Contract
Number
68­
W­
99­
010
Task
Order
#
0122
FINAL
REPORT
of
Susan
Podziba
&
Associates
on
the
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
SRA
International
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
1
Alexandria,
VA
March
31,
2004
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
2
All
Appropriate
Inquiry
(
AAI)
Negotiated
Rulemaking
U.
S.
Environmental
Protection
Agency
Final
Report
of
Susan
Podziba
&
Associates
INTRODUCTION
The
All
Appropriate
Inquiries
Negotiated
Rulemaking
was
initiated
by
the
U.
S.
Environmental
Protection
Agency
(
EPA)
to
develop
a
proposed
rule
establishing
federal
standards
and
practices
for
the
All
Appropriate
Inquiries,
as
required
under
CERCLA
Section
101(
35)(
B),
as
amended
by
the
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
(
Public
Law
No.
107­
118).

EPA
formally
chartered
the
All
Appropriate
Inquiries
Negotiated
Rulemaking
Advisory
Committee
(
Committee)
under
the
Federal
Advisory
Committee
Act
(
FACA)
1
for
the
purpose
of
negotiating
a
consensus
on
the
terms
of
a
proposed
rule
setting
forth
standards
and
practices
for
the
conduct
of
All
Appropriate
Inquiries
(
AAI).

The
negotiated
rulemaking
process
involved
a
convening
assessment
to
determine
the
feasibility
of
proceeding
with
a
consensus
process
to
develop
the
All
Appropriate
Inquiries
standards
and
negotiations
among
EPA
and
representatives
of
key
stakeholder
groups
that
will
be
significantly
affected
by
the
AAI
Standard.

The
negotiations
resulted
in
a
final
consensus
on
recommended
text
for
a
proposed
AAI
standard.
In
accordance
with
the
Negotiated
Rulemaking
Act
of
1996,
§
563(
a)(
7),
EPA,
"
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."

EPA
retained
Susan
Podziba
&
Associates
to
provide
convening
and
facilitation
services
for
the
negotiated
rulemaking
process.

1
As
required
under
FACA,
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
was
composed
of
a
balanced
group
of
stakeholder
representatives,
all
meetings
were
open
to
the
public,
all
meeting
materials
were
available
for
public
review,
and
time
was
set
aside
at
each
meeting
for
public
comment.
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
3
BACKGROUND
On
January
11,
2002,
the
Small
Business
Liability
Relief
and
Revitalization
Act
(
Pub.
L.
No.
107­
118),
also
known
as
the
"
Brownfields
Amendments"
to
the
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
(
CERCLA),
was
enacted.
The
Brownfields
Amendments
amended
CERCLA
to
include
liability
protections
for
certain
landowners.
One
of
several
requirements
applicable
to
landowners
seeking
liability
protection
is
the
requirement
to
conduct
all
appropriate
inquiries
into
past
uses
and
ownership
of
a
property
prior
to
acquisition
(
§
101(
35)(
B)).
The
all
appropriate
inquiries
standards
and
practices
are
relevant
to:
°
the
innocent
landowner
defense
to
CERCLA
liability
(
§
101
(
35));
°
the
contiguous
property
owner
protection
from
CERCLA
liability
(
§
107(
q));
°
the
bona
fide
prospective
purchaser
protection
from
CERCLA;
and
°
the
brownfields
site
characterization
and
assessment
grant
program
(
§
104(
k)(
2)).

The
Brownfields
Amendments
require
EPA
to
establish
regulations
setting
forth
"
standards
and
practices"
to
carry
out
all
appropriate
inquiries
by
January
11,
2004,
two
years
after
enactment.
The
Brownfields
Amendments
include
ten
criteria
specified
by
Congress,
which
must
be
included
in
the
federal
standards
for
all
appropriate
inquiries.
In
addition,
the
Brownfields
Amendments
establish
an
interim
standard
for
the
conduct
of
all
appropriate
inquiries
that
will
remain
in
effect
until
EPA
promulgates
federal
standards.
For
properties
purchased
after
May
31,
1997,
Congress
established
the
interim
standard
as
the
American
Society
for
Testing
and
Materials
(
ASTM)
E1527­
97
Phase
I
environmental
site
assessment
standard.
EPA
developed
a
direct
final
rule
to
allow
for
the
use
of
the
ASTM
E1527­
2000
Phase
1
environmental
site
assessment
standard
as
an
interim
standard
for
all
appropriate
inquiries
given
consistent
feedback
from
stakeholders
that
the
1997
standard
is
no
longer
current
industry
practice
and
is
not
readily
available.

