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

["Susan Neuman, JD, Ph.D" <susanneumanesq@aol.com>]

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

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-----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



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