RE: [CPEO-BIF] Re: Brownfields Digest, Vol 6, Issue 10

["peter " <petestrauss1@comcast.net>]

Bruce:

There has always been a tension between development of Brownfield sites and
protection of public health.  Setting aside the issue of responsibility for
a moment ("who pays for what"), I think that most of us come down on the
side of protecting public health.  So if the brownfields revolution must
stop because of inadequate protection of public health built into the
program, then so be it.  

Now for the issue of responsibility.  I think it will be a rare case if a
developer undertakes a thorough and diligent investigation plus has some
type of insurance to manage the risks, and still is stuck with major
unanticipated cleanup costs.  Developers have to be held responsible for
managing this properly.  The aim of the Brownfield legislation is to
encourage developers to take on these properties, providing a carrot of some
public funding to investigate the property and possibly help clean it up.
But I have never seen a policy statement that would let developers off the
hook if there were a public health risk created by their actions. I contend
that even previously closed sites should be the responsibility of the
developer if there is a legitimate threat to human health.  

In the case at hand, Lenny raised the issue that through development of a
property, a pathway (vapor intrusion) could be opened up.  I tend to agree
with Larry Schnapf that the potential for this pathway should be assessed
prior to any development. But I'll add the caveat that it should have been
assessed even before VI became such a public issue.  Most property
investigations that I am aware of would take this into consideration.  The
issue of vapor intrusion is not altogether new; it's only that more
sophisticated tools are available to assess its potential, combined with
changing cancer risks.  

Hope all is well.

Peter Strauss
-----Original Message-----
From: brownfields-bounces@list.cpeo.org
[mailto:brownfields-bounces@list.cpeo.org] On Behalf Of Bruce-Sean Reshen
Sent: Friday, February 11, 2005 1:43 PM
To: brownfields@list.cpeo.org; Larry Schnapf
Subject: Re: [CPEO-BIF] Re: Brownfields Digest, Vol 6, Issue 10

I suggest we distinguish between those sites that were previously "closed"
and current sites undergoing remediation and closure.  For current sites
developers should be well aware of VI issues and potential costs can be
rationally included into the costing process.  If developers choose not to
deal with such issues (and assuming the regulators do not insist), then they
should clearly bare those costs if and when further remediation becomes
necessary.

However, we must realize that previously closed sites fall into a separate
and distinct category.  Developers who completed all appropriate inquiry
under the rules at that time without uncovering any VI issues and did all
required remediation, could not possibly factor VI issues into their cost
analysis.  The implicit brownfields bargain is that a developer should be
able to rely on the brownfields agreement for protection.  While the
developer should be
expected to obtain insurance coverage for reopener issues related to the
remediation work ,  issues unrelated to prior cleanup activities should not
be the responsibility of the developer.  If environmental purists wish to
hold the development community to such unrealistic standards, then the
brownfields revolution is over.  Development will come to a halt and we can
all obsess about the future destruction of "greenfields" and wonder why no
one want to take on
the responsibility of reviving unutilized brownfield sites.  Brownfields
development requires a measure of finality.  To deny this reality is
shortsighted and extremely poor public policy.



LSchnapf@aol.com 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
>
> --
> Larry Schnapf
> 55 E.87th Street #8B/8C
> New York, NY 10128
> 212-876-3189 home
> 212-756-2205 office
> 212-593-5955 fax
> www.environmental-law.net website
>
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> Brownfields mailing list
> Brownfields@list.cpeo.org
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