The
All
Appropriate
Inquiries
Notice
of
Proposed
Rulemaking
will
be
based
upon
and
include
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee's
recommended
consensus
regulatory
language
and
will
be
published
in
the
Federal
Register.
Following
a
public
comment
period,
EPA
will
develop
a
final
rulemaking.
The
Final
Rule
will
replace
the
interim
standard
established
by
Congress
as
the
federal
standard
for
the
conduct
of
all
appropriate
inquiries.
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
4
PROJECT
DURATION
AND
MILESTONES
The
AAI
Negotiated
Rulemaking
Process
began
in
August
2002
and
was
completed
in
December
2003.
The
convening
assessment
was
initiated
in
August
2002
and
the
Convening
Assessment
Report
was
finalized
in
December
2002.
EPA
published
a
Federal
Register
Notice
announcing
its
Intent
to
Negotiate
the
Proposed
Rule
on
All
Appropriate
Inquiries
on
March
6,
2003.
On
April
7,
2003,
EPA
published
a
Federal
Register
Notice
establishing
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
(
Committee)
and
announcing
its
first
meeting.
EPA
held
a
public
meeting
on
April
15,
2003
to
accept
comment
on
the
purpose
and
membership
of
the
Committee.
The
first
meeting
of
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
was
held
on
April
29­
30,
2003.

The
negotiations
were
conducted
over
six
multiple­
day
meetings
during
the
eightmonth
period
between
April
and
November
2003.
The
Committee
reached
final
consensus
on
all
issues
under
discussion
on
November
14,
2003.
On
December
18,
2003,
the
Committee
approved
its
November
12­
14
meeting
summary,
which
documented
the
Committee's
final
consensus
on
all
issues.

NEGOTIATED
RULEMAKING
COMMITTEE
PARTICIPANTS
The
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
included
EPA
and
twenty­
four
members,
who
represented
the
following
eight
categories
of
stakeholder
groups:
state
government,
tribal
government,
local
government,
real
estate
developers
(
residential,
commercial,
industrial,
for
profit,
not­
for­
profit),
bankers
and
lenders,
environmentalists,
environmental
justice
advocates,
and
environmental
professionals.
EPA
carefully
monitored
the
composition
of
the
Committee
to
ensure
balanced
representation
from
affected
and
interested
stakeholder
groups.

EPA,
as
a
member
of
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee,
represented
the
federal
government.
Between
Committee
meetings,
EPA
met
regularly
with
its
"
federal
partners"
to
obtain
their
input
and
to
assess
the
impacts
of
particular
regulatory
alternatives,
under
consideration
by
the
Committee,
on
work
conducted
by
other
federal
agencies.
The
federal
partners
workgroup
included
the
U.
S.
Department
of
Interior,
U.
S.
Forestry
Service,
U.
S.
Department
of
Justice,
U.
S.
Department
of
Defense,
National
Oceanic
and
Atmospheric
Administration
,
Federal
Deposit
Insurance
Corporation,
and
U.
S.
Department
of
Housing
and
Urban
Development.
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
5
The
twenty­
five
organizational
members
of
the
Committee
were
supported
by
resource
participants.
The
resource
participants
were
interested
parties
with
significant
knowledge
relevant
to
implementation
of
the
all
appropriate
inquires
standard,
but
who
typically
represent
or
interact
with
multiple
stakeholders.
They
were
authorized
to
provide
relevant
information
to
the
Committee,
but
did
not
negotiate.
The
categories
of
resource
participants
included
environmental
attorneys,
real
estate
brokers,
environmental
insurance
professionals,
and
environmental
data
managers.

