Contract
Number
68­
W­
99­
010
Task
Order
#
0122
FINAL
Convening
Assessment
Report
on
the
Feasibility
of
a
Negotiated
Rulemaking
Process
to
Develop
the
All
Appropriate
Inquiry
Standard
Required
under
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
Public
Law
No.
107­
118)

U.
S.
Environmental
Protection
Agency
Office
of
Solid
Waste
and
Emergency
Response
Office
of
Brownfields
Cleanup
and
Redevelopment
Submitted
by
Susan
L.
Podziba
Susan
Podziba
&
Associates
21
Orchard
Road
Brookline,
MA
02445
under
subcontract
to
Marasco
Newton
Group
Alexandria,
VA
December
17,
2002
Convening
Assessment
Report
on
the
Feasibility
of
a
Negotiated
Rulemaking
Process
to
Develop
the
All
Appropriate
Inquiry
Standard
Required
under
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
Public
Law
No.
107­
118)

Table
of
Contents
INTRODUCTION
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1
BACKGROUND
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2
FEASIBILITY
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3
CATEGORIES
OF
STAKEHOLDER
GROUPS
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4
SUBSTANTIVE
ISSUES:
KEY
CONCERNS
BY
STAKEHOLDER
GROUP
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5
KEY
ISSUES
ACROSS
STAKEHOLDER
GROUPS
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12
PROCEDURAL
ISSUES
RELATED
TO
THE
NEGOTIATED
RULEMAKING
PROCESS
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16
PARTICIPATION
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16
PROCESS
DESIGN
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18
PROTOCOLS
AND
PROCEDURES
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19
CONCLUSION
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20
APPENDIX
A:
U.
S.
EPA
Negotiated
Rulemaking
Fact
Sheet
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21
APPENDIX
B:
List
of
Interviewees
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25
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
Convening
Assessment
Report
on
the
Feasibility
of
a
Negotiated
Rulemaking
Process
to
Develop
the
All
Appropriate
Inquiry
Standard
Required
under
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
Public
Law
No.
107­
118)

INTRODUCTION
In
accordance
with
the
Negotiated
Rulemaking
Act
of
1996,
this
report
describes
the
findings
and
recommendations
of
Susan
Podziba,
the
neutral
convener,
regarding
the
feasibility
of
a
negotiated
rulemaking
process
to
develop
the
All
Appropriate
Inquiry
Standard
(
CERCLA
§
101(
35)(
B)),
which
the
U.
S.
Environmental
Protection
Agency
(
EPA)
is
required
to
promulgate
under
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
Public
Law
No.
107­
118).

Negotiated
rulemaking
is
a
process
whereby
a
committee
composed
of
representatives
of
stakeholder
groups,
which
will
be
significantly
affected
by
a
proposed
rule,
is
charged
with
the
goal
of
reaching
consensus
on
the
text
of
the
proposed
rule.
The
federal
agency
responsible
for
the
regulation,
 
to
the
maximum
extent
possible
consistent
with
the
legal
obligations
of
the
agency,
will
use
the
consensus
of
the
committee
with
respect
to
the
proposed
rule
as
the
basis
for
the
rule
proposed
by
the
agency
for
notice
and
comment (
Negotiated
Rulemaking
Act
of
1996,
§
563(
a)(
7)).
(
See
Appendix
A
for
the
U.
S.
EPA
Fact
Sheet
on
Negotiated
Rulemaking.)

This
convening
assessment
report
is
divided
into
sections
on
background,
feasibility,
categories
of
stakeholders,
substantive
issues
by
stakeholder
group,
key
issues
across
stakeholder
groups,
procedural
issues,
participation,
process
design,
protocols
and
procedures,
and
conclusion.

1
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
BACKGROUND
On
January
11,
2002,
the
Small
Business
Liability
Relief
and
Revitalization
Act
(
Pub.
L.
No.
107­
118),
also
known
as
the
Brownfields
Law,
was
enacted.
The
Brownfields
Law,
among
other
issues,
pertains
to
the
establishment
of
standards
and
practices
for
all
appropriate
inquiry
(
§
101(
35)(
B)
of
CERCLA).
The
all
appropriate
inquiry
standards
and
practices
are
relevant
to:
 
the
innocent
landowner
defense
to
CERCLA
liability
(
§
101
(
35));
 
the
contiguous
property
exemption
to
CERCLA
liability
(
§
107(
q));
 
the
bona
fide
prospective
purchaser
exemption
to
CERCLA
liability
(
§
107
(
r)(
1)
and
101(
40));
and
 
the
brownfields
site
characterization
and
assessment
grant
programs
(
§
104(
k)(
2)).

The
Brownfields
Law
requires
EPA
to
establish
regulations
setting
forth
 
standards
and
practices 
to
carry
out
all
appropriate
inquiry
by
January
11,
2004,
two
years
after
enactment.
In
addition,
the
Brownfields
Law
establishes
an
interim
standard
for
the
conduct
of
all
appropriate
inquiry
to
be
used
until
EPA
promulgates
federal
standards.
For
properties
purchased
after
May
31,
1997,
Congress
established
the
interim
standard
as
the
American
Society
for
Testing
Materials
(
ASTM)
1997
Phase
I
standard
for
assessment
of
properties.
EPA
is
developing
a
direct
final
rule
to
allow
for
the
use
of
the
ASTM
2000
Phase
1
standard
as
an
interim
standard
for
all
appropriate
inquiry
given
consistent
feedback
from
stakeholders
that
the
1997
standard
is
no
longer
current
industry
practice,
nor
is
it
readily
available.

Susan
Podziba
of
Susan
Podziba
&
Associates,
as
convener,
interviewed
approximately
sixty
representatives
of
federal,
state,
county,
local,
and
tribal
government;
for
profit
and
not­
for­
profit
developers,
real
estate
and
environmental
attorneys,
real
estate
brokers,
bankers
and
lenders,
environmental
professionals,
environmentalists,
environmental
justice
communities,
and
insurance
companies
(
See
Appendix
B
for
Listing
of
Interviewees).
The
purpose
of
the
interviews
was
to
determine
the
feasibility
of
a
negotiated
rulemaking
process
relative
to
criteria
identified
in
the
Negotiated
Rulemaking
Act
and
the
U.
S.
EPA
Fact
Sheet
on
Negotiated
Rulemaking
including:

 
the
principal
categories
of
stakeholders
that
will
be
affected
by
and
are
interested
in
the
all
appropriate
inquiry
standard;

 
key
issues
and
concerns
of
stakeholders
relative
to
an
all
appropriate
inquiry
standard
and
the
interdependence
of
interests
among
stakeholders;

 
the
likelihood
of
convening
a
balanced
committee
of
representatives
2
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
of
stakeholders,
who
are
willing
and
able
to
participate
in
good
faith
in
the
negotiation
process;

 
individuals
and/
or
organizations
that
can
best
represent
the
views
and
perspectives
of
each
stakeholder
group
for
the
negotiated
rulemaking;
and
 
the
likelihood
of
success
of
a
negotiated
rulemaking
process
to
develop
federal
regulatory
standards
for
implementation
of
all
appropriate
inquiry
within
the
required
timeframe.

FEASIBILITY
Susan
Podziba
finds
that
a
negotiated
rulemaking
process
to
develop
the
all
appropriate
inquiry
standard
(
the
standard)
has
a
reasonably
good
chance
of
resulting
in
consensus.
Virtually
every
interviewee
believed
that
a
negotiated
rulemaking
would
be
successful.
Only
one
person
raised
concerns
about
negotiated
rulemakings,
generally,
but
stated
that
given
the
clear
scope
of
this
effort,
that
is,
defining
all
appropriate
inquiry,
it
is
an
appropriate
application
for
a
negotiated
rulemaking.

To
be
sure,
there
are
differences
of
opinion
on
key
aspects
of
the
standard,
but
there
is
also
a
convergence
of
interests
on
many
of
its
elements.
There
was
a
high
degree
of
interest
in
participating
among
the
interviewees
and
across
all
the
identified
stakeholder
groups.

Overall,
there
is
general
agreement
that
the
all
appropriate
inquiry
standard
should
be
clear
and
consistently
applied,
result
in
accurate
information
concerning
the
environmental
conditions
of
assessed
properties,
and
function
to
promote
and
not
inhibit
brownfields
redevelopment.

An
additional
benefit
of
using
a
negotiated
rulemaking
process
is
that
representatives
of
all
stakeholder
groups
will
have
a
thorough
understanding
of
the
new
standard
as
well
as
the
rationale
for
its
elements.
This
will
be
useful
as
trade
associations
undertake
their
role
of
educating
their
memberships
about
the
standard
and
about
opportunities
inherent
in
brownfields
redevelopment.

