The idea that the formation of brownfields
is largely due to CERCLA is more mythology than truth. I think the real reason
for brownfields was the large economic dislocations of the 1980s-1990s as well
as the recent Great Recession. Companies abandoned sites not because of CERCLA
but because they could export their jobs overseas without being held
accountable for the mess they left behind. CERCLA did create obstacles to
redevelopment of those abandoned sites and I fully support incentives to bring
those properties make into sustainable reuse.
However, we do not have unlimited
resources and it would not surprise anyone if the new Congress decides not to
fully appropriate the federal brownfield program. In the face of such fiscal
constraints, I think it is time for EPA to look around for viable PRPs who have
caused brownfield sites. There is simply no fear on the part of corporate
owners to abandon sites. They know that state government budgetary issues have
eviscerated environmental enforcement (the memo by former DEC Commissioner Pete
Grannis is a great illustration of the challenges facing state governments). The
corporate owners are willing to roll the dice and abandon sites, figuring the
local and state governments are going to fall over themselves to try to find
developers to reposition these sites using as many public resources as
possible. And those entities are unlikely to pursue the parties that caused the
problem. EPA needs to fill this breach or else we are creating an incredible
moral hazard.
I agree with Barry that we should not pursue
small businesses and truly innocent parties. One of the problems is that we
are talking yet again about anecdotal evidence. I have been trying to find out
how many sites that have attracted public brownfield funding are associated
with viable PRPs but there is no empirical data nor does it appear possible to
obtain this information from EPA since it apparently does not track this kind
of info. Thus, we are left arguing over beliefs and convictions rather than
objective data
From: Trilling, Barry
[mailto:BTrilling@wiggin.com]
Sent: Thursday, November 11, 2010
7:31 PM
To:
'michael.goldstein@akerman.com'; larry@schnapflaw.com
Cc: brownfields@lists.cpeo.org
Subject: RE: [CPEO-BIF] US Mayors
Brownfield Report
Larry's
at it again! Reliance on the so-called "polluter pays"
principal is largely responsible for increasing the number of, if not being
primarily accountable for creating, the tens of thousands (if not more)
abandoned and boarded up former industrial and commercial properties that make
up much of the nation's stockpile of brownfield properties. As long as
federal law and that of some states considers to be "polluters" the
innocent parties who complied with procedures that were "industry
standard" when carried out, violated no contemporary standard of care, and
acted without intent to pollute, those parties will continue to have no
incentive to discover (let alone disclose or voluntarily remediate) historical
adverse environmental conditions on their properties. Similarly, to reach
into the pockets of such parties to finance current federal or state brownfield
grant programs is equally unjust. I would be sympathetic to an approach
that allows recourse against true "scoff-laws," but inasmuch as
society as a whole benefited from the prosperity spawned by law-abiding
businesses, society as a whole should bear the burden or correcting the
problems created by such activities if they met the standards of the time.
Barry
Barry J. Trilling
Partner, Wiggin and Dana, LLP
400 Atlantic
Street
P.O. Box 110325
Stamford, Connecticut 06911-0325
Office:
203 363-7670
Fax:
203 363-7676
Cell:
203 556-3764
From: brownfields-bounces@lists.cpeo.org
[mailto:brownfields-bounces@lists.cpeo.org] On
Behalf Of michael.goldstein@akerman.com
Sent: Thursday, November 11, 2010
10:03 AM
To: larry@schnapflaw.com
Cc: brownfields@lists.cpeo.org
Subject: Re: [CPEO-BIF] US Mayors
Brownfield Report
Larry, keep stirring the pot! I
happen to disagree with you on this one - strongly - and think this would
create a huge chilling effect on redevelopment activity, killing an
important percentage of it in the starting gate. In fact, I can
think of a number
of valid public policy reasons why federal resources should not be
allocated for this type of activity. Not even for a minute.
That said, I would like to switch gears
and raise another issue implicated by the huge federal investment in assessment
and cleanup grants, which investment is channeling hundreds of millions of
dollars into the coffers of environmental engineering and consulting
firms.
The issue is this: Given the windfall that
these firms are enjoying, how many have turned around and made a point to hire
graduates from EPA's Brownfield Job Training Grant Program? I've been
participating in a BJTG Program here in South Florida,
and we are having a heck of a time getting firms to even attend our job fairs,
much less hire our graduates.
I'm wondering what others are seeing
across the country.
For the EPA folks on this listserv, is the
Agency collecting this type of data (and, if so, is an attempt being made to
correlate the firms that are receiving EPA assessment/cleanup grant funded work
with the number of hires these same firms make out of the BJTG Program)?
It would be illuminating to know which
firms are getting the most grant funded assessment and cleanup work and what
their BJGT Program hiring record is.
In our part of the world - and I'm
confident this is true all over the country - we are graduating bright,
eager, enthusiastic students who emerge from the program with high expectations
and great need. We need to get them gainfully employed, and
the firms that are the beneficiaries of EPA's assessment and cleanup grants
should be lining up to do the hiring. This may, in fact, be happening
elsewhere; unfortunately, we're seeing very little of it in South
Florida. Again, what are others seeing?
Best regards,
Michael
Michael R. Goldstein, Esq.
Akerman Senterfitt
One Southeast
Third Avenue, 28th Floor
Miami, FL 33131
Direct Line: 305.982.5570
Direct Facsimile: 305.349.4787
Mobile Phone: 305.962.7669
michael.goldstein@akerman.com
"Recycle, Reuse, and Restore Environmentally Impacted
Properties: Rebuild Your Community One Brownfield at a Time"
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From:
brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of larry@schnapflaw.com
Sent: Wednesday, November 10, 2010
3:32 PM
To: brownfields@lists.cpeo.org
Subject: [CPEO-BIF] US Mayors
Brownfield Report
I
think an unaddressed question is how much of brownfield assessment or
cleanup grant funds have been used at former corporate facilities for which
there are still viable PRPs? I think the federal government should
seriously consider seeking cost recovery from viable PRPs for brownfield sites
where EPA has awarded brownfield assessment or cleanup grants. In a time
of diminishing federal resources, this could help assure there will be
sufficient funds in the future for more brownfield funding as well as help
replenish the superfund account.
I
am not suggesting using cost recovery up front since this would delay
redevelopment. Nor am I suggesting that EPA pursue small businesses
or disqualify an application/grantee because a viable PRP is around. However,
when brownfield grants are used to assess former corporate
facilities-especially those abandoned in the past 20 years (i.e, after the
passage of CERCLA)- it seems to be we are creating yet another moral hazard to
those that have occurred in the past decade since cmpanies can export
jobs to Asia and abandoned their facilities figuring that the local
government will apply for brownfield funds to clean up the mess they left
behind.
It
would be interesting to see if EPA even tracks how many sites that
received brownfield funding have viable PRPs associated with them. If I was a
betting man, I'd wager that EPA does not compile such info.
Yet
another example of the erosion of the "polluter should pay"
framework.
Schnapf Law Offices
55 East 87th Street, Ste. 8B
New York, NY
10128
212-756-2205 (p)
646-468-8483 (c)
Larry@SchnapfLaw.com
http://www.SchnapfLaw.com/