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Superfund and RCRA Reforms Effecting Contaminated Property Transactions for Brownfields Redevelopments

By Steve Luftig, Senior Advisor on Land Reuse to Assistant Administrator for the Office of Solid Waste and Emergency Response U. S. EPA, Washington, DC

REMARKS for the RTM CONFERENCE APRIL 2, 2003

EPA Land Revitalization Initiative

Summary

The Environmental Protection Agency (EPA) is undertaking an important initiative to restore land to productive economic and green space end uses at the same time the Agency protects human health and the environment by cleaning up waste sites. Cleanup and reuse are mutually supportive, common sense goals that reinforce each other to serve the common good.

To facilitate and promote land revitalization, EPA has developed an Action Agenda, a blueprint for achieving more land restoration as part of clean up. A number of steps already have been taken in EPA's cleanup programs to further reuse efforts, but much more can be done to expand on the successes that have been achieved. The Action Agenda will further EPA's land reuse goals by: ensuring that cleanup program policies, guidance and enforcement agreements encourage reuse; creating public-private and cross-governmental partnerships to foster reuse; instilling a culture of reuse in our government workforce; and providing incentives for reuse through streamlined implementation of new federal brownfields legislation.

Some of the Important Ideas in the Action Agenda

EPA doesn't own the land; land-use decisions are local decisions, but EPA can help communities think about how to turn waste sites into (back into) productive community assets.

When EPA assessess contamination at sites, the future uses of the property also can be assessed ...let's think of these "sites" as "properties" as their neighbors do.

The EPA site assessment programs can better delineate, as early as possible, boundaries of superfund sites, recognizing the "stigma" place on land by being on the "NPL"

EPA can pursue ideas like an internet-based Land Revitalization Clearinghouse (like Pennsylvania has done), and integrated information systems for all EPA cleanup programs; people should be able to use the Internet to find all the state and federal sites in their communities.

EPA needs performance measures that describe acres of land made ready for re-use.

EPA needs to address the concerns of property owners and purchasers: e.g., the problem of "warehousing" and foster solutions such as use of new insurance tools.

EPA can coordinate its programs to address "clusters of cleanup sites"

EPA is fostering partnerships to achieve greater re-use, such as the Urban Rivers Restoration initiative: four pilot projects named in March 2003, fostering inter-agency coordination and restoration of urban river areas. future.

EPA can strengthen the link between re-use of cleanup sites and smart growth. These reuse activities promote public health by diminishing auto miles traveled, leading to cleaner air and fewer auto accidents and healthier life styles.

EPA One Cleanup Initiative

In response to issues raised by the regulated community, citizens impacted by contaminated properties and other governmental agencies, the Environmental Protection Agency (EPA) is leading this initiative to improve the coordination, speed, and effectiveness of cleanups at the nation's contaminated sites. The One Cleanup Program is EPA's vision for how different cleanup programs at all levels of government can work together to ensure that resources, activities, and results are effectively coordinated and communicated to the public.

EPA is not seeking new legislation or proposing to combine all programs into one. Instead, the One Cleanup Program is designed to support the ongoing planning and quality improvement efforts of EPA cleanup programs, and EPA's coordination with State, Tribal and other federal agency cleanup programs and stakeholders. This initiative includes actions that will make it easier to understand what is happening at contaminated sites; creates opportunities for individual cleanup programs to increase the speed and quality of cleanups; and encourages development of national policies that apply to all EPA cleanup programs, including those dealing with brownfields, federal facilities, leaking underground storage tanks, RCRA and Superfund. 

Three Important Goals of The One Cleanup Program

More consistent and effective cleanups

Clear and more useful information about cleanups.

Better performance measures

"All Appropriate Inquiry" Rule Making under the New Brownfields Law

New Liability Protections:

Under the Brownfields Law, bona fide prospective purchasers and contiguous property owners are not liable for damages from contamination to which they have not caused or contributed, if they take a number of steps - including comply with the requirements for conducting "all appropriate inquiry" as provided under the law.

Standards for Conducting All Appropriate Inquiry:

Congress directed EPA to establish, by regulation, standards and practices for conducting all appropriate inquiry. Congress also established interim standards for conducting all appropriate inquiry. These standards remain in effect until EPA promulgates final federal standards. The law sets two different interim standards for establishing "all appropriate inquiry" that apply depending on the date the property was purchased.

For properties purchased prior to May 31, 1997, the law provides that a court shall consider specialized knowledge of the defendant, relationship of purchase price to value of uncontaminated property, commonly known information, obviousness of contamination, ability of defendant to detect contamination by appropriate inspection.

For properties purchased after May 31, 1997 - the law requires the use of standards and procedures developed by the American Society for Testing and Materials (ASTM), in particular ASTM's standard E1527-97, or "Standard Practice for Environmental Site Assessment: Phase 1 Environmental Site Assessment Process."

EPA Initiatives for Developing All Appropriate Inquiry Standards and Practices:

Since the enactment of the Brownfields Law, the Agency has undertaken two initiatives with regard to setting standards for conducting all appropriate inquiry.

EPA has published a direct final rule clarifying the interim standard established by Congress. The direct final rule establishes that both the 1997 version and the updated, 2000 version, of ASTM's E1527 Phase I Environmental Site Assessment Process will satisfy the requirements for conducting all appropriate inquiry, until EPA promulgates final federal standards.

EPA has initiated the development of federal regulations governing the conduct of all appropriate inquiry. EPA intends to develop proposed standards for all appropriate inquiry under a negotiated rulemaking process. During the fall of 2002, EPA conducted the convening phase of the regulatory negotiation process for the development of the all appropriate inquiry standard. EPA recently announced the initial meeting of the federal advisory group that will be tasked with negotiating the proposed federal standard for all appropriate inquiry. All meetings of the advisory group will be open public meetings

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