![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
All Appropriate Inquiries Negotiated Rulemaking Committee
Meeting Summary - April 29-30, 2003
Welcome
Barry Breen, Deputy Assistant Administrator, Office of Solid Waste and EmergencyResponse (OSWER), Stephen Luftig, Senior Advisor on land reuse, OSWER, and LindaGarczynski, Director, Office of Brownfields Cleanup and Redevelopment (OBCR)welcomed the negotiators and thanked them for agreeing to participate in thenegotiated rulemaking process. They expressed their confidence in the eventual successof the negotiated rulemaking process because of the talent and expertise of theCommittee members, which will be brought to bear on the development of the AllAppropriate Inquiry (AAI) standard. Patricia Overmeyer, OBCR, was introduced as theDesignated Federal Official, whose responsibilities are outlined in the Federal AdvisoryCommittee Act.
Introductions
All Committee members, Resource participants, Facilitators and members
of the publicintroduced themselves.
Statutory Framework for Negotiated Rulemaking
Debbie Dalton of EPA’s Conflict Prevention and Resolution Center
discussed the rulemaking process at EPA, and the requirements and
responsibilities outlined in theNegotiated Rulemaking Act and the
Federal Advisory Committee Act (FACA). She highlighted the importance
of Committee members’ ongoing communications withconstituents
and superiors throughout the process.
Overview of the Negotiated Rulemaking Process
Susan Podziba, Facilitator, Susan Podziba & Associates, provided
an overview of theconvening assessment and negotiation phases of the
negotiated rulemaking process. Shedescribed how Committee discussions
will focus on seeking agreements in concept andultimately, consensus
regulatory language.
Discuss and Revise Ground Rules
The Committee discussed and revised the ground rules, which will govern
its activitiesthroughout the negotiated rulemaking process. The ground
rules were tentativelyadopted, subject to Committee member feedback
from constituents. The Committeemembers engaged in in-depth discussions
on such issues as its mission statement, therole of Resource participants,
Committee review of the preamble to the regulation, andCommittee member
absence from meetings. Key discussion points included:
Mission Statement: The Committee agreed to keep the mission
statement broad ratherthan list specific interests of stakeholders because
of the difficulty of accurately listing allthe concerns of Committee
members.
Resource Participants: Resource participants are those who interact
with and/orrepresent constituencies across the spectrum of stakeholders.
They will provide expertise to the Committee and may participate
in work groups. Some members indicated that they would nominate
additional Resource participants once the groundrules are formally
adopted.
Preamble: The Committee discussed its review of the preamble to the regulation. The preamble is written after the regulatory language is drafted and serves to clarify andexplain, sometimes by example, aspects of the rule. Committee members stressed the importance of their review of the preamble, and it was agreed that EPA will provide thedraft preamble to the Committee for a timely review, and if there is a consensus amongCommittee members, convene a meeting to discuss it.
Absence from Meetings: According to the ground rules, absence will be equivalent to not dissenting. Thus, each organizational member will be represented by a principalnegotiator and an alternate. If neither is available to attend a meeting, the member maywrite a memo with his/her opinions and concerns on issues to be discussed at thatmeeting for distribution to the Committee.
Agenda of Issues
The agenda of issues that the Committee will discuss is broadly contained
in the criteriaidentified in Section 223(2)(B)(iii) of the Brownfields
Law. Each criterion includes a set of sub-issues. EPA reminded the Committee
that the Brownfields Law amends the Superfund liability provisions for
all property owners, not just brownfields, andtherefore, the AAI rule
applies to all properties for which an owner will assert liabilityprotection.
Before discussing the criteria, the Committee sought to identify
broad, general issues.They included:
- The need to harmonize the rule with other requirements for liability
protectionunder the Brownfields Law and other federal statutes (e.g.
appropriate care,prevention of future releases, compliance with institutional
controls);
- The usefulness of a tiered approach of varied levels of investigation,
based onproperty type, to avoid, for example, unnecessary assessment
of clean sites;
- The question of whether all the statutory criteria must be included
in theregulation and applied to all property types to accomplish all
appropriate inquiry;
- The scope of the standard with regard to the level of investigation
for propertieswith varying levels of contamination, for example, will
the standard include a pre-phase I assessment, require sampling, or
outline the steps for a phase I and/orphase II assessment ?;
- Public notice of findings of contamination and a duty to report
a threat to publichealth and safety;
- The structure of the regulation in terms of whether it will be
performance-based or prescriptive;
- Transferability of AAI liability relief; and
- How the rule will accommodate the unique characteristics of rural properties, forexample, sometimes limited availability of information or access.
In addition, there was a discussion of the starting point for writing
the standard. Some Committee members suggested that ASTM 1527-00, a
current industry standard and theinterim standard under the Brownfields
Law, should be revised and amended to create the new AAI standard. Other
Committee members suggested there were otherdocuments such as state
or EPA guidance documents that could serve the same function.Since not
all Committee members were familiar with all the documents discussed,
this question was tabled until all members had an opportunity to review
them.
In response to questions about the scope of the standard, the Committee
decided to createa work group to discuss how a tiered approach to assessments
might be structured.
Criteria #1: The results of an inquiry by an environmental
professional
All members agreed that the intent of this criterion is to ensure the
quality ofenvironmental assessments. Committee members discussed the
kinds of credentials that might be required of environmental professionals.
The Committee agreed that there maybe combinations of credentials –
academic training, such as engineering and geology, andwork experience—that
would result in the appropriate expertise to perform allappropriate
inquiry. Committee members agreed to email their ideas about qualificationsto
Patricia Overmeyer, EPA.
Criteria #2: Interviews with past and present owners, operators,
and occupants of thefacility for the purpose of gathering information
regarding the potential forcontamination at the facility.