No
matter
how
favorable
the
prospect
for
consensus,
there
is
always
uncertainty
in
prejudging
outcomes
of
negotiation
processes,
particularly
when
potentially
opposite
points
of
view
must
be
reconciled.
The
challenge
for
the
negotiating
3
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
committee
will
be
to
demonstrate
commitment
and
flexibility
to
work
together
as
a
problem­
solving
team
to
develop
the
standard.
The
interviewees
indicated
a
willingness
to
expend
the
effort
necessary
to
achieve
these
objectives.

On
balance,
Susan
Podziba,
in
her
capacity
as
convener,
finds
that
the
application
of
a
negotiated
rulemaking
process
to
develop
the
all
appropriate
inquiry
standard
has
a
reasonable
likelihood
of
success,
and
if
successful,
will
result
in
a
high
quality
standard
that
balances
the
interests
of
the
relevant
stakeholders.

CATEGORIES
OF
STAKEHOLDERS
Susan
Podziba
identified
nine
categories
of
key
stakeholders.
She
recommends
that
the
U.
S.
Environmental
Protection
Agency
invite
representatives
from
each
of
the
following
categories1
to
participate
in
the
negotiated
rulemaking:
 
Other
Federal
Agencies2
 
State
Government
 
Local
Government
 
Tribal
Government
 
Developers:
(
residential,
commercial,
industrial,
for
profit,
notfor
profit)
 
Bankers
and
Lenders
 
Environmentalists
 
Environmental
Justice
Community
 
Environmental
Professionals
1
Some
interviewees
suggested
that
ASTM
be
included
as
a
stakeholder.
However,
ASTM
is
an
organization
devoted
to
the
creation
of
its
own
consensus
industry
standards.
This
convener
recommends
that
ASTM
not
have
its
own
negotiator.
Individuals
affiliated
with
the
development
of
the
ASTM
standard
are
in
key
positions
in
their
trade
associations
and
highly
knowledgeable
of
the
elements
of
the
standard.
Therefore,
it
is
highly
likely
that
multiple
individuals
associated
with
ASTM
will
serve
on
the
negotiating
committee
as
representatives
of
their
stakeholder
groups.

2
Other
federal
agencies
identified
as
federal
stakeholders
were
the
National
Oceanic
and
Atmospheric
Administration
(
NOAA),
Department
of
Housing
and
Urban
Development
(
HUD),
and
Department
of
Justice
(
DOJ).
NOAA
serves
as
a
Trustee
for
Natural
Resource
Damages
under
CERCLA.
NOAA
will
maintain
contact
with
EPA
throughout
the
negotiations,
but
will
not
require
a
separate
negotiator.
HUD
and
DOJ
have
each
indicated
a
preference
for
participating
in
the
negotiations,
but
will
confer
with
EPA
officials
pending
a
decision
to
proceed
with
a
negotiated
rulemaking.

4
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
In
addition,
the
following
groups
are
interested
parties
with
great
depth
of
knowledge
relevant
to
the
implementation
of
the
standard.
These
parties
typically
represent
multiple
stakeholders,
for
example,
environmental
attorneys
and
insurance
companies
include
developers,
environmental
professionals,
and
state
and
local
governments
among
their
clients
at
any
given
time.
Thus,
it
is
suggested
that
the
parties
listed
below
serve
as
resource
parties
on
the
negotiating
committee,
given
their
ability
to
analyze
the
impacts
of
various
options
across
multiple
stakeholders.
 
Environmental
Attorneys
 
Real
Estate
Brokers
 
Environmental
Insurance
Professionals
SUBSTANTIVE
ISSUES:
KEY
CONCERNS
IDENTIFIED
BY
EPA
AND
STAKEHOLDER
GROUPS
U.
S.
Environmental
Protection
Agency
Congress
mandated
that
EPA
create
an
all
appropriate
inquiry
standard
to
comply
with
CERCLA
§
101(
35)(
B),
as
amended
by
the
Brownfields
Law.
The
key
interests
of
EPA
relative
to
this
standard,
and
generally
reflected
in
its
Brownfields
Program,
are
to
protect
the
environment
and
public
health,
support
partnerships
among
brownfields
stakeholders,
encourage
the
private­
sector
marketplace
for
redevelopment
of
brownfields
properties,
and
encourage
sustainable
reuse.

EPA
will
work
to
create
a
standard
that
satisfies
the
legal
provisions
of
the
statute
regarding
funding
and
liability,
while
promoting
environmental
protection,
economic
development,
and
community
revitalization.

Other
Federal
Agencies
The
Department
of
Housing
and
Urban
Development
(
HUD)
is
engaged
in
activities
to
promote
community
revitalization.
Among
HUD s
brownfields
programs
is
its
Brownfields
Economic
Development
Initiative
(
BEDI),
which
makes
grants
to
stimulate
local
government
and
private
sector
partnerships
for
the
redevelopment
of
brownfields
sites.
Other
HUD
programs
provide
loan
guarantees
and
mortgage
insurance.
HUD s
key
interests
are
to
promote
brownfields
redevelopment
as
a
strategy
for
community
revitalization
and
to
protect
the
public
5
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Inquiry
Negotiated
Rulemaking
Convening
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December
17,
2002
from
environmental
hazards.
In
addition,
as
a
mortgage
insurer,
HUD
is
concerned
about
CERCLA
liability
on
foreclosed
properties.

The
primary
interest
of
the
Department
of
Justice
is
the
enforceability
of
the
statute.

State
Environmental
Agencies
There
is
great
disparity
among
states
across
the
country
with
regard
to
brownfields
programs.
Some
states
include
sophisticated
site
assessment
standards
within
their
voluntary
cleanup
programs
whereas
others
have
no
programs
at
all.
Some
states
will
likely
continue
to
require
prospective
purchasers
and
developers
to
conduct
site
assessments
under
their
voluntary
cleanup
programs
to
obtain
state­
provided
 
no
further
action 
letters.
Other
states
will
likely
adopt
the
federal
standard
for
their
programs
and
want
the
standard
to
eliminate
the
need
for
their
states
to
provide
comfort
letters
or
prospective
purchaser
agreements
except
under
extraordinary
conditions.

Some
state
programs
require
prospective
purchasers
to
obtain
specific
information.
The
investigation
must
satisfy
the
state s
informational
requirements;
time
limits
do
not
excuse
prospective
purchasers
from
meeting
such
requirements.

In
addition,
state
programs
typically
require
sampling
when
there
is
a
likelihood
of
contamination
based
on
past
use.
Interviewees
suggested
that
there
are
some
activities
often
undertaken
within
the
context
of
phase
I
assessments
that
they
deem
unnecessary
and
other
activities
not
undertaken
which
they
require.
For
example,
some
state
programs
do
not
require
previous
owner
interviews
or
a
search
for
surplus
sites
within
a
three­
mile
radius,
but
do
require
a
review
of
immediately
adjacent
properties.
These
states
find
that
the
clarity
and
certainty
provided
by
their
programs
have
given
their
states
a
comparative
advantage
in
attracting
developers
to
brownfields
properties.

Returning
brownfields
properties
to
beneficial
use
is
a
key
interest
of
states.
However,
states
are
also
concerned
about
granting
undeserved
liability
relief
and
then
being
unable
to
identify
responsible
parties
to
undertake
cleanups
when
contamination
is
found.
Some
states
have
found
a
significant
percentage
of
properties
to
be
contaminated
that
were
identified
as
clean
properties
in
assessment
reports.

Finally,
as
brownfields
grantees
receiving
EPA
assessment
funds,
states
will
have
to
conduct
all
appropriate
inquiry
assessments
as
required
under
the
Brownfields
Law.

6
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
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99­
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122
Susan
Podziba
&
Associates
December
17,
2002
Local
Government
Local
governments
will
be
impacted
by
the
standard
in
a
variety
of
ways.
First,
there
is
great
interest
in
the
redevelopment
of
brownfields,
which
transform
fallow
properties
into
productive
use
thereby
increasing
tax
rolls.
Cites
and
towns
have
worked
hard
to
attract
developers
to
their
brownfields
sites.
Local
governments
have
viewed
potential
liability
for
new
owners
at
brownfields
sites
as
a
barrier
to
increased
redevelopment
of
brownfields
sites
and
supported
the
Brownfields
Law
as
a
means
to
removing
a
barrier
to
redevelopment.

