[CPEO-BIF] Burlington RR v. US

["Schnapf, Lawrence" <Lawrence.Schnapf@srz.com>]

 Supreme ct has just ruled 8-1 that shell oil was not liable as an
arranger under CERCLA due to lack of intent. Also significant ruling on
joint liability/allocation. more to follow......

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
Sent: Friday, May 01, 2009 2:15 PM
To: Brownfields Internet Forum
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



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