The
organizational
members
of
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
were:
American
Society
of
Civil
Engineers
ASFE
Center
for
Public
Environmental
Oversight
Environmental
Bankers
Association
Environmental
Defense
Gila
River
Indian
Community/
Cherokee
Nation
Illinois
Environmental
Protection
Agency
(
Association
of
State
and
Territorial
Solid
Waste
Management
Officials
(
ASTSWMO))
International
Council
of
Shopping
Centers
International
Municipal
Lawyers
Association
Mortgage
Bankers
Association
of
America
Maryland
Department
of
the
Environment
(
ASTSWMO))
National
Association
of
Development
Organizations
National
Association
of
Home
Builders
National
Association
of
Industrial
and
Office
Properties
National
Association
of
Local
Government
Environmental
Professionals
National
Brownfield
Association
National
Groundwater
Association
Partnership
for
Sustainable
Brownfields
Redevelopment
Real
Estate
Roundtable
The
U.
S.
Conference
of
Mayors
Trust
for
Public
Land
U.
S.
Environmental
Protection
Agency
U.
S.
Public
Interest
Research
Group
Wasatch
Environmental,
Inc.
West
Harlem
Environmental
Action
The
Resource
Participants
were:
American
Bar
Association,
Environment,
Energy,
and
Resources
Section
American
Society
of
Testing
and
Materials
Zurich­
North
America
(
Insurance)
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
6
AIG
Environmental
(
Insurance)
National
Association
of
Realtors
Environmental
Data
Resources,
Inc.

PRODUCTS
AND
OUTCOMES
The
ultimate
product
and
outcome
of
the
negotiated
rulemaking
is
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee's
consensus
document,
which
contains
recommended
proposed
regulatory
language.
EPA
will
develop
and
publish
a
proposed
rule
in
the
Federal
Register
based
upon
and
including
this
consensus
language.

Additional
products
developed
as
part
of
the
negotiated
rulemaking
process
include
the
Final
Convening
Assessment
on
the
Feasibility
of
a
Negotiated
Rulemaking
Process
to
Develop
the
All
Appropriate
Inquiry
Standard
(
December
17,
2004),
final
meeting
summaries
and
agendas
for
each
of
the
six
Committee
meetings,
and
the
Committee's
ground
rules.
All
of
these
documents
are
available
from
EPA's
website
at
http://
www.
epa.
gov/
brownfields/
regneg.
htm.

All
the
documents
associated
with
the
All
Appropriate
Inquiries
standard
are
available
in
the
public
docket
for
the
proposed
rule,
Docket
Number
SFUND­
2004­
0001.

RELEVANT
STATUTES
AND
EXECUTIVE
ORDERS
The
Statutes
and
Executive
Orders
relevant
to
development
of
the
proposed
rule
on
the
all
appropriate
inquiries
standards
are:
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
(
CERCLA),
as
amended
by
The
Small
Business
Liability
Relief
and
Brownfields
Revitalization
Act
of
2002,
and
commonly
known
as
Superfund;
Paperwork
Reduction
Act;
Regulatory
Flexibility
Act;
Unfunded
Mandates
Reform
Act;
National
Technology
Transfer
Advancement
Act
of
1995;
Federal
Advisory
Committee
Act;
Executive
Order
13132:
Federalism;
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments;
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks;
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,
or
Use;
and
Executive
Order
12866:
Regulatory
Planning
and
Review.

NEGOTIATED
RULEMAKING
PROCESS
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
7
The
negotiated
rulemaking
process
includes
two
phases:
the
convening
assessment
and
the
negotiations.
EPA
initiated
the
convening
phase
of
the
negotiated
rulemaking
process
to
identify
appropriate
stakeholder
groups
and
solicit
advice
and
input
from
experienced
public
and
private
sector
users
of
similar
environmental
site
assessment
standards.
As
a
result
of
a
positive
feasibility
determination,
EPA
decided
to
proceed
with
the
negotiated
rulemaking
process.
Negotiations
among
a
balanced
committee
of
stakeholders
occurred
between
April
and
November
2003
and
concluded
in
a
final
consensus
on
all
issues
under
discussion.

