Participants:
William Hoffman, ICSC
Joe Maheady, National Association of Realtors (NAR)
Roger Platt, The Real Estate Roundtable
Jay Spector, National Association of Industrial and Office Properties
(NAIOP)
Bob Elam, American Chemistry Council
Mark Malander, Exxon Mobil
Kevin Matthews, AIG Environmental
Michael Mittelholzer, National Association of Home Builders (NAHB)
Steve Hirsch, U.S. Chamber of Commerce
Bernie Reilly, DuPont Company
Sue Briggum, Waste Management
Don Clay, Koch Industries, Inc.
Al Collins, Occidental International
Sara Beth Watson, Steptoe and Johnson for American Bar Association
SEER
Charlotte Bertrand, U.S. EPA Administrator's Office
Jim Woolford, U.S. EPA FFRRO
Bob Myers, U.S. EPA OERR
Brigid Lowery, U.S. EPA OSWER
Tim Jones, U.S. EPA
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Linda Garczynski, U.S. EPA OSPS
Sven-Erik Kaiser, U.S. EPA OSPS
Valerie Green, U.S. EPA OSPS
Karl Alvarez, U.S. EPA OSPS
Alison Evans, U.S. EPA OSPS
Anthony Raia, U.S. EPA OSPS
Patricia Overmeyer, U.S. EPA OSPS
Rey Rivera, U.S. EPA OSPS
Beth Zelenski, U.S. EPA OSPS
Jim Maas, U.S. EPA OSPS
Ann McDonough, U.S. EPA OSPS
Tom Rinehart, U.S. EPA OSPS
Cate Tierney, U.S. EPA OSRE
KC Schefski, U.S. EPA OSRE
Susan Boushell, U.S. EPA OSRE
Tod Burnett, U.S. EPA
Sara Rasmussen, U.S. EPA OSW
Michael Shapiro, U.S. EPA OSWER
Dottie Pipkin, U.S. EPA OSWER
Carolyn Hoskinson, U.S. EPA OSWER
Christopher Prins, U.S. EPA OSWER
Myron Knudson, U.S. EPA Region 6
Bill Muno, U.S. EPA Region 5
Colleen Morgan, Marasco Newton Group
Wendy Spillane, Marasco Newton Group
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Introduction:
Mike Shapiro, deputy assistant administrator for the Office of Solid Waste
and Emergency Response (OSWER), welcomed all the participants and emphasized
the importance the U.S. Environmental Protection Agency (EPA) attaches
to maximizing stakeholder involvement early in the implementation process
of the brownfields law. Mr. Shapiro explained that there is a short-time
frame that EPA is working under to implement the legislation. He encouraged
the group to view this meeting as an early opportunity to identify issues
and provide input. Mr. Shapiro noted that this is the second of four listening
sessions and that EPA has recently set up its teams and structure to develop
the appropriate policies, guidance, and regulations.
Mr. Shapiro noted that the schedule to develop the policies and guidance
to implement the law is being driven by the need to get the grants guidelines
in place when the 2003 fiscal year funding is available beginning on October
1. At that time, the new funding will trigger the need for the new rules.
He also noted that, with a few exceptions, there was no need for lots
of formal rulemaking. As EPA has begun the implementation process it has
noted a few issues, and looks forward hearing about any issues, concerns,
or comments from this group.
Linda Garczynski, director of EPA's Outreach and Special Projects Staff
(OSPS), spoke of the challenge that EPA faces with the new legislation,
including several unique issues of interest to the private sector:
- Definitional changes: Expanding the types of sites that
can be addressed (e.g., petroleum, mine-scarred lands, controlled
substance labs), including the issues related to what a viable responsible
party means in the context of petroleum sites
- Grants issues: For example, EPA is considering the use of
a two-step grant application process to help with efficiently and
fairly processing the expected deluge of applications resulting from
the expanded sites and eligible entities. Congress also added three
new criteria for the grant evaluation process and EPA needs to determine
what these mean.
- Prospective purchaser protection: Consideration of whether
the law is self-implementing and if prospective purchaser agreements
(PPAs) will be needed in the future.
- State voluntary response programs (VRPs): Examination of
issues such as what constitutes a public record.
