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

["Phyllis Bross" <Phyllis.Bross@law.dol.lps.state.nj.us>]

Hello - I am the Deputy Attorney General for NJDEP's Office of
Brownfield Reuse, and also the State's attorney for the New Jersey
Brownfields Redevelopment Task Force, the entity with statutory
authority to identify and inventory "brownfields."  This is not a formal
Opinion, but it may help to clarify some Issues in these e-mails, as it
appears to me that some may believe there to be a tension between reuse
of brownfields on the one hand and protection of health and the
environment on the other hand. Clearly, New Jersey does not make such a
distinction.  In fact, brownfield reuse projects often lead to
voluntary, protective cleanup commitments by private parties that may
not otherwise have been available. These few questions/responses may
help:                                                                   
                     1. Who decides what will be a "brownfields" and is
a brownfields then given special treatment?  It is true that there are
several statutory, regulatory and other incentives available in New
Jersey to promote reuse of "brownfields," including grants, loans,
assistance with projects and even statutory defenses to liability for
mere landowners who did not contaminate property that they acquired.
However, many of those incentives, including liability protections, are
also available for sites not designated as formal brownfields.          
                      2. Are those who are responsible for investigating
and cleaning up a brownfields (or a  non-brownfields site under a
brownfields program)  permitted to do a less protective cleanup because
they are addressing a brownfield property or because they are using
brownfields incentives? No, in New Jersey, there is no distinction
between the required level of investigation, cleanup, closure and site
control work,  based upon the fact that a site is a State-designated
brownfields or part of a brownfields-related project.   Statutory
defenses for mere landowners exist with respect to pre-acquisition
contamination, and a level of cleanup finality is available through
statutory law, but those incentives are not confined to "brownfields
only."                                                                  
                                                  3. If brownfields
cleanups must be just as protective as non-brownfields cleanups,  then
why are NJ's brownfields programs flourishing? In my unofficial (yet
educated ) view,  one reason why developers are taking advantage of this
State's brownfields and smart growth incentives is because while the
Task Force and the Brownfields Redevelopment Interagency Team ("BRIT")
are working together with the Legislature under the Governor and the
Attorney General to make sure that properties are safely and
protectively addressed, we are also constantly finding ways to provide
help and comfort to those who are willing to acquire, remediate and
reuse abandoned and underutilized properties pursuant to the State Plan
and Smart Growth principles.  All levels of government work
cooperatively with developers and landowners to create partnerships to
address "brownfields"contamination while, at the same time, providing
support and incentives that will ultimately draw new jobs and economic
growth for the State. Reuse projects (including in some cases  important
open space preservation) do not take the place of cleanup in this State.
Rather, in NJ, those who volunteer for protective cleanups are often
rewarded for their efforts, especially those who also create reuse
projects that qualify for cleanup of closure cost reimbursement. I hope
this helps. -Phyllis Bross                 > "peter "
<petestrauss1@comcast.net> 02/12/05 09:30PM >>>
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
>
> _______________________________________________
> Brownfields mailing list
> Brownfields@list.cpeo.org 
> http://www.cpeo.org/mailman/listinfo/brownfields 

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