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Thanks Larry for pointing out that the viable corporate PRP at the former Uniroyal site discussed in the Sringfield (MA) Republican article circulated by Lenny does not meet the description of the rapacious capitalists you appear yo believe dominate the population of companies that fall into CERCLA's draconian web of retroactive, strict, joint and several liability. You are quite correct that there are those of us who participate on this list serve who do not agree either with your characterization of most PRPs or your conclusions about their conduct and motivations. Indeed our experience, such as mine in representing the viable PRP at the former Uniroyal site that was the subject of the article differs radically from yours.
My clients over the course of many years with regard to numerous contaminated sites have, without exception, endeavored not only to meet their legal obligations, but also to cooperate with and facilitate community and redevelopment objectives. This does not mean that they agreed to being characterized as "polluters" or that they did not seek to minimize the costs compliance. Rather, when possible and economically practicable they worked both to remediate and "unshutter" the sites on which I represented them. My clients have included large industrial and chemical companies and others from the traditional "dirty fingernail" sector, several of which have both domestic and international opertions. I've never encountered a situation where a PRP has done a "shut, shutter, flee" which you would appear to have us believe is the rule rather than the exception.
Yes, there are bad guys out there; they are the ones the media brings to our attention. Its not "news" (gladly) when companies obey the law and act responsibly.
So, let's not tar all industrial PRPs with irresponsible and unfounded allegations. Certainly if we discover conduct that deserves punishment or recovery of cleanuo costs, let's pursue the PRP. I agree that it would be appropriate to allow granting agencies to recover against such PRPs the amounts of public moneys used for remediation for which these PRPs should have paid. (Wouldn't this just amount to a form of subrogation?)
On the other hand, such a form of relief should not be available to recover costs for cleanup to higher standards than the law requires of the PRP. Nor should it be exercised where viable PRPs, already meeting their statutory duties, could be disincentivized from doing anything more than the bare minimum, or even worse by engaging in litigious or stalling conduct.
We don't disagree on the principal. I'm concerned that your rhetoric detracts from it.
[After all, what are friends for? :-)]
Barry
From: brownfields-bounces@lists.cpeo.org <brownfields-bounces@lists.cpeo.org>
To: brownfields@lists.cpeo.org <brownfields@lists.cpeo.org>
Sent: Tue Nov 30 21:38:26 2010
Subject: [CPEO-BIF] (no subject)
Yesterday, I responded to the last of several newspaper articles
forwarded by Lenny that had a caption involving Uniroyal. I was using these articles
seem to raise the issue of whether our brownfield programs are being
sufficiently diligent to make sure that public funds are not being used when viable
corporate PRPs remain to cleanup sites that they abandon. As it turns out, the particular
article that I used to raise this issue did not contain all of the facts and it
turns out that the corporate PRP did contribute its fair share to that
particular site. However, there have been enough examples in the stories that
Lenny has forwarded to suggest that this particular case was an aberration.
Given the diminishing public resources, it would be good to
know if policy makers are ensuring that public funds are not being used for
sites with viable PRPs or at least have policies in place to minimize such
instances. I am not advocating holding up development to pursue cost recovery
but there does not seem to be any systematic effort to recovery funds for the
$$ used to fund brownfield cleanups AFTER the cleanup has been completed.
I fear our brownfield programs are facilitating the creation
of NEW brownfields. Many corporations do not take environmental issues into
account in their calculus when deciding to abandon sites and export jobs. Frequently,
facilities change ownership and each successive owner engages in the
environmental version of musical chairs, postponing dealing with environmental
issues until the plant is no longer economically viable to operate. Unfortunately,
when the music ends, it is usually the taxpayers who are left without a chair.
The owners don’t worry about the environmental consequences, figuring
that the local or state government wont take action until owner is gone, and then
state or federal brownfield programs will pay for the mess they leave behind.
I’m sure there are some who will disagree with my
observations since we can all point to particular situations where a
responsible party may have acted “responsible�. Indeed, I have been
involved in some projects where the PRP made a “contribution� or
donation towards an affordable housing or non-profit project constructed on a
contaminated site. But my experience has been that these situations are far and
few between. In any event, we only have anecdotal evidence on the extent of the
problem. I tried to find out if the federal government had some objective data
or studies that evaluate this issue but haven’t been able to find it. I
wonder if anyone has such empirical data. Maybe I should ask the folks at
WikiLeaks to look into this J
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
www.SchnapfLaw.com
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