Susan
Podziba
&
Associates
(
SP&
A)
provided
the
process
management
services
for
the
negotiated
rulemaking.
Susan
Podziba,
Public
Policy
Mediator,
served
as
project
director,
convener,
and
lead
facilitator.
She
was
assisted
by
a
facilitation
team,
which
included
Alexis
Gensberg
and
Meighan
Matthews,
SP&
A
Associates.

Convening
Assessment
As
convener,
Susan
Podziba
contacted
interested
parties,
who
could
potentially
be
affected
by
the
all
appropriate
inquiries
rule,
to
determine
the
feasibility
of
proceeding
with
a
negotiated
rulemaking
process
to
develop
the
proposed
AAI
standard.

The
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
advocates,
and
insurance
companies.
Virtually
every
interviewee
expressed
support
for
addressing
the
issues
and
differences
among
interested
parties
through
the
negotiated
rulemaking
process.

Based
on
an
evaluation
of
the
information
derived
from
these
interviews,
the
convener
determined
and
recommended
to
EPA
that
is
was
feasible
to
proceed
with
the
negotiated
rulemaking
process.
The
feasibility
determination
was
based
on
a
high
level
of
stakeholder
interest
in
participating
in
the
process;
the
degree
to
which
interests
and
issues
among
the
stakeholders
are
interrelated;
the
possibility
of
engaging
a
balanced
committee
of
representatives;
and
the
likelihood
of
success
in
achieving
consensus
on
the
AAI
standards
within
the
available
time
frame.

The
findings
of
the
convener
are
documented
in
the
report,
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.
This
report
identifies
categories
of
stakeholders,
substantive
issues
by
stakeholder
group,
key
issues
across
stakeholder
groups,
procedural
issues,
participation,
process
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
8
design,
protocols
and
procedures,
and
recommends
organizational
members
and
resource
participants
for
the
advisory
committee.

Negotiations
The
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
negotiations
occurred
between
April
and
November
2003,
and
included
six
face­
to­
face
multiple
day
meetings
held
in
Washington,
D.
C.,
a
series
of
work
group
conference
calls
between
meetings,
and
consideration
of
intensive
public
input
throughout
the
process.

Each
meeting
followed
a
formal
agenda
and
was
open
to
the
public.
Each
day
of
each
meeting
included
time
set
aside
for
public
comment
during
which
members
of
the
public
addressed
the
Committee
to
offer
recommendations,
ask
questions,
and
comment
on
issues
under
discussion.

The
negotiating
process
was
an
iterative
discussion
of
the
ten
criteria
spelled
out
in
the
Brownfields
Amendments.
Each
issue
was
intensively
discussed
until
agreements
in
concept
were
reached.
EPA
drafted
regulatory
language
to
reflect
the
agreements
in
concept.
The
draft
regulatory
language
was
then
thoroughly
reviewed
and
revised
until
the
Committee
reached
tentative
agreements
on
the
text
of
each
section
of
the
recommended
proposed
standard.
The
Committee
then
reviewed
all
of
its
tentative
agreements,
made
some
additional
revisions
to
address
new
concerns
raised
by
some
of
its
members,
and
reached
final
consensus
on
all
issues
that
were
subjected
to
negotiations.

The
facilitation
team
drafted
meeting
summaries
after
each
meeting,
which
were
reviewed,
revised,
and
approved
by
the
Committee.
The
summaries
served
as
records
of
agreements
and
identified
key
discussion
points
of
outstanding
issues.

The
negotiated
rulemaking
process
allowed
for
continued
review
of
Committee
proceedings
by
constituents
of
the
organizations
represented
on
the
Committee
and
the
general
public.
The
Committee
gave
full
consideration
to
input
offered
by
the
public
during
its
deliberations.

