How to stop investment in urban areas

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Greg Peterson knows the development world and related environmental issues about as well as anybody I know. (Full disclosure: I often sought out his advice when thinking through puzzles at the state’s environmental affairs office.)

I have been hearing an earful from folks involved in clean-ups as part of the 21E program run by the state Department of Environmental Protection (DEP). The short version is that that state in the 1990s moved to a partially privatized program where Licensed Site Professionals (LSPs) were allowed to audit and certify compliance with the state’s clean-up standards.

The program allowed the state to turbo-charge clean-ups–something that is necessary if we are serious about revitalizing our older industrialized cities. Together with the 1998 Brownfields Act’s liability protections for owners, we had a program that stood out nationwide.

Long-timers within DEP have long chafed at the LSP model, and have sought through a number of “reforms” to rein them in. Let me state bluntly, for all who want to criticize, that DEP HQ also promulgated clean-up standards that are unattainable in many older industrialized cities. For Boston, maybe. For “weak market” cities (where development often costs more than potential sales prices), as the Italians say, “good night.” Yes, you can imagine the hand gesticulation.

Well, now DEP is requiring that “property owners… conduct perpetual indoor air testing” with costs for testing, and they are re-opening clean-ups that long ago were signed off on.

Greg lays the issue out well in Banker and Tradesman:

MassDEP has ordered owners to put notice of such long-term testing obligation at the Registry of Deeds, in the form of “activity and use limitations” (aka deed restrictions) on property. MassDEP has ordered owners to gain access to and test neighboring commercial and residential properties (and to provide all of the notices mentioned above to their neighbors, and neighbors’ tenants and neighbor’s tenants’ employees)…

You get the picture: investors in urban areas have their property values decreased (through the presence of deed restrictions), they have to “prove a negative” well past their understood liabilities, and to top it off there are

– additional testing requirements for “potential air contaminants even if only a handful of such compounds were ever present in soil or groundwater”
– More stringent thresholds on volatile organic compounds found in any urban environment…

Setting unattainable standards (in DEP’s case most often starting with the Northeast regional office, and then seeping into DEP’s Boston HQ) may make the ideologues feel good, but they are not only hurting cities. They are also hurting their own agency. The truth is that it forces the other regional offices to break the rules.

People will deny that, but that’s the truth. It’s wrong. But the ideologues make running the agency impossible on an objective basis, which DEP must be given its important regulatory and permitting functions.