Local
governments
are
concerned
about
contamination
leaching
into
soils
and
groundwater
and
its
potential
for
impacting
human
health.
In
addition,
contaminated
properties
are
potential
liabilities,
which
can
reduce
municipal
credit
ratings.

As
with
states,
local
governments,
as
brownfields
grantees,
will
be
required
to
conduct
all
appropriate
inquiries
under
the
grant
program.
Municipalities
often
become
new
owners
of
contaminated
properties
through
purchase,
foreclosure
for
non­
payment
of
taxes,
and
eminent
domain.
Thus,
local
governments
are
interested
in
the
protection
against
CERCLA
liability
that
the
standard
will
provide.

Finally,
local
government
interviewees
raised
the
additional
concern
of
their
inability
to
gain
access
to
properties
subject
to
involuntary
acquisition
through
eminent
domain,
condemnation,
and/
or
non­
payment
of
taxes.
Thus,
local
governments
are
interested
in
an
exemption
from
visual
inspection
and
owner
interviews
for
involuntary
acquisitions
when
there
is
a
recalcitrant
owner.

Tribal
Government
Tribal
government
will
be
impacted
by
the
standard
in
a
variety
of
ways.
First,
tribes
want
accurate
assessments
of
contamination
of
their
lands.
For
some
tribes,
brownfields
programs
are
designed
to
de­
contaminate
and
return
land
to
open
space.
Tribal
governments
receive
brownfields
grants
and
so
will
be
required
to
conduct
all
appropriate
inquiry
assessments
under
the
grant
program.
Tribal
brownfields
projects
often
involve
HUD
and
the
Bureau
of
Indian
Affairs,
each
of
which
have
assessment
requirements.
Thus,
tribal
governments
want
the
standard
to
be
clear
and
well­
defined
so
that
it
is
easily
melded
with
other
federal
agency
requirements.

7
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
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#
122
Susan
Podziba
&
Associates
December
17,
2002
Tribal
governments
are
concerned
about
the
costs
of
assessments.
Related
to
cost
is
a
concern
that
too
narrow
a
definition
of
environmental
professional,
that
is,
who
can
conduct
assessments,
could
make
it
more
difficult
for
tribes
to
access
this
work.

Developers
Developers
want
a
standard
that
is
clear,
predictable,
consistently
enforced,
reasonably
inexpensive,
and
not
too
time
consuming,
and
which,
when
complied
with,
will
provide
liability
protection
without
reopeners.
Clarity
is
crucial
for
developers,
who
fear
that
a
lack
of
clarity
could
result
in
the
loss
of
a
credible
liability
defense.

Developers
are
motivated
to
learn
about
contamination
on
properties
before
purchase
because
if
a
property
is
more
contaminated
than
expected,
a
developer
may
negotiate
a
reduced
price
or
choose
to
invest
in
an
alternative
property.
They
do
not
see
the
standard
as
providing
a
 
pass
to
existing
owners,
but
rather
immunizing
new
owners
who
are
interested
in
putting
property
back
into
productive
use. 

The
time
necessary
for
an
assessment
is
important
to
developers
because
an
owner
is
usually
not
willing
to
keep
a
property
off
the
market
long
and
because
a
favorable
financing
package
may
become
unavailable
given
fluctuating
interest
rates.

Many
interviewees
use
the
ASTM
standard
for
their
assessments.
They
stated
that
thousands
of
people
know
how
to
conduct
these
assessments,
and
are
concerned
that
a
changed
assessment
protocol
will
result
in
confusion
within
the
industry.
Thus,
they
want
to
be
sure
that
any
changes
will
result
in
significant
environmental
benefit.

Developers
would
like
to
reduce
the
discretion
of
environmental
professionals
and
therefore,
the
need
to
negotiate
assessment
workscopes.
They
fear
that
rejecting
a
recommendation
in
a
proposed
workscope
could
leave
them
vulnerable
to
a
loss
of
liability
protection
later.
They
would
like
to
see
a
minimum
standard
for
a
phase
I
assessment
with
triggers
for
phase
II
assessments.

Additionally,
some
interviewees
expressed
the
concern
that
it
may
be
difficult
for
EPA
to
maintain
a
unified
negotiation
stance
given
the
involvement
of
multiple
offices
within
the
agency.

8
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
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#
122
Susan
Podziba
&
Associates
December
17,
2002
Developers
do
not
want
the
standard
to
supersede
existing
state
statutory
programs,
which
they
point
to
as
programs
that
have
encouraged
the
cleanup
and
redevelopment
of
brownfield
sites.
Some
expressed
their
satisfaction
with
rigorous
state
programs
because
of
the
certainty
they
provide
and
their
use
of
creative
means
for
dealing
with
contaminants.

Overall,
developers
want
the
standard
to
achieve
the
goal
of
promoting
brownfields
redevelopment,
which
will
require
that
assessments
not
be
too
costly
or
time­
consuming
and
that
liability
relief
be
sufficiently
protective.
They
want
to
ensure
that
the
standard
is
consistent
with
intent
of
the
Brownfields
Law,
that
is,
to
promote
and
not
inhibit
brownfields
redevelopment.

Bankers/
Lenders
Bankers
and
lenders
are
most
interested
in
limiting
risk
when
making
loans.
Lenders
are
protected
from
CERCLA
liability
by
the
secured
creditor
exemption,
but
on
foreclosed
properties
they
will
use
the
all
appropriate
inquiry
standard
as
an
additional
liability
protection.

Banks
require
phase
I
assessments
on
properties
in
order
to
meet
conditions
set
out
by
the
secondary
loan
market
and
by
rating
agencies,
even
if
their
own
requirements
do
not
indicate
the
need
for
an
assessment.
As
a
result,
the
standard
is
expected
to
impact
a
great
percentage
of
real
estate
transactions
throughout
the
country.

To
reduce
risk,
banks
and
lenders
support
a
rigorous
standard.
However,
it
is
also
banks
and
lenders
that
typically
drive
the
short
time
frames
for
obtaining
information
because
fluctuating
interest
rates
can
impact
the
viability
of
a
deal.

When
a
phase
I
assessment
indicates
a
recognized
environmental
condition,
most
banks
will
require
a
phase
II
assessment
and
a
resolution
of
the
condition
before
approving
the
loan.
Progressive
banks
and
lenders
have
shown
a
willingness
to
make
loans
prior
to
cleanups,
when
cleanup
plans,
consistent
with
intended
future
uses,
are
in
place
through
state
programs.
For
these
banks,
a
lack
of
willingness
to
clean
a
site
indicates
a
negative
character
issue
for
the
borrower,
and
the
bank
would
not
make
the
loan.
Banks
prefer
good
information
on
the
site,
but
will
also
accept
insurance
policies
to
protect
their
loans
when
good
information
is
not
readily
available.

9
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
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99­
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TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
Overall,
the
lending
community
wants
a
clear
and
rigorous
standard
that
results
in
the
information
necessary
to
determine
the
environmental
condition
of
a
property
at
moderate
cost
and
within
a
reasonable
time
frame.
They
see
the
challenge
of
developing
the
standard
as
one
in
which
the
negotiators
identify
the
difference
between
necessary
information
and
complexity
for
the
sake
of
additional
work.

Environmentalists
Environmental
groups
are
primarily
concerned
that
the
standard
require
rigorous
investigation
of
sites.
They
want
historical
searches
to
include
title
search,
spills
data
base,
enforcement
actions,
prior
investigations,
and
visible
contaminated
areas.
They
want
the
standard
to
trigger
sampling
when
historical
searches
identify
past
contamination.

Environmentalists
would
like
to
include
the
possibility
of
reopeners
as
a
means
to
motivate
complete
cleanups.
They
want
to
be
sure
that
the
standard
is
not
written
so
broadly
as
to
allow
parties
to
escape
from
liability
and
also
want
some
assurances
regarding
states 
abilities
to
enforce
federal
standards.

Environmental
groups
are
very
supportive
of
brownfields
redevelopment.
They
prefer
brownfields
redevelopment
to
fallow,
contaminated
properties
but
want
to
ensure
proper
cleanup
of
contaminated
sites.

Environmental
Justice
Community
The
interests
of
the
environmental
justice
community
are
similar
to
those
of
the
environmental
groups.
However,
as
the
communities
where
many
brownfields
sites
are
located,
the
environmental
justice
community
raises
an
additional
concern
of
public
notification
of
contamination
and
proposed
cleanup
plans.
They
would
like
the
standard
to
include
a
component
defining
when
and
how
often
the
public
should
be
notified
of
work
on
a
brownfields
site.
As
one
interviewee
stated,
 
it
is
frightening
if
you
live
across
the
street
from
a
lot,
and
one
day
people
show
up
in
moon
suits
. 

