[CPEO-BIF] EJ/Community Caucus Report from Brownfields 2002

[Bob Hersh <bhersh@cpeo.org>]

Title: EJ/Community Caucus Report from Brownfields 2002

The following  summary of the EJ/Community Caucus meetings held at the Brownfields 2002 conference in Charlotte  can be downloaded as a MS Word document at: http://www.cpeo.org/pubs/EJCaucus%20write%20up.doc

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On November 13th and 14th, 2002,  the Center for Public Environmental Oversight (CPEO) facilitated two meetings of the Environmental Justice/ Community Caucus at the Brownfields 2002 conference in Charlotte, North Carolina.  The meetings were attended by community and environmental justice activists, people working with environmental non-profits, and by staff from EPA headquarters and from EPA regional offices and from other federal agencies.  

The EJ/Community Caucus has met at each Brownfields conference since 1997, and has served as a forum for community members from around the country to discuss their experiences with brownfields cleanup and redevelopment.  For the diverse community groups that attend, it is one of the few occasions where local knowledge of cleanup and redevelopment practices at brownfields sites can be used to influence policies at a national level.  At the Brownfield ’98 conference in Los Angeles, for example, a number of Caucus members asserted that municipalities, in their grant application to EPA to fund brownfield pilots, had claimed community support for a project when the community had not been consulted by the municipality in the course of preparing the grant.  EPA responded to this criticism in the subsequent funding cycle for brownfield pilots.  When community groups were listed on grant applications,  EPA would telephone the group to confirm its support and participation in the project. 

The Caucus has also developed broad policy recommendations for brownfield redevelopment which have been influential.  In 1999, the Caucus issued a document entitled “Recommendations for Responsive Brownfields Revitalization”, which set out policies that have since been incorporated into new federal brownfields legislation.  Under the new legislation, the ungainly named Small Business Liability Relief and Brownfields Revitalization Act, community-based non-profits can now apply for grants to clean up brownfields in their neighborhoods, a point long advocated by Caucus members.  The legislation also requires a state brownfield remediation programs to provide “meaningful opportunities for public participation”, a policy which the Caucus, and many others, have pushed for.

With these legislative changes in place, much of the focus of the Caucus this year was on the practical matter of how to successfully secure funding to initiate and implement community based brownfield projects.  At the meeting, Linda Garczynski, Director of EPA’s Office of Brownfields Cleanup and Redevelopment (OBCR) discussed the new provisions.  She noted that community groups, such as community development corporations (CDCs), can receive a cleanup grant from EPA to remediate a site if they have clear title to the property, but she cautioned that the cleanup grants do not include administration costs.  The new legislation also stipulates that community groups and individuals can request funding from EPA regional offices to conduct targeted site assessments at brownfield sites. Targeted site assessment grants can be used by community groups to determine if a site poses health risks to nearby residents. To qualify for this pot of funding, community groups do not need to own the site in question, but only need to have access to it.  Unlike the annual competition for EPA cleanup grants, applications for targeted site assessment are open continuously.  Garczynski suggested any person or group interest in applying for funding for these site assessment grants should first contact their EPA regional brownfield coordinator.

While EPA officials encouraged caucus attendees to submit grant applications, community members questioned them about the legislation’s new funding mechanisms and the process by which EPA will allocate grant money to non profits. Community representatives stated that without funding for administrative costs it could be difficult for them to effectively manage cleanup and reuse activities at sites if they were awarded an EPA cleanup grant.  A second, and more deeply felt concern, was the need for EPA to consider how to evaluate and select non-profits who apply for cleanup grant money.  There was concern that organizations that have little connection to a community, but with resources to write a convincing grant proposal to EPA, could apply for and receive funding under the new law at the expense of community groups that have had long involvement with a brownfield project.  As one community representative put it, “people who did not embrace the problem, might now embrace the solution”.  Another Caucus attendee cautioned that “carpetbaggers” might apply for these grants and urged EPA to consider that “the people who built the ship and pushed it to shore, should have the benefits”. 

In the discussion that followed, participants agreed that non-profits, which receive grants from EPA, must be held accountable to the community for their actions and that the transactions surrounding cleanup and reuse must be open and transparent to local residents.  As the next round of grant are awarded, participants said they would like to monitor which community groups were funded and also to exchange information about successful projects in which community groups managed to use the grants to help them drive cleanup and redevelopment decisions in their neighborhoods.

The second meeting of the Caucus U.S. discussed 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.

Many at the conference believed 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, Caucus members suggested, 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.  A number of participants saw the negotiated rulemaking process as a way of countering this argument and of ensuring the public has access to information about the environmental conditions at sites.  The challenge in the negotiated rulemaking process, it was noted, will be to 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.

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. 

CPEO plans to provide updates to Caucus members and other interested parties about this national effort through our listservers and web site at www.cpeo.org.  For more information about the negotiated rulemaking process or to express your views on our listservers please contact Lenny Siegel lsiegel@cpeo.org or Bob Hersh bhersh@cpeo.org. 

Bob Hersh

Brownfields Program Director

Center for Public Environmental Oversight (CPEO)

1101 Connecticut Avenue NW,  Suite 1000

Washington, DC  20036

Tel:     202.452.8043

Fax:    202.452.8095

email:  bhersh@cpeo.org

url:      www.cpeo.org

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