Re: [CPEO-BIF] [Fwd: EPA's March 17 listening session is an opportunity] from

Stranded here at home on a snowy day when I had planned to attend a progress meeting on the cleanup of an industrial site in Western Massachusetts, I have this topic very much on my mind, both from a pragmatic and policy/philosophic perspetive. Ah the dangers of idle time... but I digress.

"With all due respect" (i.e., with no ad hominem intent, but watch out for what's coming), my esteemed colleagues are guilty of "fuzzy" thinking (i.e., no logical connection between problem and solution). I'm not aware of anyone who contests Bob's premise that "the information provided should be not just public but easily accessible…." Once a party enters a VCP and submits reports to a regulatory agency those reports should be publicly available. You don't keep "bad apple" developers out of the process, however, by requiring every interested brownfield volunteer to disclose its pre-transaction findings before it even consummates a transaction. The risk of exposure to sanctions for failure to disclose in marginal cases will drive all but the least risk-adverse from engaging in brownfield remediation (and sad recent experience on relying on the non-risk adverse to help us certainly counsels against doing that).

Continuing with recollections of my Philosophy IA course:

(i) it is "a fortiori" reasoning (i.e., an argument to the effect that because one ascertained fact exists, therefore another with which it is associated, but which has not been established, also exists) to presuppose that more transparency will drive the "bad developers" out of the market;

(ii) contending that the current AAI process is not consistent with transparency and collaborative planning sets up an easy, but inaccurate, "straw man" (i.e., an argument or opponent set up so as to be easily refute) to knock down; and

(iii) it is a "red herring" (i.e. a diversion intended to distract attention from the main issue)

to focus on the rather uncertain result of driving out the few" bad developers" rather than on the reasonably likely result that it will instead drive out the good faith developers who help solve the problem.

My apologies for ranting on so.

Barry J. Trilling

W I G G I N A N D D A N A

From: Robert Paterson [mailto:rgfp@mail.utexas.edu]
Sent: Friday, February 26, 2010 10:34 AM
To: LSchnapf@aol.com; Paul@lqm.co.uk; Trilling, Barry; lsiegel@cpeo.org; brownfields@lists.cpeo.org
Subject: RE: [CPEO-BIF] [Fwd: EPA's March 17 listening session is an opportunity] from

I concur w/Larry and Lenny – on the whole within the environmental arena greater transparency and public involvement has had a net positive impact (e.g., TRI). VCPs are state run programs and the information provided should be not just public but easily accessible…some of the best examples of brownfield site reuse had excellent involvement of local citizenry – makes sense – you get a project that is more responsive to its surrounding community needs – so from a social and market standpoint – site should perform better

I have a doctoral student that is wrapping up his dissertation project focused on superfund reuse – case studies and statistical analysis support importance of collaborative planning in terms of probability of actual reuse…he has not defended it yet (but I’ll let the list know when it is available)

I do not think we will significantly reduce brownfield action with more transparency and collaborative planning – maybe just the “bad apple” developers that would intentionally short change proper site investigation and clean up are now deterred and stay out of the market – how is that a bad thing?

Unsafe reuse is not better than no reuse – collaborative engagement and transparency simply better ensures unsafe reuse doesn’t happen

Kind regards,

Bob

Robert G. Paterson, Ph.D.

Associate Professor

Doctoral Program Chair

1 University Station B7500

School of Architecture

The University of Texas

Austin TX 78712-1160

512-471-0734

Fax 512-471-0716

rgfp@mail.utexas.edu

http://soa.utexas.edu/people/profile/paterson/robert

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Whatever we do to the web.

We do it to ourselves…

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From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of LSchnapf@aol.com
Sent: Friday, February 26, 2010 12:35 AM
To: Paul@lqm.co.uk; BTrilling@wiggin.com; lsiegel@cpeo.org; brownfields@lists.cpeo.org
Subject: Re: [CPEO-BIF] [Fwd: EPA's March 17 listening session is an opportunity] from

I dont believe that the ancient doctrine of caveat emptor should have a place in a modern society. It was more appropriate for an agricultural society where there were not latent defects like chemicals in groundwater or buried drums nor large corporations with enormous bargaining power.