Environmental
Professionals
The
stakeholder
group
of
environmental
professionals
is
divided
into
two
camps,
primarily
according
to
their
preferred
definition
of
an
environmental
professional.

10
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
However,
all
expressed
concerns
about
the
possibility
of
inexperienced
individuals
characterizing
contaminated
sites
as
clean.

One
camp
believes
strongly
that
an
environmental
professional
should
be
defined
as
a
licensed
professional
engineer,
geologist,
or
hydrogeologist,
which
are
regulated
by
state
boards
and
require
adherence
to
an
ethical
responsibility
to
protect
human
health
and
the
environment.
This
camp
believes
that
the
standard
should
enable
them
to
use
their
professional
judgement
to
determine
the
necessary
workscope
required
to
accurately
characterize
the
site.
They
state
that
engineers
are
familiar
with
industrial
processes
and
therefore,
know
what
chemicals
to
look
for
when
an
historical
search
yields
information
about
a
manufacturing
facility
and
that
geologists
have
a
keen
understanding
of
subsurface
conditions.
They
are
concerned
that
untrained
individuals
with
little
experience,
who
call
themselves
environmental
professionals,
will
miss
visible
contaminants
and
will
not
know
what
to
look
for
thereby
identifying
contaminated
sites
as
free
from
environmental
contamination.
Members
of
this
camp
stated
that
assessments
should
performed
by,
or
under
the
direction
of,
licensed
professional
engineers,
geologists,
or
hydrogeologists.

The
other
camp
wants
to
define
an
environmental
professional
more
broadly
and
based
on
experience
as
opposed
to
a
particular
academic
degree.
This
group
is
also
concerned
about
inexperienced
individuals
potentially
missing
contamination.
They
raised
the
concern
that
some
prospective
purchasers
simply
want
an
environmental
consultant
with
a
liability
insurance
policy
so
that
if
contamination
is
found
later,
the
purchaser
can
find
recourse
under
the
policy.
However,
some
environmental
consultants
have
begun
to
limit
their
own
liability
to
the
cost
of
the
report.
Some
members
of
this
camp
want
the
standard
to
consist
of
a
very
clear
step­
by­
step
approach
to
assessments.

Finally,
there
is
agreement
among
both
camps
of
environmental
professionals
that
a
Phase
II
assessment
requires
the
professional
judgment
of
individuals
with
expertise
related
to
the
recognized
environmental
conditions
identified
in
the
Phase
I
assessment.

11
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
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TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
KEY
ISSUES
IDENTIFIED
ACROSS
STAKEHOLDER
GROUPS
A
primary
focus
of
the
all
appropriate
inquiry
negotiations
will
be
the
statutory
criteria
listed
in
the
Brownfields
Law
§
223(
2)(
B)(
iii),
which
amends
CERCLA
§
101(
35).
In
addition,
interviewees
across
stakeholder
categories
raised
other
key
issues,
which
are
described
below.

Brownfields
Law
§
223(
2)(
B)(
iii)
Statutory
Criteria:
In
promulgating
regulations
that
establish
the
standards
and
practices
referred
to
in
clause
(
ii),
the
Administrator
shall
include
each
of
the
following:

(
I)
The
results
of
an
inquiry
by
an
environmental
professional.

(
II)
Interviews
with
past
and
present
owners,
operators,
and
occupants
of
the
facility
for
the
purpose
of
gathering
information
regarding
the
potential
for
contamination
at
the
facility.

(
III)
Reviews
of
historical
sources,
such
as
chain
of
title
documents,
aerial
photographs,
building
department
records,
and
land
use
records,
to
determine
previous
uses
and
occupancies
of
the
real
property
since
the
property
was
first
developed.

(
IV)
Searches
for
recorded
environmental
cleanup
liens
against
the
facility
that
are
filed
under
Federal,
State,
or
local
law.

(
V)
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.

(
VI)
Visual
inspections
of
the
facility
and
of
adjoining
properties.

(
VII)
Specialized
knowledge
or
experience
on
the
part
of
the
defendant.

(
VIII)
The
relationship
of
the
purchase
price
to
the
value
of
the
property,
if
the
property
was
not
contaminated.

(
IX)
Commonly
known
or
reasonably
ascertainable
information
about
the
property.

(
X)
The
degree
of
obviousness
of
the
presence
or
likely
presence
of
contamination
at
the
property,
and
the
ability
to
detect
the
contamination
by
appropriate
investigation.

12
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
Legal
Defense
v.
Proactive
Requirement:
The
statute
requires
EPA
to
develop
a
standard
for
all
appropriate
inquiry,
which
is
a
legal
defense
against
CERCLA
liability
for
new
owners.
This
would
suggest
a
limited
use
for
owners
defending
themselves
against
CERCLA
liability
in
court.
However,
the
standard
will
be
used
proactively
as
a
standard
of
due
diligence
to
avoid
the
risk
of
liability
and
is
likely
to
be
required
by
lenders
for
all
property
transactions
where
there
is
any
risk
of
environmental
contamination.
As
one
interviewee
stated,
 
Whatever
EPA
sets
will
become
the
de
facto
pre­
market
environmental
assessment
requirement. 

General
Fear
of
Change/
Industry
Disruption:
Since
the
first
ASTM
standard
was
developed
to
 
reduce
legal
uncertainty
associated
with
analyzing
and
assessing
real
property
and
to
provide
lenders
with
objective
information
about
a
site
to
conduct
proper
risk
analysis, 
3
it
has
become
the
industry
standard
for
most
private
transactions.
The
stakeholder
groups
that
use
this
standard
are
concerned
about
the
potential
for
disruption
of
transactions
as
the
industry
moves
from
a
known,
to
an
as
yet,
unknown
set
of
procedures.

Level
of
liability
relief
to
be
granted:
There
is
not
a
clear
sense
among
stakeholders
of
the
level
of
liability
relief
to
be
granted
under
the
standard.
Some
think
liability
relief
will
be
granted
only
for
clean
properties,
that
is,
those
determined
to
have
no
recognizable
environmental
conditions.
Others
assume
the
assessment
will
be
used
to
determine
recognized
environmental
conditions
for
which
the
new
owner
will
not
be
liable.
Still
others
expect
that
if
a
new
owner
conducts
a
cleanup
for
identified
contaminants,
the
owner
will
not
be
liable
for
any
additional
past
contamination
found
at
the
site.

Scope
of
the
Standard:
A
key
question
raised
by
representatives
of
numerous
stakeholder
groups
related
to
the
scope
of
the
standard
is:
Will
the
standard
cover
only
the
Phase
I
Assessment
or
provide
direction
for
Phase
I
and
Phase
II
assessments?
Some
interviewees
supported
the
former
and
others
the
latter.
In
addition,
some
raised
the
question
of
whether
or
not
the
standard
will
include
requirements
for
cleanup
when
contamination
is
found.
Many
interviewees
suggested
that
the
standard
identify
triggers
for
Phase
II
assessments.
Those
supporting
a
limited
scope
stated
that
historically,
there
has
been
little
agreement
on
what
a
Phase
II
assessment
should
consist
of
given
the
unique
aspects
of
each
site.

Brownfields
Site
Assessments
and
All
Appropriate
Inquiry:
The
linking
of
these
two
caused
concern
for
some
interviewees
who
suggested
two
separate
standards.

3
Crocker,
Dianne,
Editor,
 
Conflict­
Compromise­
Consensus:
The
Embroiled
History
of
the
ASTM
ESA
Standard, 
Environmental
Site
Assessment
Report,
Volume
VII,
Number
7,
July
2002,
page
1.

13
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
However,
the
Brownfields
Law
states
that
Brownfields
Site
Assessments
are
to
be
performed
in
accordance
with
§
101(
35)(
B),
which
is
the
regulatory
citation
for
all
appropriate
inquiry.

Non­
CERCLA
Contaminants:
Given
that
this
regulation
will
be
written
to
assess
CERCLA
liability,
there
are
questions
about
the
inclusion
of
petroleum
products,
which
are
specifically
excluded
under
CERCLA
as
well
as
other
contaminants
such
as
radon,
asbestos,
lead,
and
mold.
Many
lenders
require
assessments
that
identify
these
contaminants
as
well.
Interviewees
referred
to
their
use
of
 
ASTM
plus, 
whereby
they
use
the
ASTM
standard
as
a
starting
point
and
then
add
a
review
of
additional
contaminants
to
the
environmental
assessment.

