Re: [CPEO-BIF] All Appropriate Inquity rulemaking report

[Lenny Siegel <lsiegel@cpeo.org>]

Bob and Lenny:

I have a few suggestions for dealing with the issues that you have laid out.

On issue # 1, in California, there is such a thing as a registered
environmental assessor, based on experience and education.  Its a
voluntary registration, costing about $100 year.  (I have let mine lapse
because I did not see any benefit from it). This type of certification
may be a model. There is absolutely no reason to require a PE or
registered geologist to conduct a Phase 1.  I would argue that what you
really need is someone to certify their findings (affidavit or notary),
and be held financially responsible (liable) for any obvious
carelessness.  However, you should debate whether "errors and omissions"
insurance is required.  Its very expensive, and many small firms and
individual practitioners like myself don't carry it.  In some instances
I have had to have it waived by the client.

On issue #2, interviewing the neighbors can be a suggested feature, but
should not be relied upon.  There are many questions, some of which
you've enumerated.  Most interviewers are bad, and most neighbors don't
want to be bothered.  Furthermore, what type of information would
trigger further investigation?  A mere rumor cannot.  If someone has
direct knowledge of illegal dumping, this should trigger a further
search.  I  suggest that a public meeting or notice in a local newspaper
be considered as an option to interviewing neighbors.  I don't agree
with the contention that these interviews would jeopardize development
by somehow putting the community on notice.  I think it profits everyone
if there is a free flow of information.

On issue #3, we know that data gaps will exist for many if not all
properties.  Just think of our own experience in Mountain View. 
Emerging chemicals, new pathways, stricter standards.  Plus, to tell you
the truth, the historical record will not be good for many  sites.  A
tiered approach, as you suggest, may have to rely on more detailed
analysis such as spot sampling when the record is incomplete.  I think
that you should consider that if a property does not have a good
historical record, it should be excluded from having an AAI unless
physical sampling is done.

On issue #4, I think I've answered it in my response to the question above.

I'm concerned about another issue: that is, if a phase 1 investigation
(what ever the committee is going to call it) concludes that the site is
contaminated, or likely to be contaminated, what is done with this
information?  How is it recorded?  Who is responsible for making sure
its in the historical record?  How can you prevent unscrupulous
developers from hiding a report indicating likely contamination and then
obtaining another report by someone else.  This can only be prevented if
there is a good system for recording information that a Phase 1 is going
to take place.

