2009 CPEO Brownfields List Archive

From: "Schnapf, Lawrence" <Lawrence.Schnapf@srz.com>
Date: Wed, 22 Apr 2009 11:25:35 -0700 (PDT)
Reply: cpeo-brownfields
Subject: [CPEO-BIF] Another example why we need historical reporting ....
 
 and perhaps a national law like the NJ ISRA law.

Officials probe Cook's defunct explosives plant   
Paul Foy - The Associated Press     
SALT LAKE CITY -- The mining-explosives plant locked up by state
officials in a lease dispute with its owner, a former congressman, has
come under the scrutiny of federal authorities for possible hazards left
behind. 

The Bureau of Alcohol, Tobacco, Firearms and Explosives said Tuesday it
was part of an investigation into batches of chemicals left at the Cook
Slurry Co. 

Former U.S. Rep. Merrill Cook, the owner of the company, insisted
Tuesday he left explosive ingredients secure at the Utah County plant.
He said he had been forced off the 480-acre parcel of land in September
for refusing to pay a 26,000-percent rent hike but was suing to get back
in business. He denied any federal agencies were involved in a cleanup
assessment. 

ATF spokeswoman Carrie DiPirro, however, confirmed to The Associated
Press her agency was investigating the explosive plant's potential
hazards. DiPirro said her agency was assisting the U.S. Environmental
Protection Agency, where a site assessment official wasn't immediately
available Tuesday for comment. 

Cook said the ingredients he stored for explosives were kept in separate
tanks and were dangerous only when combined, and DiPirro confirmed that
ingredients kept separately are inert. 

Cook assailed his landlord, a state agency called the Utah School and
Institutional Trust Lands Administration, for "just harassing us to no
end." 

The trust-lands administration, he said, has been trying to kick him off
the land with "outrageous" rent hikes for years to make way for more
lucrative real-estate development. 

The agency has been raising costs for many of its leaseholders lately to
reflect "market" conditions. In Cook's case, the rent would spiral to
more than $1.2 million a year from $4,560. 

"Look, they locked us out of our plant way before our time was up," Cook
said. "This has been one of the biggest outrages in the history of
business in Utah." 

Cook's company had operated under a 49-year lease since 1978, and he
said his company was once the second-largest supplier of mining
explosives. He said the state agency had the right to raise his rent
every five years, but only for increases appropriate for an industrial
tenant, and not for the land's real-estate value. 

The dispute started in 2002, when the trust-lands administration tried
to impose a steep rent hike and Cook said he blocked it in court. Around
the same time, he said, the agency tried to make life difficult for the
company by telling local officials and the company's lender that the
company wouldn't occupy the land for long. Cook said his plant hasn't
been actively producing explosives since 2002. 

The company left "significant environmental contamination" at the site,
officials for the trust-land administration told their board of
directors last week. 

"We are going to clean it up," John Andrews, the agency's associate
director and general counsel, told the AP on Tuesday. 

The administration has hired an environmental consultant. Andrews said
actual cleanup could be paid first by the EPA but that it eventually
would seek reimbursement from the company and the state agency. 

Cook exploded in anger at those statements, at first asserting, "I am no
polluter. I have never been a polluter," then accusing the trust-lands
administration of waging a campaign to discredit him. 

"There's absolutely no contamination whatsoever. We kept everything fine
up there," Cook said. "This is nothing more than manipulation on the
part of SITLA." 
 

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Schnapf,
Lawrence
Sent: Tuesday, April 21, 2009 11:04 AM
To: brownfields@lists.cpeo.org
Subject: [CPEO-BIF] Amending CERCLA Reporting Obligations

As a follow-up to my idea about amending the CERCLA reporting
obligations, a bill has been introduced into the Connecticut legislature
that would mandate consultants disclose discovery of groundwater
contamination if not reported by the owner within 7 days. Tennesse
enacted a similar law last year though the reporting obligation was
limited to groundwater contamination posing an imminent and substantial
endangerment. The NJ Licensed Site Professiona (LSP) legislation will
require LSPs to disclose contamination to the state.

Larry

-----Original Message-----
From: Schnapf, Lawrence 
Sent: Wednesday, April 01, 2009 1:09 PM
To: 'brownfields@lists.cpeo.org'
Subject: Amending CERCLA Reporting Obligations

 
Thought those on the listserve would find the below article of interest.
I would love to build ground root support for this idea. As Justice
Brandeis once said " Sunshine is the best disinfectant"

Larry 

      Key Lawyer Launches Mandatory Contamination Reporting Effort

A New York-based brownfields attorney and sympathetic community-based 
brownfields activists are launching an effort to amend Superfund law so 
that it would require disclosure of chemical contamination discovered on

a property, a move the attorney says would speed up cleanups but that 
industry sources say would bring brownfields redevelopment to a
standstill.

Lawrence Schnapf, an environmental attorney and adjunct professor of 
environmental law at New York Law School, told /Inside EPA/ he is 
drafting a letter to Sen. Frank Lautenberg (D-NJ), the newly appointed 
chair of the Environment & Public Works (EPW) subcommittee on hazardous 
materials, that will lay out a framework for requiring both public and 
private investigators to disclose the presence of any chemicals covered 
by the Comprehensive Environmental Response Compensation & Liability Act

(CERCLA) -- also known as the Superfund law -- if their concentration is

above cleanup thresholds. The law currently only requires notification 
if an ongoing release at a specified rate is discovered.