Throughout
the
process,
work
groups
were
formed
to
discuss
issues
that
required
more
time
than
could
be
made
available
during
meetings
of
the
full
Committee.
Workgroups
were
composed
of
those
Committee
members
most
interested
in
the
subject
under
discussion
and
resource
participants
who
could
provide
expertise.
All
were
conducted
through
facilitated
conference
calls.
Work
groups
were
initiated
for
issues
such
as:
definition
of
environmental
professional,
objectives
and
performance
goals,
potential
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
9
use
of
a
tiered
approach
for
the
standard,
and
interview
requirements.
Proposals
developed
by
work
groups
were
presented
to
the
full
Committee
for
consideration.

In
addition,
the
facilitation
team
maintained
on­
going
contact
with
Committee
members
on
an
as­
needed
basis
to
build
consensus
on
controversial
issues.
Such
discussions
often
led
to
the
development
of
proposals
that
were
presented
to
the
Committee.

In
addition
to
the
twenty­
five
members
and
resource
participants
of
the
Committee
and
their
organizational
constituents,
members
of
the
public
at
large
were
actively
engaged
throughout
the
negotiations.
In
some
instances,
Committee
members
surveyed
their
constituents
to
obtain
additional
information
on
questions
and
issues
of
concern.
The
Committee
received
and
reviewed
scores
of
public
comments
in
the
form
of
e­
mails
and
letters
and
heard
numerous
public
comments
on
issues
such
as
the
definition
of
environmental
professional,
EPA
accreditation
of
environmental
professional
certifying
agencies,
identifying
past
occupants
(
including
interviews
with
neighbors),
and
how
to
conduct
database
research
of
institutional
controls.

After
13.5
meeting
days
(
108
hours),
the
Committee
completed
all
of
its
work
at
an
intense
final
meeting.
Some
new
issues
were
raised
and
the
Committee,
committed
to
its
success,
worked
hard
to
find
ways
to
accommodate
all
issues
raised
by
all
members.
All
Committee
members
agreed
to
support
the
proposed
standard
they
had
jointly
developed.

According
to
the
Committee's
ground
rules,
EPA
is
committed
to
publishing
a
proposed
rule
based
upon
and
including
the
consensus
language,
and
the
Committee
members
will
not
provide
formal
negative
comments
on
the
consensus
language
presented
in
the
Notice
of
Proposed
Rulemaking.

LESSONS
LEARNED
The
observations
and
opinions
below
are
offered
solely
on
behalf
of
Susan
Podziba
&
Associates,
the
company
retained
by
EPA
for
convening,
facilitation,
and
process
support
services
for
the
All
Appropriate
Inquiry
Negotiated
Rulemaking.

Advantages
of
Negotiated
Rulemaking
Use
of
Negotiated
Rulemaking
to
Develop
the
AAI
Standard:
Virtually
all
individuals
and
organizations
involved
in
the
negotiated
rulemaking
agree
that
EPA
will
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
10
promulgate
a
better
AAI
standard
for
having
used
the
negotiated
rulemaking
process
to
develop
the
proposed
rule.
As
a
result
of
the
negotiated
rulemaking
process,
the
AAI
standard
accounts
for
the
interests,
concerns,
and
nuances
that
were
raised
by
each
of
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
members
as
well
as
members
of
the
public
who
provided
comments
at
meetings
or
sent
emails
or
letters
to
EPA
and
the
Committee.
It
is
expected
that
few
new
issues
will
surface
during
the
formal
comment
period
that
have
not
already
been
discussed
by
the
Committee.

The
commitment
and
hard
work
of
the
Committee,
the
breadth
of
its
discussions,
and
the
decision­
making
rule
that
required
consensus
agreements,
resulted
in
a
standard
that
balances
the
goals
of
brownfields
redevelopment
and
community
revitalization
with
protection
of
public
health
and
the
environment
and
is
rooted
in
the
complex
real
world
conditions
within
which
the
AAI
standard
will
be
implemented.