Peter Strauss

> 
> For the past few months CPEO, along with 24 other stakeholder groups,
> has participated in a U.S. EPA-led Negotiated Rulemaking, or "reg-neg"
> to develop an "All Appropriate Inquiry" standard for environmental site
> assessments. This regulation, mandated by the 2002 federal Brownfields
> statute, will influence the conduct of site assessments at commercial
> and industrial sites as well as the level of public involvement required
> in these assessments. Not only will the rule directly implement federal
> law, but it may set a new standard for due diligence conducted under
> state law or even simply to meet requirements imposed by private parties
> to transactions involving potentially contaminated property.
> 
> The Small Business Liability Relief and Revitalization Act (the
> Brownfields Law) directed the EPA Administrator to promulgate a
> regulation, within two years of enactment of the law, establishing
> "standards and practices for the purpose of satisfying the requirement
> to carry out all appropriate inquiries." The law required such inquiries
> to establish liability relief, in three distinct cases, or to take
> advantage of assessment grants authorized by the legislation. In April
> 2003, EPA convened a Negotiated Rulemaking Committee of affected
> stakeholders to assist in these deliberations. Background on the
> committee, as well as official meeting summaries and other information,
> may be found at http://www.epa.gov/brownfields/regneg.htm.
> 
> The Brownfields law provides new liability protections for landowners
> that qualify as 1) bona fide prospective purchasers, 2) contiguous
> property owners, and 3) innocent landowners. To qualify for such relief,
> a person must perform "all appropriate inquiry" to determine whether
> hazardous substances have been released on the property. For example, a
> buyer must establish that at the time he or she acquired the property,
> he or she had no knowledge or reason to know that any hazardous
> substance had been disposed of or released at the site. If a buyer
> performs "all appropriate inquiry" and contamination is subsequently
> discovered, the buyer will not be held liable for cleanup by the federal
> government. These provisions apply beyond the Brownfields properties
> targeted by other provisions of the law. In addition, parties receiving
> grants for site characterization and assessment under the law must
> follow the same standards and practices.
> 
> While there have been no federal standards for site assessments or
> regulations defining "all appropriate inquiry," one professional
> organization, ASTM (formerly known as the American Society for Testing
> and Materials), has developed a series of standard practices, each known
> as "Environmental Site Assessments: Phase I Environmental Site
> Assessment Process." The most recent version is ASTM E 1527-00. The ASTM
> standard, known informally as just "Phase One," is widely accepted as a
> minimum requirement for environmental due diligence. The Brownfields law
> recognizes the ASTM Phase I standard, for most transactions, until EPA
> has issued its new standard. Many members of the committee, particularly
> those who use the ASTM standard routinely, want it to serve as the basis
> of the AAI document, but others see it simply as a starting point for a
> negotiation process that includes a much broader range of participants
> than the membership of ASTM.
> 
> The AAI Committee met in April and June to discuss the 10 criteria
> specified by Congress in the Brownfields law for satisfying "all
> appropriate inquiry" (AAI). In the course of its deliberations, the
> members of the Committee have reviewed the ASTM standard, various state
> requirements, and EPA guidance documents related to site assessment. The
> discussions have been spirited and for the most part constructive. The
> next meeting will take place in Washington, DC, July 8-9.
> 
> The following is CPEO's evaluation of four key issues that have arisen
> thus far, including in some cases CPEO's predictions of how they will be
> resolved. This is not an official summary of the Committee's work. We
> are circulating this report in the hope that our constituency,
> particularly participants in the National Environmental
> Justice/Community Brownfields Caucus, will offer feedback and suggestions.
> 
> 1) The Brownfields law states that the assessment should be conducted by
> an environmental professional, but how should an environmental
> professional be defined and what formal qualifications and/or experience
> should an environmental professional possess?
> 
> A Phase I environmental assessment typically relies on a number of
> readily available databases for information about the past uses of site,
> the site's operational history, and nearby environmental hazards that
> may have impacted the property. But a site assessment also requires
> considerable judgment, as well as the ability to interpret the
> significance of these data. Though many of the tasks may be carried out
> by inexperienced or relatively unskilled people, the environmental
> professional must sign off on the results. Some Committee members prefer
> a restrictive definition of "environmental professional," limiting the
> practice to people with professional engineering or geologist licenses
> to ensure a high level of professional competence. Others are more
> concerned about the availability of practitioners, or believe that there
> are many competent professionals without such licenses. They suggest a
> minimum educational and/or experience threshold. It's likely that the
> committee will recommend a compromise.
> 
> 2) Under the current ASTM standard, there is no requirement to interview
> persons living near or adjacent to a site. Should neighbors and former
> workers be interviewed or notified that an environmental assessment is
> being conducted?
> 
> Members of the Committee from the environmental justice community
> suggested that nearby residents are likely to have a wealth of knowledge
> about a potentially contaminated site, particularly if the property was
> used for unregulated activities (e.g., midnight dumping, drug
> manufacture, illegal auto repair, etc.). Collecting this information,
> they said, should be seen as an efficient way to identify site
> conditions.
> 
> Others argued that such a requirement would add considerably to the time
> and cost of Phase I site assessments without, in most cases, adding any
> new and valuable information about the site. They posed questions about
> the practicality of interviewing neighbors, particularly in urban
> neighborhoods: How does one even identify "adjacent" neighbors, they
> asked? How many neighbors does one reasonably need to interview?
> 
> More profoundly, some members claimed that requiring interviews with
> local residents could disrupt the market for brownfields transactions.
> Interviews, they contended, could publicize and thereby jeopardize
> private sector efforts to assemble land parcels for brownfields
> projects, as property owners on targeted sites, alerted to prospective
> development interest, could demand higher prices for their properties.
> Or the interviews could warn factory workers of plans for plant closure.
> 
> This issue exposed serious ideological disagreements among the
> constituencies on the reg-neg committee, but practical resolution is
> likely. The committee is considering a proposal that data collection
> requirements - in most cases, including interviews - be linked to
> specific objectives, such as documenting the continuous ownership and
> use of properties. Additional investigation may be necessary to satisfy
> assessment performance goals. At vacant urban sites, interviewing
> neighbors is the most likely way to fill unacceptable data gaps.
> 
> 3) In a certain number of environmental site assessments, there will be
> gaps in the historical record about past uses and activities on the
> site. What should the process dictate at various points when there such
> data gaps exist?
> 
> Existing methodologies, such as ASTM Phase I, provide reliable
> checklists for collecting information on property ownership and use, the
> presence and release of hazardous substances, and past efforts to
> address such releases. But they aren't as helpful if information sources
> are incomplete and the goal is to show that property is indeed "clean."
> 
> As described above, the AAI standard may attempt to overcome this
> obstacle with a tiered system of data collection. That is, it may
> require certain steps at all sites. If the key questions can't be
> answered with a simple investigation, the environmental professional
> would be required to keep looking until the data gaps are closed.
> 
> 4) Typically, a Phase I environmental assessment does not require
> sampling. In the new standard, what findings, if any, should trigger
> actual sampling of a site?
> 
> In some cases, developers or their environmental professionals may find
> it cheaper or faster to sample for contamination than to exhaust
> existing data sources. No one objects to such voluntary sampling.
> 
> However, some Committee members have suggested that the Committee go
> further. They believe that the benefits of the Phase I process should be
> withheld if the original assessment is inconclusive. That is, to claim
> relief after extensive research and interviews leave significant
> uncertainties about uses and releases, the actual collection and
> analysis of soil or water may be necessary, both to protect public
> health and to avoid future complications and litigation.
> 
> Other Committee members, hoping to retain the relatively streamlined
> existing Phase I process, are likely to object. They fear the costs and
> delays of unnecessary sampling, and they believe that sampling should
> remain confined to the Phase II site assessment, not in the All
> Appropriate Inquiry standard.
> 
> This perhaps is the biggest challenge facing the Committee, and
> discussion thus far has only scratched the surface. Most participants
> agree substantially on the nuts and bolts of the Phase I process. But it
> will take hard work and significant creativity to figure out how that
> process should fit into continuing efforts to protect public health and
> promote property revitalization.
> 
> Lenny Siegel & Bob Hersh
> 

-- 


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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