| From: | Peter Strauss <petestrauss1@comcast.net> |
| Date: | Wed, 3 Mar 2010 12:18:45 -0800 (PST) |
| Reply: | cpeo-brownfields |
| Subject: | Re: [CPEO-BIF] Proposals for EPA's March 17 listening session |
Barry:With all due respect, you must know lawyers who are not competent to practice in specific areas, but are completely competent in others. An attorney who has done 30 years of work in tax could market himself to do real estate law. What would prevent him from doing so? Perhaps the problem lays equally with the purchaser of professional services and not merely with the purveyor. My problem with Jerry's proposal is that he asks for competency in too many areas, especially for Phase 1 assessments. That is why in most cases "environmental professionals" pool together in teams (regulatory agencies, consulting firms). Is it important to have training in geochemistry, risk assessment and toxicology (beyond a very basic 101 understanding) to conduct a phase 1 assessment? In no way am I supporting shoddy work, but my impression is that the purpose of a Phase 1 (and please correct me if I am wrong) is to identify if there are any records or superficial evidence that may indicate a "potential" environmental hazard. Most of this involves good record searching and a trained eye. It is not rocket science. I don't need training in toxicology to know that if an UST containing a hazardous chemical is leaking (or has leaked) across the street, there is a potential problem. I would say that the most important skills for Phase 1 assessments are knowing how to use a computer and accessing records. For Phase 2 licensure, I think that Jerry points out the areas of competency needed. Is it one individual or a corporation that possesses these skills? Conducting Phase 2 assessments is difficult for a sole practitioner. Peter On Mar 3, 2010, at 8:45 AM, Trilling, Barry wrote: I disagree with Peter and would nominate Jerry for King, regardless of his ability to impersonate Bert Lahr as the cowardly lion. His suggestion would add add'l cost to transactions, but is definitely a step in the right direction. Much of the problem, as I've seen it from the viewpoint of a legal advisor reviewing environmental assessments, arises from the absence of a uniformly high standard of performance from the environmental professionals who have prepared the assessments. The uncritical acceptance of these assessments has led to many, if not most, of the problems about which both Lenny and Larry have complained.As noted in previous discussions on this list-serve, the topic of EP qualifications was perhaps the most contentious issue confronted by our 25 member Advisory Committee Act committee that drafted the AAI regulation. Representatives from the engineering and geology communities fought hard for a very stringent standard, but faced considerable resistance primarily from government agencies and lending institutions that did not want to have to displace current environmental professionals or to suffer the cost that hiring more qualified professionals would entail. Experience has sadly demonstrated that the lending community in particular has sought to drive down the cost of Phase I studies to the point that many lenders choose not use the "high priced spread" and rely on providers whose work proves unreliable. See Dianne Crocker's excellent discussion at http://commonground.edrnet.com/posts/d347a7b39d .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 Peter StraussSent: Wednesday, March 03, 2010 2:08 AM To: Samford, Jerrold Cc: brownfields@lists.cpeo.org Subject: Re: [CPEO-BIF] Proposals for EPA's March 17 listening session God, no! You ask for competency in too many skill sets for one individual. And who would you appoint as the judges of competency? Glad you're not the king, although I like your Bert Lehr impression. Peter Strauss On Mar 2, 2010, at 6:53 PM, Samford, Jerrold wrote:Using my best Bert Lahr impression, If I, If I.....were kiiiiiinnnnnnnnng...... an Environmental Professional would have a State or Federal license to practice in the field of environmental assessment. Non- governmental licensure programs could be approved on a case-by-case basis. The license would be based primarily on education and experience in the field(s) of geology, geochemistry, environmental regulation, data analysis, environmental risk analysis, toxicology, and professional ethics. The licensure program would have an allowance for applicants with alternative sets of experience to petition for recognition based on their individual circumstances. Licensure would be predicated on successful completion of an examination of basic environmental investigation protocols. Licensure for Phase I and Phase II work would be separate. Phase II licensure would require more rigorous demonstration of competence in geology, groundwater, geochemistry, environmental regulation, field procedures and chemical data validation. At the Federal level (maybe state, too) it would be interesting to have a review board that could independently look at work performed from a standard of care point of view and provide feedback to the public regarding competence. That has lots of cans of worms attached, but hey - I'm KING here! ________________________________________ From: larry@schnapflaw.com [larry@schnapflaw.com] Sent: Tuesday, March 02, 2010 1:18 PM To: Samford, Jerrold; brownfields@lists.cpeo.org Subject: Re: [CPEO-BIF] Proposals for EPA's March 17 listening session Hey Jerry, if you were king, what would be your definition of an EP? Larry Law Office of Lawrence Schnapf 55 East 87th Street, Ste. 8B New York, NY 10128 212-756-2205 (p) 212-593-5955 (f) Larry@Schnapflaw.com www.schnapflaw.com -----Original Message----- From: Samford, Jerrold [mailto:Jerry.Samford@troutmansanders.com] Sent: Monday, March 1, 2010 07:18 PM To: brownfields@lists.cpeo.orgSubject: Re: [CPEO-BIF] Proposals for EPA's March 17 listening sessionI, too, would have liked to have seen more significant requirements for what an "Environmental Professional" is. I have struggled with that in a variety of forums (ASTM in particular has also struggled mightily with the issue). Neither EPA nor ASTM were about to get into the professional certification