One community-based brownfields activist says he is also looking to 
support such an amendment and is gauging support among lawmakers on both

EPW and the House Energy & Commerce Committee. The activist expects that

interest in mandatory disclosure from lawmakers will build once the 
effort is more widely known. "I think he's onto something here," the 
source says of Schnapf's push. "I think most people would be surprised 
to learn that people can find contamination and not have to disclose
it."

Schnapf says CERCLA case law has evolved over the years in a way that 
facilitates an elaborate cat-and-mouse disclosure framework, whereby 
developers go to great lengths to prevent known contamination from being

made known to buyers or tenants, going so far as to include "no-look" 
clauses in contracts that ensure buyers will not seek out contamination.

States and municipalities therefore have to spend public money to do 
site assessments when the owners "already know where the bodies are 
buried," Schnapf said, and such duplicative assessments are wasteful and

delay the work of remediation.

"It's just become the way things are done," Schnapf said. "But this is 
creating a moral hazard. This is allowing companies not to disclose 
contamination."

Industry sources say if CERCLA were amended to make disclosure 
mandatory, it would make redevelopment much more difficult and would 
prevent developers from doing assessments at all. One private 
brownfields developer says mandatory disclosure "would have a tremendous

chilling effect" on redevelopment, especially at a time when brownfields

development is already hobbled by the stagnant real estate market. "I'd 
hate to see that happen," the source adds.

Superfund law currently requires that contamination be disclosed to 
relevant authorities if there is an ongoing release of a covered 
contaminant, and if that release is occurring at a certain rate, with 
the default being one pound of contaminant released over a 24-hour 
period. But, if legacy contamination is discovered, or if the release is

happening at a rate that is below the specified threshold, property 
owners are not required to disclose and have certain legal options to 
keep the contamination from being discovered should the property be sold

or redeveloped.

Schnapf said the law made some sense in the 1970s and 1980s when CERCLA 
was first passed, because continuing releases were relatively 
commonplace at industrial sites. But the vast majority of contamination 
still being cleaned up is from legacy sites rather than ongoing 
releases, so the mandatory reporting threshold is no longer relevant, he

said.

"If you look at CERCLA, when it was passed there were lots of ongoing 
[releases at] dump sites," Schnapf said. "Now, 30 years later, there's 
not a lot of sites that have them. But Congress clearly created CERCLA 
with the intent of remediating contaminated properties."

Whether such an effort gains traction in Congress, however, is 
uncertain. The community brownfields source says issues like brownfields

or Superfund traditionally have not been strong talking points by either

Congress or the environmental community, and so there is less impetus to

make mandatory contamination disclosure an issue as opposed to more 
glamorous environmental causes like a climate change bill or support for

renewable energy. "I don't know to what degree [Congress] will be 
receptive to this," the source says. "I say that because they may be 
busy working on other things. It's not the substance [of the issue] but 
a matter of priority."

But Schnapf said there could be a receptive congressional audience, 
considering that environmental issues are of particular interest to 
Democratic lawmakers in the 111th Congress. "We have a new Congress, a 
new subcommittee chairman and a lot of environmental issues getting 
attention," Schnapf said. "I'm just firing a shot across the bow."

Another attorney who deals with brownfields from an environmental 
justice viewpoint says the timing of the potential reform is both 
fortuitous and problematic. On the one hand, the Democratic leadership 
is uniquely supportive of environmental initiatives generally, and 
President Barack Obama has made environmental protection a signature 
theme of his administration. Additionally, EPA Administrator Lisa 
Jackson has a professional background in Superfund issues, the source
says.

But at the same time, bringing the country out of recession is an even 
bigger priority, and the real estate market is in particular distress. A

mandatory disclosure rule could be portrayed as exacerbating an already 
crippled industry, a major political liability without equal political 
payoff.

"I think it's a fantastic idea, to let people know and help people 
engage" in the redevelopment process, the second attorney says. "But I 
don't know if [lawmakers are] in a position, with the economic downturn,

to try to stymie development."

Another industry source calls the move "a spectacularly useful way to 
further depress the recovery" of blighted urban communities, saying such

an amendment would prevent property owners from bothering to conduct 
site evaluations in the first place, further preventing those properties

from being cleaned up and put to good use. "I would see the logic in it 
if it were true," the source says, referring to the idea that property 
owners already know what manner of contamination is on their properties.

"I don't think all that information is out there, that [property owners]

do site studies and then suppress them."

Both industry sources say a more reasonable move would be to amend 
CERCLA to require any site studies conducted by states or municipal 
governments to be made public, because the studies would have been 
publicly funded and their sheer number is far lower. -- /John Heltman/

Copyright 2009 Inside Washington Publishers

-- 
John H. Heltman
Associate Editor
Inside EPA's Superfund Report
Suite 201, 1919 S. Eads Street
Arlington, VA 22202
(703) 416-8518




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strictly prohibited.  If you have received this e-mail in error, please
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U.S. Treasury Circular 230 Notice: Any U.S. federal tax advice included in this 
communication was not intended or written to be used, and cannot be used, for the 
purpose of avoiding U.S. federal tax penalties.
***************************************************************************** 



NOTICE

This e-mail message is intended only for the named recipient(s) above. It may 
contain confidential information that is privileged or that constitutes attorney 
work product.  If you are not the intended recipient, you are hereby notified that 
any dissemination, distribution or copying of this e-mail and any attachment(s) is 
strictly prohibited.  If you have received this e-mail in error, please immediately 
notify the sender by replying to this e-mail and delete the message and any 
attachment(s) from your system.  Thank you.
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