Re: [CPEO-BIF] Vapor Intrusion and Redevelopment

[Lenny Siegel <lsiegel@cpeo.org>]

Submitted by Barry Trilling  <BTrilling@wiggin.com>

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 


"Kenneth S. Kamlet" wrote:
> 
> 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
> 


-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org
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