RE: [CPEO-BIF] "All Appropriate Inquiry" Committee reaches consensus

[rgfp <rgfp@mail.utexas.edu>]

So an "environmental planner" can no longer conduct a phase one site
assessment under the rule?  Unless they are included in the definition
of earth scientist?  

My thinking on phase one is pretty straight forward--based on Texas VCP
projects that I have reviewed -- if it is unclear "at all" at phase one
-- --- any question marks, you basically move on to preliminary phase II
sampling to be more certain (that part is done by the environmental
engineer and/or hydro-geologist--depending on the contaminated media).

Thanks for any clarification.

Bob

Robert G. Paterson, Ph.D.
Associate Dean for Research and Operations
Director, Graduate Program in Community and Regional Planning
School of Architecture and Planning
The University of Texas at Austin
1 University Station B7500 
Austin, Texas 78712-0222
512.471.0734/Fax 512.471.0716
paterson@uts.cc.utexas.edu


-----Original Message-----
From: Lenny Siegel [mailto:lsiegel@cpeo.org] 
Sent: Friday, November 14, 2003 2:18 PM
To: Brownfields Internet Forum
Subject: [CPEO-BIF] "All Appropriate Inquiry" Committee reaches
consensus

Unofficial Report on the All Appropriate Inquiry 
Negotiated Rulemaking November, 2003 Meeting

The Negotiated Rulemaking Committee to develop a U.S. EPA regulation on
All Appropriate Inquiry, as mandated by the Brownfields law, held its
seventh and last meeting November 12-14, 2003 in Washington, DC. Much to
my surprise - and the surprise of many others in the room - the
Committee achieved consensus on a draft proposed rule. EPA will refine
the language, prepare a preamble, and run it by its lawyers before
proposing the rule and seeking public comments. For the official summary
of the Committee's work, monitor
http://www.epa.gov/brownfields/regneg.htm.

At the meeting, EPA representatives explained that they are working with
ASTM - author of the industry standard for Phase One Site Assessments -
so that ASTM can revise its longer document to make it consistent with
the rule. That is, they expect that the EPA rule, when promulgated, will
become the industry standard, even where it isn't required under federal
law.

Two issues threatened to keep the Committee from coming to agreement.
The first, the definition of Environmental Professional, has been an
bone of contention throughout the group's deliberations. The
Environmental Professional is the person who must supervise the
preparation of and sign off on the report that constitutes the bulk of
the All Appropriate Inquiry activity. The committee kept the options of
licensure and government certification as sufficient qualification, and
it confirmed that someone with a Bachelor's degree in "a relevant
discipline of engineering, environmental science, or earth science" and
five years (or the equivalent) of full-time relevant experience also
qualifies.

To satisfy those who were concerned that unqualified persons would
conduct environmental site assessments, the committee defined relevant
experience to include participation in site assessments or similar
activity that involved the "understanding of surface and subsurface
environmental conditions." It also required that environmental
professionals stay "current in their field" through continuing education
or other activities, and that they be prepared to demonstrate it.
Finally, the environmental professionals' declaration that the
assessment has been performed must include the finding, "[I, We] have
the specific qualifications based on education, training, and experience
to assess a property of the nature, history, and setting of the subject
property."

To satisfy committee members who were concerned that requirements for
qualification as an environmental professional would exclude people now
practicing in the field, the committee said that as of the date of
promulgation, a person with any bachelor's degree and ten years of
equivalent full-time relevant experience would be considered an
environmental professional for the purpose of conducting site
assessments as described in the regulation.

Environmental justice and environmental participants in the committee
have worked throughout the months of negotiations to strengthen the
relationship between the conduct of the Phase One site assessment and
what comes afterwards. This issue emerged as a potential dealbreaker
when one environmental group participant indicated plans to dissent
unless the rule included language disqualifying a party from liability
relief if the environmental professional found that he/she had
insufficient data to determine whether an environmental release might
have occurred.

EPA and several of the other committee members argued that the Inquiry
still may be complete, even if there are major data gaps, but they
pointed out that under the Brownfields law there are several other
requirements a party - such as a buyer/developer of property - must
still meet to qualify for liability relief. These obligations will be
summarized in the rule's official preamble.

At the last minute, this difference was overcome by the insertion, into
the draft rule, of language saying [this might not be the final
wording], "If there are data gaps such that the environmental
professional cannot reach an opinion regarding the identification of
conditions indicative of releases and threatened releases, such data
gaps must be noted in the report."

Finally, for the first time the committee addressed the questions of
transferability and shelf life. Parties may use reports prepared for
other parties as long as they are updated and the new party fulfills the
obligations to consider specialized knowledge, reasons for a reduction
in purchase price, and "commonly known or reasonably ascertainable
information."

A report is valid if the entire report is based on information
"collected or updated within one year prior to the purchase date of the
subject property," as long as the party conducting the Inquiry updates
specialized knowledge and relevant changes in property conditions and
the environmental professional updates and signs off on the report
within 180 days of the purchase date. That processing of updating must
include interviews, searches for cleanup liens, visual inspection, and a
review of government records."

***

While I have never been comfortable with the system of "voluntary
cleanup" that separates pre-purchase Phase One assessments from
"intrusive" - that is, requiring real world sampling - Phase Two
assessments, I believe that this rule, when adopted and implemented,
will be a significant step forward. It will make clear when additional
investigation should be undertaken before reuse without creating
insurmountable costs or obstacles to the property transactions that, in
the absence of direct orders from the government, move cleanup forward.

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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