2009 CPEO Brownfields List Archive

From: "Samford, Jerrold" <Jerry.Samford@troutmansanders.com>
Date: Mon, 27 Apr 2009 11:02:02 -0700 (PDT)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate
 
We should not make business descisions out of the hands of our clients. There is no obligation to sample anytime there is a suspected release identified in a Phase I because not everyone wants to spend that money. Someone may be content to let the site go; they may be content to manage the site as if they had confirmed the release, or a variety of other considerations may be made. With the ILD, you have a liability protection when you have no reason to suspect contamination. With BFFP, when you know what's there; with the CLO, also when you know what's next door. If you suspect something, you can't be innocent, by definition.

I have long wished that there could be a "repository" of some kind for Phase I and Phase II reports, HOWEVER, that would be a very inappropriate idea from a liability standpoint. Consultants performing the Phase II work rightfully limit who can use their data and to what use it may be put. Any consultant who would willingly support a proposal to archive all phase II reports where the public could access them would not have any appreciation for the risks that would pose. Secondly, the person paying for the report should not want them archived either. Why should the data that they paid for be made freely available to someone else? Thirdly, there is a significant issue with regard to timing of reporting of data to regulatory agencies. Depending upon how requirements are constructed, consultants need to be able to confirm initial findings, and clients need to make sure they have reached a comfort level with their processes before any reporting could even be considered. The only exception would be identification of an imminent and substantial endangerment. Regardless of the intent of the proposal, the idea does not work.

--------------------------------------------
W. Jerrold Samford, P.G.
Environmental Compliance Specialist
Troutman Sanders, LLP
1001 Haxall Point
Richmond, Virginia 23219
(804) 697-2225 (direct)
(804) 698-6451 (fax)
~~~~~~~   Effective January 2009, Troutman Sanders will operate offices in Chicago, San Diego and Orange County, as well as have an expanded presence in Washington, DC as part of the addition of Ross, Dixon, and Bell LLP. Learn more at www.troutmansanders.com ~~~~~~~~~~~
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-----Original Message-----
From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Schnapf, Lawrence
Sent: Monday, April 27, 2009 1:33 PM
To: lsiegel@cpeo.org; Brownfields Internet Forum
Subject: [CPEO-BIF] When. where, and how? - continuing the debate


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



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