[CPEO-BIF] AAI Reg-Neg update

[Lenny Siegel <lsiegel@cpeo.org>]

The Negotiated Rulemaking Committee to develop a U.S. EPA regulation on
All Appropriate Inquiry, as mandated by the Brownfields law, just
completed its September, 2003 meeting in DC. Though the Committee
continues to make progress, it decided to extend its final two meetings,
in October and November, to three days each, to complete its work. 

The following is my personal assessment - as an active member - of the
Committee's progress and direction. For a more complete review, consult
both the trade press and the official meeting summary, which will be
available when it's approved at
http://www.epa.gov/brownfields/regneg.htm. Predicting the pace of
Committee deliberations remains difficult, since this diverse and
opinionated body sometimes addresses potentially significant issues
quickly, while seemingly minor points bog the group down. 

The fundamental compromise in the draft rule remains its
performance-based approach. Those participants who want to streamline
due diligence reviews are pleased that one doesn't have to continue down
a lengthy checklist of information collection once key questions are
reliably answered, while those who emphasize the need to leave no rock
unturned in the search for contamination are glad that the environmental
professional conducting the Inquiry will be required to keep looking
until those answers are found.

The next step, for the Committee, is to develop a Goals section, based
on specific objectives that have been embedded in the sections of the
draft rule, and to phrase them as measurable standards. The overarching
goal, based upon the statute, is likely to be "to gather information on
releases and threatened releases on or near the subject property." For
the various legal defenses (prospective purchaser, innocent landowner,
contiguous landowner) those releases are defined as hazardous substances
under CERCLA (the Superfund law). For Inquiries conducted for EPA's Site
Assessment grant program, "releases" may also include petroleum products.

In support of that goal, the regulation is likely to call for the
development of a continuous record of use, and possibly ownership, of
the subject property. That is, if the information gathered through the
Inquiry leaves major gaps in the history of the property, it will
probably be necessary to conduct actual sampling to determine whether it
is contaminated. The Inquiry will probably also need to document past
environmental responses on the property. Specific requirements -
potential off-site releases, institutional controls, liens, etc. - might
make it into the new Goals section, or they may simply remain in the
sections of the rule that already address them.

The performance-based approach helped the Committee surmount a
potentially difficult challenge: what to do if a property owner refuses
to allow on-site visual inspections or if a walk-through is technically
impractical. The apparent solution is to require the professional
conducting the Inquiry to develop the same information by viewing the
property from off-site or through other forms of data collection. The
will be asked to judge the sufficiency of these alternatives against the
performance standard.

The most significant unresolved issue is the search distance for
reviewing government records such as hazardous waste site listings. Some
committee members believe it should be wholly at the discretion of the
environmental professional conducting the Inquiry. Others believe there
should be a baseline, or default, of one mile, which the professional
could modify. Still others want a series of distances, depending upon
each standard data base, as provided in the ASTM Phase 1 standard
currently being used in most such Inquiries. It's important to note that
differences over this item are not associated with ideology or constituency.

Because of the large volume of comments that the Committee received on
the definition of Environmental Professional, it is re-opening the
issue. Many people who conduct such Inquiries, as well as associations
that represent them, have protested draft criteria that might make it
difficult for them to continue doing work that many have been doing for
years. I predict that the Committee will resolve this issue with either
more flexibility or a "grandparent clause," which would ease the
requirements for those people already practicing in the field.

There was some concern about where in the document certain forms of
information gathering belong, since they aren't specifically called out
in the statute. The Committee agreed tentatively to create an "Other
Information" category. This category would describe interviews with site
neighbors, interviews with local officials, and limited voluntary
sampling designed to achieve the un-met goals of the Inquiry.

The current draft of the regulation requires the environmental
professional to recommend next steps, such as sampling and analysis,
"that may be necessary to detect any releases or threatened releases at
the property for the purposes of limiting potential human an
environmental exposure to such releases." The Committee appeared to not
to go beyond such a recommendation - that is, it does no plan to require
any "due care" or "reasonable steps" - as part of this rule, but it did
not complete its discussion. These issues are supposed to come up first
at its next meeting, to be held at EPA headquarters October 14-16, 2003. 

Finally, I proposed that the Committee add language requiring those
conducting the Inquiry to report to government agencies - and thus the
public - releases that threaten public health and the environment.
Though other members of the Committee oppose any requirement in the rule
that goes beyond the current requirements in CERCLA, they appeared to go
along with a compromise that would require a determination of existing
reporting requirements - generally those already mandated by state laws
- and compliance with those existing requirements.

Overall, the Committee is moving toward a standard that is similar to
existing commercial practices but which slightly expands the role of the
affected public in the Inquiry process. The document still requires a
great deal of fine tuning (or nitpicking, depending upon one's
perspective), but there is every reason to believe that the Committee
will complete its work on time with a proposal which all participants
can accept.

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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