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

[Bruce-Sean Reshen <reshen@mindspring.com>]

New Jersey is a brownfields leader as a state which has devised a system of
protective cleanups linked to innovative redevelopment.  But such a program
is also highly dependent on the rationality and creativity of the people like
you who operate the program.  Several states have better programs on paper,
but have had less success than NJ due to the mindset of the people on the
firing lines; and some of my friends in the development community would say
that success in NJ is also dependent on winning the lottery and getting your
project assigned to the folks with common sense and creative energy.

p.s.: Thank you for the example of such creative guidance and input at
yesterday's meeting.

Bruce



Phyllis Bross wrote:

> 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
> >
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