EPA
Benefited
from
Knowledge
of
Industry,
Community
Interests,
and
other
Government
Entities:
The
negotiated
rulemaking
process
enabled
EPA
to
benefit
from
the
knowledge
and
expertise
of
the
regulated
community,
that
is,
those
who
will
implement
the
standard
in
their
daily
professional
lives.
In
addition,
representatives
from
groups
that
advocate
on
behalf
of
the
public,
and
especially
those
representing
specific
community
organizations,
raised
concerns
and
shared
their
understandings
of
likely
impacts
of
the
AAI
standard
on
the
public
health
and
sustainability
of
individual
communities.
Finally,
state,
tribal,
and
local
government
officials
provided
information
concerning
program
integration
and
implementation
challenges.

The
decisions
regarding
the
on­
site
visual
inspection
requirement
of
the
AAI
standard
illustrate
the
impact
of
Committee
deliberations.
As
early
as
the
convening
interviews,
municipal
representatives
asserted
that
in
extraordinary
situations,
they
cannot
gain
access
to
properties
prior
to
taking
title
or
acquiring
the
property.
They
were
concerned
that
without
building
flexibility
into
the
visual
inspection
requirement,
these
properties
would
continue
to
lie
fallow
because
municipalities
would
not
risk
incurring
CERCLA
liability
to
develop
them.

On
the
other
hand,
other
Committee
members,
especially
those
from
state
government
and
public
interest
organizations,
were
wary
of
providing
exceptions
to
the
visual
onsite
inspection
requirement
that
might
result
in
contaminated
properties
being
targeted
for
redevelopment
prior
to
obtaining
adequate
information
to
support
proper
cleanup
and
protection
of
public
health.

The
Committee
worked
diligently
to
develop
language
that
both
accounted
for
extraordinary
situations
and
provided
sufficient
levels
of
protection
for
human
health
and
the
environment.
Ultimately,
given
that
AAI
is
a
first
step
in
establishing
a
basis
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
11
for
seeking
liability
protection,
the
Committee
developed
a
solution
that
established
standards
for
the
collection
of
information
prior
to
property
acquisition
without
imposing
significant
burdens
on
prospective
property
owners
prior
to
obtaining
ownership
of
a
property.

Public
Education:
The
AAI
Negotiated
Rulemaking
Process
significantly
contributed
to
public
education
concerning
the
AAI
standard.
The
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
included
representatives
of
trade
associations
that
educate
their
members
about
government
regulations.
In
addition,
members
of
the
public
attended
meetings
of
the
Committee,
and
EPA
made
all
Committee
documents
available
to
the
public
through
the
Internet
and
the
public
docket.

The
affected
public
is,
therefore,
well
versed
in
the
AAI
standard
and
the
rationales
for
each
of
its
elements
­­
an
infrastructure
of
knowledgeable
individuals
exists
for
ongoing
public
education
of
the
AAI
standard's
requirements.
In
addition,
the
Committee
members
and
members
of
the
public
who
followed
the
negotiated
rulemaking
process
better
understand
the
limitations
of
public
sector
decision­
making
and
the
role
government
plays
in
working
to
accomplish
its
mission
as
it
balances
the
interests
of
a
multitude
of
stakeholders.

Components
of
the
Negotiated
Rulemaking
Process
Convening
Assessment:
The
convening
assessment
was
an
important
tool
for
determining
the
feasibility
of
a
negotiated
rulemaking
process
to
develop
the
AAI
standard.
The
in­
depth
convening
interviews
and
report
provided
a
clear
articulation
of
the
issues,
dynamics,
and
perspectives
that
would
become
the
focus
of
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
discussions.
Many
interviewees
who
became
Committee
members
felt
they
had
been
"
heard
and
understood"
because
their
ideas
and
perspectives
were
reflected
in
the
convening
report.
The
interviews
also
enabled
the
facilitator
to
begin
building
relationships
with
Committee
members,
which
enhanced
her
ability
to
function
effectively
as
facilitator.

