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

["Bruce-Sean Reshen" <reshen@mindspring.com>]

Lenny,

The mantra that a voluntary program must involve a tradeoff between
safety (meaning effective cleanup and oversight) and both time and
secrecy is a false one.

I believe all reasonable people want remedial responses and oversight
procedures that are effective in protecting human health and the
environmental.  We should accept nothing less.

However, to achieve this goal in the real world we need to reform
compliance-based programs so that they are as efficient for the user as
voluntary programs.  Most superfund sites take several years to just
work their way through the torture of the RI/FS process.  This is, of
course, because these programs are milestone based programs rather than
outcome based processes.  We need to focus on reform of these programs
so that utilizing and gaining the benefits of compliance-based programs
such as superfund can be chosen without adding the further stigma of
endless delay to projects.  Then we can all observe with satisfaction
the cleansing of the baby while discarding only the bath water.

Humble apologies for the misspelling of your name.  No slight intended.

I make no comment regarding the discussion between Barry and Larry since
I agree with most of what each of them have said; besides which I note
that they are both counsel to me and much appreciated and loved.

Bruce

Bruce-Sean Reshen
p. 203-259-1850
c. 917-757-5925
 
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-----Original Message-----
From: Lenny Siegel [mailto:lsiegel@cpeo.org] 
Sent: Monday, April 27, 2009 9:55 PM
To: Bruce-Sean Reshen
Cc: Brownfields Internet Forum
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate

Bruce,

I agree that time is a critical consideration in cleanup, not just to 
suit developers, but to protect communities. I therefore support reforms

that streamline oversight, such as look-up tables for routine soil 
contamination.

But I won't accept inadequate cleanup as the price of speed. And I won't

accept secrecy as the price of development.

Lenny (with a Y)

Bruce-Sean Reshen wrote:
> Lennie is only partially correct in stating that the debate is between

> compliance-based cleanup programs and voluntary cleanup programs and 
> he is only partially correct when he says that its a question of of
WHEN 
> and WHERE voluntary programs are appropriate.
>  
> For some reason no one wants to mention the six hundred pound gorilla
in 
> the room whose name in TIME.  The level of cleanup and the level of 
> oversight can be the same among compliance-based and voluntary 
> programs.  The difference is that in highly structured programs such
as 
> Superfund, the legally mandated processes such as the RI/FS process 
> consume huge amounts of time and cannot be attenuated.  To spend years

> analyzing all possible alternative cleanup strategies when everyone 
> knows which one is most applicable, is both a legal mandate and
evidence 
> of logical insanity.  This process destroys all incentive for a 
> developer whose interest is redevelopment of the property.  If we are 
> the gain the attractive features of such compliance-based programs, we

> must inject a note of sanity and revise them to allow for
fast-tracting 
> the process.  Alas, this would require a legislative approval which 
> often throws out the baby with the bathwater. 
>  
> The attractiveness of voluntary state cleanup programs in not only
that 
> they tend to minimize oversight (which is not a good thing), but that 
> they consume less time and therefore are more amenable to market
driven 
> redevelopment efforts by developers.
>  
> Until we effectively address the issue of flexibly telescoping the
time 
> involved in structured cleanup programs, they will never be an
attrative 
> option for market driven redevelopment.
>  
> Those who believe this debate is about the degree of stigma attached
to 
> compliance-based programs vs. voluntary programs have missed the mark.

> Both types of programs involve public awareness and consequential
stigma 
> of sorts.  But smart folks will judge the quality of the cleanup and
the 
> quality of the administrative oversight, no matter what the program.
>  
> The real question among both types of programs is the degree of 
> flexibility and the time involved in the process.
> 
> 
>  
> On Mon, Apr 27, 2009 at 1:15 PM, Lenny Siegel <lsiegel@cpeo.org 
> <mailto:lsiegel@cpeo.org>> wrote:
> 
>     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 <mailto:lsiegel@cpeo.org>>
>     http://www.cpeo.org <http://www.cpeo.org/>
> 
> 
> 
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> 
> 
> 
> 
> -- 
> Bruce
> 
> Bruce-Sean Reshen
> The MGP Group
> 733 Summer Street - Suite 405
> Stamford, CT 06901
> (p) 203-327-2888, X 18
> (f) 203-327-2999
> (c) 017-757-5925
> breshen@mgppartners.com <mailto:breshen@mgppartners.com>
> www.mgppartners.com <http://www.mgppartners.com>
> www.theguardiantrust.org <http://www.theguardiantrust.org>
> 
> This communication may contain information that is legally privileged,

> confidential or exempt from disclosure.  If you are not the intended 
> recipient, please note that any dissemination, distribution or copying

> of this communication is strictly prohibited.  Anyone who receives
this 
> message in error should notify the sender immediately by telephone or 
> return email and, delete the message from their computer.



-- 


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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