From: | Lenny Siegel <lsiegel@cpeo.org> |
Date: | 19 Nov 2002 18:41:54 -0000 |
Reply: | cpeo-brownfields |
Subject: | [CPEO-BIF] All Appropriate Inquiry regulation |
U.S. EPA is beginning to implement a little known, but significant provision of the Brownfields Revitalization Act (H.R. 2869), signed by President Bush in January, 2002. In Section 223 of the statute, Congress directs the EPA Administrator to promulgate a regulation, within two years of enactment of the law, establishing "standards and practices for the purpose of satisfying the requirement to carry out all appropriate inquiries" under three sections of the law - those dealing with Contiguous Properties, Prospective Purchases and Windfall Liens, and Innocent Landowners. The new legislation addresses a longstanding criticism of Superfund, namely that the law did not define what level of site investigation and environmental review constituted "all appropriate inquiry" in determining if a property was polluted. Under Superfund, owners of contaminated property are liable for cleanup costs even if they did not cause the contamination. One way, however, to avoid this liability, and one long coveted by potential buyers of real estate, is through the "innocent purchaser defense." Under this defense a buyer must establish that at the time the property was acquired, he or she had no knowledge or reason to know that any hazardous substance had been disposed of or released at the site. To show there was "no reason to know," the Superfund statute requires the prospective buyers to undertake all "appropriate inquiry" in the previous ownership and uses of the property consistent with good commercial or customary practice. If a buyer performs "all appropriate inquiry" and contamination is subsequently discovered, the buyer will not be held liable for cleanup. While there have been no federal standards for site assessments and or regulations to define "all appropriate inquiry," one professional organization, the American Society for Testing Materials (ASTM), has developed guidelines for conducting environmental assessments that have become widely accepted as a minimum requirement for environmental due diligence. Under the new Brownfield legislation, federal regulations will for the first time define due diligence, the site assessments generally carried out by private and other non-federal parties at potentially contaminated sites. Under the legislation, EPA is required to include the following criteria in its standard: * The results of an inquiry by an environmental professional; * Interviews with past and present owners, operators, and occupants of the facility for the purpose of gathering information about the potential for contamination at the facility; * Reviews of historical sources, such as chain of title documents, aerial photographs, building department records, and land use records to determine previous uses and occupancies of the reap property since the property was first developed; * Searches for recorded environmental liens; * Reviews of federal and state and local government environemtnal records; * Visual inspections of the facility and of adjoining properties; * Specialized knowledge or experience of the defendant; * The relationship of the purchase price to the value of the property in an uncontaminated state; * Commonly known or reasonably ascertainable information about the property; and * The ability to detect the contamination by appropriate investigation. EPA is expected to develop the new due diligence standard through a negotiated rulemaking, probably beginning in January 2002. A negotiated rulemaking is an official process through which parties representing diverse stakeholder groups attempt to develop consensus on the content of the regulation. When EPA formally proposes this process in the Federal Register, CPEO will notify all subscribers on our two listservers and put the relevant information on our web site. The Federal Register notice will provide an opportunity for public comment. We believe this negotiated rulemaking provides public stakeholders an excellent opportunity to influence the way private site assessments are conducted. Current due diligence requirements are typically based on the ASTM standard, which has no public notice or involvement component. In many states even completed assessments are not available for public inspection. In the final rule, it should be possible to incorporate a site's neighbors into the environmental assessment process.Under the ASTM standard there is no requirement to interview persons living near or adjacent to a site. People need to know, however, when nearby properties are being investigated to ensure that contamination is properly addressed. The neighbors also may be a unique source of information about past activities or "midnight dumping" not identified through the private site assessment process. The parties that currently rely upon the ASTM standard to conduct due diligence may be reluctant to include the public. They are likely to argue that the attention will delay transactions, or discourage potential developers from even considering a site. It is our hope that the negotiated rulemaking process will come up with appropriate levels of public involvement that ensure the public's right to know and ability to influence environmental response decisions, without preventing private transactions that protect public health by cleaning up the environment. At the November 14, 2002 National Environmental Justice/Community Brownfields Caucus meeting during the Brownfields 2002 conference in Charlotte, North Carolina, activists from throughout the country discussed the anticipated negotiated rulemaking. While many of the participants agreed that the promulgation of the new standards and practices represents a valuable opportunity, most were skeptical that their views and concerns would be ignored in the rulemaking process. They were not satisfied with the proposed inclusion of a couple of handpicked individuals from the caucus in the rulemaking. They discussed mechanisms through which a larger group of public stakeholders might offer input. Whether or not EPA officially seeks that input, this constituency plans to be heard. Lenny Siegel -- Lenny Siegel Director, Center for Public Environmental Oversight c/o PSC, 278-A Hope St., Mountain View, CA 94041 Voice: 650/961-8918 or 650/969-1545 Fax: 650/961-8918 <lsiegel@cpeo.org> http://www.cpeo.org ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ To read CPEO's archived Brownfields messages visit http://www.cpeo.org/lists/brownfields If this email has been forwarded to you and you'd like to subscribe, please send a message to cpeo-brownfields-subscribe@igc.topica.com ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ==^================================================================ This email was sent to: cpeo-brownfields@npweb.craigslist.org EASY UNSUBSCRIBE click here: http://igc.topica.com/u/?aVxieR.a3Z0sy.Y3Blby1i Or send an email to: cpeo-brownfields-unsubscribe@igc.topica.com T O P I C A -- Register now to manage your mail! http://www.topica.com/partner/tag02/register ==^================================================================ | |
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