[CPEO-BIF] When. where, and how? - continuing the debate

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

I would like to supplement Lenny's comments about AAI with my favorite
rant about that rulemaking. I know Barry will vehemently argue against
this but I believe that the AAI rule be amended to require: 

1. Sampling be performed when a release or suspected release is
identified in a phase 1. 

2. The sampling results (and phase 2) should be disclosed to Spill
Center and a national database created of all phase two reports.

My rationale for this is multi-fold:

A. If an owner is going to get liability protection it should at the
very least determine if there is contamination at a site and disclose it
to the regulator. This is in my opinion a minor burden in exchange for
liability relief. Moreover, once the contamination is known to the
regulator, a decision can be made to either use public money or pursue
the responsible party. The purchaser would still be able to assert its
defenses to liability.

B. How can an owner claim they are exercising due care or appropriate
care with respect to releases at a site if they do not go thru the
trouble of finding out what contamination is present. Remember, AAI by
its plain terms only requires identification of release, not further
investigation. There was so suggestion in the preamble that sampling
might be appropriate but I would have preferred a more affirmative
statement be placed in the regulatory text.

C. Talk about burdens, just think about the thousands of phase 2 reports
that are done each year because prior phase 2 reports are not available.
If there was a database of phase 2 reports, then local governments
seeking to redevelop sites as well as private prospective purchasers
would not have to spend needless sums repeating investigative work that
was already done but that is not available for a plethora of legal and
business reasons.

I am certainly suggesting a new paradymn in how we approach contaminated
sites but I would suggest that is far better than waiting another 30
years for  market-driven brownfield or voluntary cleanup programs to
whittle down our inventory of historically-contaminated sites. 

Larry  

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
Sent: Monday, April 27, 2009 1:16 PM
To: Brownfields Internet Forum
Subject: [CPEO-BIF] When. where, and how? - continuing the debate

To me the debate between compliance-based cleanup programs and voluntary

programs is a question of WHEN and WHERE voluntary responses are 
appropriate, as well as what level of oversight and disclosure should 
apply to voluntary cleanups (HOW). The requirements applied to voluntary

cleanup vary enormously among the states, and within some states, such 
as California, among programs.

I support a tiered system of oversight, in which the level of government

involvement is keyed to the complexity and severity of the site, as well

as the exposure pathways and the receptors (such as schoolkids).

Over the last decade or so, many sites across the country that merit 
more oversight have been addressed under voluntary programs, largely 
because environmental agencies have lacked the will or the resources to 
use their regulatory authority properly.

I have seen problems at sites where:

1) Developers have escaped oversight by dividing up property.

2) Housing and schools are building on capped contamination.

3) Groundwater contamination is migrating off the development site, but 
the response has been focused only on that property.

4) Groundwater contamination is migrating onto the development site, but

there is no cleanup upgradient.

5) Contaminated sediment is considered "off-property."

I don't argue that every such site should be addressed under a Superfund

or RCRA-type program. RATHER, THE DECISION ABOUT WHICH TIER OF OVERSIGHT

IS REQUIRED SHOULD BE MADE BY THE REGULATORY AGENCY WITH FULL PUBLIC 
TRANSPARENCY.

I remember when some of us on the All Appropriate Inquiries Negotiated 
Rulemaking Committee suggested that some form of public notice be 
required for environmental site assessments. Industry participants 
shuddered. One even warned that it would make it difficult for a 
manufacturer to close a plant without tipping off its employees. (Not a 
good argument, from my perspective!)

But I don't think the neighbors and eventual occupants of redeveloping 
contaminated property should be kept in the dark. In my experience, 
their involvement in the oversight of a cleanup and redevelopment is the

best guarantee that things will be done right. Community involvement may

lead to better protection of public health, but it also may overcome 
bureaucratic conditions that government agencies want to impose.

Initially, additional disclosure may discourage or slow some projects, 
but as transparency becomes routine I believe the public will recognize 
which sites are problematic and which are being addressed properly.

For a few years now I have been trumpeting the success of the Voluntary 
Cleanup Advisory Board at the Gates Rubber Site in Denver. This site was

addressed under Colorado's voluntary cleanup program, but with public 
oversight (as well as the developer's agreement to provide other public 
benefits) the community ended up promoting the project.

A developer does not have to be a "bad apple" for a project to benefit 
from public scrutiny of its environmental strategy.

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


*****************************************************************************
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