2009 CPEO Brownfields List Archive

From: "Susan Neuman, JD, Ph.D" <susanneumanesq@aol.com>
Date: Tue, 28 Apr 2009 14:58:58 -0700 (PDT)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate
 
Larry,

I like most everything in your top-ten list. In particular, I like the points concerning reporting of historical contamination, (1), (2) and (5). While some states may require this in some contexts, I think that CERCLA does need to be amended to make it universal. I also like the points involving IC/EC's (6), (8) and (9). I would add to (9), however, that, in addition to periodic compliance monitoring, periodic certification/verification of IC/EC's should be required as is the case in NY and NJ; both are necessary to manage and maintain IC/EC's. For purposes of financial assurance for post-remedial obligations, including IC/EC liabilities, insurance coverage is available -- if regular certification and monitoring are performed.

Sue


Susan Neuman, JD, Ph.D
President
Environmental Insurance Agency, Inc.
138 Chatsworth Ave.
Larchmont, NY 10538
914-833-5100 (phone)
914-833-5102 (fax)
susanneumanesq@aol.com
www.enviroinsurance.com


-----Original Message-----
From: Schnapf, Lawrence <Lawrence.Schnapf@srz.com>
To: reshen@mindspring.com; Walsh, William <WALSHW@pepperlaw.com>; lsiegel@cpeo.org; Larry Schnapf <LSchnapf@aol.com>
Cc: Brownfields Internet Forum <brownfields@lists.cpeo.org>
Sent: Tue, 28 Apr 2009 1:42 pm
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate










In an ideal world, the regulators would supervise all the cleanups butwe
will be living in an era of constrained budgets and limited government
resources for quite awhile.

Thus, I have to swallow hard and grudgingly admit that the future is
probably going to be voluntary cleanups conducted by licensed
professionals that are audited by the government. The key to me is to
make sure we have robust programs that do not incentivize a race to the
bottom    but instead encourage better quality cleanups.

I believe a key to this approach is greater transparency. If I was king,
following would be my top ten reforms that I think could accomplish
these goals:

(1) revise AAI to require phase 2 reports when RECs or releases are
identified;

(2) reporting of historical contamination when discovered so we no
longer have "no hunt" or "no look" contracts (may require amending
CERCLA 103(C);

(3) Revise lender liability so that banks that originate and sell loans
like CMBS do not qualify for secured creditor exemption as they are not
holding "indicia of ownership" primarily to proect security interest but
instead are being driven by fee profits (but allowed to assert
applicable CERCLA LLPs);

(4) a database of phase 2 reports both to provide enhance community
information, oversight of the regulators/regulated and reduce
transactional costs for future deals;

(5) strong enforcement focus and penalties for non-disclosure;

(6) An AAI-like rule for Continuing Obligations;

(7) Source removal for groundwater contamination as part of any
risk-based cleanup approach as water resources are going to be the KEY
concern for climate change;

(8) Financial assurance for all post-remedial obligations exceeding two
years;

(9) Periodic Compliance Monitoring For IC/EC (likely privatized as
well);and

(10)EPA should be required to certify that state remedial programs
qualify as "state response programs" under CERCLA 128 as it is currently
ambiguous if a EPA is required to officially "bless these programs. EPA
delegates other environmental programs to states and given the growing
importance of state voluntary cleanup programs it seems important that
EPA ensures these programs or their LSP programs are sufficiently
robust. States would have to adopt the minimal CERCLA reforms above to
be designated a "state response program".


Larry
-----Original Message-----
From: Bruce-Sean Reshen [mailto:reshen@mindspring.com]
Sent: Tuesday, April 28, 2009 12:40 PM
To: Schnapf, Lawrence; 'Walsh, William'; lsiegel@cpeo.org; Larry Schnapf
Cc: 'Brownfields Internet Forum'
Subject: RE: [CPEO-BIF] When. where, and how? - continuing the debate

Larry,

Your email has finally shifted the debate.  We are no longer debating
voluntary programs vs. what Lenny refers to as compliance-based
regulatory programs.

The issue is whether or not our society is willing to understand and
fund regulatory oversight, no matter what we call the program.  Without
such funding for oversight, the unscrupulous among us will evade their
responsibilities.  Most compliance-based programs incorporate such
oversight, but are chronically under funded and unable to effectuate
their mission.  Most voluntary programs need stronger oversight mandates
as well as increased funding.

Note the NJ DEP program that on paper is excellent.  However, a
self-study showed that a huge number of participants simply never filed
or inadequately filed the required forms and no one noticed.  We are not
talking bad regulators, we are simply observing the impact of inadequate
funding.

No program can be effective without proper funding.  This is actually
the major issue before us.

Bruce

Bruce-Sean Reshen
p. 203-259-1850
c. 917-757-5925

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.



-----Original Message-----
From: Schnapf, Lawrence [mailto:Lawrence.Schnapf@srz.com]
Sent: Tuesday, April 28, 2009 11:41 AM
To: Walsh, William; lsiegel@cpeo.org; Bruce-Sean Reshen
Cc: Brownfields Internet Forum
Subject: RE: [CPEO-BIF] When. where, and how? - continuing the debate

The key statement in William Walsh's email is the following:

"I believe that voluntary clean up programs if properly overseen will
result in more expeditious cleanup, less costly clean up, without the
cleanup being inadequate (or secret)"

I agree with that statement. The critical question to me is how best can
we accomplish or incentivize that outcome. We have seen that the market
cannot discipline itself and will unleash the "animal spirits" if not
properly regulated. Without proper controls, there's just the law of the
jungle because there is greed. Greed has to be tempered by fear and
regulation. I think we need to move back towards more oversight. That
does not mean telling developers how many holes to dig or where to dig
them but to make sure that sites are properly characterized and
remediated.

Larry



************************************************************************
*****
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.
========================================================================
======



*************************************************************************

****
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






_______________________________________________
Brownfields mailing list
Brownfields@lists.cpeo.org
http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org

  References
  Prev by Date: Re: [CPEO-BIF] When. where, and how? - continuing the debate
Next by Date: Re: [CPEO-BIF] When. where, and how? - continuing the debate
  Prev by Thread: Re: [CPEO-BIF] When. where, and how? - continuing the debate
Next by Thread: Re: [CPEO-BIF] When. where, and how? - continuing the debate

CPEO Home
CPEO Lists
Author Index
Date Index
Thread Index