Reproduced
with permission
from BNA's Environmental
Due Diligence Guide,
Vol. 13, No. 9,
p. 65 (Sept. 16,
2004). Copyright
2004 by The Bureau
of National Affairs,
Inc. (800-372-1033)
EPA
Administrator Signs
Proposed Rule Setting
Standards for Site
Assessments
A
proposed rule that
would set standards
for conducting assessments
of potentially contaminated
properties was signed
by Environmental
Protection Agency
Administrator Mike
Leavitt Aug. 23
and published in
the Federal Register
Aug. 26 (69 FR 52542).
The
proposed standards
must be met by owners
or potential buyers
of land conducting
environmental site
assessments when
seeking superfund
liability protection
or when they are
conducting the assessments
with federal grant
money.
The
liability defenses
are available under
the Small Business
Liability Relief
and Brownfields
Revitalization Act
of 2002 to "innocent"
landowners, prospective
purchasers of contaminated
sites, and owners
of land contiguous
to polluted properties,
as long as parties
seeking such protection
take certain steps
to assess the contamination
and control any
potential future
or ongoing releases.
One of those requirements
is performing "all
appropriate inquiry"
into past uses of
the land. The brownfields
act required EPA
to develop standards
for such reviews.
The
proposed standard
requires owners
and potential buyers
of properties to
hire an environmental
professional to
interview past and
present owners,
operators, and occupants;
review historical
sources of information
regarding the site;
search for recorded
environmental cleanup
liens; review federal,
state, tribal, and
local government
records; and conduct
visual inspections
of the site and
adjoining sites.
The rule includes
a definition of
environmental professional.
The
standard, EPA said,
will encourage the
purchase, cleanup,
redevelopment, and
reuse of contaminated,
abandoned properties
by providing "certainty
for purchasers of
potentially contaminated
property, and [it]
reduces yet another
barrier to cleanup
and redevelopment
in local communities
across the nation."
The
proposal was developed
by EPA with the
help of an advisory
committee of industry
association; community
activist; state,
local, and tribal
government; and
environmental engineer
representatives
through the negotiated
rulemaking process.
The process allows
input throughout
the rulemaking from
affected parties
in an attempt to
gain support early
and speed the public
comment process.
The Negotiated Rulemaking
Committee on All
Appropriate Inquiry
completed its work
on the proposal
Nov. 14, 2003 (12
EDDG 81, 11/20/03).
The language proposed
by the committee
is the language
the agency used
in its proposed
rule.
The
panel disagreed
on several issues
throughout the process,
but ultimately reached
consensus on proposed
regulatory language,
which means members
of the represented
organizations agreed
not to submit negative
comments on the
proposed rule once
it is published.
