2010 CPEO Brownfields List Archive

From: "Trilling, Barry" <BTrilling@wiggin.com>
Date: Wed, 24 Feb 2010 18:24:00 -0800 (PST)
Reply: cpeo-brownfields
Subject: Re: [CPEO-BIF] EPA's March 17 listening session is an opportunity
 
Lenny: 
 
I agree that this listening session will be valuable, if for no other reason than to try to continue to clear the air with regard to your insistence that the AAI Rule is part of the problem.  I'm afraid that you and Larry are using your considerable persuasive talents and access to decision makers to divert their attention from the real problems:  first and foremost, is the failure of environmental agencies (primarily on the state level) to enforce the law against parties that are abusing the system.  Second, but also important, is the failure of the environmental professional and legal communities to convey the message to their clientele about the importance of strict adherence to both the rule and the ASTM E1527-05.  To impose additional new restraints on good-faith volunteers who need a more level playing field to address brownfield sites will discourage private cleanup activity and leave the burden on government to take remedial action.  This will result in more time-consuming, more expensive, less comprehensive, and less economically productive cleanup activity and will ill-serve the constituents you sincerely want to benefit. 
 
The AAI rule is not perfect-- my experience in its operation so far shows very inconsistent observance of its dictates.  Not surprisingly there are still so-called "environmental professionals" out there who do not appear to be meeting either the rule or the ASTM E1527-05 standard.  EPA and professional organizations (both in the environmental engineering/consulting and legal communities) should be advising prospective purchasers about the importance of strict observance of the standards and the trade press should advise the community of developers and municipalities who rely on Phase I studies to beware of "on the cheap" assessments.  A good example of a bad result that I've seen on more than one occasion recently is that of the potential site purchaser who wants to be eligible for the bona fide purchaser defense hiring a low-cost consultant (perhaps at half the cost of a more conservative professional) to conduct a Phase I assessment that I've had to send back after legal review as insufficient.  The additional legal fees expended for my review and comment usually amount to substantially more than the potential purchaser would have paid for a first-rate Phase I.  Penny-Wise/Pound Foolish.  And for those unwise enough to commission a budget assessment without legal review, the long term risk includes much more dire consequences, including exposure as a CERCLA PRP.  This is not a problem that changing the AAI rules will cure, however. 
 
I look forward to our discussions on March 17.
 
Barry J. Trilling
 W I G G I N  A N D  D A N A
 
 
-----Original Message-----
From: brownfields-bounces@lists.cpeo.org [mailto:brownfields-bounces@lists.cpeo.org] On Behalf Of Lenny Siegel
Sent: Tuesday, February 23, 2010 11:24 AM
To: Brownfields Internet Forum
Subject: [CPEO-BIF] EPA's March 17 listening session is an opportunity
 
U.S. EPA's "Listening Session" on the All Appropriate Inquiries (AAI)
Rule, governing non-intrusive environmental site assessments, is three
weeks away. (9:30 a.m. to noon on March 17, 2010 at room 1153 of the EPA
East Building at 1201 Constitution Ave. NW, Washington D.C). I encourage
participants in the Brownfields Internet Forum, as well as others, to
attend: to engage in what I hope will be the first stage of a dialogue
to improve the EPA Rule, which was published in the Federal Register on
November 1, 2005.
 
I was a member of the Negotiated Rulemaking Committee that developed the
Rule, and I believe that it was a significant step forward. The
performance-based approach that forms its core is a win-win solution
that now helps to better identify potential environmental problems with
only minimal increases in assessment costs.
 
Nevertheless, except in states where there are additional statutory
requirements, the AAI process remains unsatisfactory in terms of public
notification that a site assessment is being undertaken, public
involvement in the collection of information, and public disclosure of
the results.
 
It is my hope that those elements of the Rule can be improved, be it by
revision of the rule, federal legislation, or state legislation and/or
regulation. I recognize that many well-meaning participants in
Brownfields redevelopment view such proposals as a threat to the entire
Brownfields process, likely to kill deals that lead to additional
environmental protection.
 
I see the March 17 event as an opportunity to try to reach common
ground, to bring the public into the process without "killing the goose
that laid the golden egg."
 
Before the Rule was finalized, I prepared a "A Stakeholder's Guide to
'All Appropriate Inquiries,'" available at
offers the following summary of my concerns:
 
"Unless the Phase One is being conducted in compliance with another
environmental program, there is no requirement to ask for public input,
or even to notify the public that a site assessment is underway.
Furthermore, while the parties conducting the Inquiries may conduct
sampling to meet the assessment's performance objectives, sampling is
not required.
 
"These limitations are insignificant at most sites where there is no or
little contamination. But at sites where it appears that human health
and the environment are at serious risk, communities must demand that
environmental regulatory agencies become actively involved.
 
"The Brownfields concept, which uses the demand for property reuse to
promote the screening and remediation of blighted properties, can
promote the protection of human health and the environment. But unless
affected communities participate directly in the oversight of
Brownfields activities, they risk the likelihood that developers and
local agencies will simply sweep environmental problems 'under the rug.'
The ... All Appropriate Inquiries rule can be a tool to ensure that
environmental protection accompanies property redevelopment, but this is
more likely to happen if the public is part of the process."
 
Lenny
 
--
 
 
Lenny Siegel
Executive Director, Center for Public Environmental Oversight
a project of the Pacific Studies Center
278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
 
 
 
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