1
2
3
4
5
6
EPA
PUBLIC
MEETING
TO
DISCUSS
7
STANDARDS
AND
PRACTICES
FOR
ALL
APPROPRIATE
INQUIRIES
8
9
10
11
Thursday,
November
18,
2004,
2:
00
p.
m.

12
13
Old
Federal
Reserve
Building
14
301
Battery
Street
15
San
Francisco,
California
16
17
18
19
20
21
22
23
Reported
by:

24
Rita
R.
Lerner,
CSR
3179
(
2001­
356405)

25
1
1
2
PANEL
MEMBERS:

3
4
PATRICIA
OVERMEYER,
U.
S.
EPA
5
6
LINDA
GARCZYNSKI,
EPA
Director
of
the
Office
of
7
Brownfields
Cleanup
and
Redevelopment
8
9
SPEAKERS:

10
Malcolm
Dillman
11
(
Intermountain
Environmental
Consultants,
Inc.)

12
13
Stephen
Testa
14
(
Testa
Environmental
Corporation)

15
16
Paul
Lesti
17
(
Lesti
Structured
Settlements)

18
19
Georgina
Dannatt
20
(
Dannatt
and
Associates)

21
22
23
24
25
2
LegaLink
San
Francisco
415.359.2040
1
P
R
O
C
E
E
D
I
N
G
S
2
MS.
GARCZYNSKI:
Good
afternoon.
This
space
is
3
so
impressive,
I
feel
like
saying
"
Dearly
Beloved",

4
instead
of
starting
this
meeting
out.
I'm
pretty
amazed
5
at
the
size
of
the
room
here.
So
I
appreciate
all
of
6
you
showing
up.

7
I'm
Linda
Garczynski.
I'm
EPA's
director
of
8
the
Office
of
Brownfields
Cleanup
and
Redevelopment,
and
9
this
is
a
public
meeting
on
the
proposed
standards
and
10
practices
for
all
appropriate
inquiry.
So
if
you're
not
11
here
to
hear
that
meeting,
and
you
thought
you
were
here
12
for
some
other
reason,
I
promise
you
it's
not
a
wedding
13
that
we're
having.

14
We
did
publish
the
proposed
standards
for
all
15
appropriate
inquiry
in
the
Federal
Register
on
August
16
26th,
and
the
rule
is
posted
on
the
EPA
Brownfields
17
website.
We
had
hoped
to
make
copies
available
to
you,

18
but
the
U.
S.
Postal
Service
failed
us
in
this
event.
We
19
mailed
them
here
and
they
have
not
made
it.
So,
if
you
20
don't
have
a
copy,
and
if
you
can't
access
the
website,

21
if
you
can
give
us
your
names
and
numbers,
we
can
make
22
sure
that
we
can
mail
you
a
copy
of
the
Federal
Register
23
notice.

24
As
you're
aware,
I
believe,
all
of
you,
or
you
25
wouldn't
be
here,
EPA
developed
the
proposed
rule
for
3
LegaLink
San
Francisco
415.359.2040
1
All
Appropriate
Inquiry
using
something
called
a
2
"
Negotiated
Rulemaking
Process."
And
these
standards
3
that
we're
working
on
will
be
applicable
to
property
4
claiming
any
protection
from
Superfund
liability
under
5
the
various
new
protections
of
the
Brownfields
law,
as
6
well
as
it
will
be
applicable
to
all
of
our
Brownfields
7
grantees.

8
We
are
proud
to
say
the
regulatory
language
9
published
in
the
Federal
Register
as
the
proposed
rule
10
is
the
same
language
that
was
agreed
to
by
the
11
Rulemaking
Committee
at
the
end
of
last
year.
And
for
12
those
of
you
­­
there
are
a
few
people
here
who
actually
13
participated
in
that
­­
I
just
want
to
give
you
my
14
personal
thanks
for
sticking
with
us
through
something
15
that
was
a
very
intense
and
grueling
process.
It's
a
16
collaborative
process
­­
proposed
negotiating
rulemaking
17
is
­­
and
it
allows
the
federal
government
to
benefit
18
from
the
knowledge
and
experience
of
affected
19
stakeholder
groups.
It
allows
us
to
take
advantage
of
20
the
knowledge
and
experience
at
the
initial
stages
of
21
the
regulatory
development
process.
And
for
those
of
22
you
who
are
not
familiar
with
that,
often
federal
23
government
rules
are
developed
and
then
published,
and
24
then
comments
are
gleaned
on
those
rules
without
the
25
benefit
of
input
of
the
various
rulemaking
­­
I
mean
4
LegaLink
San
Francisco
415.359.2040
1
stakeholder
groups.

2
So
this
was
a
very
difficult
process.
It
took
3
a
lot
of
time
and
a
lot
of
dedication
on
the
part
of
the
4
25
members
of
the
All
Appropriate
Inquiries
Regulatory
5
Negotiation
Committee.
They
dedicated
and
donated
their
6
time
to
it,
and
I
think
we
ended
up
with
a
much
better
7
rule
as
a
result
of
the
efforts
of
all
of
the
members
8
who
sat
during
those
meetings
for
the
last
eight
or
nine
9
months.

