What Developers really Want
Consider Alternate Cleanup Standards

What Developers Really Want

I read with interest the June 2005 article "What Developers Really Want" by Kris Wernstedt and Peter B. Meyer. It was interesting to see a survey focused on what most concerns developers in terms of risk and liability.

While the results of the survey were instructive, the authors’ conclusions and recommendations appeared off point. (“The high value placed on third party liability relief reflects demand for certainty about protection from lawsuits ... either through legislative and regulatory changes or state-facilitated insurance.”) While legislative and regulatory solutions are important to the brownfield industry, they should be utilized to stimulate and improve the private sector’s ability to be responsive, not replace what the private sector does (efficiently) with a government program.

Specifically, third-party liability protection from private sector insurers is offered and purchased regularly for brownfield properties. Seeking complete legislative or regulatory relief for third party liability (tort) claims is unnecessary when there is already a private sector market that efficiently manages that exposure. Of course, this isn’t to say that tort reform would not be beneficial, since it would improve the insurance industry’s ability to respond to the risk needs of developers and others.

In short, recommendations on how legislative and regulatory changes can improve private sector response to brownfield development should take priority over recommendations to replace private sector capabilities that already exist.

Ken Cornell, executive vice president, AIG Environmental

Consider Alternate Cleanup Standards

In response to the April 2005 editorial, "Speak Up About Superfund," as a human health risk assessor with more than 20 years’ experience, I was pleased to see the emphasis that was placed on risk assessment in improving the process of cleanup and transfer of sites under Superfund. It is true that the science has advanced a great deal in the past twenty years.

The good news for property owners is that there are tremendous opportunities available to us today to use good risk assessment science to improve the process and save millions in remediation costs, while protecting public health.

The biggest problem in the process is the reliance on state “standards” as cleanup values. These published standards are archaic and overly conservative, based on science that is 20 years old. Still, most consultants utilize these numbers as cleanup standards. This is a very costly mistake.
However, it is possible, and smart, to use good risk assessment science to derive alternate cleanup values for contaminants in environmental media, which can be far less stringent than published standards. Most states allow for this approach in their environmental regulations.

Eileen M. Mahoney, PhD, president, Eileen Mahoney Associates, Inc.