approach can and should be taken where a previously accepted brownfield 
remedy must be revisited because of vapor intrusion concern.

Lenny's concern is that situations will arise--perhaps fairly often--when 
"begging" for Superfund-type money from state or federal legislatures will 
be unavailing and there is no viable responsible party.  Under those 
circumstances, "if the only parties capable of funding a response are the 
developers - perhaps with the help of their insurance companies," Lenny 
implies that the (innocent) developers should pay.  Since he views the 
brownfield concept as entailing a public subsidy of sorts to the cleanup 
volunteer (i.e., relaxing the procedures required to redevelop 
[contaminated] property), why not simply add the cost of VI investigation 
and cleanup to the other brownfield cleanup costs that "are paid for out of 
the increased value of the property generated by redevelopment"?

A couple of things should be said in response.

First, residential reuses of brownfield sites are still much less common 
than non-residential reuses.  Under the new Brownfield Cleanup Program, 
"Track 1" unrestricted use cleanups are quite stringent.  Residential 
redevelopers will know that going in and can weigh the risks against the 
anticipated Return on Investment.  In other words, the scenario Lenny 
worries about is only a problem for legacy sites and not for new sites, 
going forward.  Even under the pre-1993 Voluntary Cleanup Program (VCP), 
residential reuses were subject to more stringent cleanup requirements than 
non-residential reuses.

Second, while there are doubtless high-value brownfield sites located in 
Midtown Manhattan (and other prime locations) that can easily support lots 
of extra investigation and cleanup costs--even those added after-the-fact, 
the reality is that brownfield sites in most parts of New York State do not 
command top dollar and are not attractive investments.  In such cases, it 
will not take much additional cost or uncertainty to make a marginal site 
non-viable as a redevelopment target.

Third, tapping into the state cleanup Fund where private resources cannot be 
accessed and the public health stakes are high enough does not require 
Legislative approval or any "begging" by DEC.  Having been established and 
funded by the Legislature, the Fund can be accessed administratively by DEC 
when necessary.

Bottom line: In the relatively unusual case where a previously completed 
brownfield site was redeveloped for a residential use, a serious VI problem 
is later discovered, and no viable RP can be found, I would much prefer to 
see DEC foot the bill than to try to impose it on an innocent redeveloper 
who probably barely broke even on the original deal.  I think that is a 
perfectly appropriate balancing of the equities--especially where the 
redeveloper signed an agreement with DEC that said that, if he did 
everything DEC originally asked, he would be done.

I am less concerned about the impact on any individual developer of the 
approach Lenny would seem to prefer than I am about the very negative impact 
on the Brownfield Cleanup Program as a whole.  Without certainty and 
finality, and a Cleanup Agreement that means something, that program is 
doomed to failure.

Ken Kamlet

-----------------------------------
   Kenneth S. Kamlet, Esquire
   Director of Legal Affairs
   Newman Development Grp., L.L.C.
   3101 Shippers Road, P.O. Box 678
   Vestal, New York 13851-0678
   607-770-1010, FAX: 607-770-3482
   kkamlet@hotmail.com


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