| From: | Lenny Siegel <lsiegel@cpeo.org> |
| Date: | Fri, 1 May 2009 11:16:20 -0700 (PDT) |
| Reply: | cpeo-brownfields |
| Subject: | [CPEO-BIF] [Fwd: RE: Illinois proposal for disclosure of water contamination] |
From: Walsh, William <WALSHW@pepperlaw.com> I am torn over this proposal. If there was not a tendency to kill the messenger (given the broad liability laws), I might be less concerned. But if there is notice filed and the regulators go against the notifier, then no one is going develop these areas. The original thrust of brownfields was not to clean up Brownfields sites, but to separate new development from liability and allow the new developer to proceed with an economically beneficial endeavor. The price included some limited clean up to prevent exposure to the new users of the property. The discussion over the last few days, suggests that Larry and others think that somehow this will be a vehicle to require excavation and redisposal (if not treatment) of the historic wastes. My simple view is that if you want something beneficial such as a release from future liability for contamination that you did not cause, the process should require you to pay something, but not as much as the person who caused the contamination. I would divide simple property transfers from a true brownfields where there is a release of liability. If I purchase a property that has contamination onsite and I do not seek a release of liability, and I do not disclose, then I assume liability as a new owner. If I purchase the property and want a release of liability, then obviously, I must disclose. If one requires any purchaser to disclose groundwater or soil contamination, then no one will purchase. If one requires the current owner to disclose (and the current owner did not cause the contamination), then although the current owner may be legally liable, it is in fact punishing an innocent party. I know of no environmental program that requires monitoring by the original disposer to determine if there is a release. In most transactions, there is a phase 1 and if there is any reasonable evidence of contamination, the purchaser seeks and obtains an indemnification for that past contamination. So the bad actor remains liable. If either the original owner or purchase must report, why proceed. What I think you want is a system that encourages (i.e., provides incentives for) sampling and cleanup, without requiring a mind-boggling and very expensive set of studies that will at the end of the day say that the remedy required is what everyone thought was necessary after looking at it for a week. William J. Walsh Pepper Hamilton LLP 600 Fourteenth Street, NW Suite 500 Washington, D.C. 20005 (202) 220-1424 -direct (202) 220-1665 - fax walshw@pepperlaw.com -- 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 --- Begin Message ---Bill, If disclosure is required whenever a plume is discovered, not just when a development is proposed, then I fell it will be less of a problem. California's Prop 65 is perhaps too broad. Its disclosures are so widespread that people don't notice them. Lenny Walsh, William wrote: > Either. There is nothing in this that I would not say to the list. I > think that one could draft a really bad or a really good disclosure > statute. There are some issues that need to be addressed. Disclosure > should not be an admission. What do you do if there is a chemical > without a clean up standard. > > If as part of a Brownfields transaction, a company needs to disclose > every thing that someonelse put in the ground, there will likely be many > fewer brownfields. Any statute that creates an undue burden on an > innocent party is likely to place burdens on Brownfield development. > > William J. Walsh > Pepper Hamilton LLP > 600 Fourteenth Street, NW > Suite 500 > Washington, D.C. 20005 > (202) 220-1424 -direct > (202) 220-1665 - fax > walshw@pepperlaw.com > > > This email is for the use of the intended recipient(s) only. If you have received this email in error, please notify the sender immediately and then delete it. If you are not the intended recipient, you must not keep, use, disclose, copy or distribute this email without the author's prior permission. We have taken precautions to minimize the risk of transmitting software viruses, but we advise you to carry out your own virus checks on any attachment to this message. We cannot accept liability for any loss or damage caused by software viruses. The information contained in this communication may be confidential and may be subject to the attorney-client privilege. If you are the intended recipient and you do not wish to receive similar electronic messages from us in future then please respond to the sender to this effect. > > > ------------------------------------------------------------------------ > > Subject: > Re: [CPEO-BIF] Illinois proposal for disclosure of water contamination > From: > "Lenny Siegel" <lsiegel@cpeo.org> > Date: > Thu, 30 Apr 2009 17:10:24 -0400 > To: > "Walsh, William" <WALSHW@pepperlaw.com> > > To: > "Walsh, William" <WALSHW@pepperlaw.com> > > > Bill, > > Was this just for me, or is it for the list? > > Lenny > > Walsh, William wrote: > >>The Safe Drinking Water Act requires monitoring and reporting to the >>drinking water user on a quarterly basis