Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing

["Schnapf, Lawrence" <Lawrence.Schnapf@srz.com>]

In is true that many properties have been brought back to the tax roles
and productive use. But there are far more properties where there have
been self-directed and questionable cleanups with no oversight by
federal or state governments because of the archaic CERCLA reporting
obligations. And there are many contaminated sites that have remained
unremediated because only the property owners know about them. 

The command and control did not work well but neither does a
market-driven approach or regulation by litgation. We need a proper
balance. The brownfield movement was born during the heyday of the
market knows best theology. I think we have seen that unfettered markets
result in opacity and unlawful behavior. The lack of regulation has
unleashed the animal spirits which not only results in subprime
mortgages to unqualified borrowers but also substandard cleanups by
bottom-fishing, incompetent consultants and property owners who do not
want to pay for a proper cleanup.  

I had bought into the brownfield theology and thought the market could
cleanup more contaminated sites than the command and control approach.
After 25 years of practicing environmental law, what I have seen is the
market theology has resulted in most lawyer time on deals spent figuring
out how not to disclose contamination, relaxed professional standards
like ASTM because of alleged "burdens" on the regulated community that
are at best exaggerated and cleanups done in the dark that do not
satisfy applicable standards. This hid the ball approach to contaminated
sites needs to end or we will go another 30 years without our
contaminated sites being remediated. 

If some of you are surprised by my comments- well after seeing the
carnage of what an unfettered market can do, I have had my "road to
damascus" conversion. I believe it is time to swing the pendulum back to
more oversight. because we are also in an era of constrained budgets,
some of this oversight might have to be done by establishing a robust
licensed site professional program.    

Finally, there have been peer-reviewed studies showing the valuation
issues associated with superfund sites are not long-lasting and often
the property values rebound soon after a cleanup is announced. 

Larry      

-----Original Message-----
From: Trilling, Barry [mailto:BTrilling@wiggin.com] 
Sent: Friday, April 24, 2009 3:59 PM
To: Schnapf, Lawrence; lsiegel@cpeo.org; Brownfields Internet Forum
Subject: RE: Gowanus Canal, Brooklyn, New York listing

I have never advocated an unrestrained and unregulated "free market."
Where the market does work, however, we ought to allow it to do so.
Years of the regulatory pendulum resting firmly at "command and
control," strict/retroactive/ and joint/several liability brought us
boarded up brownfields, blight, and cynicism.  I've seen no convincing
evidence that the loosening of the pendulum to allow it to reach
equilibrium with the market doing its work has resulted in material
endangerment to human health and the environment.  Quite the contrary:
properties have been made safe for appropriate use and brought back on
the tax rolls, providing new jobs and hope to communities.  That's
something I can and do "categorically" believe in!

Barry J. Trilling
 W I G G I N  A N D  D A N A


-----Original Message-----
From: Schnapf, Lawrence [mailto:Lawrence.Schnapf@srz.com]
Sent: Friday, April 24, 2009 12:27 PM
To: Trilling, Barry; lsiegel@cpeo.org; Brownfields Internet Forum
Subject: RE: Gowanus Canal, Brooklyn, New York listing

If we have learned anything over the past two years is that the market
does not work efficiently. Without adequate rules, the Keynesian "animal
spirits" take charge. If they are REQUIRED to disclose contamination,
there'd be a level playing field between known contaminated sites,
suspected contaminated sites and unknown contaminated sites (very
Rumsfeldian). If the contamination is known, somebody will have to
remediate the site and then market will make sure the site is developed.


I don't think anyone can ever make a categorical statement.:) (sort of
never saying never)

-----Original Message-----
From: Trilling, Barry [mailto:BTrilling@wiggin.com]
Sent: Friday, April 24, 2009 12:21 PM
To: Schnapf, Lawrence; lsiegel@cpeo.org; Brownfields Internet Forum
Subject: RE: Gowanus Canal, Brooklyn, New York listing


Let's be careful to distinguish a healthy dose of sunshine and harmful
sunburn and other unnecessary over-exposure.  Listing on governmental
watch lists such as the NPL does more than draw attention to already
known conditions:  it serves to discourage lending and frequently
overstates risk.  This results in discouraging cleanups that should be
undertaken voluntarily. There is no incentive for a buyer to purchase a
contaminated property that may come back to haunt; hence, the market
encourages discovery and remediation. Most lenders require an assurance
of cleanup meeting regulatory standards, even if not mandated by an
enforcement action.  Insurers also require cleanups to protect them from
trailing liabilities.  Listing and enforcement have their place when
liability can be fixed or emergencies arise, but they are poor overall
substitutes for the market  forces that result in cleanup and
redevelopment.  I disagree categorically with the proposition that
listing benefits a property that would be remediated without the
listing.  While some may argue that the use of voluntary brownfield
cleanup programs has hidden contamination from public disclosure, the
record of recent years suggests that such programs have resulted in the
remediation of thousands of sites that would not otherwise have received
needed attention had they been on some "target list" that scares away
both investors and lenders.  Beware the law of unintended consequences.

Barry J. Trilling
 W I G G I N  A N D  D A N A


-----Original Message-----
From: Schnapf, Lawrence [mailto:Lawrence.Schnapf@srz.com]
Sent: Friday, April 24, 2009 12:05 PM
To: Trilling, Barry; lsiegel@cpeo.org; Brownfields Internet Forum
Subject: Gowanus Canal, Brooklyn, New York listing

I suppose that if the contamination was not previously known, listing
could stigmatize a property. And it is true that all things being equal
(which is a big "if"), a developer or purchaser would prefer to pay more
for a clean site than a "dirty" site.

