Re: [CPEO-BIF] Voluntary Cleanup vs. CERCLA

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

I think most people involved in the brownfield field do not appreciate
the extent of the "unreported" contaminated sites that exist across the
country. I am not talking about the classic vacant or abandoned
brownfield sites but active, income-producing properties.  

As I have indicated previously, I reviewed approx. 10,000 phase 1
reports during the CMBS era and it was amazing to me how many sites have
suspected or known contamination that were not reported. These often
involved active commercial properties where the public frequently vist
and that are located near residential neighborhoods. 

I also saw an epidemic of self-directed cleanups (cleanups done without
any regulatory oversight in states without licensed environmental
professional programs). Lots of drug stores, hotels, big boxes built on
ground leases where all the most they did was remove visibly
contaminated soils but no post-excavation soils or gw sampling.

Then there are the thousands of existing sites built on old gas station
and dry cleaner sites from the 1970s and earlier that pose VI issues but
regulators and the community are not aware of because the owners or
operators have no obligation to report the results of their phase 1 or
phase 2 reports required by banks who did not require any further work
because they were selling the loans thru securitization.

The question is what do we do about these sites that may or may not pose
a risk to human health. Under the current market-based approach, these
sites might be cleaned up when there may be a proposed sale or a
refinancing by a lender concerned about reputational risk. Unless we
require the current owner to investigate and determine if these sites
pose a risk to human health, these sites will continue to pose some
uncertain amount of risk until there is a transaction (which is unlikely
for the next four or five years), the owner gets religion or a newspaper
reporter/regulator stumbles across the problem.  

Larry

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Peter Strauss
Sent: Saturday, November 21, 2009 3:36 AM
To: lsiegel@cpeo.org
Cc: Brownfields Internet Forum
Subject: Re: [CPEO-BIF] Voluntary Cleanup vs. CERCLA

The discussion at the conference  was very interesting (an
entertaining), but not totally on point.  The issue of voluntary cleanup
vs, superfund type cleanup, as was the original issue at Gowanus,  was
only touched upon briefly. But it  was in this discussion that
developers along the canal stated that they would back out of
development projects if Gowanus was named a Superfund site.

The debate shifted to disclosure requirements, and to some extent,
whether property transactions should be protected at the cost of public
health protection.  These are important issues, to say the least.  In my
opinion the proponents of more stringent disclosure requirements (Larry
and Lenny) were essentially turning the  concept of due diligence on its
head: that is, instead of due diligence on the buyers side, proponents
would have stiffer requirements for due care and disclosure on the part
of owners and responsible parties.  In my  
opinion, proponents are seeking a substantial  cultural/value change.   
I am not opposed to it. On the other hand, the proponent of the
protection of the market-driven system (Barry) made some important
points that can't be overlooked.  That is, if money dries up for
transactions at Brownfield sites, they will sit idle, as they did once
before.

So the real problem  is how can we develop a policy that has two goals
in mind: 1) to not unduly burden property owners (economically and
legally), and 2)  protecting public health to the fullest extent
practical.  The way that I see it now, neither goal is being fully  
met.   (I recognize that I have simplified  a complex legal, economic,  
and environmental issue, and I apologize to the panelists if I've
misrepresented their positions.)  I am hoping that this dialogue
continues.

Peter Strauss
On Nov 18, 2009, at 3:33 PM, Lenny Siegel wrote:

> Yesterday, at the Brownfields conference in New Orleans, we had a 
> lively panel discussion that addressed, among other things, state 
> requirements for public disclosure and involvement under voluntary 
> cleanup programs? When (if ever) do members of the public - 
> particularly site neighbors - learn about releases of hazardous 
> substances? Are regulatory requirements met?
>
> Tell the list what happens in your state.
>
> Lenny
>
> --
>
>
> 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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