for chemicals for which there >>is a drinking water standard and for certain other chemicals for which >>there is no drinking water standard. The information in the reports are >>proscribed by regulation. The required language typically lists the >>likely sources of the chemical involved. The report is required whether >>the chemicals exceed a drinking water standard or not. >> >>The reporter and monitorer pursuant to the Safe Drinking Water Act is >>the public drinking water supplier, not the company which may be the >>cause of the contamination (which may not be known until a detailed >>study is performed). I think that any supplier of more than 25 people >>is covered. >> >>I thought that public notification was typically required hazardous >>waste site in Illinois, but I would need to check. >> >>The question of whether any party is required to report is more complex. >>CERCLA requires reporting of a release of reportable quantity (an amount >>per unit of time) from your facility. The facility can be anywhere the >>chemical was spilled or deposited. The reportable quantities vary >>depending upon the toxicity of the chemical. Whether the reportable >>quantity (measure in pounds) is exceeded depends upon the concentration, >>the rate of groundwater movement, and size of the plume. As noted >>above, often it is not as obvious what company is the cause of the >>contamination. For example, TCE is a degreaser, it historically was >>used in cleaning of septic tanks. Benzene is in gasoline and is present >>under many parking lots. >> >>Given the common law liability from a "failure to warn," there is even a >>common motivation to warn. >> >> >> >> >>William J. Walsh >>Pepper Hamilton LLP >>600 Fourteenth Street, NW >>Suite 500 >>Washington, D.C. 20005 >>(202) 220-1424 -direct >>(202) 220-1665 - fax >>walshw@pepperlaw.com >> >> >>This email is for the use of the intended recipient(s) only. If you have received this email in error, please notify the sender immediately and then delete it. If you are not the intended recipient, you must not keep, use, disclose, copy or distribute this email without the author's prior permission. We have taken precautions to minimize the risk of transmitting software viruses, but we advise you to carry out your own virus checks on any attachment to this message. We cannot accept liability for any loss or damage caused by software viruses. The information contained in this communication may be confidential and may be subject to the attorney-client privilege. If you are the intended recipient and you do not wish to receive similar electronic messages from us in future then please respond to the sender to this effect. >> >> >>------------------------------------------------------------------------ >> >>Subject: >>[CPEO-BIF] Illinois proposal for disclosure of water contamination >>From: >>"Lenny Siegel" <lsiegel@cpeo.org> >>Date: >>Thu, 30 Apr 2009 11:50:02 -0400 >>To: >>"Brownfields Internet Forum" <brownfields@lists.cpeo.org> >> >>To: >>"Brownfields Internet Forum" <brownfields@lists.cpeo.org> >> >> >>[Doesn't federal law already require annual reporting of contamination >>(even below drinking water standards) in public water systems of a >>certain size? In most places, the debate seems to be over reporting >>contaminated groundwater plumes that threaten to pollute private wells >>or to enter homes as vapors, or requiring the sampling of private wells. >> >>In my view, any party aware of groundwater contamination above drinking >>water standards should be required to report it to the relevant agency, >>and that information should be actively disclosed to the impacted public >>as well as registered on a public available information resource, such >>as a web site. - Lenny] >> >> >> >>Proposed law aims to prevent another Crestwood >> >> >>BY NATHANIEL ZIMMER >>Southtown Star (IL) >>April 28, 2009 >> >>An increasing number of elected officials are calling for legislation >>that would make it harder for municipalities to get away with supplying >>tainted water to residents, as Crestwood has been accused of doing. >> >>Illinois Attorney General Lisa Madigan on Monday became the latest to >>add her name to the list, proposing that the Illinois Environmental >>Protection Agency be required to directly notify residents by mail >>within two weeks if "a threat of exposure to contaminated drinking water >>exists." In certain situations, current state law requires notification >>only of the owners and operators of a water supply system. >> >>Madigan's proposal does not change the existing standard for determining >>what constitutes a threat to health and when notification must be made, >>said Susan Hedman, environmental counsel in Madigan's office. >> >>State Rep. Bob Rita (D-Blue Island), who represents Crestwood, is >>sponsoring Madigan's proposal in the House. "The people should have some >>kind of notice," he said. >> >> >> >>... >> >>For the entire article, see >>http://www.southtownstar.com/news/1547009,042809crestwood.article >> > > > -- 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 _______________________________________________ Brownfields mailing list Brownfields@lists.cpeo.org http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org |
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