[CPEO-BIF] All Appropriate Inquiry

[Bob Hersh <bhersh@cpeo.org>]

CPEO received the following comments about the All Appropriate Inquiry
Rulemaking from a state regulator.

************************************************************************
**
I have a few comments on this effort that I wanted to share.  They do
not reflect the views of my agency but I wanted to give you some things
to
consider as you continue with this important effort. I have not followed
this issue very extensively and may not understand all the issues
completely but here are my two cents.  

The issues you raise really all relate to how thorough of an assessment
does a new buyer need to do.  In the private market people would do the
appropriate amount of assessment for their needs. If they would be
buying a property they would typically go well beyond a basic Phase 1
because they would want to be real sure what they are
getting themselves into.   The concern with this rule is that there may
be cases
in some states where a new buyer would want to do the minimum to qualify
for the federal exemption but no more and they may not obtain adequate
information to really have any idea of the extent of contamination on a
property.

I don't think the innocent purchaser protection is really useful or
important for this.  The main reasons why this rule is so important is
the new bona fide prospective purchaser protection and deciding who can
qualify for the EPA brownfields grants.   Related to the bona fide
prospective
purchaser protection, one huge issue with this is how this fits with the
liability laws in different states.   For some states, like Wisconsin
this is not a big change because a new owner would still be liable under
state law if they buy a property and this would just give a prospective
purchasers some comfort in knowing that they only need to work with the
state to
cleanup the site and they will not need to be concerned about superfund
liability.  That is fine.  

The thing that worries me is that other states, like Michigan currently
Have or will likely change there laws to be like the new federal law.
This
could be really bad if the AAI requirements are very easy and basic and
do not
really adequately assess the contamination on a property.  In a nut
shell, here is what worries me.  If EPA adopts a rule that is basically
just
like the Phase 1 ASTM without interviews, without sampling, etc.  and a
state
were to adopt or has a similar law, then someone could go ahead and do a
minimum Phase 1 that meets the rule requirements.  Then they could buy
the property and develop it without having any real good idea whether
there
is contamination, the extent of the problem, etc. and there would be no
way
for the state or the federal government to do anything.  The state or
the
EPA may not even be informed of the contamination if the state doesn't
require notification or if the person feels that there is nothing to
notify the
state about.  I would expect that many Phase 1's would conclude that
there may be contamination due to historic industrial practices but
nothing
more. They could expose the people who would occupy the property and
construction workers to contamination, they could make a problem worse,
etc.   
 
I am not sure how this should necessarily impact the rulemaking but it
seems 
that a basic Phase 1 could really pose unintended consequences.  I don't
really agree with the concerns raised by developer types that if you
require
an extensive thorough assessment that would be a disincentive for
investment.  No reputable developer would buy a property and choose to
invest money in it without a very thorough assessment and investigation.
They would not just buy a brownfield property after a basic Phase 1.
They
would want to know the true extent of any problems and would conduct
interviews, sample, or do what ever it takes to truly understand the
problems.  If a Phase 1 that costs a little more or takes a little
longer
would discourage a developer from buying a property then I would think
the
neighbors or anyone would not really want then doing the project.  If
they
are not willing to interview neighbors about the history of a property,
are
they going to be honest to neighbors about health risks from the cleanup
and development.

Sorry for the ranting but I wanted to share my thoughts.  I think you
need to seriously think about how the state laws will fit with this new
rule before a final rule is passed.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~