Starting
Point
for
Development
of
the
Standard:
There
are
a
number
of
ways
to
begin
drafting
the
all
appropriate
inquiry
standard.
For
example,
one
could
begin
with
the
statutory
criteria
listed
in
the
Brownfields
Law
and
work
to
further
define
each
criterium.
Other
possibilities
include
beginning
with
either
the
ASTM
standard
or
EPA
or
state
documents
that
outline
requirements
of
Phase
I
assessments
and
making
revisions
to
meet
the
statutory
requirements
of
the
Brownfields
Law.
If
the
ASTM
standard
is
used
as
a
starting
point,
EPA
will
need
to
sort
out
copyright
and
licensing
issues
given
that
EPA
will
publish
the
eventual
rule
in
the
Federal
Register,
making
it
publicly
available.
Some
interviewees
involved
in
the
development
of
the
ASTM
standard
hope
that
it
will
be
made
available
to
be
useful
to
EPA.

National
Technology
Transfer
and
Advancement
Act
(
NTTA)
Public
Law
104­
113:
Interviewees
had
various
interpretations
of
the
requirements
under
NTTA,
which
encourages
government
use
of
existing
voluntary
consensus
standards,
relative
to
ASTM
1527.
Some
interviewees
suggested
that
the
Agency
must
use
the
ASTM
standard
if
it
meets
statutory
requirements.
However,
it
was
also
indicated
that
the
current
version
does
not
meet
all
statutory
requirements
and
is
currently
under
review.
The
process
for
revising
ASTM
1527­
97
was
accomplished
over
a
two­
year
period.

Searches
for
recorded
environmental
cleanup
liens
against
the
facility
that
are
filed
under
Federal,
State,
or
Local
law:
A
question
was
raised
regarding
whether
an
assessment
would
require
a
search
through
federal,
state,
and
local
government
agencies
or
only
one
of
the
above.
There
was
some
discussion
about
an
administrative
response
such
that
EPA
might
create
and
maintain
a
database
that
lists
all
the
relevant
agencies
to
be
contacted
or
to
create
a
database
of
all
the
relevant
information.

14
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
Informational
criteria:
Related
to
the
stringency
of
the
eventual
standard,
there
are
disagreements
concerning
the
level
of
information
that
should
be
sought
versus
the
level
of
information
that
is
available.
Some
raised
the
idea
of
a
performance
based
standard
such
that
if
one
got
information
from
a
source,
one
would
not
need
to
review
all
other
sources.
Others
like
the
redundancy
because
it
creates
the
possibility
of
finding
additional
issues.

Adjoining
Properties:
Some
interviewees
raised
the
question
of
when
prospective
purchasers
should
be
required
to
include
a
visual
inspection
of
adjoining
properties.

Transaction
Screen:
ASTM
developed
a
standard
for
a
transaction
screen,
which
is
not
done
by
an
environmental
professional.
There
are
questions
about
whether
or
not
this
abbreviated
screen
will
satisfy
the
requirements
of
all
appropriate
inquiry.

 
Shelf
Life 
of
an
assessment:
Questions
were
raised
about
how
long
an
assessment
would
be
considered
useful
in
establishing
the
all
appropriate
inquiry
liability
defense.
Some
thought
the
shelf
life
of
an
assessment
was
6
months,
others
one
year,
and
still
others,
longer.
This
is
especially
relevant
when
a
site
has
groundwater
contamination
and/
or
migrating
plumes.

New
Technologies
Available:
Many
interviewees
referred
to
the
new,
field­
based
technologies
now
available,
which
make
sampling
both
cost
effective
and
timely.
Whereas
in
the
past,
samples
were
taken
and
sent
to
labs
with
results
provided
weeks
later,
technologies
such
as
geoprobes
provide
immediate
results.
It
is
believed
that
such
technologies
provide
better
information
about
actual
environmental
conditions
at
reasonable
cost.

Disclosure:
Questions
were
raised
about
the
disclosure
of
information
obtained
during
due
diligence
research.
What
environmental
information
is
a
broker
expected
or
required
to
disclose
about
a
property
to
potential
buyers?
What,
if
any,
information
should
be
made
available
to
the
public?

Assessment
Activities
by
Land
Uses:
Some
interviewees
suggested
that
the
standard
be
constructed
according
to
historic
land
uses.
Each
land
use
­­
residential,
commercial,
light
industry,
heavy
industry
­­
would
require
a
different
level
of
investigation.

Successive
Purchasers:
Many
interviewees
raised
the
question
of
the
transferability
of
liability
relief
to
a
new
purchaser.

15
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
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99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
PROCEDURAL
ISSUES
RELATED
TO
THE
NEGOTIATED
RULEMAKING
PROCESS
There
are
three
procedural
issues
to
be
considered
if
EPA
decides
to
proceed
with
a
negotiated
rulemaking
process
to
develop
the
all
appropriate
inquiry
standard.

Schedule.
The
statute
requires
the
final
regulation
be
promulgated
by
January
11,
2004.
This
would
suggest
that
a
negotiated
rulemaking
process
should
be
initiated
by
January
2003
to
ensure
enough
time
for
the
negotiations
as
well
as
the
required
comment
period.
Representation.
As
required
under
the
Negotiated
Rulemaking
Act
and
to
ensure
accurate
representation
at
the
negotiations,
EPA
is
required
to
publish
a
Notice
of
Intent
to
Negotiate
A
Rule
in
the
Federal
Register,
which
would
include
a
list
of
proposed
members
of
the
negotiating
committee.
During
the
comment
period,
additional
parties
may
make
nominations
to
the
negotiating
committee.
EPA
would
decide
if
there
were
stakeholder
groups
that
were
not
represented
by
the
proposed
committee
members.

Starting
Point:
EPA
will
need
to
decide
how
to
begin
the
drafting
of
the
regulation.
In
other
words,
should
the
initial
draft
be
a
listing
of
the
statutory
criteria
for
all
appropriate
inquiry,
the
interim
standard,
or
existing
EPA
guidance.

PARTICIPATION
Susan
Podziba
identified
nine
categories
of
stakeholders
that
she
recommends
the
U.
S.
Environmental
Protection
Agency
invite
to
participate
in
the
negotiated
rulemaking.
In
addition,
there
are
three
categories
of
resource
parties
that
would
provide
technical
expertise
to
the
Committee.

Most
of
the
interviewees
were
interested
in
participating
in
the
negotiated
rulemaking.
Some
had
concerns
and
expertise
regarding
the
actual
elements
of
the
standard,
and
some
held
broader
concerns
regarding
its
rigor,
cost,
and
time
requirements.
Some
simply
wanted
to
participate
in
order
to
be
able
to
educate
their
members
and
constituents
for
future
transactions.

The
actual
negotiations
will
be
best
served
by
a
negotiating
committee
that
represents
and
can
articulate
the
actual
range
of
broad
and
specific
interests
that
16
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Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
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Susan
Podziba
&
Associates
December
17,
2002
will
need
to
be
woven
together
to
reach
consensus
on
the
all
appropriate
inquiry
standard.
Organizational
members
of
the
negotiating
committee
may
consider
selecting
negotiators
to
create
a
committee
that
includes
a
combination
and
balance
between
individuals
who
will
be
directly
affected
by
the
standard
and
staff,
who
work
with
large
numbers
of
people
in
the
field
and/
or
communities.

The
resource
parties
have
technical
expertise
that
will
be
useful
throughout
the
negotiations,
but
are
not
stakeholder
parties
in
that
they
do
not
have
a
set
of
interests
they
will
seek
to
satisfy
during
the
negotiations.
Resource
parties
may
participate
fully
in
the
deliberations
of
the
committee,
but
will
not
have
the
right
to
dissent
on
elements
of
the
regulatory
language.

In
addition
to
the
U.
S.
Environmental
Protection
Agency,
it
is
recommended
that
the
proposed
negotiating
committee
include
the
following
members:

Other
Federal
Agencies4
U.
S.
Department
of
Housing
and
Urban
Development
U.
S.
Department
of
Justice
State
Government
Association
of
State
and
Territorial
Solid
Waste
Management
Officials
to
identify
two
negotiators
National
Association
of
Attorneys
General
Local
Government
US
Conference
of
Mayors
National
Association
of
Local
Government
Environmental
Professionals
Tribal
Government
Gila
Tribe,
Department
of
Environmental
Quality
Developers
­
Residential
National
Association
of
Home
Builders
­
Commercial
Real
Estate
Roundtable
­
Industrial
National
Association
of
Industrial
and
Office
Parks
­
Not­
for­
profit
Trust
for
Public
Land
National
Brownfields
Association
Bankers/
Lenders
Bank
of
America
Freddie
Mac
Mortgage
Bankers
Association
4
The
U.
S.
Department
of
Housing
and
Urban
Development
and
the
U.
S.
Department
of
Justice
have
indicated
preferences
for
participation
on
the
negotiating
committee,
but
will
consult
with
EPA
before
a
final
decision
is
made.

