[CPEO-BIF] [Fwd: RE: [Fwd: RE: Illinois proposal for disclosure of watercontamination]]

[Lenny Siegel <lsiegel@cpeo.org>]

From: Boss, Randy R NWD02 <Randy.R.Boss@usace.army.mil>


This discussion might be fairly approached in the following way. The new 
owner of a 'Brownfields property should have an upper monetary limit 
that he/she should pay for to do proper remediation as the property is 
developed.

Beyond that monetary limit, the previous owner should then be held 
responsible. With that approach, the new buyer could categorize the 
development costs no matter how much pollution is eventually found at 
the site.

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
Sent: Friday, May 01, 2009 1:15 PM
To: Brownfields Internet Forum
Subject: [CPEO-BIF] [Fwd: RE: Illinois proposal for disclosure of
watercontamination]

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





--


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


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