|
Title: RE: [CPEO-BIF] Vapor Intrusion and Redevelopment (Lenny Siegel)
Ken:
Well said.
Len's comment
"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."
could only discourage already skittish developers from taking on site redevelopment:
My friend Len seems to support the old adage that no good deed goes unpunished. Without developer interest in the reuse and remediation of brownfields the contamination will remain in place. Rather find a way to soak the developer for a problem not of its own creation, lets look for productive ways for society to share in addressing the problem. Only if a developer engages in conscious disregard of a vapor intrusion problem should it be made to take up the entire responsibility for its cure.
Barry
Barry J. Trilling
Wiggin and Dana LLP
400 Atlantic Street
P.O. Box 110325
Stamford, Connecticut 06911-0325
Tel: 203 363-7670
Fax: 203 363-7676
450 Lexington Avenue
New York, NY 10017
Tel: 212 490-1700
Fax: 212 490-0536
Quaker Park
1001 Hector Street, Suite 240
Conshohocken, PA 19428-2395
Tel: 610 834-2400
Fax: 610 834-3055
Cell: 203 556-3764
e-mail: btrilling@wiggin.com
website: www.wigginENVIRONMENTAL.com
-----Original Message-----
From: Kenneth S. Kamlet [mailto:kkamlet@hotmail.com]
Sent: Friday, February 04, 2005 4:08 PM
To: brownfields@list.cpeo.org
Subject: [CPEO-BIF] Vapor Intrusion and Redevelopment (Lenny Siegel)
I'd like to respond briefly to Lenny's comment on the article co-authored by
me and Jesse Hiney. Lenny wrote, in part:
------------------------------------------------------------------------------------------------------
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.
-----------------------------------------------------------------------------------------------------
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
_______________________________________________
Brownfields mailing list
Brownfields@list.cpeo.org http://www.cpeo.org/mailman/listinfo/brownfields
**********************************************************************
This transmittal is intended for a particular addressee(s). It may constitute a confidential attorney-client communication. If it is not clear that you are the intended recipient, you are hereby notified that you have received this transmittal in error; any review, copying or distribution or dissemination is strictly prohibited. If you suspect that you have received this transmittal in error, please notify Wiggin and Dana immediately at 203-498-4400, or by email, reply to the sender and delete the transmittal and any attachments.
Neither this message nor the documents attached to this message are encrypted.
**********************************************************************
_______________________________________________
Brownfields mailing list
Brownfields@list.cpeo.org
http://www.cpeo.org/mailman/listinfo/brownfields
|