17
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
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99­
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122
Susan
Podziba
&
Associates
December
17,
2002
Environmentalists
Sierra
Club
Environmental
Defense
Environmental
Justice
Center
for
Public
Environmental
Oversight
Partnership
for
Sustainable
Brownfields
Redevelopment
Environmental
Professionals
Association
of
Soil
and
Foundation
Engineers
American
Society
of
Civil
Engineers
National
Ground
Water
Association
Wasatch
Environmental
Resource
Parties
Environmental
Attorneys
(
through
the
Section
of
Environment,
Energy,
and
Resources
of
the
American
Bar
Association)
Real
Estate
Brokers
Environmental
Insurance
Professionals
PROCESS
DESIGN
To
begin
the
negotiated
rulemaking
process,
EPA
will
need
to
establish
a
formal
advisory
committee
in
accordance
with
the
Federal
Advisory
Committee
Act
(
FACA).
As
required
under
FACA,
all
meetings
of
the
negotiating
committee
will
be
announced
in
the
Federal
Register
and
open
to
the
public.

The
negotiated
rulemaking
process
will
consist
of
a
series
of
negotiating
committee
meetings
and
communications
with
and
among
negotiators
between
meetings.
The
process
will
be
managed
by
a
mediator.

Negotiations
will
begin
with
a
preliminary
meeting
of
all
negotiators.
The
agenda
for
this
meeting
will
be
to
prepare
a
set
of
organizational
protocols,
determine
informational
needs,
define
the
negotiating
agenda,
determine
the
drafting
method
to
be
used,
confirm
a
schedule
of
meetings,
identify
mechanisms
for
two­
way
feedback
between
negotiators
and
constituents,
and
articulate
key
concerns
related
to
the
negotiations.

The
preliminary
meeting
will
be
followed
by
a
series
of
5
­
6
negotiating
sessions
of
two
­
three
days
each.
If
the
committee
decides
to
make
use
of
a
drafting
work
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Convening
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Contract
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Podziba
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December
17,
2002
group
to
develop
proposals
for
the
committee s
review,
part
of
these
meetings
may
be
set
aside
for
such
drafting.

After
initial
discussions
of
negotiators 
key
interests
relative
to
the
all
appropriate
inquiry
standard,
EPA
will
prepare
a
draft,
including
blank
spaces
for
those
areas
which
need
more
discussion
before
sections
can
be
drafted.
During
the
negotiating
sessions,
the
committee
will
work
its
way
through
the
agenda,
which
will
encompass
a
review
of
the
draft
regulation.
It
is
typical
in
a
negotiated
rulemaking
for
some
sections
of
the
rule
to
be
more
easily
resolved
than
others.
For
the
former,
the
committee
will
determine
when
it
has
reached
 
tentative
agreements 
indicating
that
the
draft
is
satisfactory
pending
resolution
of
all
other
sections.
Tentative
agreements
are
sometimes
reviewed
after
other
decisions
are
made
because
of
the
impact
of
one
section
on
another.

As
the
series
of
meetings
proceeds,
the
agenda
will
consist
of
the
remaining
issues
for
which
tentative
agreements
have
not
been
reached
and
any
tentative
agreements,
which
a
committee
members
ask
to
review,
until
all
is
resolved.
The
final
draft
will
then
be
reviewed
in
total.
After
agreement
is
reached
on
all
the
regulatory
language,
EPA
will
draft
the
preamble
to
the
proposed
rule,
which
may
then
be
subjected
to
negotiations
until
the
committee
reaches
consensus
on
it.

PROTOCOLS
AND
PROCEDURES
At
its
preliminary
meeting,
the
negotiating
committee
(
Committee)
will
develop
procedural
ground
rules
that
will
govern
its
discussions
and
negotiations.
The
proposed
ground
rules
will
cover
such
matters
as
the
following:

 
mission
of
the
negotiating
Committee;

 
obligations
of
and
protections
for
Committee
members;

 
commitments
that
derive
for
members
as
a
result
of
consensus
agreements;

 
composition
of
the
Committee
including
its
ability
to
add
members,
use
alternates,
have
advisors,
use
workgroups
to
develop
proposals,
and
caucuses;

 
decision­
making
rule
(
definition
of
consensus);

 
how
to
deal
with
media
contacts;

19
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
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122
Susan
Podziba
&
Associates
December
17,
2002
 
procedures
to
ensure
the
protection
of
confidential
information;

 
the
recognition
that
meetings
are
open
to
the
public;

 
the
manner
in
which
a
record
of
the
sessions
will
be
kept
and
distributed;

 
schedule
of
meetings
and
planned
completion
date;
and
 
roles
and
responsibilities
of
the
mediators.

CONCLUSION
Susan
Podziba,
as
convener,
finds
that
use
of
a
negotiated
rulemaking
process
to
develop
the
all
appropriate
inquiry
standard
(
§
101(
35)(
B)
of
CERCLA),
as
required
under
the
Small
Business
Liability
Relief
and
Revitalization
Act
(
Pub.
L.
No.
107­
118),
also
known
as
the
Brownfields
Law,
is
feasible
and
appropriate,
and
that
there
is
a
reasonably
good
chance
of
successfully
reaching
a
consensus
agreement
among
stakeholders
on
this
standard.

20
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
APPENDIX
A
U.
S.
EPA
NEGOTIATED
RULEMAKING
FACT
SHEET
21
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
U.
S.
ENVIRONMENTAL
PROTECTION
AGENCY
NEGOTIATED
RULEMAKING
FACT
SHEET
WHAT
IS
A
RULE
?

A
rule
or
regulation
is
the
equivalent
of
an
operating
or
implementation
manual
for
a
part
of
a
statute
or
act
of
Congress.
A
rule
gives
those
subject
to
its
requirements
more
detailed
instructions
or
prohibitions
regarding
activities
that
are
addressed
by
the
statute.

HOW
ARE
RULES
USUALLY
WRITTEN?

Generally
a
federal
agency's
staff
drafts
the
text
of
a
proposed
rule.
After
circulation
and
comment
within
the
agency,
the
rule
will
be
printed
in
the
Federal
Register
as
a
proposed
rule.
The
public
is
then
invited
to
comment
on
the
rule.
After
reading
and
analyzing
the
public s
comment
the
agency
may
revise
the
rule
to
incorporate
suggestions
or
eliminate
problems
identified
as
a
result
of
the
analysis.
The
rule
is
then
published
in
final
form
in
the
Federal
Register
and
becomes
effective
on
the
date
listed
in
the
notice.
It
is
then
incorporated
into
the
government s
Code
of
Federal
Regulations,
which
lists
all
currently
applicable
regulations.

WHAT
IS
NEGOTIATED
RULEMAKING?

Negotiated
rulemaking
is
a
process
which
brings
together
representatives
of
various
interest
groups
and
a
federal
agency
to
negotiate
the
text
of
a
proposed
rule.
The
goal
of
a
negotiated
rulemaking
proceeding
is
for
the
committee
to
reach
consensus
on
the
text
of
a
proposed
rule.

HOW
IS
NEGOTIATED
RULEMAKING
DIFFERENT?

In
a
negotiated
rulemaking
proceeding,
a
well­
balanced
group
representing
the
regulated
public,
community
and
public
interest
groups,
state
and
local
governments,
joins
with
a
representative
of
the
federal
agency
in
a
federally
chartered
advisory
committee
to
negotiate
the
text
or
the
outline
or
concept
of
a
rule
before
it
is
published
as
a
proposed
rule
in
the
Federal
Register.
If
the
committee
reaches
consensus
on
the
rule
then
the
federal
agency
can
use
this
consensus
as
a
basis
for
its
proposed
rule.
The
proposed
rule
is
still
subject
to
public
comment.
If
consensus
is
not
reached
then
the
agency
proceeds
with
its
normal
rulemaking
activities.

WHAT
ARE
THE
ADVANTAGES
OF
NEGOTIATED
RULEMAKING?

