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

[Lenny Siegel <lsiegel@cpeo.org>]

From: 	Trilling, Barry <BTrilling@wiggin.com>

My friend Larry and I agree on the fundamentals:  we need to identify
and clean up contaminated sites.  The question is what is the best way
to do so.  I believe a combination of firm enforcement against
wrongdoers (note that I do not use the word "Polluter" which has cast a
net beyond any rational meaning of the word), regulatory standards that
use risk-based standards, well-funded and systematically monitored
compliance systems (including private sector mechanisms to do so such as
Bruce Reshen's Guardian Trust-  which I admit is a client), and market
mechanisms to shift the economic burden of cleanup from the public in
general to enterprising business people who can do the job as well as,
if not better than, government agencies.

Our experiences serving the world of private enterprise, I regret to
observe, appear vastly different.  If I have had any "bad apple" clients
who have sought to pursue underhanded tactics to evade their
environmental responsibilities they have been wise enough to engage me
only to take the "high road." That is not to gainsay that all prudent
businesses seek to avoid liability and to obtain the most cost-effective
result.  In cases where it makes business sense to pursue a risk-based
cleanup that will not restore the environment to pristine conditions,
but will nonetheless preserve a site's ability to serve an appropriate
use, there is nothing illegal, immoral, unethical, or even
environmentally unsound in doing so.  If we try to clean up every site
to conditions that pre-date human habitation we might clean up a few,
but leave the vast majority unremediated.  For those in most acute need
of help, particularly when there has been wrong-doing, it is wholly
appropriate for the government to take prompt enforcement or other
regulatory action.  The remainder of sites should fall into a range from
those where private action should be supervised by regulatory authority
to those requiring no governmental oversight.  The questions raised by
Lenny's original blog-entry about the Gowanus Canal NPL listing and
Larry's  worrisome observations about improper use of voluntary
remediation programs appear to consist of (i) defining the point where
 disclosure of contaminated environmental conditions must be made to a
public body and (ii) at what point do those conditions no longer justify
private un-observed action and some yielding to government oversight?

Thousands of private, unregulated cleanups take place each year.  These
cleanups, or rather the failures of many of these cleanups adequately to
address site contamination, appear to be the basis of Larry's
observations that we need more mandatory disclosure and governmental
oversight.  That the shortcomings of inadequate cleanups are eventually
exposed and subject to government attention does not satisfy:  Larry
argues we should address these problems now and the market does not
encourage us to do so.  Hence, he would require mandatory public
disclosure of the discovery of contamination (at some defined level).  I
would not argue against the extension of laws like those in
Pennsylvania, Connecticut, and elsewhere that already require such
disclosure in the case of threats to public water supplies or other
imminent endangerments.  Beyond this, however, mandatory disclosure
would discourage due diligence activity and stall the transaction and
remediation of not only contaminated sites, but others that just have
the aura or stigma of being so.

As for when the government must get involved in a cleanup and the extent
of doing so:  the example already exists-- sites of NPL proportions
already merit EPA action (as in the Gowanus situation we can argue when
the standard should apply); similarly in Connecticut, the Transfer Act
provides allows the Department of Environmental Protection (as
Massachusetts law does in that state) to decide whether it will
supervise a cleanup directly or allow a Licensed Environmental
Professional (Licensed Site Professional in Massachusetts) to assure
that a site cleanup will meet the state's Remedial Standard Regulations;
in unsupervised private cleanups such as those that take place under
Pennsylvania's Act 2, the party seeking protection from liability must
demonstrate that it has met state regulatory cleanup standards for each
portion of the property for which it seeks protection.  Let's look more
closely at the tangible accomplishments of these laws before we seek to
limit them.

The media rarely addresses good news and the public is usually deprived
of learning about success stories.  Rather, we hear about the bad
actors, the programs that fail, and the evil consequences of human
frailty.  On the brownfields front we fortunately have programs that
have demonstrable success stories; I refer again to Pennsylvania's Act 2
program, but also those in other states and federal programs that have
turned formerly contaminated and underutilized sites into viable
economic developments, public parks, etc.  Yes, we need to keep track of
new developments and tighten up programs to account for such formerly
unaddressed issues as vapor intrusion, including reopening the
remediation of old sites in order to do so.  Such reopening, however,
should not be part of an exercise in "blame," and the good-faith efforts
of parties to clean up sites under accepted standards should not exclude
them from continuing liability protection.

Let's be careful to use all the methods available to meet the problem.
Just as we should not exclude regulation and enforcement based on the
failure or those mechanisms to do their job, so too we should not draw
back from voluntary remediation and other brownfield programs, but seek
to improve them while keeping their incentives for private sector
participation.


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



--


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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