10
Now
we
are
in
the
regulatory
negotiation
phase.

11
We're
here
to
hear
your
comments.
We
have
published
the
12
proposed
rule
in
the
Federal
Register,
and
as
you
may
or
13
may
not
be
aware,
the
comment
period
closes
November
14
30th.
And
so
we're
anxious
to
hear
your
input.
We
15
recognize
the
value
of
public
comment;
we
believe
that
16
it's
an
important
step
in
the
process,
and
it's
one
that
17
we
take
very
seriously.

18
Public
input
provides
us
with
insight
into
how
19
a
proposed
rule
can
affect
stakeholder
groups,
and
it
20
helps
us
understand
the
potential
ease
or
difficulties
21
that
could
be
associated
with
implementing
that
22
regulation.
And
that's
very
important
to
us
because
we
23
want
to
know
at
a
pragmatic
and
practical
level
the
24
impact
that
our
rule
will
have
on
those
who
are
affected
25
by
it.
We
try
to
build
partnerships
in
our
Brownfields
5
LegaLink
San
Francisco
415.359.2040
1
program
and
provide
incentives
for
revitalizing
2
abandoned,
idled
or
underused
properties,
and
our
goals
3
center
on
sustainable
development
of
those
properties.

4
We
want
to
make
sure
the
actions
that
are
taken
5
on
those
properties
are
protective
of
public
health
and
6
the
environment
and
that
they
contribute
to
community
7
redevelopment,
and
that
is
a
keystone
effort
in
the
8
Brownfields
program
at
EPA
today.

9
This
standard,
this
All
Appropriate
Inquiries
10
standard,
when
it
is
finished,
will
apply
to
all
11
property
owners
seeking
liability
protection
under
12
Superfund,
as
well
as
all
of
our
Brownfields
grantees,

13
so
it
has
a
very
broad
sweeping
impact
on
the
commercial
14
real
estate
marketplace
today.
It
actually
sets
the
15
standard
for
how
our
grantees
will
conduct
their
Phase
16
One
environmental
property
assessments,
and
so
it
has
17
major
effects
on
the
almost
1000
grantees
that
we
have
18
in
our
Brownfields
family
today.

19
In
addition,
the
rule,
in
conjunction
with
the
20
liability
protection
afforded
under
the
Brownfields
21
Amendment
to
Superfund,
should
encourage
additional
22
cleanup
and
re­
use
of
the
Brownfields
properties,

23
because
it
provides
a
clear
and
discernible
pattern
to
24
what
needs
to
be
done
to
fulfill
the
responsibilities
25
under
the
statute.

6
LegaLink
San
Francisco
415.359.2040
1
Some
things
I
would
like
to
point
out,
though,

2
is
that
conforming
to
the
All
Appropriate
Inquiries
3
regulation
is
only
one
step
of
affording
the
CERCLA
4
liability
protection.
In
addition
to
doing
that,

5
property
owners,
once
they've
purchased
the
property,

6
have
to
comply
with
certain
steps.
And
those
steps
7
include
stopping
ongoing
releases;
they
include
taking
8
reasonable
steps
to
ensure
that
contamination
is
9
contained
or
does
not
get
worse;
and
complying
with
all
10
institutional
controls
on
land
use
restrictions
that
are
11
put
on
that
property
in
conjunction
with
the
cleanup.

12
So
again,
All
Appropriate
Inquiry
itself
is
the
13
first
stage.
Once
the
property
is
purchased,
additional
14
things
must
be
done
to
ensure
the
CERCLA
liability
15
protections.

16
Our
meeting
today
is
one
of
several
17
opportunities
that
we've
afforded
the
public
to
come
and
18
provide
us
comments
and
advice
on
the
proposed
rule.
We
19
held
two
previous
public
comment
meetings.
One
was
in
20
St.
Louis
in
conjunction
with
our
annual
national
21
conference,
and
the
second
was
in
Washington,
D.
C.
This
22
is
our
third
and
last
public
meeting
on
the
rule
itself.

23
In
addition,
any
member
of
the
public
can
24
provide
written
comment,
and
we
hope
that
you
do.

25
Written
comments
can
be
submitted
to
us
today
or
they
7
LegaLink
San
Francisco
415.359.2040
1
can
be
provided
directly
to
EPA
through
our
regulatory
2
docket
either
through
the
Internet
or
through
e­
mail
or
3
by
U.
S.
mail.
And
I
think
it's
important
to
understand
4
that
we'll
take
any
and
all
comments
in
those
forms.

5
The
preamble
to
the
proposed
rule
provides
6
detailed
instructions
for
how
to
submit
written
7
comments.
The
public
comment
period
­­
again,
I'll
8
reiterate
­­
to
the
proposed
rule
closes
November
30th,

9
and
we
do
value
your
input;
we
want
to
hear
from
you.

10
I
look
forward
to
hearing
all
your
comments
11
today,
and
I'm
going
to
introduce
now
Patricia
12
Overmeyer,
who
is
our
designated
federal
official
for
13
development
of
the
rule,
and
she's
going
to
go
over
some
14
of
the
ground
rules
of
how
this
meeting
will
be
15
conducted
today
before
we
get
it
started.

16
Patricia.

17
MS.
OVERMEYER:
Thanks,
Linda,
and
welcome.

18
Just
a
few
things
before
we
get
started.

19
Today's
meeting
is
being
recorded,
so
we
ask
20
that
everybody
who
speaks
comes
up
and
speaks
into
the
21
microphone
so
that
our
court
reporter
can
get
everything
22
down.

