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

[Lenny Siegel <lsiegel@cpeo.org>]

From: 	Robert Paterson <rgfp@mail.utexas.edu>
To: 	'Samford, Jerrold' <Jerry.Samford@troutmansanders.com>, 
<brownfields-bounces@lists.cpeo.org>, <lsiegel@cpeo.org>

	



Maybe since I haven’t had my afternoon coffee – I’m a little slow today 
– I’m not seeing where your points nullify Larry’s proposal?

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--I was under the 
impression in many states the Phase II and the remediation plans ARE 
public documents on file with the VCP program---if one followed the 
rules seems the extra liability is minimal—---in such cases archival 
systems would be straightforward. What do you see as the additional 
liabilities to the environmental professional that followed “best 
practices” ??

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? If one successfully navigated a VCP process they are 
getting a rather substantial public benefit in the liability release – 
leaving the data and reports in full on file seems a fair trade and 
might reduce expenses and problems on adjoining sites in the future – 
reducing society’s transaction costs as a whole is a worthwhile endeavor—--

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. Again 
since this typically is coordinated already with a public agency – I 
don’t see that the idea does not work—can you be more specific with an 
example??--The only exception would be identification of an imminent and 
substantial endangerment. Regardless of the intent of the proposal, the 
idea does not work.

Bob Paterson

UT-Austin

SNIP>>

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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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--


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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