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Counter Point
If It Ain’t Broke, Why Are We Fixing It?
As Mr. Kaiser stated, there are few topics on the brownfield landscape that are attracting as much interest as the “all appropriate inquiries” rule. It remains to be seen, however, whether the proposed rule will be a help or a hindrance to the redevelopment of environmentally distressed properties.
I was present for the AAI sessions at Brownfields 2004, and unsurprisingly, they were some of the most well attended sessions at the conference. What was surprising was that the members of the advisory committee that drafted the rule couldn’t always agree as to what the provisions of the rule will require of the regulated community.
If the people who were in the room when this proposed rule was drafted cannot explain these provisions, how are potential developers of brownfield properties and the courts (which will be the likely final arbiters on CERCLA liability) supposed to make sense of them?
What is most troubling about this lack of agreement is that there is already a system in place that has worked for many years — the Phase I environmental site assessment as articulated by the ASTM E1527 standard. Developers, financial institutions, grant programs and the governmental agencies that oversee these cleanups have relied upon this system. The EPA has yet to demonstrate a compelling reason why this process needs to be overturned.
In defense of the proposed rule, the EPA points out that invasive testing will not be required as part of all appropriate inquiry. The commercial reality, however, is that developers will not purchase brownfield properties if the scope and extent of any identified potential contamination isn’t clearly delineated through invasive testing. Moreover, banks will require such testing before financing can be obtained and insurance carriers will be unwilling to write coverage without it. Even if sampling is not required by the current version of the proposed rule, it will be required by the marketplace, so this benefit proffered by EPA is illusory at best.
Even more troubling is the pressure that will be brought to bear on environmental professionals. By operation of this rule, environmental professionals will now be certifying as to whether a prospective purchaser can take title to a piece of property without having to worry about CERCLA liabilities. These new burdens will do nothing more than increase the costs of obtaining site assessments, as environmental engineers seek to increase their errors and omissions insurance.
A far simpler and more effective proposal would have been to simply tweak the Phase I/Phase II assessment process. After all, 240,000 assessments a year can’t be wrong.
Hopefully, some of the more glaring difficulties with the EPA’s proposed rules can be dealt with in the coming months of comment and deliberation. As it currently stands, the EPA’s proposal is likely to do more harm than good.
Lee D. Hoffman is an attorney with the Environmental Practice Group of
the Hartford, Connecticut Office of Pullman & Comley, LLC.