2009 CPEO Brownfields List Archive

From: "Robert Paterson" <rgfp@mail.utexas.edu>
Date: Mon, 27 Apr 2009 08:48:25 -0700 (PDT)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing
 
There really will not be such academic evidence because the investigation of
this issue would require huge sums -- if we assume the fox is guarding the
chicken coop -- then the problem can occur at several levels: (1) ESA 1 & 2
truncated in a way that misses likely hot spot problems and VCP oversight
has developer friendly project managers that don't see the "risks" as
significant, (2) environmental consultant conceptual model is designed to
NOT or at least make it likely to not find a problem (I have spoken with
folks in the field as well that think this has occurred in some cases--no
one would speak on the record of course), (3) field data collection is done
in a fashion where again samples are gathered wrong or instrumentation is
not used appropriately for field measures (4) lab has a way of not analyzing
right (This came up with a major lab in Texas in case folks forgot about
that a few years back)---- the list can go on and on....:-(     


The only time the evidence will show up is when you have extreme situations
(-- e.g., vapor intrusion making folks sick in an acute fashion -- chronic
issues might never even get identified --) and  then it will be framed as a
matter of sloppiness or incompetence rather than a built in problem due to
lack of adequate oversight or checks and balances.

There is a large literature on regulatory noncompliance that looks at why
the regulated "do" and "do not" comply (political sciences & planning
literatures), the lesson from that research is that you need to recognize
that all regulated populations will have "bad apples" the question is
whether the regulatory milieu allows it to spread and the size of problem
becomes extreme....the regulated are motivated to comply on several grounds:
utilitarian considerations, norms of social acceptance, normative -
altruistic motivations and fear of punishment (deterrence) are among some of
the levers we use to keep them in line (managerial and technical competence
is part of the puzzle as well).  

Based on past research in this area, I would suggest that since different
people are motivated differently -- you want as many signals from the
regulatory system reinforcing "competent compliance" as possible across
those motivational bases-- 

I would also say that if there is little likelihood of "getting caught" and
the consequences of getting caught and having the blame sticking is low --
you have a ripe regulatory environment for noncompliance and problems that
could be of public health consequence....this does sound like the Brownfield
situation right now....and I too have worried about this setting

PROVING the problem is out there is expensive -- a precautionary approach
would simply seek low cost ways to better "ensure" compliance.... 

In short--whats the harm of brainstorming ways to make sure the "bad apple"
population stays small -- 

Kind regards

Bob Paterson
UT-Austin

 




-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Trilling, Barry
Sent: Saturday, April 25, 2009 9:13 PM
To: 'Peter Strauss'
Cc: Schnapf, Lawrence; Brownfields Internet Forum
Subject: Re: [CPEO-BIF] Gowanus Canal, Brooklyn, New York listing

1.  I am also unaware of any academic studies that can enlighten our
discussion and would welcome an unbiased examination of the subject which
would include a comparison of the effect on site cleanup between sites
limited to enforcement actions, those undertaken solely on a voluntary basis
(whether or not under the auspices of a state brownfield cleanup program),
and some mix.

2.  The proof of the pudding should not rest in "belief" in any sort of
economic system, but in what works best to clean up and revitalize our
communities.

3.  Unrestrained and unregulated conduct with regard to the disposition of
sites receiving hazardous substances resulted in disasters like the Love
Canal; I should know; I was the first Justice Department lawyer on the case.
Since then I've been involved representing both plaintiffs and defendants in
scores of hazardous waste cleanup disputes and have acted in the resolution
of contamination cleanup issues in a wide variety of business, real estate,
and development transactions throughout the country.  This experience has
demonstrated to me that overregulation and complex, expensive litigation
exacerbated the problem by incentivizing site owners to build walls and hide
contamination rather than to clean it up. Lawyers with similar experience
will also report on the frustratingly sad duty of representing parties who
had little or nothing to do with creating the problems at these sites while
seeing very little done to remediate them until the parties could come
together and resolve their liability issues.  It was not and it is not the
presence of voluntary brownfield remediation programs that encourages the
hiding of problems and half-hearted attempts at cleanup; rather, those
programs have served as effective means to expose and effectively remediate
site contamination.

4.  It has been my experience that parties who have legal responsibility of
some sort for the cleanup of contaminated properties do not seek to prevent
the discovery of the truth or to inhibit responsible cleanup.  As I posted
earlier, business people have economic motive, as well as social or
altruistic reasons, to do right:  holding on to or acquiring a contaminated
property is very bad for business. History demonstrates that one cannot
indefinitely hide these problems and that they will have to be addressed;
hence lenders and insurers will not take part in transactions without
thorough due diligence.  The greatest inhibitor to the recognition and
cleanup of site contamination has not been business cover-up, but concern
for the adage that "no good deed goes unpunished."  This concern arises from
a combination of an overly aggressive command-and-control,
one-size-fits-all, regulatory system combined with well-intentioned but
often narrow-minded enforcement staff and environmental activists who have a
level of cynicism about business owners and operators that does not allow
them to reconcile their suspicion of the profit motive with a desire to
believe that these business people genuinely want to "do right" by their
communities.  While there has been a sea-change in the attitude of almost
all business toward becoming instruments of environmental progress, too many
enforcement personnel and members of the activist community continue to
erect barriers of mistrust. Voluntary brownfield programs and their
achievements have helped to reduce the cynicism and promote both economic
and environmental progress.

5.  We need both to allow the market to work where it can achieve acceptable
verifiable environmental remediation and to enforce the law. We must not
abandon needed guidance and regulation.  Pennsylvania's Act 2 program, while
not perfect by any means, serves as an excellent example of government
setting realistic and achievable remediation goals while giving the parties
who undertake responsibility for meeting those goals needed latitude to
achieve them.  No achievement of goals = no release from liability.
Programs that vest authority in licensed professionals, such as  for
Licensed Site Professionals  (LSPs) in Massachusetts (and soon in New
Jersey) and for Licensed Environmental Professionals (LEPs) in Connecticut
incentivize private sector consultant to act consciously as agents of the
state and for the public well being, while serving in a private context.  We
must continue to pursue actual wrong-doers and punish them for damaging the
environment and endangering public health,  but we must not discourage
public spirited members of both business and municipal communities from
undertaking voluntary endeavors to remediate which can be accomplished more
quickly and efficiently, and just as effectively (if not more so) than
enforcement efforts to do so.



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

-----Original Message-----
From: Peter Strauss [mailto:petestrauss1@comcast.net]
Sent: Saturday, April 25, 2009 9:09 PM
To: Trilling, Barry
Cc: Schnapf, Lawrence; lsiegel@cpeo.org; Brownfields Internet Forum
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 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
>
>
>
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