2009 CPEO Brownfields List Archive

From: "R CHAPIN" <rwc27q@verizon.net>
Date: Mon, 23 Nov 2009 08:15:43 -0800 (PST)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] Public Notice, Reporting Phase 1 and Phase 2 Environmental Site Assessments etc.
 

Good Morning Ladies and Gentlemen,
 
Very interesting discussion. I few points from New Jersey.
 
Public Notice: New Jersey's regs went on the books in Sept 08 and went effective for existing sites Sept 2, 2009. Any site with any remediation (program doesn't matter) must meet N.J.A.C. 7:26E-1.4. Basically two ways to do it: Post sign at site,  or send letters to property owners within 200 feet. A whole bunch of nuances, so read them if your curiosity is up.
 
Before commenting on Phase 1, a point; In New Jersey you have an obligation under the "Spill Act" to report the discharge of any hazardous substance immediately, which means within 15 minutes. There are no allowable quantities--a drop of gasoline could be reportable. Been around for a long time. This has created a large gray area (e.g, if benzene is present in soils, but below the NJ cleanup standard, is the reportable?)  that's never been addressed by the regulators and is way too long for this e-mail, but there is an obligation to report. And, under the recently effective Site Remediation Reform Act, the property owner now has an affirmative obligation to remediate, meaning you must do public notice. This notice is required two weeks before field work for site investigation is started, not after the suspicion of contamination has been identified. So, NJ has got this covered. AND, a Phase 1, by definition, does no field work.
 
I have found USTs that a Phase 1 missed and they were, of course, a reportable event, except my client didn't own the property. After a discussion with client's attorney, who spoke with owner's attorney, USTs were reported (and completely removed and remediated at owner's expense.)  In my experience, the "try to hide it and do the minimal" is something from the early to mid 1980's, not the approach of today. (I've been an environmental consultant since 1976). My clients understand their best approach is to get at the problem and fix it by doing it right the first time; the alternative only costs you more in the long run. And, please don't confuse a client's desire (and right) to remediate as cost effectively as they can (while meeting the regulator'y requirements) with doing a poor job.
 
Phase 1: Here in Jersey there was a consultant who did a Phase 1 that missed a serious issue--mercury in floor boards. (This was a while age--at least ten to 15 years.)  Fast forward to a third party (unknown to the consultant) who relied on that Phase 1 and purchased the property BEFORE the issue was discovered. At the end of the day, the original consultant was liable (by NJ Courts) to someone who wasn't their client and didn't have that consultant's permission to use report. My standard terms and conditions exclude all use by any third party, PERIOD. (This on advice from counsel, BTW.) I don't know of any counsultant that doesn't do the same. So, saying that Phase 1's should be routinely reported does not jibe with the realty of doing them---from either the consultant's or client's perspective.
 
On ECRA/ISRA: Before the SRRA, there were a number of routes to closing a transaction before completing site remediation. All involved posting financial assurance. The SRRA changed the playing field in NJ (basically "out-sourcing" the NJDEP's Site remediation work to LSRPs [licensed site remediation professionals]) and it's only been effective for 3 weeks, so it's not real clear at this juncture exactly how it will work going forward.
 
Overall, I have to say ECRA/ISRA has been very succussful in keeping the responsible party doing the cleanup of sites. Although a I know of more than one case that is 25 years old and still open. ECRA became effective 12/31/83.
 
Rich Chapin
_____________________________________________________
Richard W. Chapin, M.S., P.E., BCEE
President, Chapin Engineering
27 Quincy Road, Basking Ridge, NJ 07920
908-647-8407 908 625 5697 (cell) 908-647-6959 (fax)
 
 
----- Original Message -----
Sent: Monday, November 23, 2009 12:43 AM
Subject: [CPEO-BIF] Reporting Phase 1 and Phase 2 Environmental Site Assessments

I cut my teeth on ECRA, now ISRA. It was a far-sighted statute since it was triggered by closing or sale of industrial establishment. In essence, it was intended to prevent creation of brownfields (before that name became popular).

