2009 CPEO Brownfields List Archive

From: "Trilling, Barry" <BTrilling@wiggin.com>
Date: Sun, 26 Apr 2009 21:34:00 -0700 (PDT)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing
 
To  asses adequately Deb Ranjan Sinha's comment one would need to see the dissertation and review the evidence presented.  Meanwhile one can only respond to the "loaded" comments in the posting. See my interlineations below.

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 Deb Ranjan Sinha (Gmail)
Sent: Sunday, April 26, 2009 9:06 AM
To: brownfields@lists.cpeo.org
Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing

I recently completed my dissertation research on brownfields in Worcester (MA).
While my case studies did not involve any NPL sites, I think the implications
are equally applicable.

 [HOW MANY OF THE CASE STUDIES INVOLVED SITES REMEDIATED UNDER A VOLUNTARY CLEANUP OR OTHER BROWNFIELD PROGRAM THAT REQUIRED MEETING A MINIMUM STATE STANDARD?  DO THE COMMENTS RENDERED DIFFER FOR THE SITES CLEANED UP UNDER THOSE STATE PROGRAMS?]

Overall, most owners (responsible party or not) were reported to be extremely
hesitant to conduct environmental assessment on their property (even as part of
due diligence by a prospective developer/buyer).

 [DID THE STUDY CONSIDER WHETHER THE VOLUNTARY CLEANUP OR OTHER BROWNFIELD PROGRAM WOULD PROVIDE A RELEASE OF LIABAILITY TO ANY PARTIES?  DID THE STUDY CONSIDER WHETHER THE CURRENT OWNERS WOULD USE CONTRACTUAL METHODS OF LIABILITY ALLOCATION OR INSURANCE TO PROTECT THEM AGAINST TRAILING LIABILITIES?]

 Massachusetts' voluntary cleanup program has resulted in *quantity over quality* through the use of
*Activity Use Limitation* - AUL allows detectable contamination to be left
behind on the property.

[WHAT DO YOU MEAN BY "QUANTITY OVER QUALITY?"  RELIANCE ON SHIBBOLETHS DOES NOT ADVANCE ARGUMENT-- DOES THE CLEANUP OF A FORMER STEEL MILL FOR USE AS A NEW STEEL MILL REQUIRE CLEANUP TO THE SAME STANDARD NEEDED TO PREVENT CHILDREN IN DAY-CARE CENTERS FROM INGESTING THE "DETECTABLE CONTAMINATION " LEFT BEHIND.  ACTIVITY AND USE LIMITATIONS PROVIDE FOR APPROPRIATE USE, FREQUENTLY PUTTING PEOPLE BACK TO WORK, ADDING DOLLARS TO TAX ROLLS, AND PROVIDING FOR MORE LIVEABLE COMMUNITIES, WHILE PROVIDING ADEQUATE PROTECTIONS FOR HUMAN HEALTH AND THE ENVIRONMENT.]

The efficacy of private *Licensed Site Professionals* to conduct assessment and cleanup is also debatable - *good* LSPs are those who can exploit the loopholes in the rules to minimize costs in any possible way, even
if it means incomplete assessment and inadequate cleanup. [THIS COMMENT REFLECTS THE CONTINUING CYNICISM I'VE NOTED IN MY EARLIER POSTINGS: A BAD LSP IS A BAD LSP,  SHOULD LOSE HIS OR HER LICENCSE, AND FACE CIVIL AND POSSIBLY CRIMINAL PENALTIES.  IT HAS BEEN MY EXPERIENCE THAT THE VAST MAJORITY OF LSPS AND LEPS TAKE THEIR SWORN DUTIES SERIOUSLY AND COMMUNICATE THE BAD NEWS, ALBEIT NOT WITH GLEE, THAT THE LAW REQUIRES THEM TO DO.  THE REPUTATION OF A LESS THAN ETHICAL AND/OR LESS THAN COMPETENT LSP/LEP SPREADS LIKE WILDFIRE IN THE CLOSE-KNIT COMMUNTIY OF ENVIRONMENTAL CONSULTANTS AND LAWYERS WHO ARE FAMILIAR WITH THEM.  TRYING TO WORK "BELOW THE RADAR" CONSTITUTES NOT ONLY POTENTIAL BRUSHES WITH THE LAW, BUT ALSO PROBABLE ECONOMIC SUICIDE AS WELL.   IF COMMENTER DEB RANJAN SINHA KNOWS OF ANY LSP OR LEP THAT HAS VIOLATED ITS LICENSURE, IT WOULD BE APPROPRIATE TO MAKE A REPORT TO THE MASSACHUSETTS DEP ACCORDINGLY.