23
The
transcript
of
the
meeting
will
be
available
24
on
the
EPA
website
in
a
docket
that's
25
www.
epa.
gov/
edocket.
The
transcripts
from
the
first
two
8
LegaLink
San
Francisco
415.359.2040
1
public
meetings,
our
public
meeting
in
St.
Louis
and
the
2
public
meeting
in
Washington,
D.
C.,
are
already
on
3
our
­­
in
the
docket
and
on
the
website.
And
today's
4
will
go
as
soon
as
we
can
get
it
there,
as
well.
So
5
that
every
comment
that's
made
today
will
be
an
official
6
comment
in
the
docket.

7
We
won't
be
responding
to
comments
today;

8
however,
when
we
respond
to
all
the
other
comments,
as
9
we
consider
all
the
comments,
we
will
be
providing
a
10
written
response
to
each
comment,
and
those
written
11
responses
will
be
provided
on
the
website
and
in
the
12
docket,
the
official
docket
for
the
rulemaking.

13
We'll
begin
our
proceedings
today
by
first
14
hearing
from
those
individuals
who
signed
up
to
give
15
public
comment
or
public
testimony.
I'll
call
them
up.

16
I
ask
that
you
try
to
keep
your
comment
within
seven
to
17
ten
minutes.

18
After
everybody
who
has
signed
up
has
had
a
19
chance
to
speak,
I
will
then
ask
if
there
are
others
20
here
who
would
like
to
speak
or
give
follow­
up
comments.

21
Then
a
third
time,
at
the
end,
we'll
also
try
to
answer
22
some
questions,
if
you
have
questions
of
clarification
23
or
anything
about
the
rule
or
the
process.

24
As
Linda
said,
the
public
comment
period
is
25
open
until
November
30th.
Anybody
here
who
doesn't
want
9
LegaLink
San
Francisco
415.359.2040
1
to
read
or
make
their
comments
orally,
you
can
submit
2
written
comments
to
us
today;
we'll
get
them
in
the
3
docket
for
you.
And
you
also
have
until
November
30th
4
to
submit
your
comments
to
the
public
docket,
and
it's
5
very
easy
to
do
that.
Go
to
the
edocket
website,

6
www.
epa.
gov/
edocket,
and
put
in
the
docket
number
which
7
is
in
the
front
of
the
preamble
to
the
proposed
rule.

8
You
can
submit
your
comments;
you
can
type
them
right
9
into
the
edocket
page,
or
you
can
attach
any
kind
of
10
word
processing
file
that
you
have
and
submit
them.

11
Like
I
said,
they
will
all
be
responded
to
by
12
the
agency
after
we've
had
a
chance
to
read
through
and
13
consider
all
of
them,
and
our
responses
will
be
14
available
for
everyone
to
see.
They
will
be
summarized
15
in
the
preamble
for
the
final
rule
and
they
will
be
16
available
in
the
docket.

17
So
with
that,
I
will
ask
the
individuals
who
18
have
signed
up
previously
to
make
their
comments,
and,

19
then,
after
they've
had
their
chance
to
make
their
20
comments,
then
I'll
ask
if
there
is
anybody
else.

21
Malcolm
Dillman.

22
MR.
DILLMAN:
I
was
really
looking
forward
to
23
being
first
here
today.

24
I
would
like
to
thank
the
EPA
for
the
25
opportunity
to
provide
comments
concerning
the
All
10
LegaLink
San
Francisco
415.359.2040
1
Appropriate
Inquiries
regulation.

2
My
first
concern
is
with
the
qualifications
for
3
designation
of
Environmental
Professional
as
defined
in
4
Subpart
B­
312.1
­­
or
.10
­­
excuse
me
­­
the
5
requirement
of
any
baccalaureate
degree
from
an
6
accredited
institution
and
ten
years
of
full­
time
7
relevant
experience.

8
I
must
ask
the
question,
what
does
an
9
individual
with
a
degree
in
sociology
or
communications
10
or
music
offer
above
an
individual
without
any
degree
11
that
has
the
equivalent
or
greater
full­
time
relevant
12
experience
and
perhaps
more
actual
field
experience?

13
Under
different
programs
that
the
EPA
has,
they
14
provide
for
experience,
completion
of
a
course
and/
or
15
passing
an
examination
to
qualify
individuals,

16
regardless
of
a
degree,
in
areas
where
the
health
and
17
welfare
of
children
are
at
stake.

18
The
EPA
requirements
for
lead­
based
paint
risk
19
assessor
are
­­
and
I'm
reading
from
the
website
­­
pass
20
an
accredited
inspector
course;
pass
an
EPA­
accredited
21
risk
assessor
course;
pass
an
EPA
assessor
certification
22
examination;
and
meet
one
of
the
following
requirements:

23
A,
a
bachelor's
degree
and
one
year
experience;
or,
an
24
associate's
degree
and
two
years
of
experience
in
a
25
related
field;
or
C,
certification
as
an
industrial
11
LegaLink
San
Francisco
415.359.2040
1
hygienist,
professional
engineer,
registered
architect
2
and/
or
certification,
registered
­­
or
excuse
me
­­

3
related
engineering
health
or
environmental
field;
or
D,

4
a
high
school
diploma
or
equivalent
diploma,
or
5
equivalent,
and
at
least
three
years'
experience
in
a
6
related
field.
The
lead­
based
paint
risk
assessor
makes
7
judgments
that
have
implications
on
the
protection
of
8
human
health;
specifically,
children
under
six.

