[CPEO-BIF] All Appropriate Inquiry committee update

[Lenny Siegel <lsiegel@cpeo.org>]

The official U.S. EPA advisory committee for the  Negotiated Rulemaking,
or “reg-neg” to develop an “All Appropriate Inquiry” standard for
environmental site assessments, has just completed a two-day session in
Washington, D.C. Below are my personal perceptions of the meeting. For
official reports, as they become available, see http://www.epa.gov/brownfields/regneg.htm.

First and foremost, despite the varying interests and priorities of the
participants in the reg-neg, the committee appears well on its way to
recommending a new rule. There will doubtlessly be a number of rewrites,
and there are several philosophical and overarching issues requiring
attention, but the committee has filled out the outline - ten criteria -
provided by Congress in the 2002 Brownfields law. Once the Committee
completes its work, EPA will review the draft regulation's compatibility
with a number of executive orders, it will write a preamble for the
regulation, and the Office of Management and Budget will review the
text. Before promulgation, the draft rule will be open for public comment.

Here are some of the issues that the Committee has addressed:

Committee members have actually spent a good deal of time trying to
balance the desire to make sure that sufficient environmental
professionals are available, to conduct inquiries available at all
locations, with the need to ensure a high level of proficiency. Current
drafts suggest - in more detail than I report here - three ways to
qualify as an environmental professional: 1) Professional Engineers and
Geologists; 2) Persons certified or licensed by states to conduct
environmental inquiries; 3) persons with at least a bachelor's degree in
science or engineering or five years experience working on environmental
assessments. The group left open the possibility of "grandfathering in"
current practitioners.

In developing information collection methods for the Inquiry, the
committee is considering a performance-based approach. That is, instead
of prescribing a list of steps or sources, the regulation may focus on
the goal of the exercise: determination of releases or potential
releases, as well as supporting knowledge such as historical information
on ownership and use of the property. Under this approach, some steps
and sources would be mandated, and others would be suggested. If
information is unavailable to meet the goals of the inquiry, then the
environmental professional would document efforts to obtain the
information and identify alternative source.

Beyond that, the committee devoted a great deal of time to fine-tuning
some of the steps to be required as part of the Inquiry. It's difficult
to summarize these discussions, however, since they hinge on definitions
of terms such as "commonly known" and "visual inspection," as well as
other detailed wording issues.

Though some members initially expressed hesitancy, the committee moved
toward including searches of records for institutional controls -
including governmental controls and privately imposed requirements - as
a way to document past releases. However, it is not clear how much
information the All Appropriate Inquiry standard will call for to
satisfy such a requirement.

Furthermore, there still appears to be substantive disagreement over the
tenth criterion for All Appropriate Inquiry, established by Congress in
the Brownfields statute. This item reads, "The degree and obviousness of
the presence or likely presence of contamination at the property, and
the ability to detect the contamination by appropriate investigation."
This language is vaguer than most of the other criteria.

Some committee members believe this language provides the basis for
requiring the environmental professional to make findings and
recommendations. That is, if the data collected in the Inquiry is
insufficient to conclude that there is no recognized environmental
condition (contamination) on the property, they suggest that the
environmental professional should be required to recommend next steps,
including the initiation of systematic sampling (known as a Phase II
site assessment). Other committee members believe this requirement would
discourage transactions, and thus inhibit, not encourage actual cleanup.

Members did agree, however, that those conducting inquiries could
voluntarily conduct sampling to close data gaps remaining after
conducting record searches, interviews, site reconnaissance, etc.

Finally, disclosure - another possible upshot of the tenth criterion -
may end up being the most  contentious issue. Where the data
demonstrates an environmental condition, some of the committee members -
particularly those representing environmental justice and environmental
constituencies - believe the standard should require disclosure to the
regulatory agencies and the public. They fear, without such a
requirement, that if a developer abandons a project because it believes
the cost of remediation too prohibitive, it might choose not to report
the contamination discovered in the course of the Inquiry. To activists,
this is unacceptable, because people might be subject to continuing
exposure. However, some other committee members are concerned that
mandated reporting would discourage financial and development interests
from considering difficult projects in the first place.

EPA officials plan to draft new draft regulatory language for the
Committee to review again when it meets again in DC, this September.

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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