RE: [CPEO-BIF] Report from the All Appropriate Inquiry Octoberme eting

["O'Conor, Letitia" <letitia.o'conor@em.doe.gov>]

Would like to see states adopt UECA equivalent and add contaminated
properties to Miss Utilities if possible to increase overall assurance of
protective property reuse where access to underlying contamination poses a
risk on nonfederal properties. 

-----Original Message-----
From: Lenny Siegel [mailto:lsiegel@cpeo.org]
Sent: Monday, October 20, 2003 4:25 PM
To: Brownfields Internet Forum
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

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