Most projects are dependent on state and federal monies (i.e. tax-payer dollars) for environmental assessment and cleanup.
[THIS SENTENCE SUGGESTS THAT THE COMMENTER HAS BEEN EXAMINING A BIASED SAMPLE: IN FACT MOST PROJECTS IN VOLUNTARY CLEANUP AND OTHER BROWNFIELD PROGRAMS ORIGINATE IN PRIVATE SECTOR DEVELOPMENT PROJECTS, ALTHOUGH THEY MAY BE ENCOURAGED BY FAVORABLE TAX OR ENTITLEMENT TREATMENT.  SOME OF THOSE PROJECTS MAY USE STATE AND FEDERAL FUNDS IF AVAILABLE, BUT LARGELY DO NOT "DEPEND" ON SUCH FUNDING.]

The developer/owner are disinterested in using any of their own funds for environmental components of the project, knowing that they can milk the public funding sources for that. [I DOUBT THAT THE COMMENTER WOULD CHARACTERIZE ALL LAWFUL USES OF GOVERNMENT PROGRAMS AS ATTEMPTS TO "MILK THE PUBLIC FUNDING SOURCE."  THIS REGRETTABLE AD HOMINEM CHARACTERIZATION OF THE OWNER/DEVELOPER COMMUNITY AGAIN DISCLOSES THE CYNICISM AND BIAS OF THE COMMENTER.  IN ANY EVENT, THE COMMENTER ERRS IN FAILING TO RECOGNIZE THE MILLIONS OF DOLLARS UNCOMPENSATED BY PUBLIC FUNDS THAT OWNERS AND DEVELOPERS SPEND BOTH TO INVESTIGATE AND REMEDIATE CONTAMINATED PROPERTIES.  WITHOUT THIS SPENDING THE SITES WOULD EITHER REQUIRE GOVERNMENT TO CLEAN THEM US USING PUBLIC FUNDS OR TO REMAIN BOTH CONTAMINATED AND UNUSED OR UNDER-UTILIZED.]


Today's NYT article also succinctly notes the abuse of public funds to clean up private crimes: [I URGE ANYONE INTERESTED TO READ THE NY TIMES ARTICLE.  THE ARTICLE ASKS WHY IT IS NECESSARY TO USE STIMULUS FUNDS TO "WORK ON SITES" APPARENTLY SUPPOSED TO HAVE BEEN COVERED BY THE FEDERAL SUPERFUND IN A PROGRAM AUTHORIZED "NEARLY 30 YEARS AGO."  THE ANSWER APPEARS TO BE THAT THE SITE IN QUESTION WAS A "SO-CALLED ORPHAN SITE, MEANING THAT EITHER NO RESPONSIBLE PARTY HAS BEEN FOUND OR MONEY FROM THE ORIGINAL POLLUTER HAS BEEN EXHAUSTED.  SO THE TAX-PAYER IS ON THE HOOK FOR THE REMEDIAL WORK."  NOWHERE DOES THE ARTICLE "SUCCINCTLY" OR OTHERWISE NOTE THE "THE ABUSE OF PUBLIC FUNDS TO CLEAN UP PRIVATE CRIMES."  RATHER IT DISCUSSES THE LAMENTABLE STATE OF THE FUND INTENDED FOR PUBLIC USE TO CLEAN UP ORPHAN SITES AND THE CONTROVERSY OVER RENEWING THE FUND.  NONE OF THIS HAS ANYTHING TO DO WITH THE QUESTION AT HAND, WHETHER THE PUBLIC DERIVES GREATER BENEFIT OR BURDEN THROUGH THE USE OF VOLUNTARY CLEANUP AND OTHER BROWNFIELD REMEDIATION PROGRAMS. ]

[I REALIZE ITS GETTING LATE ON AN OTHERWISE LOVELY WEEKEND AND I'M IN A GRUMPY MOOD, BUT IF WE'RE GOING TO CONTINUE THIS DISCUSSION, LET'S STAY FOCUSED AND STICK TO THE FACTS.]


http://www.nytimes.com/2009/04/26/science/earth/26superfund.html

I would be extremely interested in any studies that have looked at the questions
raised here by the discussants. The few I have seen seem to be inconclusive
regarding effect of known contaminants and property value. In Worcester,
identities of contaminated properties seems to be a common knowledge (at least
to those in the know). The extent and degree of contamination are the only
uncertainties in case of unassessed properties.

Regards,

Deb.

____________________
Graduate School of Geography
Clark University
Worcester, MA

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