From: | Peter Strauss <petestrauss1@comcast.net> |
Date: | Sat, 25 Apr 2009 20:32:00 -0700 (PDT) |
Reply: | cpeo-brownfields |
Subject: | Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing |
This dialogue is worthy of a panel session at the Brownfields
conference in New Orleans.
I have not seen any real academic studies on the matter. Does anyone know if there are some, and what the conclusions are? As for the site in question, even if the City prevails and the site is not listed, it seems to me that the cat is out of the bag, but with much less rigor in cleaning the the problem. I think that this uncertainty would make the properties less desirable. The community folks that I tend to work with generally prefer the certainty of having sites listed, so that they have discreet boundaries, and somewhat definite lines of responsibility. But I acknowledge that this is a complex question. If on the NPL, what happens to the values of adjacent properties? Larry, you lost me with your reference to Keynesian "animal spirits". Not having read Keynes, do you mean that without regulation or controls, the owners of contaminated properties would try their hardest to keep everything hidden, thus overvaluing the property? Barry, it is not clear to me that the strict command and control that you refer to led to boarded up brownfields. In fact, the lack of regulation (control) that we had until RCRA and CERCLA became law led to the lack of responsibility that owners had towards for the care of their properties. Peter Strauss On Apr 24, 2009, at 12:58 PM, Trilling, Barry wrote: 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 marketdoes not work efficiently. Without adequate rules, the Keynesian "animalspirits" 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 toremediate 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 beundertaken voluntarily. There is no incentive for a buyer to purchase acontaminated property that may come back to haunt; hence, the marketencourages discovery and remediation. Most lenders require an assuranceof cleanup meeting regulatory standards, even if not mandated by anenforcement action. Insurers also require cleanups to protect them fromtrailing 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, therecord of recent years suggests that such programs have resulted in the remediation of thousands of sites that would not otherwise have receivedneeded attention had they been on some "target list" that scares awayboth 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, listingcould 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 morefor 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 wouldnecessarily 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 reasonwhy parties to a deal often are able to manipulate the archaic CERCLAreporting obligations, and negotiate terms that prevent a purchaser fromreporting or investigating historical contamination. So while thecontamination goes unreported, it might also migrate and then become anNPL 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, BarrySent: Friday, April 24, 2009 10:57 AM To: lsiegel@cpeo.org; Brownfields Internet Forum Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listingLenny: I disagree that listing on the NPL does not further stigmatize a contaminated site. Furher, adding a site on the NPL does not assure thatit will be cleaned up any more thoroughly, and almost certainly not aspromptly as if not on the NPL. Isn't the solution that the cleanup riskfor 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 listingI believe the Times article about the proposed Superfund listing of theGowanus 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 asBrownfields, there is a tendency to leave contamination in place. While usually this provides short-term protection, it may lead to unacceptablerisks 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 NationalPriorities List (NPL) will make it difficult to develop property becauseof 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. Sweepingenvironmental problems under the rug, foundation, or building is likelyto 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 indeeda 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. 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