Unfortunately, DEP never had enough staff so the program got criticized over the years for the delays. Some other states (e. g., Ct, Ind and Ill-the latter was later repealed) adopted similar laws but without the ability of the state to hold up the transaction.

BTW- The joke used to be that ECRA stood for the "environmental consultant's retirement act" but the consulting industry it really meant the "environmental counselor's retirement act". The law got such a bad name that when it was amended in 1993 they changed the name to ISRA.

Larry
Larry Schnapf
Schulte Roth & Zabel
919 Third Avenue
New York, NY 10022
212-756-2205 (p)
212-593-5955 (f)


From: Peter Strauss <petestrauss1@comcast.net>
To: Schnapf, Lawrence
Cc: debsinha@gmail.com <debsinha@gmail.com>; brownfields@lists.cpeo.org <brownfields@lists.cpeo.org>
Sent: Sun Nov 22 23:58:17 2009
Subject: Re: [CPEO-BIF] Reporting Phase 1 and Phase 2 Environmental Site Assessments

Larry, or anyone else who knows:
There was, as I recall , a law passed (ECRA?) in NJ that required an industrial site to take affirmative action on sites in which the owner was transferring property, similar to what we have been discussing.  Does anyone have experience with this law and how it has worked?  Did it meet an appropriate standard of informing the public; did it require remediation of contamination before the property could be transferred?  Most importantly, could this serve as a model for a policy that would require due care  (or pay the consequences)? Is the law still in effect?

Peter
On Nov 22, 2009, at 7:17 PM, Schnapf, Lawrence wrote:

My reference to new brownfield sites being created is the sheer number of contaminated sites being shutdown, or owned sites being abandoned to insolvent entities and  leased sites rejected as part of bankruptcy procedures in the past two years.

Again, my  concern is the  sites that do not have impending or foreseeable transactions so that contamination may continue to migrate, as well as sites that were redeveloped in the past as part of a self-directed cleanup.

As lender's counsel, I continually was confronted with former manufacturing, gas station and dry cleaner sites that were redeveloped and remediated without any regulatory oversight b/c of concerns about construction delays and overruns.

They would seek private financing to take out construction loans and could not provide any regulatory signoffs. often times, I had to force borrower to take additional sampling and then report results to the state for further remediation. However, the lenders often looked the other way when they would be securitizing the loans since they would be selling the loans to investors elsewhere in the world and getting hugh fees in addition to getting loans off their books. Created quite the moral hazard.

I've seen this all over the country in big states and small. The developers and owners rather risk the possibility of  regulators discovering the unsupervised cleanup than risk their construction schedules. .  The attitude is that the overworked regulators will focus on their unremediated sites and are to  unlikely impose any penalties for a  site that as already been redeveloped and occupied.

Of course, this only happens for projects that are privately-financed and  do not receive brownfield funding- which is the vast majority of the time

L
Larry Schnapf
Schulte Roth & Zabel
919 Third Avenue
New York, NY 10022
212-756-2205 (p)
212-593-5955 (f)

----- Original Message -----
From: brownfields-bounces@lists.cpeo.org <brownfields-bounces@lists.cpeo.org>
To: Brownfields Internet Forum <brownfields@lists.cpeo.org>
Sent: Sun Nov 22 15:15:56 2009
Subject: Re: [CPEO-BIF] Reporting Phase 1 and Phase 2 Environmental Site Assessments

Larry, could you please elaborate on the last sentence *Indeed, more brownfield
sites were created in 2009 than were
cleaned up!*? Are you referring to migration of soil and groundwater
contamination to adjacent properties either because cleanup is not happening or
because of incomplete/self-directed cleanups?

Also, I would also appreciate if anyone direct me to reports documenting these
various conditions under which legacy pollution is not required to be reported
to the relevant agencies during redevelopment/sale of properties (when I expect
these conditions to be made public).

Deb.

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strictly prohibited.  If you have received this e-mail in error, please immediately 
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