2003 CPEO Brownfields List Archive

From: trobins2@bna.com
Date: 12 Sep 2003 18:40:07 -0000
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] AAI Reg-Neg update
 
Did any previous e-mails on the "all appropriate inquiry"
negotiated rulemaking dicuss what is meant by a
"performance-based approach"? Also, does it look like the
committee is going to require interviews with past and
present owners, operators, occupants, etc.? Thanks for any
light you can shed.




|---------+---------------------------->
|         |           Lenny Siegel     |
|         |           <lsiegel@cpeo.org|
|         |           >                |
|         |                            |
|         |           09/12/2003 12:14 |
|         |           PM               |
|         |           Please respond to|
|         |           cpeo-brownfields |
|         |                            |
|---------+---------------------------->
  >----------------------------------------------------------------------------------------------|
  |                                                                                              |
  |       To:       Brownfields Internet Forum <cpeo-brownfields@igc.topica.com>                 |
  |       cc:       (bcc: Tod Robinson/BNA Inc)                                                  |
  |       Subject:  [CPEO-BIF] AAI Reg-Neg update                                                |
  >----------------------------------------------------------------------------------------------|




The Negotiated Rulemaking Committee to develop a U.S. EPA
regulation on
All Appropriate Inquiry, as mandated by the Brownfields law,
just
completed its September, 2003 meeting in DC. Though the
Committee
continues to make progress, it decided to extend its final
two meetings,
in October and November, to three days each, to complete its
work.

The following is my personal assessment - as an active
member - of the
Committee's progress and direction. For a more complete
review, consult
both the trade press and the official meeting summary, which
will be
available when it's approved at
http://www.epa.gov/brownfields/regneg.htm. Predicting the
pace of
Committee deliberations remains difficult, since this
diverse and
opinionated body sometimes addresses potentially significant
issues
quickly, while seemingly minor points bog the group down.

The fundamental compromise in the draft rule remains its
performance-based approach. Those participants who want to
streamline
due diligence reviews are pleased that one doesn't have to
continue down
a lengthy checklist of information collection once key
questions are
reliably answered, while those who emphasize the need to
leave no rock
unturned in the search for contamination are glad that the
environmental
professional conducting the Inquiry will be required to keep
looking
until those answers are found.

The next step, for the Committee, is to develop a Goals
section, based
on specific objectives that have been embedded in the
sections of the
draft rule, and to phrase them as measurable standards. The
overarching
goal, based upon the statute, is likely to be "to gather
information on
releases and threatened releases on or near the subject
property." For
the various legal defenses (prospective purchaser, innocent
landowner,
contiguous landowner) those releases are defined as
hazardous substances
under CERCLA (the Superfund law). For Inquiries conducted
for EPA's Site
Assessment grant program, "releases" may also include
petroleum products.

In support of that goal, the regulation is likely to call
for the
development of a continuous record of use, and possibly
ownership, of
the subject property. That is, if the information gathered
through the
Inquiry leaves major gaps in the history of the property, it
will
probably be necessary to conduct actual sampling to
determine whether it
is contaminated. The Inquiry will probably also need to
document past
environmental responses on the property. Specific
requirements -
potential off-site releases, institutional controls, liens,
etc. - might
make it into the new Goals section, or they may simply
remain in the
sections of the rule that already address them.

The performance-based approach helped the Committee surmount
a
potentially difficult challenge: what to do if a property
owner refuses
to allow on-site visual inspections or if a walk-through is
technically
impractical. The apparent solution is to require the
professional
conducting the Inquiry to develop the same information by
viewing the
property from off-site or through other forms of data
collection. The
will be asked to judge the sufficiency of these alternatives
against the
performance standard.

The most significant unresolved issue is the search distance
for
reviewing government records such as hazardous waste site
listings. Some
committee members believe it should be wholly at the
discretion of the
environmental professional conducting the Inquiry. Others
believe there
should be a baseline, or default, of one mile, which the
professional
could modify. Still others want a series of distances,
depending upon
each standard data base, as provided in the ASTM Phase 1
standard
currently being used in most such Inquiries. It's important
to note that
differences over this item are not associated with ideology
or constituency.

Because of the large volume of comments that the Committee
received on
the definition of Environmental Professional, it is
re-opening the
issue. Many people who conduct such Inquiries, as well as
associations
that represent them, have protested draft criteria that
might make it
difficult for them to continue doing work that many have
been doing for
years. I predict that the Committee will resolve this issue
with either
more flexibility or a "grandparent clause," which would ease
the
requirements for those people already practicing in the
field.

There was some concern about where in the document certain
forms of
information gathering belong, since they aren't specifically
called out
in the statute. The Committee agreed tentatively to create
an "Other
Information" category. This category would describe
interviews with site
neighbors, interviews with local officials, and limited
voluntary
sampling designed to achieve the un-met goals of the
Inquiry.

The current draft of the regulation requires the
environmental
professional to recommend next steps, such as sampling and
analysis,
"that may be necessary to detect any releases or threatened
releases at
the property for the purposes of limiting potential human an
environmental exposure to such releases." The Committee
appeared to not
to go beyond such a recommendation - that is, it does no
plan to require
any "due care" or "reasonable steps" - as part of this rule,
but it did
not complete its discussion. These issues are supposed to
come up first
at its next meeting, to be held at EPA headquarters October
14-16, 2003.

Finally, I proposed that the Committee add language
requiring those
conducting the Inquiry to report to government agencies -
and thus the
public - releases that threaten public health and the
environment.
Though other members of the Committee oppose any requirement
in the rule
that goes beyond the current requirements in CERCLA, they
appeared to go
along with a compromise that would require a determination
of existing
reporting requirements - generally those already mandated by
state laws
- and compliance with those existing requirements.

Overall, the Committee is moving toward a standard that is
similar to
existing commercial practices but which slightly expands the
role of the
affected public in the Inquiry process. The document still
requires a
great deal of fine tuning (or nitpicking, depending upon
one's
perspective), but there is every reason to believe that the
Committee
will complete its work on time with a proposal which all
participants
can accept.

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

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