Federal
agencies
that
have
used
negotiated
rulemaking
have
identified
several
advantages
to
developing
a
rule
by
negotiation
before
notice
and
comment.
The
regulatory
negotiation
process
allows
the
interested,
affected
parties
a
more
direct
input
into
the
drafting
of
the
regulation,
thus
ensuring
that
the
rule
is
more
sensitive
to
the
needs
and
limitations
of
both
the
parties
and
the
agency.
Rules
drafted
by
negotiation
have
been
found
to
be
more
pragmatic
and
more
easily
implemented
at
an
earlier
date,
thus
providing
the
public
with
the
benefits
of
the
rule
while
minimizing
the
negative
impact
of
a
poorly
conceived
or
drafted
regulation.

Because
the
negotiating
committee
includes
representatives
of
the
major
groups
affected
by
or
interested
in
the
rule,
the
number
of
public
comments
is
reduced.
The
tenor
of
public
comment
is
more
moderate.
Fewer
substantive
changes
are
required
before
the
rule
is
made
final.
The
committee
can
draw
on
the
diverse
experience
and
creative
skills
of
the
members
to
22
address
problems
encountered
in
writing
a
regulation.
Often
the
group
together
can
propose
solutions
to
difficult
problems
that
no
one
member
could
have
thought
of
or
believed
would
work.

HOW
ARE
RULES
SELECTED
FOR
NEGOTIATED
RULEMAKING?

The
Negotiated
Rulemaking
Act
of
1996
suggests
a
number
of
criteria
(
see
attachment)
that
a
rule
should
meet
to
be
a
candidate
for
negotiated
rulemaking.
Generally,
the
federal
agency
conducts
an
internal
assessment
to
determine
its
own
interest
in
negotiating
a
rule.
If
it
determines
that
a
negotiation
is
a
possibility,
the
agency
retains
a
neutral
third
party
facilitator/
mediator
to
conduct
a
more
rigorous
assessment
of
the
feasibility.
This
assessment
involves
interviews
of
agency
management
and
staff
and
conversations
with
a
wide
range
of
organizations
and
individuals
who
might
be
affected
by
the
rule.
The
facilitator
will
analyze
the
information
gained
about
the
issues
and
the
parties
and
make
recommendations
to
the
agency
regarding
the
feasibility
of
negotiating
the
rule
and
suggestions
for
designing
the
negotiation
process.
The
agency
considers
the
results
of
the
feasibility
study
and
makes
a
decision
whether
to
proceed.

HOW
DOES
THE
PROCESS
WORK?

The
federal
agency
establishes
a
formal
advisory
committee
under
the
Federal
Advisory
Committee
Act.
A
balanced
mix
of
people
representing
the
range
of
affected
parties
is
invited
by
the
agency
to
participate.
Generally
committees
are
composed
of
between
12
and
25
members
representing
both
the
public
and
private
sectors.
A
neutral
facilitator
or
mediator
is
used
to
manage
its
meetings
and
assist
the
parties
in
discussions
and
reaching
an
agreement.

Meetings
are
announced
in
the
Federal
Register
(
and
sometimes
in
local
or
trade
press)
and
are
open
to
observation
by
members
of
the
public.
The
number
of
meetings
held
depends
on
how
complicated
the
rule
is
to
draft,
how
much
controversy
there
is
amongst
the
committee
members,
and
what
the
deadline
is
for
the
rule
to
be
published
and
implemented.

Generally
only
the
committee
members
speak
during
the
meetings,
although
provisions
are
made
for
input
by
members
of
the
audience.
Caucuses
can
be
called
by
committee
members
to
speak
with
their
constituency
or
with
other
members
of
the
committee,
caucuses
may
or
may
not
be
open
to
the
public
observers.
Workgroups
can
be
formed
by
committees
to
work
on
subsets
of
the
issues
posed
by
the
rule.

Decisions
are
generally
made
by
consensus,
not
by
majority
vote.
The
Committee
discusses
and
decides
upon
their
own
definition
of
consensus
prior
to
the
start
of
its
deliberations.
Often
the
consensus
is
generally
defined
as
an
agreement
by
all
parties
that
they
can
live
with
the
provisions
of
the
rule
when
taken
as
a
whole
package.

If
consensus
is
reached,
the
agency
will
use
it
as
a
basis
for
their
proposed
rule.
Committee
members
agree
to
support
the
rule
as
proposed
if
there
are
no
substantive
changes
from
the
consensus
agreement.

FOR
ADDITIONAL
INFORMATION
ON
REGULATORY
NEGOTIATION:
Negotiated
Rulemaking
Sourcebook,
1995,
Administrative
Conference
of
the
US;
written
and
edited
by
David
Pritzker
and
Deborah
Dalton.
Available
from
Deborah
Dalton
(
dalton.
deborah@
epa.
gov)

23
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Inquiry
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Rulemaking
Convening
Assessment
Contract
No.
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TO
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122
Susan
Podziba
&
Associates
December
17,
2002
SELECTION
CRITERIA
for
NEGOTIATED
RULEMAKING
It
is
important
to
screen
potential
rulemakings
to
identify
instances
where
negotiation
of
the
rule
has
a
high
probability
of
success.
The
Negotiated
Rulemaking
Act
of
1996
and
past
EPA
experience
suggest
the
following
criteria
to
screen
and
select
appropriate
items.
An
item
need
not
meet
all
of
these
criteria
to
be
qualified
as
a
candidate.

Criteria
for
the
Item
o
The
proposal
should
require
the
resolution
of
a
limited
number
of
interdependent
or
related
issues,
none
of
which
involve
fundamental
questions
of
value,
or
extremely
controversial
national
policy.

o
The
policy
implications
of
the
issues
to
be
resolved
are
more­
or­
less
limited
programmatically,
i.
e.,
the
rulemaking
will
not
establish
binding
precedents
in
program
areas
not
encompassed
by
the
negotiations.

o
There
must
be
a
sufficiently
well­
developed
factual
base
to
permit
meaningful
discussion
and
resolution
of
the
issues.

o
There
should
be
several
ways
in
which
the
issues
can
be
resolved.

o
There
should
be
a
firm
deadline
imposed
upon
the
negotiations
by
EPA
due
to
some
statutory,
judicial
or
programmatic
mechanism.
The
deadline
should
provide
adequate
time
for
negotiation
of
the
issues.

o
Any
ongoing
litigation
does
not
inhibit
the
parties'
willingness
or
ability
to
engage
in
genuine
give­
and­
take.

Criteria
for
the
Participants
o
Those
participants
interested
in
or
affected
by
the
outcome
of
the
development
process
should
be
readily
identifiable
and
relatively
few
in
number.
Participants
should
be
able
to
represent
and
reflect
the
interests
of
their
constituencies.

o
The
parties
should
have
some
common
goals.
They
should
be
in
good
faith
about
wanting
to
participate
in
negotiations.
They
should
feel
themselves
as
likely,
if
not
more
likely,
to
achieve
their
overall
goals
using
negotiations
as
they
would
through
traditional
rulemaking.

o
Some
of
the
parties
should
have
common
positions
on
one
or
more
of
the
issues
to
be
resolved
which
might
serve
as
a
basis
for
agreement
during
the
course
of
negotiations.

o
The
parties
should
view
themselves
as
having
an
ongoing
relationship
with
the
Agency
beyond
the
item
under
consideration.

24
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
APPENDIX
B:
LIST
OF
INTERVIEWEES
Mr.
Paul
Ackerman
Piper
Rudnick,
LLP
1200
19th
Street,
N.
W.
Washington,
DC
20036
All
Appropriate
Inquiry
Workgroup
Patricia
Overmeyer,
Chair
U.
S.
Environmental
Protection
Agency
Ariel
Rios
Building
1200
Pennsylvania
Avenue,
N.
W.
Washington,
DC
20460
Ms.
Bonnie
Barnett
Drinker,
Biddle
and
Reath,
LLP
Eighteenth
and
Cherry
Streets
Philadelphia,
PA
19103
Ms.
Kathy
Blaha
Trust
for
Public
Land
660
Pennsylvania
Ave.
S.
E.
Suite
401
Washington,
DC
20003
Ms.
Janet
Bollman
Gela
River
Department
of
Environmental
Quality
Phoenix,
AZ
Mr.
Karl
Bourdeau
Beveridge
and
Diamond
1350
Eye
Street
N.
W.
 
Suite
700
Washington,
DC
20005
Ms.
Carol
Bowers
American
Society
of
Civil
Engineers
1015
15th
Street
N.
W.
 
