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EPA proposes brownfields rule

WASHINGTON – The U.S. Environmental Protection Agency (EPA)proposed in late August a rule that, under certain circumstances, could exempt land purchasers from lawsuits under the Superfund hazardous waste cleanup law.

According to the rule, potential landowners who properly perform all appropriate inquiries” into the previous ownership, uses, and environmental conditions of a property prior to purchase can receive assurance from the EPA that they will not be subject to the suits.

The rule also will apply to any person conducting a waste site characterization or assessment with funding from the federal Brownfield grant program, regardless of whether a purchase takes place.

The purpose of the rule is to encourage the purchase, cleanup, reuse, and economic revitalization of property that may be environmentally contaminated,” the EPA said.

Prospective property owners who do not conduct the inquiries properly, however, may not be able to claim protection from Superfund liability. And, the failure to detect contamination prior to purchase does not exempt landowner from the obligation to clean up newly discovered hazardous waste.

The rule would require that an environmental professional conduct or oversee all appropriate inquiries” and sign a written report.

Qualifications for an environmental professional, including education, relevant experience, and professional registration – professional engineer or professional geologist – are detailed in the proposed rule, which is available at www.epa.gov/brownfields/regneg.htm.

The EPA will establish through regulatory negotiation the standards and practices for conducting all appropriate inquiries.” The standards will include the following criteria:

results of an inquiry by an environmental professional;

interviews with past and present owners, operators, and occupants of the facility;

reviews of historical sources, such as chain of title, documents, aerial photographs, building department records, and land-use records;

searches for recorded environmental cleanup liens against the facility that are filed under federal, state, or local law;

reviews of federal, state, and local government records, waste disposal records, underground storage tank records, and hazardous waste handling, generation, treatment, disposal, and spill records concerning contamination at or near the facility;

visual inspections of the facility and adjoining properties;

specialized knowledge or experience on the part of the defendant;

relationship of the purchase price to the value of the property if the property was not contaminated;

commonly known or reasonably ascertainable information about the property; and

degree of obviousness of the presence or likely presence of contamination at the property and the ability to detect the contamination by appropriate investigation.