Finally,
the
convening
assessment
helped
EPA
identify
and
name
members
of
the
negotiating
committee,
as
it
differentiated
those
parties
with
a
real
stake
in
the
issues
from
those
with
limited
interests.
Parties
concerned
with
only
one
or
few
issues
have
little
incentive
to
consider
alternatives
because
they
have
little
need
to
integrate
their
interests
with
those
of
the
other
Committee
members.
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
12
Ground
Rules:
The
development
of
ground
rules
created
a
common
set
of
understandings
concerning
governance
of
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee.
The
ground
rules
outlined
the
Committee
goals,
deadline,
responsibilities
of
the
negotiators
and
facilitators,
decision­
making
rule,
status
of
the
agreement,
and
relationship
between
member
participation
and
a
final
consensus.

For
example,
the
Mission
Statement,
negotiated
by
the
Committee,
clarified
the
key
objectives
underlying
the
AAI
standard.
It
read,
in
part:

[ ]
the
Committee
will
work
together
as
a
team
to
develop
all
appropriate
inquiry
standards
and
practices
that
are
protective
of
public
safety,
public
health,
and
the
environment
and
promote
productive
use
of
properties
subject
to
the
Brownfields
Law.

The
need
to
balance
the
goals
of
protection
of
the
environment
and
public
health
with
the
goals
of
increasing
land
revitalization
and
community
economic
development
goals
sustained
the
discussions.
Since
Committee
members
approached
these
objectives
differently,
the
mission
statement
continually
served
as
a
reminder
of
the
need
to
account
for
all
the
interests
reflected
among
Committee
members.

The
ground
rules
helped
avoid
conflicts
concerning
process
questions,
however,
they
were
simply
a
set
of
self­
policing
agreements
among
Committee
members.
There
was
no
enforcement
or
formal
sanction
for
breaking
a
ground
rule.

Despite
Committee­
wide
agreement
upon
its
ground
rules,
and
after
agreeing
to
the
Committee's
final
consensus
on
all
issues
and
the
November
12­
14
meeting
summary,
which
documented
that
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
reached
final
consensus
on
all
issues,
one
Committee
member
sent
a
letter
to
EPA
stating
her
organization's
desire
to
withdraw
from
the
negotiated
rulemaking
process
on
December
19,
2003.
This
violated
a
ground
rule,
which
stated:

Once
final
consensus
is
achieved,
Committee
members
may
not
thereafter
withdraw
their
consensus.
(
Ground
Rule
III
B)

The
ground
rules
should
continue
to
be
a
set
of
voluntary
agreements
among
Committee
members.
Participating
organizations
may,
however,
need
to
better
understand
the
implications
of
their
agreements
to
participate.

In
addition,
the
ground
rules
did
not
outline
the
method
for
memorializing
the
fact
of
the
agreement.
The
facilitator's
practice
is
to
use
the
final
meeting
summary
for
this
purpose,
and
EPA's
practice
has
been
to
use
a
signature
page.
In
future
processes,
it
will
be
helpful
to
explicitly
address
this
question
in
the
ground
rules.
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
13
Deadlines:
The
ground
rules
established
a
deadline,
which
was
crucial
for
reaching
final
consensus.
The
most
difficult
decisions
were
not
made
until
time
was
about
to
run
out.
As
late
as
the
sixth
meeting,
many
Committee
members
expected
a
seventh.
Once
it
became
clear
that
the
sixth
meeting
was
their
final
meeting,
the
parties
reached
closure
on
all
remaining
issues.

Participation
EPA
Team:
EPA
provided
a
highly
competent
team
for
the
negotiated
rulemaking
effort,
which
included
the
Office
of
Brownfields
Cleanup
and
Redevelopment,
Office
of
General
Counsel,
Office
of
Site
Remediation
Enforcement,
Office
of
Site
Remediation
and
Technology
Innovation,
and
the
Conflict
Prevention
and
Resolution
Center.

The
negotiated
rulemaking
process
also
enjoyed
support
from
EPA
senior
management,
as
illustrated
by
occasional
visits
from
the
Deputy
Assistant
Administrator,
who
thanked
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee
members
for
their
commitment
and
hard
work.