9
State
programs
also
provide
for
certifications
10
of
Environmental
Professional
with
depth
of
11
environmental
experience
that
allows
them
to
make
12
appropriate
judgments
based
on
the
available
data.
Some
13
of
these
states
are
the
Nevada
Certified
Environmental
14
Manager
program.
Their
requirements:
Again,
a
college
15
degree
in
environmental
science
relevant
to
professional
16
registration,
or
a
combination
of
education/
experience
17
judged
by
the
Division
itself.
And
that's
the
18
Environmental
Protection
Division
of
Nevada.

19
In
Utah,
the
U.
S.
D.
Consultant
program
requires
20
that
­­
provided
its
acceptance
in
this
of
a
bachelor's
21
or
advanced
degree
from
an
accredited
college
or
22
university
with
major
study
in
environmental
health,

23
engineering,
biological,
chemical,
environmental
or
24
physical
science;
or
equivalent
education
and
experience
25
as
determined
by
the
Executive
Secretary
of
the
Division
12
LegaLink
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Francisco
415.359.2040
1
of
Environmental
Response
and
Remediation
in
Utah.

2
California
has
a
program
to
be
a
Registered
3
Environmental
Assessor.
Their
program
requires
a
4
bachelor's
or
higher
degree
from
an
accredited
college
5
or
university
in
physical
or
biological
science,

6
engineering
or
law,
or
five
years
of
substantial
7
experience
acquired
within
the
last
eight
years
8
performing
environmental
assessments
relating
to
9
hazardous
substances
and/
or
hazardous
waste
management.

10
I
would
suggest
that
over
ten
years'
experience
11
and
hundreds
or
thousands
of
report
submissions
would
12
have
weeded
out
the
incompetent
people
in
this
business.

13
I
would
respectfully
submit
that
the
14
grandfather
clause
be
amended
to
accept
those
15
environmental
professionals
with
a
minimum
of
ten
years'

16
experience
where
that
experience
is
valid
and
can
be
17
documented.

18
Another
concern
that
I
have
is
with
312.29,
the
19
relationship
of
the
purchase
price
to
the
value
of
the
20
property
if
the
property
was
not
contaminated.
This
21
section
is
asking
for
expertise
outside
the
area
of
an
22
Environmental
Professional,
and
require
the
services
of
23
a
certified
and
licensed
appraiser,
which,
in
my
24
opinion,
will
increase
substantially
the
cost
of
the
25
investigation.
Thank
you.

13
LegaLink
San
Francisco
415.359.2040
1
MS.
OVERMEYER:
Thank
you
very
much.

2
Stephen
Testa.

3
MR.
TESTA:
Good
afternoon,
and
thank
you
for
4
the
opportunity
to
speak
on
behalf
of
the
American
5
Institute
of
Professional
Geologists.

6
My
name
is
Steve
Testa.
I'm
also
president
of
7
the
American
Geological
Institute,
and
that
consists
of
8
43
member
societies
and
represents
over
120,000
9
geologists.

10
The
American
Institute
of
Professional
11
Geologists
is
the
nation's
largest
certifying
12
organization
for
Professional
Geologists,
referred
to
as
13
"
AIPG."
AIPG
is
encouraged
that
the
Rulemaking
14
Committee
recognizes
the
vital
role
of
Professional
15
Geologists
in
assessing
releases
of
or
threatened
16
releases
that
can
generate
significant
liability
to
17
unknowing
purchasers.
The
inclusion
of
Professional
18
Geologists
in
the
definition
of
Environmental
19
Professional
demonstrates
the
committee's
and
the
U.
S.

20
EPA's
understanding
of
the
importance
of
the
judgment,

21
knowledge,
and
experience
of
Professional
Geologists.

22
The
profession
of
geology
is
not
regulated
in
23
every
state,
however,
or
U.
S.
territory.
In
fact,
about
24
28
states
have
some
form
of
licensure
or
registration;

25
the
other
22
do
not.
Unlike
some
professions,
many
14
LegaLink
San
Francisco
415.359.2040
1
states
do
not
have
a
registration
or
licensure
program
2
for
Professional
Geologists.
Therefore,
the
rule
as
it
3
is
written
will
place
the
burden
of
certification
upon
4
the
individual
professional
geologist
to
apply
for
the
5
Environmental
Professional
credential.
The
U.
S.
EPA
6
will
be
required
to
process
and
verify
the
accuracy
and
7
completeness
of
each
application.
To
alleviate
some
of
8
the
burden
on
the
profession
and
the
agency,
and
to
move
9
toward
a
nationwide
level
of
coherence
of
professional
10
capabilities,
AIPG
recommends
that
the
rule
be
modified
11
to
include
the
AIPG
credential
"
Certified
Professional
12
Geologist"
in
the
definition
of
Environmental
13
Professional.

