Volume: 13 Number: 9
September 16, 2004

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) http://www.bna.com

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.