All
Appropriate Inquiry Negotiated
Rulemaking
U.S. Environmental Protection
Agency
Office of Brownfields
Cleanup and Redevelopment
Development
of All Appropriate Inquiry
Standard as required under
the Small Business Liability
Relief and Brownfields
Revitalization Act of
2002
Susan
Podziba & Associates
convened and mediated
a negotiated rulemaking
(reg neg) process to develop
standards and practices
for conducting environmental
assessments of contaminated
properties, often referred
to as “brownfields.”
The 26-member All Appropriate
Inquiry Negotiated Rulemaking
Committee (AAI Reg Neg
Committee) reached consensus
on all issues after eight
months of negotiations.
The reg neg, U.S. EPA’s
first in 10 years, resulted
in a standard that all
committee members agreed
will promote redevelopment
of brownfields properties
and protect public health
and the environment.
The Small
Business Liability Relief
and Revitalization Act
of 2002 (the Brownfields
Law) clarifies the Comprehensive
Environmental Response,
Compensation, and Liability
Act (CERCLA/Superfund)
liability provisions for
certain landowners and
potential property owners.
The Brownfields Law provides
liability protections
for innocent landowners,
contiguous property owners,
and bona fide prospective
purchasers if they conduct
all appropriate inquiries
into present and past
uses of the property to
determine the presence
or potential presence
of environmental contamination
on the property.
Prior to
establishment of the AAI
Reg Neg Committee, EPA
retained SP&A to undertake
a convening assessment
to determine the feasibility
of proceeding with a negotiated
rulemaking process to
develop the AAI standards
and practices. Based on
interviews with 60 representatives
of potentially affected
stakeholders, SP&A
determined that there
was a strong likelihood
of success for reaching
consensus decisions among
all relevant stakeholders
on elements of the AAI
standard within a reasonable
timeframe. SP&A's
final convening report
also included a summary
of key issues to be discussed
and a list of proposed
members for the AAI Reg
Neg Committee.
The 26-member
AAI Reg Neg Committee
included representatives
of federal, state, county,
local, and tribal governments;
for profit and not-for-profit
developers, real estate
and environmental attorneys,
bankers and lenders, environmental
professionals, environmentalists,
and environmental justice
communities. In addition,
representatives from the
environmental insurance
industry, real estate
brokers, and the American
Bar Association, Environment,
Energy, and Resources
Section served as resource
participants.
The AAI
Reg Neg Committee held
six meetings and covered
issues such as the qualifications
for environmental professionals
conducting all appropriate
inquiries, required interviews
to determine historical
uses of properties, and
requirements for visual
inspection, including
when access to a property
is impossible.
On November
14, 2003, consensus was
reached on all issues
related to the AAI criteria.
EPA published the proposed
rule on August 24, 2004
and the Final Rule on
November 1, 2005. The
final standard represents
the priorities and expert
knowledge of the diverse
stakeholder committee,
provides clear, defensible
rules on assessing properties
for hazardous substances,
and provides for both
increased brownfields
redevelopment and protection
of public health and the
environment.
