[CPEO-BIF] RE: Brownfields Digest, Vol 6, Issue 17 - clarification (Schefski.Kenneth@epama

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

I think Ken Schefski seeks to over-generalize and over-analogize the earlier 
discussion.

No one was suggesting that, anytime a previously undetected vapor intrusion 
problem was found beneath a property, the burden should shift from the owner 
to the government to pay to address it.  And no one was disputing the 
general duty of property owners to protect from harm invitees to their 
property, including the duty to clear ice and snow from their sidewalks.

I and others merely pointed out that, in the narrow context of brownfield 
sites that were previously cleaned up (in New York State, prior to 2003, 
under the Department of Environmental Conservation's old Voluntary Cleanup 
Program) to the State's satisfaction, where the prospective purchaser or 
redeveloper (who later became the owner) was granted a liability release, 
there are special considerations that come into play.  When a Voluntary 
Cleanup Agreement was entered into between the prospective purchaser and the 
State DEC, the prospective purchaser (who was at that point not only NOT a 
Responsible Party, but not even an owner) agreed to undertake certain 
investigation and cleanup obligations, in return for the promise of a 
liability release--which, once issued, could only be re-opened under limited 
circumstances defined in the Agreement.

The Government's bargain with that totally innocent cleanup volunteer was 
that, if you carry out your obligations under the Agreement, we will allow 
you to develop your property in peace.  The bargain was not that, "we'll 
promise you anything to get you to clean the site and consummate the 
purchase, but once you become the owner, we reserve the right to throw the 
book at you--including all of Mr. Schefski's tort law, property law, CERCLA, 
and philosophical arguments."  The bargain was that, if the cleanup 
volunteer did its share, the Government would grant it a measure of 
protection thereafter.

This was not corporate welfare for developers.  It was the result of a 
decade-and-a-half of experience under CERCLA (and under State law 
counterparts) that demonstrated that you can't get brownfields cleaned up by 
punishing the innocent.

Property owners have all the rights and responsibilities of property owners. 
 But, when an owner becomes an owner after carrying out a gratuitous 
cleanup under an Agreement with the Government, the terms of that Agreement 
must be honored--even if it means that the Government must expend some 
additional effort to try to find viable responsible parties, and if RPs 
cannot be found, even if it means that the Government must step in itself to 
address the problem in order to protect public health and the environment.

If Mr. Schefski needs a metaphor, it would be more akin to the Government's 
duty to send an Animal Control Officer to remove a rabid animal (not owned 
or controlled by me) from my property, or to send Police officers to 
apprehend armed robbers from the bank's property--pursuant to the "social 
contract" under which local residents pay taxes so that their government 
will protect the general welfare.  Brownfield programs that stimulate 
voluntary cleanups similarly promote the public interest by cleaning up 
contamination and beneficially reusing sites--where otherwise this would not 
take place.  The Government's duty in that instance is surely no less to 
hold up its end of the bargain.

Legal arguments (and spurious metaphors) to justify making innocent owners 
pay for newly discovered VI contamination, in derogation of a faithfully 
implemented cleanup agreement and liability release, are unworthy of the 
Government and of fair-minded people.

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


Ken Schefski wrote, in part:

Maybe people believe the government should be responsible because the
government sets the standard for what is safe with respect to VI and
can't seem to make up it's mind.  To me this might affect what would be
considered "reasonable steps" or "appropriate care," and I believe it
does under tort law, but it should not mean that the owner has no
responsibility to do something based on whatever is the current standard
and to do something else if that standard changes.  Should the
government be responsible for a lack of scientific understanding?  Think
about the recent findings regarding certain pain medications and the
risks they pose -- should the FDA be held responsible?  With ownership
comes responsibility.

My point is that owners of property accept certain obligations regarding
the condition of their property and why should contamination be treated
differently?  Prior to the 2001 amendments to CERCLA, I think there was
a decent argument that an innocent owner should not be held responsible
for the full cost of cleaning up a problem that was caused by someone
else -- this would be unreasonable steps.  However, I don't think that
an owner of property should just be able to turn their back on a problem
that could cause someone harm and say it's the government's
responsibility.  I believe CERCLA now strikes a fair balance, which is
very similar to what the courts developed over a couple of hundred years
-- a property owner must do what is reasonable to protect people on
their property and to eliminate any further harm.


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