That was my point in bringing up UCC warranties, SEC disclosures and even new home construction warranties. This approach has certainly humbled a giant corporation like Toyota. But for the disclosure of the problems, it would have business as usual. It was the disclosure that (dare I say this) put the brakes to the problem.

However, in response to my esteemed friend, Barry, greater transparency is one of the key tools being used in the green building movement. California is requiring building owners to disclose results of energy audits as are many cities such as New York. The idea is that the sunshine that is cast on the previously hidden information will cause building owners to improve their buildings or the market will punish them by devaluing their properties.And let us not forget the proliferation of property disclosure laws popping up in states for residential transactions.

I see no reason why this modern trend should not be applied to latent environmental conditions. There is nothing so special about environmental conditions that should warrant continuing to allow for this antiquated practice of allowing property owners to keep secret information they have about historic environmental information about their properties. Mandatory disclosure will even the playing field and not punish those whose aspirational goals cause them to be more open than current required under law.

There are also good reasons on the other side of the ledger for promoting greater disclosure. Think of all of the phase 1 and phase 2 reports that are done for a property over the past 20 years. If this information was publicly available, new potential purchasers or lenders could review this information and use it to make more informed decisions if or where to sample. Think of all the money that is wasted repeating work that may have been done half a dozen times since the passage of laws like CERCLA.

So Barry, tag you're it :)

Larry

Law Offices Lawrence P. Schnapf,
55 E.87th Street #8B
NY, NY 10128
212-756-2205 office
212-876-3189 home
203-263-5212 weekends
Larry@schnapflaw.com
www.schnapflaw.com

In a message dated 2/25/2010 5:54:06 P.M. Eastern Standard Time, Paul@lqm.co.uk writes:

Dear all,

from across the pond...

the system we have here in (olde) England is 'buyer beware' (caveat emptor).

The principle being however that if prospective purchaser asks vendor questions then they must be answered truthfully and lying carries heavy criminal penalties. The law society ha prepared a list of standard questions it expects lawyers to ask during the buying process (conveyancing is the term we use over here). Of course one can (and I would) go beyond these standard questions, if one wants to.

If total protection of buyers is wanted (for both known and latent defects) this can only be delivered by insurance or contractual indemities or some combination.

fnally thank you to all (and especially Lenny) for a VERY informative forum!

Paul Nathanail
University of Nottingham

________________________________________
From: brownfields-bounces@lists.cpeo.org [brownfields-bounces@lists.cpeo.org] On Behalf Of Trilling, Barry [BTrilling@wiggin.com]
Sent: 25 February 2010 21:06
To: lsiegel@cpeo.org; Brownfields Internet Forum
Subject: Re: [CPEO-BIF] [Fwd: EPA's March 17 listening session is an opportunity] from Larry Schnapf

Larry defines the problem, apparently as he sees it with AAI, as a failure to require information to be disclosed that "allows the bad people to gain advantage over the people of good faith," and goes on to compare the situation with a car manufacturer's duty to disclose defects to purchasers, UCC express and implied protections, and SEC disclosure obligations. Regrettably, his "disclosure" solution doesn't reach the bad people and provides a disincentive for the people of good faith to attempt to meet an important social, economic, and environmental problem.