Suite
600
Washington,
DC
20005
Mr.
Chris
Boyle
Drinker,
Biddle
and
Reath,
LLP
Eighteenth
and
Cherry
Streets
Philadelphia,
PA
19103
Mr.
Kenneth
Brown
National
Association
of
Local
Government
Environmental
Professionals
(
NALGEP)
1350
New
York
Ave.
N.
W.
Suite
1100
Washington,
DC
20005
Mr.
Robert
Colangelo
National
Brownfields
Association
5440
N.
Cumberland
Ave.,
Suite
238
Chicago,
IL
60656­
1452
Mr.
Grant
Cope
US
Public
Interest
Research
Group
218
D
Street
S.
E.
Washington,
DC
20003
Mr.
Tom
Crause
Illinois
EPA
1021
N.
Grand
Avenue
East
Springfield,
IL
62702
Mr.
Andy
Darrell
Environmental
Defense
New
York,
NY
Mr.
Todd
Davis
Hemisphere
Corporation
25825
Science
Park
Drive,
Suite
265
Cleveland,
OH
44122
25
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
Mr.
DeWitt
National
Association
of
Industrial
and
Office
Parks
2201
Cooperative
Way,
3rd
Floor
Herndon,
VA
20171
Ms.
Dionne
Farris
Partnership
for
Sustainable
Brownfields
Redevelopment
Washington,
DC
Mr.
Jack
Fersco
National
Association
of
Industrial
and
Office
Parks
2201
Cooperative
Way,
3rd
Floor
Herndon,
VA
20171
Mr.
Rob
Fox
Manko,
Gold,
Katcher,
and
Fox
401
City
Avenue,
Suite
500
Bala
Cynwyd,
PA
19004
Mr.
Don
Green
U.
S.
HUD
Washington,
DC
Mr.
John
Hancock
Environmental
Director
Pomo
of
Upper
Lake
375
East
Highway
20,
Suite
1
Upper
Lake,
CA
95485
Mr.
Rob
Hazelton
Dominion
Environmental
Virginia
Mr.
Evan
Henry
Bank
of
America
44820
Irvine
Blvd.
Irvine,
CA
92660
Mr.
Steven
Hirsch
U.
S.
Chamber
of
Commerce
1615
H
Street
N.
W.
Washington,
DC
20062­
2000
Ms.
Cathie
Hutchins
National
Association
of
Attorneys
General
750
First
Street,
N.
E.
Suite
1100
Washington,
DC
20002
Mr.
James
Johnston
PMK
Group
65
Jackson
Drive
Cranford,
NJ
07016
Mr.
Karl
Kalbacher
Maryland
Department
of
Environment
2500
Broening
Highway
Baltimore,
MD
21224
Ms.
Julie
Kilgore
Wasatch
Environmental
2410
W.
California
Avenue
Salt
Lake
City,
UT
84104
Mr.
Ken
Kloo
NJ
Dept.
of
Environmental
Protection
P.
O.
Box
407
Trenton,
NJ
08625­
0407
Mr.
David
E.
Lourie,
P.
E.
ASFE
Codes
&
Standards
Lourie
Consultants
3924
Haddon
Street
Metairie,
LA
70002­
3011
Ms.
Peggy
Lynch
Solutions
Realty
Richmond,
VA
26
All
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Convening
Assessment
Contract
No.
68­
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99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
Ms.
Mary
Matta
National
Oceanic
and
Atmospheric
Administration
Seattle,
Washington
Mr.
Kevin
Matthews
AIG
1801
K
Street
N.
W.
Suite
404L
Washington,
DC
20006
Ms.
Deborah
McKinnon
Mortgage
Bankers
Association
1919
Pennsylvania
Ave.,
N.
W.
Washington,
DC
20006
Mr.
Richard
Meyer
Freddie
Mac
8100
Jones
Branch
Drive
(
MS#
4BE)
McLean,
VA
22102
Mr.
Michael
Mittelholzer
National
Association
of
Homebuilders
1201
15th
Street
N.
W.
Washington,
DC
20005
Ms.
Linda
Morgan
OENJ
Cherokee
Corporation
251
Jersey
Gardens
Blvd.
East
Elizabeth,
NJ
07201
Mr.
Tahir
Naseem
Mortgage
Bankers
Association
1919
Pennsylvania
Ave.,
N.
W.
Washington,
DC
20006
Ms.
Mary
O Rourke
Fitch
Ratings
New
York,
NY
Ms.
Lindene
Patton
Zurich
North
America
601
West
26th
Street
New
York,
NY
10001
Mr.
Michael
Paulukiewicz
Urban
Land
Institute
Washington,
DC
Mr.
Ken
Peters
Freddie
Mac
8100
Jones
Branch
Drive
(
MS#
4BE)
McLean,
VA
22102
Mr.
Roger
Platt
National
Real
Estate
Roundtable
1420
New
York
Ave.
N.
W.
 
Suite
1100
Washington,
DC
20005
Ms.
Christine
Reimer
National
Ground
Water
Association
601
Dempsey
Road
Westerville,
OH
43081­
8978
Ms.
Judy
Sheahan
U.
S.
Conference
of
Mayors
1620
Eye
Street
N.
W.
Washington,
DC
20006
Mr.
Joseph
Schilling
International
City/
County
Management
Association
777
North
Capitol
Street,
N.
E.
Washington,
DC
20002­
4201
Mr.
Gene
Smary
American
Bar
Association
740
15th
Street,
N.
W.
Washington,
DC
20005­
1019
27
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
Mr.
Daniel
Smith
ASTM
International
100
Barharbor
Drive
West
Conshohocken,
PA
19428
Mr.
Jay
Spector
National
Association
of
Industrial
and
Office
Parks
2201
Cooperative
Way,
3rd
Floor
Herndon,
VA
20171
Mr.
Ed
Stromberg
U.
S.
Department
of
Housing
and
Urban
Development
451
Seventh
Street,
S.
W.
Rm
8134
Washington,
DC
20410
Ms.
Samara
Swanston
Sierra
Club
FDR
Station
New
York,
NY
10150
Mr.
Craig
Thomas
Freddie
Mac
8100
Jones
Branch
Drive
(
MS#
4BE)
McLean,
VA
22102
Mr.
Barry
Trilling
National
Association
of
Industrial
and
Office
Parks
2201
Cooperative
Way,
3rd
Floor
Herndon,
VA
20171
Ms.
Danielle
Miller
Wagner
International
City/
County
Management
Association
777
North
Capitol
Street,
N.
E.
Washington,
DC
20002­
4201
Mr.
Matthew
Ward
NALGEP
1350
New
York
Ave.
N.
W.
Suite
1100
Washington,
DC
20005
Ms.
Karen
Wardzinski
U.
S.
Department
of
Justice
950
Pennsylvania
Avenue,
NW
Washington,
DC
20530­
0001
Ms.
Sara
Beth
Watson
American
Bar
Association
740
15th
Street,
N.
W.
Washington,
DC
20005­
1019
Mr.
William
Weissman
Piper
Rudnick,
LLP
1200
19th
Street,
N.
W.
Washington,
DC
20036
Mr.
Marshall
Williams
Marshall
Williams,
Inc.
Woodbury,
TN
Ms.
Julie
Wolk
US
Public
Interest
Research
Group
218
D
Street
S.
E.
Washington,
DC
20003
Contacted
but
not
interested
in
participating
Mr.
Bill
Allayaud
Sierra
Club
1414
K
Street
Sacramento,
CA
95814
Ms.
Kate
Bicknell
Small
Growth
America
1100
17th
Street
N.
W.
 
10th
Floor
Washington,
DC
20036
28
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
Mr.
Anthony
Edwards
National
Association
of
Real
Estate
Investment
Trusts
1875
Eye
Street,
N.
W.
Washington,
DC
20006
Mr.
Martin
Harris
National
Association
of
Counties
Washington,
DC
Mr.
Joel
Hirshhorn
National
Governors
Association
444
North
Capitol
Street
Washington,
DC
20001­
1512
Mr.
Robert
Johnson
Wildlife
Habitat
Council
1010
Wayne
Ave.
Suite
920
Silver
Spring,
MD
20910
Ms.
Carol
Leftwich
ECOS
444
N
Capitol
St,
NW
Suite
445
Washington,
DC
20001
29
All
Appropriate
Inquiry
Negotiated
Rulemaking
Convening
Assessment
Contract
No.
68­
W­
99­
010
TO
#
122
Susan
Podziba
&
Associates
December
17,
2002
