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

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

I think there could be a number of mechanism created where no NEW
liability would attach. The repository could contain some waiver to gain
access to the reports. The waiver could state that the information is
dated, may not reflect current conditions, etc. Moreover, once this
system was set up, Im sure every consultant could insert the appropriate
disclaimer language in their reports going forward. If those who believe
in "efficient" markets are correct, the marketplace will adjust to the
new reality.

On the second point, if everyone knew the information would be part of
the public domain, there should be no expectation of privacy. How is
this different from the current situation where resposible parties or
volunteers pay for documents for a site investigation or cleanup that
are placed in a public repository for the site? 

We need to try some new creative approaches. Some may work and some may
fail miserably. We're going to re-invent Wall Street and the auto
companies so we might as well also try to re-invent our approach to
contaminated sites. 

Let's dispense with the tired old excuses and the nattering nabobs of
negativisim (thank you William Safire!).  People will have to change the
way things have been done. It may be hard learning new tricks but this
is the kind of change this old dog and the majority of the country voted
for back in November. 

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 7:04 PM
To: Brownfields Internet Forum
Subject: [CPEO-BIF] [Fwd: RE: When. where, and how? - continuing the
debate]



	
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>>

--------------------------------------------

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 ~~~~~~~~~~~

This e-mail message and its attachments are for the sole use of the 
designated recipient(s). If you are not a designated recipient of this 
message, please notify the sender by replying to this message and delete

or destroy all copies of this message and attachments.

-----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

_______________________________________________

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

IRS Circular 230 disclosure: To ensure compliance with requirements 
imposed by the IRS, we inform you that any tax advice that may be 
contained in this communication (including any attachments) is not 
intended or written to be used, and cannot be used, for the purpose of 
(i) avoiding any penalties under the Internal Revenue Code or (ii) 
promoting, marketing or recommending to another party any transaction(s)

or tax-related matter(s) that may be addressed herein.

This e-mail communication (including any attachments) may contain 
legally privileged and confidential information intended solely for the 
use of the intended recipient. If you are not the intended recipient, 
you should immediately stop reading this message and delete it from your

system. Any unauthorized reading, distribution, copying or other use of 
this communication (or its attachments) is strictly prohibited.

_______________________________________________

Brownfields mailing list

Brownfields@lists.cpeo.org

http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org


-- 


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