Re: [CPEO-BIF] Listing Brooklyn's Gowanus Canal

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

Henry,

AAI does not necessarily operate the way you describe. It only applies
to the pre-acquisition activities that will allow a party to qualify for
the bona fide prospective purchaser defense (or innocent landowner and
contiquous owner defenses if the AAI does not uncover release of
hazardous substances). 

Once a person takes title, it has "continuing obligations" (stop ongoing
releases, exercise "appropriate care", cooperate with remediators,
comply with disclosure requirements, comply with institutional controls,
etc). If the now owner does not comply with those continuing
obligations, it can lose its liability protection.

It is also important to emphasize that if a person takes title to
property adjacent to a superfund site, it will not necessarily qualify
for the contiguous property owner exemption since it would have known
about the contamination. Of course, it could qualify as a BFPP if the
contamination has migrated onto the site but there is that nasty
continuing obligations issue again.  

One of the the weakness of AAI is that by not requiring a purchaser to
take sampling to further investigate release of hazardous substances
that are identified in the Phase 1 report (or RECs if the ASTM
terminology isused), it makes it hard for the now owner of the property
to comply with its "continuing obligations".    


Larry
-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Henry, Clark
Sent: Tuesday, May 19, 2009 2:04 PM
To: 'lsiegel@cpeo.org'; Brownfields Internet Forum
Subject: Re: [CPEO-BIF] Listing Brooklyn's Gowanus Canal


 Lenny,

I am not taking a position as to whether or not the Gowanus Canal should
be listed as a Superfund site or not.  I am not intimately familiar with
the canal nor am I even anywhere near Brooklyn.   From my vantage point
in Portland, Oregon, I do however have a little perspective on the
implications of Superfund listing along a waterway.  I would like to
communicate what some of our experience has been here in Portland with
the Willamette River listing.  These could be likely implications for
the Gowanus listing and should be in the minds of those trying to get it
cleaned up and sites redeveloped. 

Your report states that only the canal will be listed and the listing
won't impact the adjacent properties.  Even though our river is the
listed site (and a couple of upland sites), the EPA establishes a study
area that envelops the sites adjacent to and even farther upland from
the river.  We are talking about 6 miles of river now.  Adjacent sites
are being seen as the Responsible Parties for river contamination and
EPA is pursuing costs from them even though they are not technically the
superfund site themselves.   The Willamette River, nor the Gowanus
Canal, polluted themselves.  This pollution came from industry adjacent
to it.  Unless EPA issues a formal statement that this won't happen, I'd
expect it to happen.   

Also, I wouldn't expect things to happen quickly.  I am hopeful that the
current administration is able to put the fund back in Superfund which
can expedite projects like this but the need is greater than the supply.
We are several years into our Superfund listing and there are more to go
before the costs are allocated.   I just saw an article that cleanup of
the Hudson River, with only one RP, just began despite a Record of
Decision being issued over 7 years ago ( my details could be wrong but
I'm sure I'm not far off).  

Again, I'm not for or against the listing.  I just want to encourage a
realistic understanding of the implications.  We are part of a
multi-agency effort called the Harbor Redevelopment Initiative (Harbor
RedI) with the City of Portland, the Portland Development commission,
Port of Portland, County, State, etc.. to overcome stagnated investment
along our industrial working harbor related to the Superfund listing.
http://www.pdc.us/ura/willamette-industrial/harborredi.asp
I wish we would have started this years ago. 

The EPA's All Appropriate Inquiry standards are supposed to protect a
purchaser against EPA enforcement in situations like this as long they
performed the proper due diligence.  We haven't found this to be very
comforting to purchasers.  Until EPA issues confirmation that the
purchaser does indeed get the AAI protections, purchasers and investors
are still wary.

If I misunderstand the details of the Gowanus Canal, please forgive me
but there is considerable benefit to planning for the consequences.  I
support the effort that best achieves the cleanup, responsibly allocates
the burden of cleanup and achieves the greatest benefit for those who
have lived with the problem for generations.  

Thanks for doing what you do.   We need this national dialogue. 

Clark

Clark Henry
City of Portland
Portland Brownfield Program
(503) 823-5863 - office
(503) 823-5565 - fax
clarkh@bes.ci.portland.or.us 
www.brownfield.org
 


-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
Sent: Tuesday, May 19, 2009 10:17 AM
To: Brownfields Internet Forum
Subject: [CPEO-BIF] Listing Brooklyn's Gowanus Canal

Listing Brooklyn's Gowanus Canal: A No-Brainer Lenny Siegel May 2009

The Gowanus Canal stretches about a mile and a half through western
Brooklyn, terminating at the Gowanus Creek arm of the New York Harbor. 
Despite opposition from New York City officials and developers, U.S. 
EPA's proposal to list the Canal on the "Superfund" National Priorities
List is a no-brainer because only the Canal, not the adjacent land, is
proposed for listing, and because development is currently proposed for
only a very small stretch of the Canal waterfront.

For Lenny Siegel's 3-page, 1.6 MB PDF report, go to
http://www.cpeo.org/pubs/Gowanus.pdf.


-- 


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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