Lenny,
you have a great knack for identifying the straw-man and setting up the
red-herring. Our years-long dialogue continues.
Where
do I start? At the beginning and work our way through:
"First,
we don't know historical intent." That, my friend, is entirely the
point. Unintentional and non-negligent conduct ordinarily does not deserve
sanction unless associated with ultra-hazardous activity, particularly such
activity that was recognized as ultra-hazardous when it took place. If
the government wants to extract money from entities that qualify as PRPs it
should demonstrate some linkage that arguably justifies taking the burden off
society as a whole to clean up these sites.
"Second,
entire industries had environmentally unsound practices." Ain't
hindsight great? If a plaintiff can establish, based on contemporary
evidence that the practice was unsound it should be able to recover.
Your mining example would fit into this category.
"Third,
many of the 'polluters' we hold responsible today inherited their
problems when they bought companies or land, taking over liabilities as well as
assets." That entities which have purchased businesses and properties
since enactment of CERCLA and its state counterparts have done so with open
eyes and at arms-length does not mitigate the problem that they nonetheless are
disincentivized from discovering, disclosing, and remediating contaminated
properties to which they have succeeded, except in those cases where they might
qualify under the very limited liability exemptions to CERCLA. Many of us
are aware of entities that continue to keep their legacy properties off the
market, with goodness knows what level of remediation (if any) in place,
because they cannot gain protection from trailing liability. These are
prime properties the cleanup and development of which would add considerably to
brownfield efforts. With a new scheme in place that you and Larry endorse
these entities would have even more reason to keep those properties off the
market.
"Larry's
suggestion addresses properties where genuinely innocent parties discover
environmental conditions as they prepare for redevelopment."
"Genuinely innocent?" Give us a break from the rhetoric.
I'd agree if the term "innocent" matched the dictionary
definition (e.g., Merriam Webster: "free from guilt or sin especially through lack of knowledge of
evil") -- but as used in this
context it places the "genuinely innocent" in the same category as
the "genuinely responsible."
So,
as I said in other words in response to Larry, I applaud using the concept to
pursue the "genuinely responsible."
Barry
-----Original Message-----
From: Lenny Siegel [mailto:lsiegel@cpeo.org]
Sent: Friday, November 12, 2010 12:57 PM
To: Trilling, Barry
Subject: Re: [CPEO-BIF] US Mayors Brownfield Report
Barry,
In an earlier message you wrote, "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."
I emphatically reject this perspective! First, we don't
know historical
intent. Second, entire industries had environmentally
unsound practices.
Third, many of the "polluters" we hold
responsible today inherited their
problems when they bought companies or land, taking over
liabilities as
well as assets.
More important, Larry's suggestion addresses properties
where genuinely
innocent parties discover environmental conditions as
they prepare for
redevelopment. Once the conditions are recognized, I
don't see how it
undermines discovery or remediation to recover costs from
responsible
parties.
I recently attended EPA's Federal Facilities Communities
Dialogues,
where I heard briefings from the U.S. Department of
Agriculture (USDA)
and the Department of Interior (DOI) about contamination
on their lands,
particularly abandoned hard rock mining claims. This is a
large special
case of brownfields, possibly involving hundreds of thousands
of mines.
In most cases, major redevelopment is not envisioned. In
many cases,
these mines are releasing mercury, lead, and other toxic
substances into
the environment and food supply. Neither USDA or DOI has
been given the
budgets to identify these sites systematically, let alone
contain or
remediate them.
What do the two Departments find most effective? They get
an enormous
rate of return when they invest their meager resources in
cost recovery
from responsible parties. Most of those parties or their
antecedents
followed the industry practices of their day, which was
to dig a hole,
pile up the waste, and walk away when they stopped making
money.
EPA and its state counterparts could work with innocent
developers to
routinely evaluate brownfields sites for potential cost
recovery, just
as the land management agencies pursue mining-claim
responsible parties.
Lenny
Trilling, Barry wrote:
> Larry and I really do not disagree-- we just look at
the problem from
> different perspectives. I'm not aware of any
empirical study that
> supports my point of view that a draconian system of
liability has
> perversely encouraged people and businesses who know
(or even suspect)
> that their properties contain historical contamination
that they did not
> cause to "board up" or even abandon those
properties. Its only common
> sense that people and business take paths that avoid
pain. I also do
> not doubt that Larry is correct that bad-actor
businesses out there have
> consciously, or in reckless disregard of the
consequences, put the
> environment at risk by abandoning their
properties. Larry's right that
> the time to argue over philosophy has passed; let's
just drop the
> name-calling, abandon the simplistic formulas, and
go after the bad
> guys. I could support Larry's idea if the
strict and joint-and-several
> liability standard were not to apply to the Preps
the government would
> pursue.
>
>
>
> Barry J. Trilling
>
> W I G G I N A N D D A N A
>
>
>
> From: Larry Schnapf [mailto:larry@schnapflaw.com]
> Sent: Thursday, November 11, 2010 7:45 PM
> To: Trilling, Barry; michael.goldstein@akerman.com
> Cc: brownfields@lists.cpeo.org
> Subject: RE: [CPEO-BIF] US Mayors Brownfield Report
>
>
>
> 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
>
>
>
> Lawrence Schnapf
>
> Schnapf Law Office
>
> 55 East 87th Street #8B
>
> New York, New York 10128
>
> 212-756-2205 (p)
>
> 212-646-8483 (c)
>
> Larry@SchnapfLaw.com
<mailto:Larry@SchnapfLaw.com>
>
> www.SchnapfLaw.com <http://www.SchnapfLaw.com>
>
>
>
> Blog: Visit Schnapf Judgment on the commonground
community at
> http://commonground.edrnet.com/resources/9d51c3f88e/summary
>
>
>
> TWITTER: Follow me at www.twitter.com/LSchnapf
> <http://www.twitter.com/LSchnapf>
>
>
>
> Linked-In: http://www.linkedin.com/in/lschnapf
> <blocked::http://www.linkedin.com/in/lschnapf>
>
>
------------------------------------------------------------------------
>
> 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
>
> http://www.wiggin.com/images/Bio/17159_ImageMain.jpg
>
>
>
> 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
<mailto:michael.goldstein@akerman.com>
>
>
>
> "Recycle, Reuse, and Restore Environmentally
Impacted Properties:
> Rebuild Your Community One Brownfield at a
Time"
>
>
>
>
>
>
>
>
>
> V Card
<http://www.akerman.com/bios/vcard.asp?id=619> | Bio
> <http://www.akerman.com/bios/bio.asp?id=619> |
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>
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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 companies 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
<mailto:Larry@SchnapfLaw.com>
> http://www.SchnapfLaw.com/
<http://www.schnapflaw.com/>
>
>
>
>
>
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Lenny Siegel
Executive Director, Center for Public Environmental
Oversight
a project of the Pacific Studies Center
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