14
In
1963,
AIPG
established
baseline
15
qualifications
for
granting
the
Certified
Professional
16
Geologist
title,
referred
to
as
"
CPG."
The
CPG
title
17
attests
to
the
public
that
those
geologists
who
hold
18
this
title
have
undergone
peer
review,
and
have
been
19
deemed
competent
practitioners
who
are
worthy
of
public
20
interest
and
trust.
The
high
standards
for
obtaining
21
the
title
have
earned
it
wide
recognition.
The
primary
22
purpose
of
AIPG,
to
strengthen
geological
science
as
a
23
profession,
remains
undiminished,
and
it's
recognized
by
24
the
European
Federation
of
Geologists,
the
Canadian
25
Securities
Administrators
under
National
Instruments
15
LegaLink
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Francisco
415.359.2040
1
43­
101
and
51­
101,
and
by
the
Australian
Stock
Exchange
2
as
a
"
Recognized
Overseas
Professional
Organization."

3
By
including
the
CPG
credential
in
the
4
definition
of
Environmental
Professional,
the
U.
S.
EPA
5
can
be
assured
of
the
consistent
application
of
high
6
standards
in
those
states
that
do
not
have
registration
7
or
licensure
programs,
while
allowing
for
the
mobility
8
of
highly
credentialed
professionals
across
state
9
boundaries.

10
Approximately
40
percent
of
AIPG
members,
out
11
of
a
total
of
4500
members,
are
in
states
without
12
registration
or
licensure
programs,
and
about
75
percent
13
of
its
membership
identifies
itself
as
engaged
in
14
environmental
practice.
EPA
can
minimize
duplicative
15
effort
required
to
process
the
credentials
of
individual
16
applicants,
i.
e.
the
professional
geologist
that
does
17
not
live
in
the
state
with
a
registration
or
licensure
18
program,
by
listing
the
CPG
credential
in
the
rule
19
itself.
In
this
way,
much
of
the
EPA
administrative
20
burden
is
obviated.

21
AIPG
does
not
review
or
modify
certification
22
qualifications
on
a
frequent
or
periodic
basis.
Since
23
its
inception
more
than
40
years
ago,
AIPG
has
24
maintained
a
high
standard
for
the
CPG
title.
The
25
education
and
experience
requirements
for
AIPG
16
LegaLink
San
Francisco
415.359.2040
1
certification
meet
or
exceed
those
of
all
the
2
state
registration
or
licensure
programs.
These
3
include:
A
bachelor
or
higher
degree,
minimum
of
36
4
semester
hours
in
geological
sciences;
a
minimum
of
5
eight
years'
experience
with
a
bachelor's
degree;
seven
6
years
with
a
master's,
and
five
years
with
a
Ph.
D.

7
The
second
recommendation
reflects
on
annual
8
refresher
courses
or
continuing
education.
AIPG
also
9
strongly
recommends
that
an
annual
refresher
course
be
10
required
for
the
Environmental
Professional.
Other
11
programs
require
annual
refresher
courses
to
remain
12
current
in
their
fields
of
practice,
such
as
the
13
eight­
hour
OSHA
classes
and
asbestos
training.
The
14
proposed
rule
only
recommends
continuing
education,
and
15
most
state
Professional
Geologist
licenses
don't
require
16
any.
AIPG
has
instituted
a
program
for
continuing
17
professional
development
for
practitioners.

18
Last,
an
annual
refresher
course
would
give
19
other
individuals
who
are
grandfathered,
but
who
are
not
20
CPGs
or
registered,
an
opportunity
to
learn
more
about
21
basic
hydrogeology
and
geologic
concepts
to
which
they
22
may
not
have
been
exposed
previously.
Adding
also
to
23
the
importance
of
this
issue
is
the
proliferation
of
24
automated,
Internet­
based
platforms
for
creating
data
25
summaries
and
maps
of
the
subject
area.
These
give
the
17
LegaLink
San
Francisco
415.359.2040
1
erroneous
impression
of
thoroughness
to
the
point
of
2
even
showing
groundwater
flow
direction
and
the
relative
3
elevation
of
surrounding
sites
that
have
the
potential
4
to
impact
the
subject
site.
These
presentations
can
be
5
misleading
and,
if
used
by
an
unqualified
Environmental
6
Professional,
may
lead
to
serious
oversights
with
7
significant
consequences.
The
judgement
of
a
qualified
8
geologist,
taking
advantage
of
all
available
geologic
9
and
hydrogeologic
information
sources,
is
necessary
for
10
this
purpose.

11
Thank
you
for
your
consideration.

12
MS.
OVERMEYER:
Thank
you
very
much.

13
Paul
Lesti.

14
MR.
LESTI:
Thank
you,
and
thank
you
to
the
EPA
15
for
having
this
open
forum.
I
appreciate
it.
My
name
16
is
Paul
Lesti;
I
am
the
president
of
Lesti
Structured
17
Settlements
here
in
Los
Altos,
California.
And
I'm
just
18
briefly
going
to
talk
about
this
All
Appropriate
19
Inquiry,
an
element
that
works
hand
in
glove
with
the
20
transfer
of
claims
liability
in
Brownfields
and
other
21
CERCLA
type
of
obligations.

22
First
of
all,
a
definition
of
structured
23
settlement.
A
structured
settlement
is
simply
an
24
agreement
to
pay
money
in
the
future
to
settle
a
25
dispute.
It's
been
used
for
many,
many
years
in
18
LegaLink
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Francisco
415.359.2040
1
settling
personal
injury
type
lawsuits.