business, so reliance on existing programs was the only option. We tried to limit the designation to State licensed professionals, because at least with a State licensure, if someone is found to have practiced outside his or her area of expertise, the license can be revoked AND most licensure programs have a requirement to protect human health and the environment. That didn't fly, either. If there are examples we can gather of unqualified "EP's" causing needless harm to human health or the environment (or potentially just economic damage), we might have a platform to revisit this. I would suspect it won't happen. On the reporting end of things, one place we can and should start is making sure that the reports that DO get to the regulatory agencies - for whatever reason - are placed in a repository where they can be obtained. Anyone who has a "reportable" issue, wants one of the innocent landowner protections from the State or EPA, etc. already sends in the report. Right now, even these are not readily available unless you already know what you are looking for. Jerry ________________________________________ From: Larry Schnapf [lschnapf@aol.com ] Sent: Friday, February 26, 2010 2:38 PM To: Samford, Jerrold; brownfields@lists.cpeo.org Subject: Re: [CPEO-BIF] Proposals for EPA's March 17 listening session Jerry raises some good points as usual. I still think it would be a great idea to have all phase 1 reports made a part of a national database with an express understanding (execute a non- reliance acknowledgment to gain access to the portal) that anyone using the portal would have no reliance on the reports to avoid the very understandable concern that someone would try to sue consultants for failing to uncover something. The NJ LSRP program essentially deputizes LSRPs so that they become agents of the state and have a professional obligation to disclose certain environmental information at risk of losing their certification. Now, this obligation may not apply to run of the mill phase 1 performed by a non-LSRP but something along that line for the universe of sites that could be understood to pose a certain risk would be what I would propose. I think this is another area where EPA missed the boat on AAI. Besides having incredibly low threshold for EP, a national licensing would have at least put the brakes on some of the bottom feeding going on that is causing the quality of reports to deterioate (unlike the braking problem with Toyotas-sorry couldnt resist) :) I have noticed that Architects have a professional obligation to minimize the impact of their work on the environment. I find it interesting that consultants and attorneys do not have such an ethical obligation though I think some states do impose some obligations on PEs. Food for thought. Larry Larry Schnapf Law Offices of Lawrence Schnapf 55 E.87th Street #8BNew York, NY 10128 212-756-2205 office 212-593-5955 fax www.environmental-law.net website Blog: Visit Schnapf Judgment on the commonground community at http://commonground.edrnet.com/resources/9d51c3f88e/summary TWITTER: Follow me at www.twitter.com/LSchnapf Linked-In: http://www.linkedin.com/in/lschnapf -----Original Message----- From: Samford, Jerrold To: 'brownfields@lists.cpeo.org ' Sent: Fri, Feb 26, 2010 1:40 pm Subject: Re: [CPEO-BIF] Proposals for EPA's March 17 listening session Just a quick comment on Larry's point No. 1. Require sampling by whom? As a representative of purchasers of property, If I discover a REC on a piece of property, I should not be required to do anything about it. I can consummate the deal with the information I have, I can decide not to do the deal at all, or, I can elect to do some additional investigation. If you mean the current owner of the property has to do the investigating, there has to be a mechanism for that to get into the regulator's hands, and the regulatory agency has to have enough "hands" to apply some pressure, and a programmatic hook to latch onto. I don't necessarily want to be required to submit my Phase I to the regulators. I may well want to come back to this deal in a year or two, and I may have very good business reasons for not having public knowledge of my interest in a particular piece of property. Very many of the RECs identified at a typical site don't clearly fall within a regulatory program, and too many of the state or local regulatory agencies don't have the time and manpower to force anyone to investigate something not clearly a risk to human health or the environment (and sometimes not even then). Now, as an environmental professional, I'd love to have access to every Phase I, Phase II, ... Phase XXXIV done on every piece of property. That information would be valuable. Also as a consultant, I don't want you to have my report if you were not my client. You are going to use my report, make potentially bad decisions based on it, and try to drag me into your lawsuit when you find something during construction I didn't find during my work. Jerry. -------------------------------------------- W. Jerrold Samford, P.G., LEED AP Environmental Compliance Specialist Troutman Sanders, LLP 1001 Haxall Point Richmond, Virginia 23219 (804) 697-2225 (direct) (804) 698-6451 (fax) ATLANTA * CHICAGO * HONG KONG * NEW YORK * NEWARK * NORFOLK * ORANGE COUNTY * RALEIGH * RICHMOND * SAN DIEGO * SHANGHAI * TYSONS CORNER * VIRGINIA BEACH * WASHINGTON, D.C. This e-mail message and its attachments are for the sole use of the designated recipient(s). If you are not a designated recipient of this message, please notify the sender by replying to this message and delete or destroy all copies of this message and attachments. ________________________________ From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of LSchnapf@aol.com Sent: Friday, February 26, 2010 11:07 AM To: BTrilling@wiggin.com; Paul@lqm.co.uk ; lsiegel@cpeo.org; brownfields@lists.cpeo.org Subject: [CPEO-BIF] Proposals for EPA's March 17 listening session To avoid filling people's email boxes (a problem we had last time), I will summarize my recommendations below. The reasons and rationale Barry and I can continue perhaps in another forum to prevent clogging people's emails or at the listening section: Only the first recommendation directly addresses AAI. The other two involve proposed programmatic changes to CERCLA that are intended to promote transparancy and enable the public to better learn the risks posed by sites in their communities and participate earlier in the site investigation/ cleanup and prioritization process. 