From: | Lenny Siegel <lsiegel@cpeo.org> |
Date: | 20 Oct 2003 20:24:07 -0000 |
Reply: | cpeo-brownfields |
Subject: | [CPEO-BIF] Report from the All Appropriate Inquiry October meeting |
The Negotiated Rulemaking Committee to develop a U.S. EPA regulation on All Appropriate Inquiry, as mandated by the Brownfields law, held its sixth (second-to-the-last) meeting October 14-16, 2003 in Washington, DC. The final meeting will also take place in Washington, November 12-14. The meetings qualify easily as negotiations. It appears as if every last preposition has been debated, with seemingly simple provisions still drawing intense discussion. On the other hand, once the dust settles, the divergent constituencies represented on the committee generally express comfort with the compromises and clarifications. This is my personal interpretation of the results of the October meeting. For the official summary of the Committee's work, monitor http://www.epa.gov/brownfields/regneg.htm. At this meeting the Committee accepted a new "goals" section, which explains the draft rule's "performance-based" approach. To complete All Appropriate Inquiry - and thus qualify for legal defenses or EPA grants - the party conducting the investigation must try to find the following information: "(1) current and past property uses and occupancies; (2) current and past uses of hazardous substances; (3) waste management and disposal activities that could cause releases or threatened releases of hazardous substances; (4) past and current corrective actions and response activities undertaken to address past and on-going releases of hazardous substances; (5) engineering controls; (6) institutional controls, including environmental land-use restrictions, applicable to the subject property; and (7) properties located adjoining to or nearby the subject property that have environmental conditions that could result in a release or threatened release of a hazardous substance to the subject property." That is, to complete the Inquiry, the party and the environmental professional it hires must seek such information by following the strategies listed in the document, rely on other listed strategies if the primary method for answering a specific question comes up short, and identify data gaps at the end of the process. This differs from the checklist approach, in which the party and its professional simply would meet their obligations by walking through each of the steps. Depending upon the availability of information, the performance-based approach could be easier or more difficult than the checklist approach, but in my belief it better focuses the study on discovering contamination - "releases and threatened releases." The definition of environmental professional, the person qualified to conduct or supervise most of the Inquiry, is still not resolved. A number of groups, not represented on the Committee, that certify environmental specialists have objected to draft language that the Committee has been working with. In simplified form, that language says that an environmental professional must 1) be a licensed engineer or geologist with appropriate background, 2) be licensed by a state or tribe to perform environmental site assessments, OR 3) have at least a bachelor's degree and a specified level of experience in the field. The Committee has rejected proposals to accept the certification of independent organizations, saying it would be a burden on EPA to repeatedly evaluate each such body for accreditations. However, most Committee members are reluctant to adopt a standard that would prevent experienced environmental professionals from continuing to practice. It is considering various versions of a "grandparent" clause, which would recognize existing practitioners, at least for a specified period of time following adoption of the rule. The Committee has resolved an issue brought up by municipal representatives as well as public and private managers of large land areas. They pointed out that in some instances it is impractical to conduct an on-site inspection of the subject property. Originally the Committee considered a "carve-out," special treatment for government agencies, but many participants felt that public and private parties should be treated equally. The Committee ended up developing language explaining "unusual circumstances" where property access is impossible - physical limitations, remoteness, or "other inability to gain access" - but it made clear than mere refusal by a voluntary seller would be insufficient to qualify for this exception. In past deliberations on the search distance to be used in reviewing government records, the Committee went back and forth about whether to specify a distance, such as one mile. (The search distance is similar to a radius, except that it is measured from the property boundary.) In either case, the rule would allow the environmental professional discretion to modify the search distance based upon site-specific information. At the October meeting, the Committee compared these approaches against the ASTM Phase I standard, which lists site distances for each standard data base. The Committee chose not to use a list, because the universe of available data sources is likely to change over the life of the rule. Instead, it initially chose to divide search distances into categories. Records of releases and threatened releases would be reviewed with a search distance of a mile. Records of sites where there has been previous government interest would be searched to a half mile. And the professional would determine whether adjoining properties have environmental permits. Since ASTM Phase I does not follow this model, the Committee may instead defer to the industry standard where it exists. That is, it would use the categories but list exceptions so that ASTM's distance would be used, for know at least.. I have no problem with this in general, but I've raised a question about the ASTM search distance of one-half mile for leaking underground storage tanks. It appears that ASTM uses a smaller search distance to find leaking tanks than for other documented releases because there was a great deal of evidence that the primary toxic constituents of gasoline - benzene, ethylbenzene, toluene, and xylene - break down before they migrated very far. However, over the past few years, it has become clear that MTBE, a fuel additive found at a large share of leaking fuel sites, migrates more rapidly and is persistent in the underground environment. Based upon MTBE data, I would like the Committee to consider the one mile distance used for other releases. Either way, I don't see this issue as a deal-breaker, since in any case the environmental professional can alter the search distance based upon site-specific factors. At the October 16 morning session, while I was at another meeting, the Committee reconsidered draft language that would have directed environmental professionals to recommend actual sampling, where other information suggests that releases may have occurred. Business participants in the Committee, in particular, are wary of any language that would expand the scope of the All Appropriate Inquiry beyond ASTM's Phase I site assessment into Phase II, which is based upon intrusive sampling. In my opinion, the abrupt end without a hint of further action in the major shortcoming of ASTM Phase I, and my environmentalist/environmental justice colleagues on the Committee share that view. The Committee resolved this difference by suggesting the following draft language: "The inquiry of the environmental professional should include an opinion regarding additional appropriate investigation, if any." Sampling is mentioned earlier in the draft, as well. All parties agree that sampling can be used - but not required - to close data gaps left by following the other practices in the document. It states, "Sampling and analysis may be conducted to develop information to address data gaps." The Committee also approved language designed to resolve my "make or break" concern about public notification. Under current procedures, parties conducting due diligence inquiries often keep their findings of contamination confidential IF they decide not to move ahead with property acquisition. I consider hiding threats to public health immoral, but I recognize that the Committee is not empowered to recommend legal requirements beyond its statutory charter. I settled for language that would require parties conducting the Inquiry as well as their environmental professionals to determine which federal, state, tribal, and local government laws and regulations require the reporting of environmental hazards, and that they comply with those laws. Most states and federal law require the reporting of imminent, substantial dangers, but I believe a number of states currently go further. To some Committee members, it seems unnecessary to include in the rule a reminder to obey existing law. Based upon testimony from the field, I believe otherwise. 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 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ CPEO: A DECADE OF SUCCESS. Your generous support will ensure that our important work on military and environmental issues will continue. 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