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

[steve.luzkow@abnamro.com]

Given your options, I think it may be best to build my house on a large
"green " lot to reduce the opportunity for my urban neighbor to spray water
on my sidewalk.

So it goes that there is a basis for significant cost in the obligation to
"Exercise appropriate care by taking reasonable steps to stop continuing
releases, prevent a threatened future release, and prevent or limit human,
environmental , or natural resources exposure to any previously released
hazardous substance" (Federal Register , Volume 69, Number 165, Page 52546
(August 6, 2004)) for migrating contamination that one did not cause, and
you did not address. There is no distinction that one's responsibility
stops at the property line.

You failed to point our that CERCLA would also burden a property owner with
the joint and several obligation to melt or remove the downgradient ice
that originated from their neighbor and ran across their property.  The
responsibility of an innocent purchaser to stop a release and prevent
exposure OFFSITE is no different then the risk-based closures required for
"responsible parties" in progressive states.  In other words, under the
Federal rules, if a purchaser complies with existing and proposed due
diligence requirements, they still have obligations to conduct an off-site
risk-based cleanup if contamination exists on the property, going well
beyond the prevention of exposure to site occupants.

The failure to provide innocent purchaser liability relief for off-site
obligations under CERCLA is the pink elephant at the party that EPA and
congress continue to ignore and will continue to stifle Brownfield
Development .  Everyone sees it and no one wants to talk about because it
would take an act of congress to remove it.  Thank goodness for the
progress of individual States, like Michigan, that provide true innocent
purchaser relief with the continuing obligation of on-site due care to
prevent unacceptable exposure.




Steve Luzkow
Environmental Risk Manager
Mail Code M0900-560
Standard Federal Bank / ABN AMRO
Phone: 248.822.5739
Fax:      248.637.2686


                                                                                                                                             
                      Schefski.Kenneth@epama                                                                                                 
                      il.epa.gov                     To:      Bruce-Sean Reshen <reshen@mindspring.com>                                      
                      Sent by:                       cc:      Phyllis Bross <Phyllis.Bross@law.dol.lps.state.nj.us>,                         
                      brownfields-bounces@li         brownfields-bounces@list.cpeo.org, LSchnapf@aol.com, brownfields@list.cpeo.org          
                      st.cpeo.org                    Subject: Re: [CPEO-BIF] Re: Brownfields Digest, Vol 6, Issue 10 - clarification         
                                                                                                                                             
                                                                                                                                             
                      02/16/2005 12:44 PM                                                                                                    
                                                                                                                                             
                                                                                                                                             




This is a very interesting discussion to which I'd like to add a couple
of thoughts.  Up front, let me clarify that the opinions that I express
in this email are mine and do not represent the position of the US
government or EPA.

I think a large body of the law has not been considered.  Owners of
property have certain obligations that go beyond federal and state
cleanup laws.  While property ownership comes with a significant bundle
of rights it also comes with some duties, including a duty to exercise
some level of reasonable care to protect people on your property from
bodily injury.  This duty, based in the common law of torts, dates to
many, many, many years before our current cleanup laws.  Interestingly,
CERCLA's Bona Fide Prospective Purchaser, Contiguous Property Owner, and
Innocent Landowner provisions include a standard much like the common
law standard -- i.e. take reasonable steps to exercise appropriate care
with respect to contamination on your property.  Thus, irrespective of
CERCLA every property owner essentially was already subject to this
responsibility.

Now, consider this obligation outside the contamination context.  Take
for example ice and snow on your walkways.  Most property owners are
diligent about clearing ice and snow from their walkways because they
fear that someone may slip and fall.  Of course, if someone does slip
and fall, we all have property insurance that would usually cover the
associated liability.  Nobody insists that the government should be
responsible for clearing ice and snow from private property.  Even
though an owner has nothing to do with accumulation of ice and snow
(i.e., they're innocent) most still accept the responsibility to take
care of it.

Over simplified and not analogous?  True, contamination is a different
beast in many ways -- most notably when an owner is truly innocent it
means that the cause of the contamination was another human being and
also VI is more costly.  But should these differences alleviate an owner
from taking responsibility to ensure that people are protected from the
harm on their property?  What if the ice on your property was the result
of your idiot neighbor running the hose outside for hours in the
freezing cold causing water to spill all over your walks.  I believe
most people would still take steps to eliminate any harm to people on
their property and if some harm was done you would ask that the neighbor
take responsibility for the harm caused.  Again, no one would ask the
government to bear the cost.  Also, just because eliminating VI may be
more expensive, I don't see how this is relevant to the question of who
should bear that cost; although, it may affect the determination of what
are "reasonable steps" or "appropriate care."

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.




KC Schefski, Attorney-Advisor
US EPA, Office of Site Remediation Enforcement
Phone: (202) 564-8213
Fax: (202) 564-0091

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             Bruce-Sean
             Reshen
             <reshen@mindspri                                        To
             ng.com>                  Phyllis Bross
             Sent by:                 <Phyllis.Bross@law.dol.lps.state.
             brownfields-boun         nj.us>
             ces@list.cpeo.or                                        cc
             g                        LSchnapf@aol.com,
                                      brownfields@list.cpeo.org
                                                                Subject
             02/15/2005 02:48         Re: [CPEO-BIF] Re: Brownfields
             PM                       Digest, Vol 6, Issue 10 -
                                      clarification










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
> >
> > _______________________________________________
> > Brownfields mailing list
> > Brownfields@list.cpeo.org
> > http://www.cpeo.org/mailman/listinfo/brownfields
>
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