- Phase 1 assessment standard: Clarifying use of 1997 versus
2000 ASTM Phase 1 standard, undertaking the regulatory development
process for the final rule, and considering a regulatory negotiation
("regneg") process.
Identification of Specific Issues/Questions:
Prospective Purchaser Agreement Clarification
- Comment that EPA should take a good, quick look at PPAs. The representative
would like to know if prospective purchasers are protected against
liability without a PPA. He said it is a key issue for underwriters
of the developers. Though they will underwrite the transactions either
way, insurers need clarity about whether PPAs will be required. If
they do not have to fear the liability without a PPA, they will not
have to write for that risk (e.g., will not need to include PPA language
in the policies or cover the risk financially).
- Comment that realtors encouraged by EPA's approach and understanding
of the site-specific nature of these transactionswhat is needed
at a Superfund caliber site may not be an issue at a lower risk site.
The need for EPA to take the time to get these liability issues right,
rather than focusing on getting things done quickly, was emphasized.
- EPA should make the law self-implementing to enable real estate
agents/attorneys to handle these transactions without having to rely
on Superfund experts.
- It will take time for the standard practices to be developed to conduct
transactions under the new law.
Clean/Contaminated Parcels Issue
- Request for clarification on parceling of sites and whether clean parcels will be treated differently than contaminated parcels for properties that contain both.
Due Care Versus Appropriate Care
- Need for clarification about the difference between "due care"
and "appropriate care" standards referenced in Subtitle
B.
Major Themes Guiding EPA
- Question about EPA's overarching themes or principles in implementing
the law. Such principles have been useful to the stakeholders in working
with other EPA reforms.
EPA's Communication Strategy
- Inquiry about EPA's communications strategy regarding the new law.
- Suggested that private-sector stakeholders can help with these outreach
efforts.
TSCA Site Transactions
- Inquiry about the impacts on TSCA/PCB transfer and how it will be
considered in the context of the brownfields law.
Institutional Controls (ICs)
- Question about what will be considered an acceptable remedy and
how the extent of the responsibility of a buyer/developer will be
defined.
- Need for EPA to help with certainty on the remedy by clarifying
the rules relating to ICs. Using a model state law for ICs might help
this process.
Petroleum Contamination
- Comment about the expansion to cover petroleum sites and concern
that EPA is now sending mixed messages by providing grant funding
to address petroleum contaminated sites but not providing liability
relief.
- There is an incongruity between the protection provided by states
and the new legislationstates do not distinguish between CERCLA
contaminants and petroleum, but the federal government does.
- Question whether the USTfields initiative would be merged into the
brownfields initiative.
- Question about who has jurisdiction over cleanup at UST/RCRA sites,
and how to handle states that have non-degradation rules for groundwater
(e.g. Wisconsin).
Sector Targeted Approaches
- Suggestion that EPA consider focus on sector-specific issues, example
of landfills and the reuse opportunities they provide because of the
availability of large buffer areas.
Property Investigation Standards/Safe Harbor
- Question about whether EPA would provide guidance with regards to
property investigation or whether the statute would be self implementing.
- Most stakeholders seem to be happy with the ASTM standard but from
a site assessment perspective, the ASTM standard was not as useful
and that many states do not rely on ASTM for their site-assessment
standards
- Difficulty is that professional standards will always be subject
to change.
- A representative said that there should be a standard that serves
as a safe harbor from liability for day-to-day transactions. He encouraged
EPA not to try to change current commercial practice.
Grants Criteria and Application Process
- Question about whether there would be any guidance on the grants
and any indication about what kinds of projects EPA would prefer to
fund (e.g., highest/best use versus greenspace or nonprofit projects).
- EPA is considering a two-step application process with a short statement
of interest to make the initial cut; those making the cut would then
submit a longer, more detailed application. Most indicated that they
thought this seemed like a good approach.
Federal/State VRP Interplay
- Interest in hearing more about the federal/state relationship, especially
regarding those sites that were not abandoned.
- Hope to see resources devoted to working on issues related to the
federal/state role at both EPA Headquarters and EPA regional levels.
Noted that these efforts would be key to getting mothballed properties
back into productive use.
- Comments that the reopeners are still problematic and cause discomfort
to property owners.
- Questions about the Federal experience with State programs.
Small Business Exemptions
- Request for more information about small business liability exemptions.
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