1. AAI- require sampling of RECs that are identified as part of a Phase 1 and then require reporting to regulatory agencies. If there is a purchaser, they can qualify as a BFPP in exchange for the disclosure. If the deal falls thru, allow property owners who had no reason to know of the contamination to report and qualify as an innocent landowner with just continuing obligation responsibilities. 2. CERCLA Disclosure Obligations (separate from AAI since this would apply to sites with no imminent transactions)- EPA issue guidance clarifying that section 103(c) applies to historical contamination without the current reportable quantity limitation. By informal guidance or policy, EPA can announce a one-year amnesty period for existing property owners to disclose contamination they have learned about without incurring penalties for non-disclosure. Sort of like the EPA audit policy for environmental violations. 3. Use Section 128 State Response Program Authority- EPA use this authority to require states to satisfy minimum requirements for their voluntary cleanup programs including uniform reporting requirements across the country in exchange for being eligible for the federal enforcement deferral. We have delegated programs under RCRA, CWA and CAA that for the most part operate well. No reason that brownfield programs that operate the same way to promote consistency across the country. Barry and I discussed have these ideas at Brownfield 2009. I believe we were able to reach some common ground on #3 and perhaps the circumstances when reporting of historical contamination might be appropriate with the vehicle and precise circumstances remaining to be fleshed out. 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 2/26/2010 10:41:22 A.M. Eastern Standard Time, BTrilling@wiggin.com writes: I'm pleased that Larry has focused his points on state and local legislation to require transparency rather than on trying to impose a one-size fits all standard on all brownfield transactions through changes in the AAI regulation. Those of us who practice in this area can confirm the old adage that "all real estate is local" and local needs and concerns should govern. States such as Connecticut and Pennsylvania require land owners and environmental consultants who discover site conditions that constitute imminent endangerments to report them. In CT, NJ, Ohio, and to a certain extent in other jurisdictions, state law requires the transaction of a contaminated property to address, characterize, and remediate the adverse conditions. In other states that do not share these environmentally protective requirements it would be useful and productive for their legislatures to consider adopting such measures and for representatives of the real estate development industry, municipalities, the lending industry, environmental consultants/engineers, and environmental justice and other community and environmental interest groups to participate in vigorous discussions about what those programs should look like, such as we are doing here... and such as our 25 member Advisory Committee Act did in devising the current AAI regulation. As to when transparency should apply: I suggest that transparency does not comprise a virtue in itself, and that it should not be worshipped as a shibboleth. Rather, it is a tool that can be useful or misused. A magnifying glass helps bring clarity when things are obscure, but shouldn't be held at such an angle to the document being examined that it also intensifies the light source from the other side, burning the document to be viewed. Let us consider this in the context of property contamination discovered during a real estate transaction. I start with the premise that it constitutes sound public policy to encourage private cleanup of brownfield properties rather than to use scarce public resources to do so. I limit the premise to those instances where the private cleanup meets regulatory standards. I would give no relief to cleanups that do not meet such standards. Cleanups conducted under current state voluntary remediation programs and those that qualify for protection under the bona fide purchaser, contiguous landowner, and innocent purchaser provisions of CERCLA provide adequate protection to the environment and to the public by virtue of the liability protections not applying unless the regulatory standard has been met. Having achieved the standard will be a matter of public record. For those entities that discover contaminated site conditions during the diligence process, but do not start or complete the cleanup to regulatory standards, a requirement to report imminent endangerments to public health and the environment should arguably apply. To require such disclosure outside that circumstance, however, would disincentive both the owners of the properties from making them available for sale and for the developers even to commence, let alone complete, the site purchase and remediation process. Public scrutiny of an essentially private transaction that does not pose an imminent threat to the public or the environment is inconsistent with any business transaction, and especially high-risk deals for brownfield properties. This magnifying glass is more likely to burn the object of examination than to clarify it. The solution to the problem of failure to disclose conditions about which the community should be aware consists of incentivizing discovery of those conditions, providing liability relief to those who remedy the conditions discovered, and vigorously punishing those who either affirmatively misrepresent those conditions or falsely claim to have corrected them. Barry J. Trilling W I G G I N A N D D A N A From: LSchnapf@aol.com [mailto:LSchnapf@aol.com] Sent: Friday, February 26, 2010 1:35 AM To: 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 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 > > > -----OriginalMessage----- > 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 PublicEnvironmental 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 > > > http://www.cpeo.org > > > > _______________________________________________ > Brownfields mailing list > Brownfields@lists.cpeo.org > http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org********************************************************************** > This transmittal is intended for a particular addressee(s). It > may constitute a confidential attorney-client communication. > If it is not clear that you are the intended recipient, you are > hereby notified that you have received this transmittal in error; > any review, copying or distribution or dissemination is strictly > prohibited. If you suspect that you have received this > transmittal in error, please notify Wiggin and Dana > immediately at 203-498-4400, or by email, reply to the sender > and delete the transmittal and any attachments. > > Neither this message nor the documents attached to this > message are encrypted. > ********************************************************************** >_______________________________________________ Brownfieldsmailing list Brownfields@lists.cpeo.org http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org ********************************************************************** This transmittal is intended for a particular addressee(s). It may constitute a confidential attorney-client communication. If it is not clear that you are the intended recipient, you are hereby notified that you have received this transmittal in error; any review, copying or distribution or dissemination is strictly prohibited. If you suspect that you have received this transmittal in error, please notify Wiggin and Dana immediately at 203-498-4400, or by email, reply to the sender and delete the transmittal and any attachments. Neither this message nor the documents attached to this message are encrypted. ********************************************************************** _______________________________________________ Brownfields mailing list Brownfields@lists.cpeo.org http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org _______________________________________________ Brownfields mailing list Brownfields@lists.cpeo.org http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org ********************************************************************** This transmittal is intended for a particular addressee(s). It may constitute a confidential attorney-client communication. If it is not clear that you are the intended recipient, you are hereby notified that you have received this transmittal in error; any review, copying or distribution or dissemination is strictly prohibited. If you suspect that you have received this transmittal in error, please notify Wiggin and Dana immediately at 203-498-4400, or by email, reply to the sender and delete the transmittal and any attachments. Neither this message nor the documents attached to this message are encrypted. ********************************************************************** ________________________________ IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice that may be contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction(s) or tax-related matter(s) that may be addressed herein. This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately stop reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited. _______________________________________________ Brownfields mailing list Brownfields@lists.cpeo.org http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice that may be contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction(s) or tax-related matter(s) that may be addressed herein. This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately stop reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited. _______________________________________________ Brownfields mailing list Brownfields@lists.cpeo.org http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice that may be contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding any penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction(s) or tax-related matter(s) that may be addressed herein. This e-mail communication (including any attachments) may contain legally privileged and confidential information intended solely for the use of the intended recipient. If you are not the intended recipient, you should immediately stop reading this message and delete it from your system. Any unauthorized reading, distribution, copying or other use of this communication (or its attachments) is strictly prohibited. _______________________________________________ Brownfields mailing list Brownfields@lists.cpeo.org http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org_______________________________________________ Brownfields mailing list Brownfields@lists.cpeo.org http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org ********************************************************************** This transmittal is intended for a particular addressee(s). It may constitute a confidential attorney-client communication. If it is not clear that you are the intended recipient, you are hereby notified that you have received this transmittal in error; any review, copying or distribution or dissemination is strictly prohibited. If you suspect that you have received this transmittal in error, please notify Wiggin and Dana immediately at 203-498-4400, or by email, reply to the sender and delete the transmittal and any attachments. Neither this message nor the documents attached to this message are encrypted. ********************************************************************** _______________________________________________ Brownfields mailing list Brownfields@lists.cpeo.org http://lists.cpeo.org/listinfo.cgi/brownfields-cpeo.org | |
References
| |
|
Prev by Date: Re: [CPEO-BIF] Proposals for EPA's March 17 listening session Next by Date: Re: [CPEO-BIF] Proposals for EPA's March 17 listening session | |
|
Prev by Thread: Re: [CPEO-BIF] Proposals for EPA's March 17 listening session Next by Thread: Re: [CPEO-BIF] Proposals for EPA's March 17 listening session | |