[CPEO-BIF] Amending CERCLA Reporting Obligations

["Schnapf, Lawrence" <Lawrence.Schnapf@srz.com>]

As a follow-up to my idea about amending the CERCLA reporting
obligations, a bill has been introduced into the Connecticut legislature
that would mandate consultants disclose discovery of groundwater
contamination if not reported by the owner within 7 days. Tennesse
enacted a similar law last year though the reporting obligation was
limited to groundwater contamination posing an imminent and substantial
endangerment. The NJ Licensed Site Professiona (LSP) legislation will
require LSPs to disclose contamination to the state.

Larry

-----Original Message-----
From: Schnapf, Lawrence 
Sent: Wednesday, April 01, 2009 1:09 PM
To: 'brownfields@lists.cpeo.org'
Subject: Amending CERCLA Reporting Obligations

 
Thought those on the listserve would find the below article of interest.
I would love to build ground root support for this idea. As Justice
Brandeis once said " Sunshine is the best disinfectant"

Larry 

      Key Lawyer Launches Mandatory Contamination Reporting Effort

A New York-based brownfields attorney and sympathetic community-based 
brownfields activists are launching an effort to amend Superfund law so 
that it would require disclosure of chemical contamination discovered on

a property, a move the attorney says would speed up cleanups but that 
industry sources say would bring brownfields redevelopment to a
standstill.

Lawrence Schnapf, an environmental attorney and adjunct professor of 
environmental law at New York Law School, told /Inside EPA/ he is 
drafting a letter to Sen. Frank Lautenberg (D-NJ), the newly appointed 
chair of the Environment & Public Works (EPW) subcommittee on hazardous 
materials, that will lay out a framework for requiring both public and 
private investigators to disclose the presence of any chemicals covered 
by the Comprehensive Environmental Response Compensation & Liability Act

(CERCLA) -- also known as the Superfund law -- if their concentration is

above cleanup thresholds. The law currently only requires notification 
if an ongoing release at a specified rate is discovered.

One community-based brownfields activist says he is also looking to 
support such an amendment and is gauging support among lawmakers on both

EPW and the House Energy & Commerce Committee. The activist expects that

interest in mandatory disclosure from lawmakers will build once the 
effort is more widely known. "I think he's onto something here," the 
source says of Schnapf's push. "I think most people would be surprised 
to learn that people can find contamination and not have to disclose
it."

Schnapf says CERCLA case law has evolved over the years in a way that 
facilitates an elaborate cat-and-mouse disclosure framework, whereby 
developers go to great lengths to prevent known contamination from being

made known to buyers or tenants, going so far as to include "no-look" 
clauses in contracts that ensure buyers will not seek out contamination.

States and municipalities therefore have to spend public money to do 
site assessments when the owners "already know where the bodies are 
buried," Schnapf said, and such duplicative assessments are wasteful and

delay the work of remediation.

"It's just become the way things are done," Schnapf said. "But this is 
creating a moral hazard. This is allowing companies not to disclose 
contamination."

Industry sources say if CERCLA were amended to make disclosure 
mandatory, it would make redevelopment much more difficult and would 
prevent developers from doing assessments at all. One private 
brownfields developer says mandatory disclosure "would have a tremendous

chilling effect" on redevelopment, especially at a time when brownfields

development is already hobbled by the stagnant real estate market. "I'd 
hate to see that happen," the source adds.

Superfund law currently requires that contamination be disclosed to 
relevant authorities if there is an ongoing release of a covered 
contaminant, and if that release is occurring at a certain rate, with 
the default being one pound of contaminant released over a 24-hour 
period. But, if legacy contamination is discovered, or if the release is

happening at a rate that is below the specified threshold, property 
owners are not required to disclose and have certain legal options to 
keep the contamination from being discovered should the property be sold

or redeveloped.

Schnapf said the law made some sense in the 1970s and 1980s when CERCLA 
was first passed, because continuing releases were relatively 
commonplace at industrial sites. But the vast majority of contamination 
still being cleaned up is from legacy sites rather than ongoing 
releases, so the mandatory reporting threshold is no longer relevant, he

said.

"If you look at CERCLA, when it was passed there were lots of ongoing 
[releases at] dump sites," Schnapf said. "Now, 30 years later, there's 
not a lot of sites that have them. But Congress clearly created CERCLA 
with the intent of remediating contaminated properties."

Whether such an effort gains traction in Congress, however, is 
uncertain. The community brownfields source says issues like brownfields

or Superfund traditionally have not been strong talking points by either

Congress or the environmental community, and so there is less impetus to

make mandatory contamination disclosure an issue as opposed to more 
glamorous environmental causes like a climate change bill or support for

renewable energy. "I don't know to what degree [Congress] will be 
receptive to this," the source says. "I say that because they may be 
busy working on other things. It's not the substance [of the issue] but 
a matter of priority."

But Schnapf said there could be a receptive congressional audience, 
considering that environmental issues are of particular interest to 
Democratic lawmakers in the 111th Congress. "We have a new Congress, a 
new subcommittee chairman and a lot of environmental issues getting 
attention," Schnapf said. "I'm just firing a shot across the bow."

Another attorney who deals with brownfields from an environmental 
justice viewpoint says the timing of the potential reform is both 
fortuitous and problematic. On the one hand, the Democratic leadership 
is uniquely supportive of environmental initiatives generally, and 
President Barack Obama has made environmental protection a signature 
theme of his administration. Additionally, EPA Administrator Lisa 
Jackson has a professional background in Superfund issues, the source
says.

But at the same time, bringing the country out of recession is an even 
bigger priority, and the real estate market is in particular distress. A

mandatory disclosure rule could be portrayed as exacerbating an already 
crippled industry, a major political liability without equal political 
payoff.

"I think it's a fantastic idea, to let people know and help people 
engage" in the redevelopment process, the second attorney says. "But I 
don't know if [lawmakers are] in a position, with the economic downturn,

to try to stymie development."

Another industry source calls the move "a spectacularly useful way to 
further depress the recovery" of blighted urban communities, saying such

an amendment would prevent property owners from bothering to conduct 
site evaluations in the first place, further preventing those properties

from being cleaned up and put to good use. "I would see the logic in it 
if it were true," the source says, referring to the idea that property 
owners already know what manner of contamination is on their properties.

"I don't think all that information is out there, that [property owners]

do site studies and then suppress them."

Both industry sources say a more reasonable move would be to amend 
CERCLA to require any site studies conducted by states or municipal 
governments to be made public, because the studies would have been 
publicly funded and their sheer number is far lower. -- /John Heltman/

Copyright 2009 Inside Washington Publishers

-- 
John H. Heltman
Associate Editor
Inside EPA's Superfund Report
Suite 201, 1919 S. Eads Street
Arlington, VA 22202
(703) 416-8518




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