Brownfields Law Negotiated Rulemaking
Client: Office of Brownfields Cleanup and Redevelopment, U.S. Environmental Protection Agency
Background
The Small Business Liability Relief and Brownfields Revitalization Act (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 a property prior to purchase to determine the presence or potential presence of environmental contamination on the property.
Process
The U.S. Environmental Protection Agency (EPA) retained Podziba Policy Mediation (PPM) to conduct an assessment and mediate negotiations to develop standards and practices for conducting environmental assessments of contaminated properties, often referred to as “brownfields.” Based on PPM recommendations following 60 in depth interviews, the EPA Administrator appointed a 26-member Negotiated Rulemaking Committee, which included representatives of federal, state, tribal, county, and local governments; for profit and not-for-profit developers; real estate and environmental attorneys; bankers and lenders; environmental professionals and environmentalists; and environmental justice advocates.
Over six multi-day meetings, the group discussed issues such as the qualifications for environmental professionals, neighborhood interviews to determine historical uses of properties, and requirements for visual inspection, including when access to a property is denied. Result
The negotiations resulted in consensus regulations to implement the academic assessment component of the Every Student Succeeds Act. The Committee did not achieve consensus on supplement-not-supplant provisions. The U.S. Department of Education has issued final regulations for the former, and a proposed rule for the latter. These regulations affect all public school students throughout the United States.
Result
After eight months of negotiations, the committee reached consensus on all issues related to the All Appropriate Inquiries standards, which now have the force of law in the United States. After overcoming initial resistance, committee members fused their interests, priorities and expert knowledge to prepare clear, defensible rules on assessing properties for hazardous substances. These rules have provided for both increased brownfields redevelopment and protection of public health and the environment in communities throughout the United States.