2
In
1995,
Mr.
Bruce
Diamond
of
the
EPA
wrote
a
3
memo
about
this,
asking
for
proposals
of
using
this
4
vehicle
for
CERCLA
sites.
He
mentioned
six
specific
5
things.
No.
1,
the
time
value
of
money
will
help
if
6
it's
held
and
invested
to
help
fund
future
costs;
No.
2,

7
that
there
are
tax
advantages
to
the
PRP;
No.
3,
that
8
there's
a
special
purpose
entity
that
can
own
the
9
annuity;
and
No.
4,
that
a
large
life
insurance
company
10
with
substantial
resources
is
brought
into
the
11
transaction
for
security
of
the
transaction.
No.
5
is
12
that
this
is
not
in
lieu
of
the
cleanup,
but
it's
really
13
pre­
funding
the
cleanup.
And
6,
if
the
money
is
not
14
needed
for
some
time,
the
cleanup
costs
can
be
­­
and
15
the
claim
costs
on
those
­­
gives
some
flexibility
in
16
the
funding.

17
One
of
the
challenges
back
in
1995
is
that
18
there
was
no
clear
mechanism
for
ownership
of
this
19
annuity.
That
problem
has
now
been
solved.
We
call
20
that
an
"
environmental
structured
settlement."

21
One
of
the
problems
is
that
if
you
have
a
22
current
solvent
PRP,
there
is
no
guarantee
that
it
will
23
be
around
20,
30,
40
years
from
now.
We
can
now
give
a
24
guarantee
that
the
funding
will
be
there.

25
Secondly,
the
EPA
does
not
necessarily
benefit
19
LegaLink
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Francisco
415.359.2040
1
from
new
technology
or
new
cleanup
techniques,

2
management
techniques,
such
as
Triad,
when
there's
a
3
potential
of
saving
money.
We
now
have
a
vehicle
so
4
that
there
is
a
potential
recapture
of
funds
to
the
EPA
5
budget
for
this
new
use
of
new
technology
and
doing
it
6
faster.
The
solution
is
an
environmental
structured
7
settlement
that
provides
the
guarantee
and
provides
for
8
potential
recapture.

9
How
it
works.
A
structured
settlement,
again,

10
is
simply
a
way
of
making
money
­­
paying
money
into
the
11
future.
You
have
a
consent
decree
or
some
sort
of
an
12
agreement
where
the
potentially
responsible
party,
or
13
any
responsible
party,
agrees
to
make
future
payments.

14
They
are
matching
the
future
cleanup
costs.
That
15
obligation
is
assigned
to
a
third
party.
That
third
16
party
takes
the
funds
and
the
obligation
to
make
the
17
payment,
and
they
purchase
the
annuity
contract
from
a
18
large
U.
S.
life
company.
That
is
then
guaranteed
by
the
19
U.
S.
life
market
one
way
or
the
other.

20
There's
a
graphic
on
the
slide
presentation,
on
21
slide
No.
7,
if
you're
so
interested
in
looking
at
it.

22
This
is
a
new
product.
Again,
we
found
a
mechanism
of
23
solving
the
ownership
vehicle
problem.
And
in
the
first
24
year,
one
market
did
$
250
million
of
this,
so
it
has
25
been
done.
In
fact,
currently
it's
being
done
for
a
20
LegaLink
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Francisco
415.359.2040
1
landfill
site,
Superfund
site,
in
central
California.

2
So
it's
going
to
be
done,
and
you're
going
to
see
a
lot
3
more
projects
with
this
vehicle.

4
It
works
well
when
people
are
far
apart
on
the
5
cleanup
costs
in
present
value.
It's
good
if
it's
in
6
the
final
stages
of
cleanup.
Everything
is
7
well­
characterized.
Even
a
post­
ROD
record
of
decision
8
can
be
used
for
this,
as
well.
Large
industrial
sites
9
are
great
for
these,
well
characterized.
It's
also
a
10
good
vehicle
if
you
have
old
technology.
And
people
are
11
aware
that
new
technology
can
be
used.
Again,
you
can
12
flip
the
technology,
and
there
is
a
potential
for
13
recapture
one
way
or
the
other.

14
Secure
funding.
Again,
it
meets
EPA
needs
15
because
we
put
in
place
a
life
insurance
company
who
is
16
in
the
business
of
funding
long­
tail
transactions.

17
That's
what
they're
in
the
business
of
doing.
So
18
instead
of
having
a
consulting
company
perhaps
owning
19
the
obligation,
you
have
a
very
large
life
insurance
20
company
who
is
in
the
business
of
having
secured
21
transactions
long,
long
term.

22
There's
even
a
potential
of
even
an
23
in­
perpetuity
product
that's
being
discussed
now,
so
24
that
for
long­
term
use
and
land
use
control
issues,
land
25
stewardship
issues
can
be
projected
many,
many
years
in
21
LegaLink
San
Francisco
415.359.2040
1
the
future.
That's
something
very
exciting
that
may
2
come
up
in
the
future.
We'll
let
you
know
about
that.

3
Again,
meeting
EPA
needs;
potential
recapture
4
of
funds.
The
EPA
benefits
from
private
and
public
5
research
and
development,
and
may
also
drive
funding
of
6
new
technology,
so
that
other
sites,
not
just
the
one
7
under
consideration
­­
other
sites
might
be
raised
up
to
8
the
same
technology
level.
Basically,
I
call
it
the
9
"
Triple
I
concept":
It's
the
inherent
incentive
to
10
innovate.
There's
now
a
financial
incentive
to
do
so.

