Reproduced
with permission
from Daily Environment
Report, No. 210,
p. A-6 (Nov. 1,
2005). Copyright
2005 by The Bureau
of National Affairs,
Inc. (800-372-1033)
EPA
Issues Final Rule
Setting Criteria
For 'All Appropriate
Inquiry' Assessments by
John Sullivan
Entities
seeking to buy property
that may be contaminated
with hazardous substances
will have to assess
those sites using
formal investigatory
criteria set out
in a final rule
to be published
Nov. 1 if they want
superfund liability
protection. The
Environmental Protection
Agency rule makes
clear that in order
to conduct an "all
appropriate inquiry"
as part of the site
assessment required
under superfund,
the landowner or
prospective purchaser
must use an environmental
professional, whose
qualifications are
set out in the rule.
The
rule also provides
that assessments
conducted in accordance
with criteria drafted
by ASTM International,
an organization
that develops voluntary
standards on a range
of issues, will
meet compliance
requirements under
the Comprehensive
Environmental Response,
Compensation, and
Liability Act.
The
final rule also
allows for the use
of older assessments
for properties being
acquired, provided
those assessments
are updated.
The
rule takes effect
Nov. 1, 2006, and
also applies to
parties that use
grants under the
brownfields program
to conduct site
characterizations
or assessments,
including state,
local, or tribal
governments.
The
final rule replaces
interim standards
established by Congress
in the Small Business
Liability Relief
and Brownfields
Revitalization Act
of 2002. Until the
new rule takes effect,
EPA said, the agency
will recognize both
the interim standards
and the provisions
in the final rule
as satisfying the
requirements for
conducting all appropriate
inquiries.
EPA
said the final rule
generally retains
the basic requirements
contained in the
proposed rule published
in August 2004.
But
it changes the required
qualifications for
an environmental
professional, relaxing
some of the stricter
provisions in the
proposal, and clarifies
when the use of
a previously conducted
site assessment
is allowed.
Although
CERCLA previously
contained a provision
for a landowner
to use all appropriate
inquiry to seek
protection from
superfund liability
under the so-called
"innocent landowner"
defense, the law
provided no criteria
for conducting the
inquiry.
Congress
Orders EPA Rulemaking
The
Small Business Liability
Relief and Brownfields
Revitalization Act
of 2002 (Pub. L.
No. 107-118), signed
by President Bush
in January 2002,
established criteria
and directed EPA
to conduct a rulemaking
to formalize the
criteria. The law,
which amended brownfields
provisions of CERCLA,
also established
two other defenses
for liability protection
based on the completion
of an all appropriate
inquiry--one for
"bona fide
prospective purchasers"
and another for
owners of land contiguous
to polluted properties.
To
assist in developing
the rule, EPA set
up a negotiated
rulemaking committee
in 2002 that included
representatives
of industry; community
activists; state,
local and tribal
government officials;
and environmental
engineers. Based
on the committee's
work, EPA published
a proposed rule
in August 2004.
David
J. Freeman, an attorney
with Paul, Hastings,
Janofsky & Walker
in New York, told
BNA Oct. 31 the
rule "pretty
much provides a
bright line"
to inform landowners
and purchasers of
the steps required
in conducting the
inquiry.
"This
rule clarifies a
lot of ambiguous
issues, so that
it's much easier.
You know exactly
what you need to
do," said Freeman,
who had not seen
the specific provisions
in the final rule.
While
the rulemaking was
intended to clarify
a number of issues,
Freeman also pointed
out that the proposal
contained some contentious
provisions. As an
example, he cited
the proposal's requirement
that a prospective
landowner provide
to the environmental
professional conducting
the assessment any
information that
the purchaser may
have that had been
gleaned from other
inquiries concerning
the property.
Freeman
said the purchaser
may not want to
provide some sensitive
information, such
as the purchase
price of the property.
Agency
Alters Proposed
Rule
In
the final rule,
EPA acknowledged
that it had received
a number of comments
objecting to the
provision, and the
agency dropped the
requirement in the
final rule. EPA
said it still believes
the information
should be provided
to the environmental
professional, but
added that it agreed
with commenters
that prospective
landowners and grantees
should not be required
to provide the information.
EPA also modified
a provision from
the proposed rule
that would have
required that a
person have a bachelor's
degree in order
to qualify as an
environmental professional.
Recognizing that
some individuals
without bachelor's
degrees have significant
experience in site
assessments, the
final rule allows
persons with 10
years of relevant
full-time experience
to qualify as an
environmental professional
for the purpose
of overseeing and
performing all appropriate
inquiries.
The
agency also made
changes to provisions
in the proposed
rule governing the
use of site assessments
conducted in the
past for a property
that is about to
be purchased. The
final rule allows
use of information
contained in previously
conducted assessments,
even if the information
was collected more
than a year before
the property is
acquired.
However,
the rule requires
that all aspects
of a site assessment
conducted more than
a year before the
acquisition be updated
to reflect current
conditions and current
property-specific
information. In
the case of all
appropriate inquiry
investigations completed
more than 180 days
but less than one
year before acquisition,
the final rule retains
the proposal's requirement
that only certain
aspects of the inquiries
need to be updated.
ASTM
Standard Consistent
With Rule
The
final rule also
indicates that ASTM
Standard E1527-05
(Standard Practice
for Environmental
Site Assessments:
Phase I Environmental
Site Assessment
Process) is consistent
with the regulatory
requirements and
that anyone who
follows the ASTM
standard will be
in compliance with
the rule. Before
the 2002 brownfields
amendments, an older
ASTM standard was
used as guidance
for conducting all
appropriate inquiries.
ASTM updated the
standard to reflect
the requirements
in the brownfields
amendments, according
to EPA.
According
to EPA, the rule
is expected to impose
minimal additional
costs on Phase I
environmental site
assessments, adding
$52 to $58 to each
assessment and raising
the cost of those
assessments to a
range of $2,185
to $2,190 on average.
For
more information
on the all appropriate
inquiries final
rule, contact Patricia
Overmeyer of EPA's
Office of Brownfields
Cleanup and Redevelopment
at (202) 566-2774
or by e-mail at
overmeyer.patricia@epa.gov.