The
negotiated
rulemaking
process
demanded
a
great
deal
of
effort
from
the
EPA
team,
which
included
a
negotiator,
a
regulatory
analyst,
a
legal
advisor,
senior
staff,
administrators,
and
technical
and
process
experts.
The
regulatory
analyst
and
the
negotiator
had
multiple
tasks
and
responsibilities
to
perform.
In
the
weeks
between
Committee
meetings,
they
reviewed
and
commented
on
meeting
summaries
and
meeting
agendas;
participated
in
conference
calls;
drafted
and
revised
regulatory
language;
checked
in
internally
with
EPA
senior
management
workgroup
members
and
technical
experts;
met
with
representatives
from
other
federal
agencies
to
learn
how
proposals
under
discussion
would
impact
them;
responded
to
outside
information
requests
from
the
public;
responded
to
concerns
raised
by
members
of
the
public;
responded
to
media
requests;
and
managed
Committee
logistics
such
as
travel
reimbursement,
FACA
compliance,
and
Federal
Register
notices.

The
effort
by
all
members
of
this
team,
and
especially
EPA
staff
who
drafted
and
distributed
revised
regulatory
text
to
reflect
Committee
discussions
during
and
following
each
Committee
meeting,
significantly
contributed
to
the
success
of
the
negotiated
rulemaking
process.
In
addition,
the
internal
coordination
throughout
the
process
contributed
to
a
relatively
smooth
ratification
process
within
EPA
for
the
terms
of
the
standard.
All
Appropriate
Inquiries
Negotiated
Rulemaking
Contract
Number
68­
W­
99­
010,
Task
Order
#
0122
Final
Report
of
Susan
Podziba
&
Associates
March
31,
2004
Page
14
Six
meetings
were
very
limited
given
the
complexity
of
the
issues.
If
the
EPA
regulatory
analyst
had
not
been
able
to
quickly
translate
Committee
decisions
into
draft
regulatory
language
for
Committee
discussions,
the
six
meetings
might
not
have
been
sufficient.

Committee
Member
Commitment:
Each
organizational
member
participating
in
the
negotiated
rulemaking
process
was
represented
by
a
principal
negotiator
and
an
alternate.
The
Committee
had
virtually
perfect
attendance
at
all
meetings.
The
fact
that
their
work
could
become
the
proposed
federal
standard
for
all
appropriate
inquiries,
motivated
the
Committee
members'
commitment.
The
ongoing
display
of
EPA
commitment
and
its
willingness
and
ability
to
quickly
respond
to
Committee
requests
also
contributed
to
the
Committee's
sustained
commitment
to
complete
its
task.
In
addition,
Committee
members
agreed,
in
their
ground
rules,
that
decisions
could
not
be
deferred
due
to
absences.
In
other
words,
in
order
to
complete
its
work,
tentative
agreements
needed
to
be
reached
at
each
meeting.

Resource
participants:
The
category
of
resource
participants
was
created
for
the
All
Appropriate
Inquiry
Negotiated
Rulemaking
Advisory
Committee,
as
there
were
organizations
with
a
great
deal
of
useful
information
to
contribute
to
the
negotiations,
but
that
do
not
represent
unique
or
distinct
stakeholders.
Some
of
the
members
of
these
organizations
represent
the
range
of
stakeholders.
As
a
result,
these
organizations
could
not
develop
unified
negotiating
positions
on
key
issues
because
their
members
as
well
as
their
members'
clients
hold
differing
views.

Resource
participants
spoke
at
meetings,
but
could
not
dissent
from
proposals.
This
model
was
effective
in
efficiently
bringing
important
information
to
the
Committee
that
could
immediately
be
incorporated
into
Committee
discussions
and
decisions.

For
More
Information:
Contact
Susan
Podziba,
Susan
Podziba
&
Associates,
(
617)
738­
5320,
susan@
podziba.
com
or
Patricia
Overmeyer,
U.
S.
Environmental
Protection
Agency,
(
202)
566­
2774,
Overmeyer.
Patricia@
epa.
gov.
