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

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

Apropos of our discussion, see below the article from the Chicago
Tribune about tightening up reporting "loopholes"

www.chicagotribune.com/news/local/chi-crestwood-right-to-know-apr27,0,38
32486.story

Illinois to plug holes in water pollution law
Revised law may specify who gets warned and when
By Michael Hawthorne

Tribune reporter

April 27, 2009

Ann Muniz would like to forget the days of drinking bottled water and
taking short showers with the windows open. Health officials suggested
taking those unusual steps eight years ago when they told Muniz and
nearly 750 other homeowners in an unincorporated area near Downers Grove
that their private wells were contaminated with cancer-causing
chemicals.

In an ordeal similar to what Crestwood residents are now experiencing,
the state had known years earlier about toxic pollution seeping into the
water supply but didn't notify residents at the time.

The lack of action in Muniz's neighborhood prompted the Illinois
legislature in 2005 to unanimously approve a right-to-know law that
requires state officials to notify people if they live near a polluted
site or if their tap water is contaminated.

But as the Tribune reported April 19, the state did not tell Crestwood
residents that it had ordered the village to shut off a contaminated
well that had been in use for more than 20 years. Now, Gov. Pat Quinn
and legislative leaders are vowing to fix an apparent weakness in the
law, which they hailed as a national model four years ago.

"It's very frustrating to know this is still happening," said Muniz, who
drove to Springfield three times to tell lawmakers her story. "I know
their pain and anger."

When public water supplies are fouled by toxic pollutants, the law
requires that municipal officials, not residents, be notified. But
village officials already knew their municipal well was contaminated --
state officials had told them so in 1986 -- and continued to use it
anyway.

In response to the Tribune's investigation, Quinn and others vowed last
week to ensure that state and local officials follow through on the
intent of the law. They also are moving to make it a felony to mislead
the public about the source of its water.

"You would expect them to tell their constituents what's in the water
they're drinking," said Senate President John Cullerton (D-Chicago), who
sponsored the right-to-know measure. "If we need to amend the law to
make it clear people should be notified, that's what we'll do."

After the law took effect, the Illinois Environmental Protection Agency
posted on its Web site examples of state officials issuing notifications
or requiring polluters to do so. Under the heading "right-to-know
legislation better informs Illinois citizens," the site notes that early
notification can help people "make important decisions that may impact
their families' health."

One case the EPA highlighted involved radioactive tritium that had
seeped into groundwater near the Braidwood nuclear power plant in Will
County. The Tribune first reported in January 2006 that Exelon Nuclear
had bought out a homeowner and offered to compensate others for any loss
in home value because of the contamination.

On at least a half-dozen occasions after that, Exelon and state
officials sent notices to people living near the plant updating them on
plans to clean up the area.

"We moved fairly quickly on that one," said Kurt Neibergall, manager of
the EPA's Office of Community Relations. "In many of these cases, we
maybe don't have all of the answers, but we can get as much information
as possible out there."

Answers were difficult to find for Muniz and her neighbors in
unincorporated Downers Grove. After they were told in 2001 that their
wells were contaminated with trichloroethylene and perchloroethylene,
two industrial solvents linked to cancer, they were advised by state
health officials to avoid drinking tap water and to limit bathing in it.

If they needed to take a shower, Muniz said, they were told to open the
windows because the chemicals can easily become airborne when aerated.

The neighborhood later was hooked up to treated Lake Michigan water and
the wells were capped. But as the saga dragged on, it became clear that
state and local officials had known about the contamination in the late
1980s and didn't inform people living nearby.

"They always seemed to be looking for loopholes or excuses for not
telling us what's going on," Muniz said.

When the right-to-know legislation was signed into law in 2005, state
officials vowed that what happened to Muniz and her neighbors wouldn't
happen again.

In Crestwood, village officials told state regulators in 1986 that they
would use only treated Lake Michigan water from neighboring Alsip and
the contaminated well would be turned on only in an emergency. But
records show that Crestwood relied on well water for up to 20 percent of
the village's water supply for some months.

The well finally was shut off after the EPA tested the water again in
2007 and found it still was contaminated with chemicals related to
perchloroethylene. But before the Tribune report, the only public hint
of contaminated water in the area was an Aug. 13 news release from the
Illinois Department of Public Health warning that private wells in the
area might be polluted.

State officials now say they are taking steps to avoid a repeat of what
happened in Crestwood.

"We think what these guys did is outrageous," said Doug Scott, director
of the state EPA. "It can't be allowed to ever happen again."

-----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>>

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Troutman Sanders, LLP

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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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