[CPEO-BIF] Vapor Intrusion and Redevelopment (Larry Schnapf... and others)

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

Larry Schnapf wrote:

My view of the VI issue is somewhat different from my esteemed
colleagues of the bar. I think that vapor intrusion should be addressed
like any other media (e.g., groundwater and soil) and then an
appropriate remedy be included as part of the development to address the
on-site exposure. If a developer is building a structure and will either
be inviting persons onto the property or selling/leasing the parcel, it
is only fair for the developer to address VI.

Like any other remediation issue, I think the main concern here is
uncertainty. If a developer knows discovers that there is a VI issue,
then they can engineer that into the development and price it into the
project. I dont think the public fisc should be depleted for on-site VI
issues that could be address by engineering solutions as part of the
development.

Larry
++++++++++

Barry Trilling's endorsement is appreciated.  And thanks to Susan Neuman for 
her reminder about the role of insurance.

And, although my revered colleague (I had to one-up his reference to 
"esteemed" colleagues), Larry Schnapf, has made a commendable effort to 
distance himself from our position, in fact I have no disagreement with his 
proposition that, going forward, the VI pathway should be addressed in the 
same way as any other environmental pathway.  He is correct that "the main 
concern... is uncertainty" and that known costs--if not exorbitant--can be 
engineered into the development and priced into the project.

That's why Jesse Hiney and I, in our BNA article, argued for public or RP 
funding of new VI investigations and remedial actions only when retrofitted 
after-the-fact onto already completed and already approved Voluntary Cleanup 
Program projects--a subset of the so-called pre-2003 "legacy" sites.  Once a 
developer has irretrievably purchased the land, invested in cleanup, and has 
initiated (or even completed) redevelopment of a brownfield site, it is too 
late to price these unplanned-for costs into the project.  Plus, by then the 
developer has detrimentally relied on a liability release that said he was 
"done" (subject only to narrow re-openers).

Even if it is legitimate to re-open such a liability release where it can be 
shown that there is now a previously unrecognized imminent and substantial 
endangerment (or at least significant threat) to public health and the 
environment--based on a newly completed or newly detected VI pathway--as Ev 
Paull has noted, a mere change in VI policy by DEC or DOH should not be 
enough to force an innocent redeveloper who has played by the rules to 
resolve, at potentially significant expense, a previously unidentified VI 
concern.  (As we stated in our article, most Voluntary Cleanup Agreements 
under the old DEC program did not include a re-opener for changed 
standards.)

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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