2009 CPEO Brownfields List Archive

From: Jerry Kubal <jekubal@earthlink.net>
Date: Tue, 28 Apr 2009 15:26:14 -0700 (PDT)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate
 
I'm with you, Catherine.

Jerry Kubal

On Apr 28, 2009, at 5:00 PM, Catherine J. Knudsen wrote:

Gentlemen!
Is there any chance you can now take this off line.  Maybe I am in the
minority but this continuing debate is now getting a bit annoying!
Thanks!

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Samford, Jerrold
Sent: Tuesday, April 28, 2009 3:59 PM
To: 'Schnapf, Lawrence'; reshen@mindspring.com; Walsh, William;
lsiegel@cpeo.org; Larry Schnapf
Cc: Brownfields Internet Forum
Subject: Re: [CPEO-BIF] When. where, and how? - continuing the debate

Based on your numbering (below):

1. aaargh. I'm not even going to consider purchasing a piece of commerical real estate under the constraint of being forced to do sampling if there is a suspicion of a release. I MAY choose to, or I MAY choose to walk. That
MUST be MY decision. Not YOURS.


2. Historical contamination that meets reportable thresholds is already
required to be reported when discovered.

3. Secured creditor exemptions are designed to facilitate loans and
distinguish between lenders who have engaged in active management and those
that don't. Your suggested revision would pretty much doom commercial
mortgages. Why would we do that? The liability belongs with the
owner/operator who released the contaminants, not with the bank.

4. See previous posts

5. Have to get educated regulators hired. States don't have the staff to
enforce things now.....

6. Not sure what this means.

7. Requiring source removal obviates the risk-based approach. Why remove the
source area if a) other alternatives such as treatment in-situ or b)
"natural attenuation" meet risk-based goals? Why calculate risk? Don't
understand the nexus between groundwater and water resources under a climate
change scenario. We'll be better off treating sea-water for drinking
purposes.

8. dis-incentive to developers who need to put up their money, sell the
property, and get out.

9. Or at the very least some way of easily tracking where they are and who
is responsible for them.

10. Incentive for a state to do all that?

--------------------------------------------
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)
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-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Schnapf, Lawrence
Sent: Tuesday, April 28, 2009 1:43 PM
To: reshen@mindspring.com; Walsh, William; lsiegel@cpeo.org; Larry Schnapf
Cc: Brownfields Internet Forum
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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