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

[Peter Strauss <petestrauss1@comcast.net>]

Katherine:

From my point of view this is the most interesting discussion that we  
have had on this list serve for some time.  Keep it going!

Peter Strauss
On Apr 28, 2009, at 2:00 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)
> ~~~~~~~   Effective January 2009, Troutman Sanders will operate  
> offices in
> Chicago, San Diego and Orange County, as well as have an expanded  
> presence
> in Washington, DC as part of the addition of Ross, Dixon, and Bell  
> LLP.
> Learn more at www.troutmansanders.com ~~~~~~~~~~~
> This e-mail message and its attachments are for the sole use of the
> designated recipient(s). If you are not a designated recipient of this
> message, please notify the sender by replying to this message and  
> delete or
> destroy all copies of this message and attachments.
>
>
> -----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
>
> 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
> IRS Circular 230 disclosure: To ensure compliance with requirements  
> imposed
> by the IRS, we inform you that any tax advice that may be contained  
> in this
> communication (including any attachments) is not intended or written  
> to be
> used, and cannot be used, for the purpose of (i) avoiding any  
> penalties
> under the Internal Revenue Code or (ii) promoting, marketing or  
> recommending
> to another party any transaction(s) or tax-related matter(s) that  
> may be
> addressed herein.
>
>
> This e-mail communication (including any attachments) may contain  
> legally
> privileged and confidential information intended solely for the use  
> of the
> intended recipient. If you are not the intended recipient, you should
> immediately stop reading this message and delete it from your  
> system. Any
> unauthorized reading, distribution, copying or other use of this
> communication (or its attachments) is strictly prohibited.
> _______________________________________________
> 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

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