11
Sarbanes­
Oxley
for
some
PRP
may
become
a
12
problem;
we
will
see
more
and
more
disclosures
coming
13
down
the
road,
so
that
more
PRPs
may
be
coming
to
the
14
EPA
with
this
proposal.
So
we're
here
to
educate
so
you
15
may
be
ready
for
it
when
it
comes.

16
A
PRP
now,
because
of
the
new
rules,
will
not
17
have
an
incentive
to
mothball
a
property.
They'll
have
18
to
do
one
of
three
things:
Sell
the
property,
insure
19
the
risk,
or
assign
the
risk.
We
come
in
on
the
third
20
part,
where
we
help
people
assign
the
risk.

21
As
far
as
safety,
again
we
have
the
large
­­
at
22
least
one
market
is
a
very
large
market
in
the
Fortune
23
50,
and
looking
at
the
long­
term
tail.

24
This
is
different
than
other
products
because
25
it's
not
a
consulting
company
that
would
own
the
annuity
22
LegaLink
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Francisco
415.359.2040
1
contract.
There
are
others
who
do
have
that.

2
Consulting
companies
are
in
the
business
of
consulting,

3
and
life
insurance
companies
are
in
the
business
of
4
owning
long­
term
assets
and
providing
that
type
of
5
stewardship,
so
it's
a
better
fit
for
the
security.

6
And
just
in
conclusion,
again,
it's
a
way
to
7
get
guaranteed
cleanup
funding;
there's
a
potential
for
8
fund
recapture;
and
it
drives
technology
with
the
9
inherent
incentive
for
innovation.
This
is
called
an
10
"
environmental
structured
settlement."

11
Thank
you
very
much.

12
MS.
OVERMEYER:
Thank
you.

13
Georgina
Dannatt.

14
MS.
DANNATT:
My
name
is
Georgina
Dannatt;

15
Dannatt
and
Associates;
Fremont,
California.

16
First,
I
would
like
to
say
that
formal
setting
17
of
standards
by
EPA
is
a
much
needed
development.
As
an
18
environmental
banker,
first
working
for
a
bank
and
now
19
doing
outsource
work,
each
year
I
review
hundreds
of
20
Phase
One
environmental
site
assessments.
Some
reports
21
are
excellent,
but
many
of
the
reports
are
inadequate.

22
The
spirit
of
conducting
genuine
All
23
Appropriate
Inquiry
has
been
lost
as
commodity­
style
24
reports
have
overtaken
the
market.
Though
it
is
not
25
clear
whether
this
has
been
mainly
caused
by
demands
of
23
LegaLink
San
Francisco
415.359.2040
1
property
owners
for,
quote­
unquote,
clean
reports
or
2
competition
amongst
providers,
the
end
result
is
to
shy
3
away
from
findings
of
ASTM­
recognized
environmental
4
conditions
toward
a
"
No
Wrecks
R
Us"
approach.

5
One
thing
that
is
often
lacking
is
common
6
sense.
Unfortunately,
I
do
not
believe
the
7
performance­
based
standards
approach
will
remedy
many
of
8
the
current
problems.
In
some
cases,
it
may
be
9
necessary
for
the
proposed
rule
to
be
prescriptive,

10
rather
than
leaving
it
up
to
the
judgement
of
the
11
provider.

12
Frequently,
the
consultant
meets
only
the
13
minimum
requirements
due
to
time
and
pricing
pressures,

14
failing
to
answer
some
of
the
obvious
questions.
There
15
is
too
much
focus
on
what
the
current
site
is,
and
past
16
uses
may
be
completely
overlooked.
Additionally,
there
17
is
no
proper
investigation
of
current
uses,
such
as
18
the
basic
regulatory
compliance
status.
When
data
19
failure
is
encountered,
no
effort
is
made
to
obtain
data
20
from
an
alternate
source.

21
Under
a
performance­
based
approach,
the
22
situation
will
continue
to
be
largely
as
it
is
now,

23
where
unsophisticated
property
owners
do
not
understand
24
that
their
due
diligence
is
inadequate,
while
25
sophisticated
owners,
redevelopment
agencies,
and
24
LegaLink
San
Francisco
415.359.2040
1
lenders
call
for
a
higher,
more
thorough
level
of
2
investigation.

3
I'm
going
to
comment
directly
on
three
aspects
4
of
the
rule.
First,
I
believe
that
the
definition
of
5
Environmental
Professional
should
not
be
overly
6
restrictive.
To
do
a
Phase
One,
scientific
and
research
7
skills
are
necessary,
as
well
as
excellent
writing
and
8
communication
skills.

9
There
has
been
much
comment
from
the
10
engineering
community
that
only
licensed
professional
11
engineers
and
geologists
are
qualified.
Numerous
12
educational
backgrounds
are
suitable
training
in
13
scientific
methods,
including
chemistry,
toxicology,

14
industrial
hygiene,
biology
and
soil
science,
as
well
as
15
the
engineering
earth
science
and
environmental
science
16
disciplines
listed
in
the
proposed
rule.
In
addition,

17
people
with
as
diverse
backgrounds
as
history
and
18
geography
may
make
excellent
assessors.
But
regardless
19
of
the
provider's
education,
the
most
important
factors
20
are
on­
the­
job
training
and
experience.