However, in many cases it is well known to local business community that
a site has environmental problems so I don't think listing per se would
necessarily stigmatize a site.
Indeed, I've seen many cases where the listing was actually a benefit
because people now know it will be getting some attention and cleanup.

The concern about potential stigmatization and cleanup costs is a reason
why parties to a deal often are able to manipulate the archaic CERCLA
reporting obligations, and negotiate terms that prevent a purchaser from
reporting or investigating historical contamination. So while the
contamination goes unreported, it might also migrate and then become an
NPL site because the contamination was not addressed earlier.

In my view, property with unreported contamination is being over-valued.
If a site gets disclosed or listed,and its value gets depressed maybe
that is just the site finding its appropriate valuation.

As Justice Brandeis once said "Sunshine is the best disinfectant".

Larry

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Trilling, Barry
Sent: Friday, April 24, 2009 10:57 AM
To: lsiegel@cpeo.org; Brownfields Internet Forum
Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing

Lenny:  I disagree that listing on the NPL does not further stigmatize a
contaminated site. Furher, adding a site on the NPL does not assure that
it will be cleaned up any more thoroughly, and almost certainly not as
promptly as if not on the NPL.  Isn't the solution that the cleanup risk
for intended use should be adequately protective?  If so, then listing
should not be a factor.  Further stigmatization results in needless
delay and cost with no additional benefit.

Barry J. Trilling
 W I G G I N  A N D  D A N A

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
Sent: Friday, April 24, 2009 9:49 AM
To: Brownfields Internet Forum
Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing

I believe the Times article about the proposed Superfund listing of the
Gowanus Canal raises a key issue about the future of environmental
cleanup, and I would urge members of this list to respond to my
comments.

In my "Brownfields 101" presentations, I describe the two basic models
of cleanup: Superfund, in which remediation is funded by responsible
parties or the government, and Brownfields, in which cleanup is funded
from the income generated by the future use. Both have their place.

I - and most of the community activists with which I work - have been
discouraged by the trend, over the last decade, to address
Superfund-caliber sites as Brownfields. When sites that pose the
greatest threat to public health and the environment are treated as
Brownfields, there is a tendency to leave contamination in place. While
usually this provides short-term protection, it may lead to unacceptable
risks in the long run.

I assume, based upon the findings of both the New York Department of
Conservation and U.S. EPA Region 2, that the Gowanus Canal is indeed a
Superfund-caliber site. The city of New York and the developers it is
working with claim that placing the site on the Superfund National
Priorities List (NPL) will make it difficult to develop property because
of the stigma associated with Superfund.

I believe the opposite. The stigma exists because of the contamination.
Unless knowledge of that site is hidden improperly, the act of listing
and the associated additional environmental responses may actually
reduce the stigma of building on and occupying the property. Sweeping
environmental problems under the rug, foundation, or building is likely
to create future exposure risks and/or litigation from inadequately
protected site occupants.

No doubt adding a site to the NPL creates a hiccough in the process, as
new rules and regulators are brought to bear on the site. But if indeed
a site, because of the level of contamination, likelihood of pathways,
and presence of receptors qualifies for Superfund listing, then the
public deserves the protection that Superfund oversight provides.

Lenny

--


Lenny Siegel
Executive Director, Center for Public Environmental Oversight
a project of the Pacific Studies Center
278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org



_______________________________________________
Brownfields mailing list
Brownfields@lists.cpeo.org
http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org
**********************************************************************
This transmittal is intended for a particular addressee(s). It
may constitute a confidential attorney-client communication.
If it is not clear that you are the intended recipient, you are
hereby notified that you have received this transmittal in error;
any review, copying or distribution or dissemination is strictly
prohibited. If you suspect that you have received this
transmittal in error, please notify Wiggin and Dana
immediately at 203-498-4400, or by email, reply to the sender
and delete the transmittal and any attachments.

Neither this message nor the documents attached to this
message are encrypted.
**********************************************************************



_______________________________________________
Brownfields mailing list
Brownfields@lists.cpeo.org
http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org


************************************************************************
*****
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.
========================================================================
======

**********************************************************************
This transmittal is intended for a particular addressee(s). It
may constitute a confidential attorney-client communication.
If it is not clear that you are the intended recipient, you are
hereby notified that you have received this transmittal in error;
any review, copying or distribution or dissemination is strictly
prohibited. If you suspect that you have received this
transmittal in error, please notify Wiggin and Dana
immediately at 203-498-4400, or by email, reply to the sender
and delete the transmittal and any attachments.

Neither this message nor the documents attached to this
message are encrypted.
**********************************************************************






************************************************************************
*****
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.
========================================================================
======

**********************************************************************
This transmittal is intended for a particular addressee(s). It 
may constitute a confidential attorney-client communication. 
If it is not clear that you are the intended recipient, you are 
hereby notified that you have received this transmittal in error; 
any review, copying or distribution or dissemination is strictly 
prohibited. If you suspect that you have received this 
transmittal in error, please notify Wiggin and Dana 
immediately at 203-498-4400, or by email, reply to the sender 
and delete the transmittal and any attachments.

Neither this message nor the documents attached to this 
message are encrypted.
**********************************************************************






*****************************************************************************
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.
==============================================================================

_______________________________________________
Brownfields mailing list
Brownfields@lists.cpeo.org
http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org