AAI requires the person of good faith to make efforts to discover environmental problems. The 2002 CERCLA amendments also require the bona fide purchaser to take reasonable steps to address the problems it discovers. It provides no shield for either the bona fide purchaser or the property owner if either attempts to conceal public endangerments. Larry, however, would apparently impose an affirmative duty on any property owner who becomes aware of a release or threatened release of a hazardous substance on his or her property, regardless of its gravity or imminence, and whether or not it is migrating or threatens to migrate off the property to make public disclosure of that knowledge and would also require the potential property purchaser to do so. This is a recipe for a very bitter meal, providing even further incentive for the "bad people" to cover up and take no measures do discover their problems and making the ability of the people of good faith who want to remediate
properties and bring them back to productive use almost impossible to achieve because of the potential for the process of cleanup and development to be taken out of their hands or made pragmatically or politically unachievable. The analogies to protecting consumers from defective products and investors from fraudulent deals just do not apply. Here the bona fide purchaser, rather than the community, stands in the shoes of the consumer or investor, and AAI requires it to take steps to protect itself. The community stands to benefit when that BFP remediates the property to meet regulatory standards. Drive away that BFP and the likelihood of remediation dwindles, if it survives at all. If the BFP fails to remediate, then stringent enforcement should be the consequence. The problem, as I noted in my earlier message consists in the failure of agencies to undertake adequate enforcement and of the professional community to insist upon adequate site characterization.

As much as we want to protect the public from exposure to hazardous substances, we won't get there by ignoring the facts that get in the way of attractive and amusing, yet inappropriate and inaccurate analogies.

The issue is not that real property is a sacrosanct concept. The issue is how best to protect the public by getting sites cleaned up most efficiently, safely, productively, and at the least cost to the public. A system that encourages private sector entities to do so, as AAI does, makes more sense than one that will drive good faith volunteers away from the process.

Barry J. Trilling
W I G G I N A N D D A N A

-----Original Message-----
From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
Sent: Thursday, February 25, 2010 1:55 PM
To: Brownfields Internet Forum
Subject: Re: [CPEO-BIF] [Fwd: EPA's March 17 listening session is an opportunity] from Larry Schnapf

From: LSchnapf@aol.com

My dear friend Barry has such faith in his fellow human beings. We have
laws because people won't do the right thing. I would submit that sadly
the universe of people acting in good faith is extremely small. The
problem is not incompetent consultants (and there are many) but perhaps
because the owners, buyers and lenders don't want to pay for what it
would cost to do a good investigation.

But I believe the real problem continues to remain that the information
is not required to be disclosed in most cases. In fact, that allows the
bad people to gain advantage over the people of good faith that Barry so
passionately defends.

And my other question is what is so special about real estate that we
continue to have these archaic disclosure rules? Car manufacturers can't
force consumers to buy cars as is (except maybe Toyota--sorry couldn't
resist).The UCC contains all sorts of expressed and implied protections.
Public companies have vast disclosure obligations under SEC regulations.

We're no longer an agrarian society. It's a time our real estate rules
conform to the transparency expected in the 21st century--and that are
necessary to protect the public.

Lawrence P. Schnapf, Esq.
55 E.87th Street #8B
NY, NY 10128
212-756-2205 office
212-876-3189 home
203-263-5212 weekends
www,environmental-law.net

