2010 CPEO Brownfields List Archive

From: "Trilling, Barry" <BTrilling@wiggin.com>
Date: Fri, 12 Nov 2010 12:51:33 -0800 (PST)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] US Mayors Brownfield Report
 

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

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> Miami, FL 33131

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> Direct Line: 305.982.5570

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> Direct Facsimile: 305.349.4787

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> michael.goldstein@akerman.com <mailto: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 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>

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--

 

 

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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