Re: [CPEO-BIF] All Appropriate Inquiry rulemaking report

[Lenny Siegel <lsiegel@cpeo.org>]

The discussion of the emerging rule on All Appropriate Inquiry reminds
me of the old story about "Six Blind Men and the Elephant." One's
perception of the rule is a function of the angle from which one
approaches it. Or, to quote an old aphorism, "Where one stands depends
upon where one sits."

I understand why landowners and their representatives view due diligence
as a means of establishing liability relief. It does that. But that
liability relief is part of a larger process, in both the Brownfields
law and the underlying framework of CERCLA (the Comprehensive
Environmental Response, Compensation, and Liability Act), designed to
protect public health and the environment. That is, establishing that a
property owner has no reason to know of contamination is not an end in
itself. It's supposed to prevent exposing people to contamination by
ensuring that property is sufficiently clean for reuse, and it's also
supposed to encourage reuse as a mechanism for triggering investigation
and if necessary, remediation.

The legislation actually has three distinct purposes. In the case of
contiguous property owners and innocent landowners, All Appropriate
Inquiry is designed to demonstrate that the owner has looked, but hasn't
found contamination. In the case of prospective purchasers, the Inquiry
is also designed to define reasonable steps to address that
contamination. The All Appropriate Inquiry practice is also supposed to
guide site characterization and assessments funded by EPA grants, for
the purpose of moving the property through both state and federal
environmental requirements for redevelopment.

As I see it, therefore, the AAI rule must do more than the ASTM Phase I
standard. ASTM provides a sensible checklist for conducting a site
assessment. The Negotiated Rulemaking committee may tweak that
checklist, but the real challenge, as I wrote earlier, is to figure out
how due diligence plugs into the larger tasks of cleanup and
redevelopment. The states have various mechanisms for doing that, but
there is currently no federal process.

In fact, I can think of at least one significant scenario in which state
law will be critical in utilizing the results of an Inquiry. A developer
may conduct due diligence on a property, find contamination, and then
decide that the costs of cleanup make redevelopment impractical. I'm not
sure, but it appears that the federal law would not require that
developer to report that contamination to government agencies
responsible for protecting public health. In this instance, only if
state law requires that the contamination be reported and addressed
would the conduct of the Inquiry help protect the people who live, work,
play, or study on or near the site.

Lenny
-- 


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

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