Trilling, Barry wrote:
> Lenny:
>
> I agree that this listening session will be valuable, if for no other
> reason than to try to continue to clear the air with regard to your
> insistence that the AAI Rule is part of the problem. I'm afraid that
> you and Larry are using your considerable persuasive talents and access
> to decision makers to divert their attention from the real problems:
> first and foremost, is the failure of environmental agencies (primarily
> on the state level) to enforce the law against parties that are abusing
> the system. Second, but also important, is the failure of the
> environmental professional and legal communities to convey the message
> to their clientele about the importance of strict adherence to both the
> rule and the ASTM E1527-05. To impose additional new restraints on
> good-faith volunteers who need a more level playing field to address
> brownfield sites will discourage private cleanup activity and leave the
> burden on government to take remedial action. This will result in more
> time-consuming, more expensive, less comprehensive, and less
> economically productive cleanup activity and will ill-serve the
> constituents you sincerely want to benefit.
>
> The AAI rule is not perfect-- my experience in its operation so far
> shows very inconsistent observance of its dictates. Not surprisingly
> there are still so-called "environmental professionals" out there who do
> not appear to be meeting either the rule or the ASTM E1527-05 standard.
> EPA and professional organizations (both in the environmental
> engineering/consulting and legal communities) should be advising
> prospective purchasers about the importance of strict observance of the
> standards and the trade press should advise the community of developers
> and municipalities who rely on Phase I studies to beware of "on the
> cheap" assessments. A good example of a bad result that I've seen on
> more than one occasion recently is that of the potential site purchaser
> who wants to be eligible for the bona fide purchaser defense hiring a
> low-cost consultant (perhaps at half the cost of a more conservative
> professional) to conduct a Phase I assessment that I've had to send back
> after legal review as insufficient. The additional legal fees expended
> for my review and comment usually amount to substantially more than the
> potential purchaser would have paid for a first-rate Phase I.
> Penny-Wise/Pound Foolish. And for those unwise enough to commission a
> budget assessment without legal review, the long term risk includes much
> more dire consequences, including exposure as a CERCLA PRP. This is not
> a problem that changing the AAI rules will cure, however.
>
> I look forward to our discussions on March 17.
>
> Barry J. Trilling
> W I G G I N A N D D A N A
>
>
> -----Original Message-----
> From: brownfields-bounces@lists.cpeo.org
> [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
> Sent: Tuesday, February 23, 2010 11:24 AM
> To: Brownfields Internet Forum
> Subject: [CPEO-BIF] EPA's March 17 listening session is an opportunity
>
> U.S. EPA's "Listening Session" on the All Appropriate Inquiries (AAI)
> Rule, governing non-intrusive environmental site assessments, is three
> weeks away. (9:30 a.m. to noon on March 17, 2010 at room 1153 of the EPA
> East Building at 1201 Constitution Ave. NW, Washington D.C). I encourage
> participants in the Brownfields Internet Forum, as well as others, to
> attend: to engage in what I hope will be the first stage of a dialogue
> to improve the EPA Rule, which was published in the Federal Register on
> November 1, 2005.
>
> I was a member of the Negotiated Rulemaking Committee that developed the
> Rule, and I believe that it was a significant step forward. The
> performance-based approach that forms its core is a win-win solution
> that now helps to better identify potential environmental problems with
> only minimal increases in assessment costs.
>
> Nevertheless, except in states where there are additional statutory
> requirements, the AAI process remains unsatisfactory in terms of public
> notification that a site assessment is being undertaken, public
> involvement in the collection of information, and public disclosure of
> the results.
>
> It is my hope that those elements of the Rule can be improved, be it by
> revision of the rule, federal legislation, or state legislation and/or
> regulation. I recognize that many well-meaning participants in
> Brownfields redevelopment view such proposals as a threat to the entire
> Brownfields process, likely to kill deals that lead to additional
> environmental protection.
>
> I see the March 17 event as an opportunity to try to reach common
> ground, to bring the public into the process without "killing the goose
> that laid the golden egg."
>
> Before the Rule was finalized, I prepared a "A Stakeholder's Guide to
> 'All Appropriate Inquiries,'" available at
> http://www.cpeo.org/brownfields/SGAAI.pdf. It describes the rule and
> offers the following summary of my concerns:
>
> "Unless the Phase One is being conducted in compliance with another
> environmental program, there is no requirement to ask for public input,
> or even to notify the public that a site assessment is underway.
> Furthermore, while the parties conducting the Inquiries may conduct
> sampling to meet the assessment's performance objectives, sampling is
> not required.
>
> "These limitations are insignificant at most sites where there is no or
> little contamination. But at sites where it appears that human health
> and the environment are at serious risk, communities must demand that
> environmental regulatory agencies become actively involved.
>
> "The Brownfields concept, which uses the demand for property reuse to
> promote the screening and remediation of blighted properties, can
> promote the protection of human health and the environment. But unless
> affected communities participate directly in the oversight of
> Brownfields activities, they risk the likelihood that developers and
> local agencies will simply sweep environmental problems 'under the rug.'
> The ... All Appropriate Inquiries rule can be a tool to ensure that
> environmental protection accompanies property redevelopment, but this is
> more likely to happen if the public is part of the process."
>
> 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
>
>
>
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>
>
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