Poem: “The Brownfield Developer’s Lament” (or Why Didn’t I Conduct a Phase I ESA?”)

April 21 is the New York City “Poem In Your Pocket Day,” the annual citywide celebration of National Poetry Month. Lee Ilan, Chief of Planning in the NYC Mayor’s Office of Environmental Remediation every year encourages folks who work on brownfields remediation and redevelopment to send her an appropriately themed entry. Here’s mine, entitled,

“The Brownfield Developer’s Lament” (or “Why Didn’t I Conduct a Phase I ESA?”)

In some dirty stinking soil
Racked with muck and dirty oil
My spade I thrust and hoped my toil
Would bring me profit, wealth, and spoil.

Alas I hadn’t checked the file
On prior uses, fines, or trial:
Such diligence to guard ‘gainst guile
To make an innnocent purchaser smile.

Now on the hook for more I’ll be
Cause no Phase I sought to see.
A sad site buyer in reality
Saddled with much liability.

Translation for my non-environmental remediation friends: A purchaser of a contaminated property can avoid liability for cleaning up pollution already at the property (be considered an “innocent purchaser”} if he or she conducts a diligence exercise into prior uses, operations, and problems at the property, usually in the form of a “Phase I Environmental Site Assessment” or ESA. ┬áHence, no ESA, no protection from liability.

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