The Committee discussed which contaminants should be included in the
assessment, who should be interviewed, and what to do if required individuals
could not be interviewed.
Contaminants: Committee members suggested three categories of contaminants: (1)CERCLA substances, which must be included in the AAI standard for all properties; (2)additional substances required for Brownfields grantees under the Brownfields Law, suchas petroleum; and (3) other substances, such as radon and mold, which are typicallyrequired by banks and lenders, but are not considered hazardous substances underCERCLA. Further discussion is required on the third category.
Interviewees: The Committee discussed who to interview to determine historic uses of a site. The Committee discussed whether that adjacent neighbors could provide usefulinformation in addition to key site managers and employees, and owners and operators.
Unwilling or Unavailable Interviewees: The Committee discussed the need to determine what a “reasonable effort” would mean in terms of trying to complete a series of requiredinterviews. Some pointed to situations where people could not be found or were unwilling to speak with the environmental professional. This led to a discussion of on-sitesampling in place of some interviews. Other members raised the issue of an owner notwanting neighbors to know a property was for sale.
Public Comments (April 29 & 30)
John Watson, of National Brownfield Association, questioned the appropriateness
of using the term “brownfields” in the Ground Rules mission
statement. Rebecca Sigler, of Holland & Knight, spoke about public
participation in work groups. Katie Shorting, of Mortgage Bankers Association,
raised concerns about public notice of limited information identified
in phase I assessments.
Logistics
Schedule: The Committee will meet on June 10-11, July 8-9, September 9-10, October 14- 15, and November 12-13, 2003.
Background Readings: The Committee will review the following documents in preparation for the June 10-11 meeting: ASTM 1527, ASTM 1528, ASTM E1984, EPA documents “Common Elements,” Region 2 Brownfields Project Planning Guidance and Quality Assurance Guidance for Conducting Brownfields Site Assessments, New Jersey and Illinois Guidance, and Pennsylvania’s ACT 2.
ASTM 1527, was provided to Committee members. ASTM will also provide 1528 and E1984. The public may review ASTM standards as part of the EPA docket of the AAI reg neg committee, but may not make copies of these copyrighted documents. The EPA documents were distributed at the meeting. Website links will be sent for the other documents. Anyone needing hard copies rather than website links should send such a request to Patricia Overmeyer by email.
Expert Presentations: EPA will work with the Environmental Law Institute and Committee members to arrange presentations on the background reading documents as well as information about other state programs.
Next Steps Alternates: All members will identify an alternate and send his/her name and contact information to Patricia Overmeyer.
Documents: Facilitators will distribute revised ground rules, a draft meeting summary,and a draft agenda prior to the June 10-11 meeting.
Environmental Professional Qualifications: Committee members should send ideas to Patricia Overmeyer.
Flowchart Work Group: will hold a conference call on May 13, 10:00 AM – 12:00 PM EDTto initiate discussions of a tiered approach for the standard.
U.S. Environmental Protection Agency
All Appropriate Inquiry Negotiated Rulemaking Committee
April 29 & 30, 2003
Attendance
Committee Members:
Kathy Blaha, Trust for Public Land
Eric Block, National Groundwater Association
Carol Bowers, American Society of Civil Engineers
Clifford Case, International Municipal Lawyers Association
Abbi Cohen, Mortgage Bankers Association of America
Robert Colangelo, National Brownfield Association
Tom Crause, Illinois Environmental Protection Agency (ASTSWMO)
Andy Darrell, Environmental Defense
Deeohn Ferris, Partnership for Sustainable Brownfields Redevelopment
Diane Hanna, Gila River Indian Community
Karl Kalbacher, Maryland Department of the Environment (ASTSWMO)
Julie Kilgore, Wasatch Environmental, Inc.
David Lourie, ASFE
Stephen Luftig, U.S. Environmental Protection Agency
Vernice Miller-Travis, West Harlem Environmental Action
Martin Mitchell, National Association of Homebuilders
Roger Platt, Real Estate Roundtable
Lenny Siegel, Center for Public Environmental Oversight
Judy Sheahan, The US Conference of Mayors
Jeff Telego, Environmental Bankers Association
Barry Trilling, National Association of Industrial and Office Properties
James Tripp, Environmental Defense Matt Ward, National Association of
Local Government Environmental Professionals
Julie Wolk, U.S. Public Interest Research Group
Patricia Overmeyer, US EPA, Designated Federal Official
Deborah Dalton, US EPA, Conflict Prevention and Resolution Center
Susan Podziba, Susan Podziba & Associates, facilitator
Meighan Matthews, Susan Podziba & Associates, facilitator
Resource Participants:
Kevin Matthews, AIG Environmental
Lindene Patton, Zurich North America
Sara Beth Watson, American Bar Association
Russell Riggs, National Association of Realtors
Public
Khanna Johnston, US EPA
Karen Wardzinski, DOJ
Mike Mittelholzer, NAHB
Meredith Preston, BNA
Bruce Lundgren, NAHB
Eric Wieser, BPI News
Helen Keplinger, EPA
Kris Swanson, ATSWMO
M. Charles, ASCE
Dianne Crocker, EDR
Gene Watson, SECOR, International
Rebecca Sigler, Holland & Knight LLP
Catherine Tunis, EPA OPEI
Robert Myers, EPA Superfund
Michael Charles, American Society of Civil Engineers
Dan Smith, ASTM
Christine Reimer, NGWA
Kelly Novak, National Association of Development Organizations David
Luick, International Council of Shopping Centers
Charlie Grizzle, International Council of Shopping Centers
Dick Cantor, ICSC consultant, Grizzle Co.