21
A
professional
holding
a
state
license
who
22
practices
in
another
specialty
area
is
certainly
not
23
more
qualified
than
a
person
with
a
life
science
degree
24
whose
entire
career
is
performing
due
diligence
25
assessments.

25
LegaLink
San
Francisco
415.359.2040
1
My
second
area
of
comment
is
regarding
review
2
of
federal,
tribal,
state
and
local
government
records.

3
At
some
point
in
the
last
few
years,
many
providers
have
4
come
to
think
that
the
review
of
actual
records,
actual
5
agency
records,
are
now
optional
and
not
included
in
the
6
Phase
One
assessment.
Too
many
companies
obtain
a
7
commercially
available
listing
of
government
databases,

8
or
conduct
their
own
database
search
online,
and
that
is
9
their
only
inquiry
into
government
records.
Their
10
assumption
is
that
if
a
site
is
not
listed
with
a
11
problem,
there
are
no
issues.
Actual
review
of
agency
12
files
is
not
done,
because
it's
time­
consuming
and
13
therefore
adds
to
the
consultant's
cost,
or
else
access
14
cannot
be
obtained
in
the
time
frame
allotted
for
the
15
assessment.

16
I
believe
more
emphasis
must
be
put
on
actual
17
review
of
records
and
case
files.
Information
such
as
18
violations,
agency
site
inspection
reports,
and
lists
of
19
chemicals
used
by
previous
industrial
tenants
can
20
usually
only
be
obtained
through
review
of
the
local
21
file.
The
extent
of
soil
and
groundwater
contamination
22
is
rarely
listed
on
a
government
database,
and
without
23
file
review,
no
one
really
knows
if
the
subject
property
24
has
been
impacted
by
a
neighboring
site.

25
My
last
area
of
comment
is
regarding
how
far
26
LegaLink
San
Francisco
415.359.2040
1
back
an
inquiry
should
go.
Currently,
ASTM
1527
2
standard
calls
for
inquiries
to
go
back
to
1940
or
first
3
developed
use,
whichever
one
is
earlier.
In
over
half
4
the
Phase
One
reports
I
review,
this
standard
is
not
5
met,
with
research
sometimes
only
going
back
to
the
6
1960s
or
'
70s.

7
Sometimes
a
consultant
is
relying
on
aerial
8
photographs
as
the
primary
historical
resource,
and
9
aerials
are
not
available
for
an
early
period.
Fire
10
insurance
maps
and
city
directories
may
or
may
not
cover
11
the
site.
The
consultant
does
not
try
to
locate
another
12
source
of
information.
An
alternative
to
historical
13
sources,
such
as
city,
building,
or
tax
records
and
14
topographic
maps
that
may
go
back
to
the
1920s,
are
not
15
tapped
at
all.

16
When
ASTM
standards
were
developed
in
the
17
1990s,
a
look­
back
period
of
fifty
years
was
chosen.

18
This
date
is
a
good
indicater
of
when
many
industrial
19
chemicals
became
widely
used.
The
1940
date
is
still
20
valid
today.

21
I
believe
the
proposed
rule
should
be
22
prescriptive
in
calling
for
research
to
be
conducted
23
back
to
a
set
date,
rather
than
leaving
this
issue
up
to
24
the
provider.
It
cannot
be
ignored
that
pricing
factors
25
often
guide
research,
instead
of
technical
factors.

27
LegaLink
San
Francisco
415.359.2040
1
Thank
you.

2
MS.
OVERMEYER:
Thank
you
very
much.
Is
there
3
anyone
else
here
who
would
like
to
make
public
comment?

4
MR.
DILLMAN:
I
feel
I
need
to
make
an
5
amendment.

6
MS.
OVERMEYER:
Feel
free
to
come
up.

7
MR.
DILLMAN:
For
the
record,
I
was
the
first
8
speaker.
My
name
is
Malcolm
Dillman;
I
am
president
of
9
Intermountain
Environmental
Consultants
in
Salt
Lake
10
City.

11
MS.
OVERMEYER:
Thank
you.

12
Is
there
anyone
else
who
would
like
to
speak?

13
I
can
take
a
couple
of
minutes
to
answer
anybody's
14
questions
if
you
have
questions
that
are
just
15
clarifications
about
the
rule
or
the
process.

16
Does
anybody
here
have
any
questions?

17
(
No
response)

18
MS.
OVERMEYER:
With
that,
that's
the
end
of
19
our
meeting.

20
Thank
you
all
for
coming,
and
thank
you,

21
especially,
to
those
people
who
did
come
and
comment.

22
We
appreciate
it
very
much.

23
(
Public
meeting
adjourned
at
2:
43
p.
m.)

24
25
28
LegaLink
San
Francisco
415.359.2040
1
CERTIFICATE
OF
REPORTER
2
3
I,
RITA
R.
LERNER,
duly
authorized
4
shorthand
reporter,
do
hereby
certify:

5
That
the
foregoing
transcript
constitutes
a
6
true,
full
and
correct
transcript
of
my
shorthand
notes
7
taken
as
such
reporter
of
the
proceedings
herein
and
8
reduced
to
typewriting
under
my
supervision
and
control
9
to
the
best
of
my
ability.

10
11
12
13
14
__________________________________

15
16
17
18
19
20
21
22
23
24
25
29
LegaLink
San
Francisco
415.359.2040
