[Federal Register Volume 68, Number 44 (Thursday, March 6, 2003)]
[Proposed Rules]
[Pages 10675-10680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5324]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[FRN-7459-7]


Notice of Intent To Negotiate Proposed Rule on All Appropriate 
Inquiry

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Intent to Establish FACA Committee and Negotiate a 
Proposed Rule.

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SUMMARY: The Environmental Protection Agency (EPA) is giving notice 
that it intends to establish a Negotiated Rulemaking Committee under 
the Federal Advisory Committee Act (FACA) and the Negotiated Rulemaking 
Act (NRA) to negotiate proposed federal standards for conducting all 
appropriate inquiry. The purpose of the Committee will be to conduct 
discussions and reach consensus, if possible, on proposed regulatory 
language setting standards and practices for conducting all appropriate 
inquiry, as required by the Small Business Liability Relief and 
Brownfields Revitalization Act (the Brownfields Law). The Committee 
will consist of representatives of parties with a definable stake in 
the outcome of the proposed standards. EPA also is announcing the date 
of an open public meeting to discuss the use of the negotiated 
rulemaking process to develop a proposed rule. During the public 
meeting, EPA officials will discuss the Agency's plans for the 
establishment of a FACA committee to negotiate the proposed standards 
for all appropriate inquiry.

DATES: EPA must receive comments on this notice by April 7, 2003. 
Comments received after this date may not be considered. The public 
meeting will be held on April 15, 2003. The meeting is scheduled for 1 
p.m. to 3 p.m.

ADDRESSES: The public meeting will be held in Learning Forum Rooms A 
and B of the Marriott Learning Complex in the Ronald Reagan Building 
and International Trade Center at 1300 Pennsylvania Avenue NW., 
Washington, DC 20004. The Marriott Learning Center Complex is on the 
concourse level of the Ronald Reagan Building just inside the building 
entrance from the Federal Triangle Metro station.
    Comments on today's notice may be submitted electronically, by 
mail, or through hand delivery/courier. Follow the detailed 
instructions for submitting public comments provided in paragraph B of 
the SUPPLEMENTARY INFORMATION section below. Please reference Docket 
number SFUND-2003-0006 when submitting your comments.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA/CERCLA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing 
impaired). In the Washington, DC metropolitan area, call 703-412-9810 
or TDD 703-412-3323. For more detailed information on specific aspects 
of today's notice, contact Patricia Overmeyer, Office of Brownfields 
Clean up and Redevelopment (5105T), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-0002, 202-
566-2774. [email protected].

SUPPLEMENTARY INFORMATION:

General Information

A. How Can I Get Copies of the Background Materials Supporting Today's 
Notice or Other Related Information?

    1. EPA has established an official public docket for this notice 
under Docket ID No. SFUND-2003-0006. The official public docket 
consists of the documents specifically referenced in this rule and 
other information related to this notice. Although a part of the 
official docket, the public docket does not include Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. The official public docket is the collection of 
materials that is available for public viewing at the EPA Docket Center 
located at 1301 Constitution Ave. NW., Washington, DC 20004. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding federal holidays. To review docket materials, it is 
recommended that the public make an appointment by calling (202) 566-
0276. The public may copy a maximum of 100 pages from any regulatory 
docket at no charge. Additional copies cost $0.15/page.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    You may use EPA Dockets at http://www.epa.gov/edocket/ to access 
the index listing of the contents of the official public docket, and to 
access those documents in the public docket that are available 
electronically. Once in the system, select ``search,'' then key in the 
docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI, and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified above.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff. For additional information 
about EPA's electronic public docket visit EPA Dockets online or see 67 
FR 38102, May 31, 2002.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your

[[Page 10676]]

comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA will not consider late comments in formulating a final decision.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
party submitting the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    Your use of EPA's electronic public docket to submit comments to 
EPA electronically is EPA's preferred method for receiving comments. Go 
directly to EPA Dockets at http://www.epa.gov/edocket, and follow the 
online instructions for submitting comments. To access EPA's electronic 
public docket from the EPA Internet Home Page, select ``Information 
Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the system, select 
``search,'' and then key in Docket ID No. SFUND-2003-0006. The system 
is an ``anonymous access'' system, which means EPA will not know your 
identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    2. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected]. Make sure this electronic copy is in 
an ASCII format that does not use special characters or encryption. 
Cite the docket Number SFUND-2003-0006 in your electronic file. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    3. Disk or CD ROM. You may submit comments on a disk or CD ROM that 
you mail to the mailing address identified above. These electronic 
submissions will be accepted in WordPerfect or ASCII file format. Avoid 
the use of special characters and any form of encryption.
    4. By Mail. Send two (2) copies of your comments to: EPA Docket 
Center, U.S. Environmental Protection Agency Headquarters, Mail Code 
5305T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460, Attention 
Docket ID No. SFUND-2003-0006.
    5. By Hand Delivery or Courier. Deliver your comments to: EPA 
Docket Center, EPA West Building, Room B-102, 1301 Constitution Ave., 
NW., Washington, DC 20007. Attention Docket ID No. SFUND-2003-0006. 
Such deliveries are only accepted during the Docket's normal hours of 
operation as identified above.

Preamble

I. Statutory Authority
II. Background
III. Proposed Negotiating Procedures
IV. Comments Requested

I. Statutory Authority

    This notice announcing EPA's intent to negotiate a proposed 
regulation setting federal standards for the conduct of all appropriate 
inquiry was developed under the authority of sections 563 and 564 of 
the Negotiated Rulemaking Act of 1996 (5 U.S.C. 561, Public Law 104-
320). The proposed regulation setting standards for the conduct of all 
appropriate inquiry that EPA is proposing to develop under a negotiated 
rulemaking process will be developed under the authority of section 
101(35)(B) of CERCLA (42 U.S.C. 9601(35)(B)(ii)).

II. Background

    As required by the Federal Advisory Committee Act (5 U.S.C. App. 2. 
section 9(a)(2)), and the Negotiated Rulemaking Act of 1996 (5 U.S.C. 
561, Pub. L. 104-320), we are giving notice that the Environmental 
Protection Agency is establishing a Negotiated Rulemaking Committee to 
develop proposed standards and practices for conducting all appropriate 
inquiry.
    On January 11, 2002, President Bush signed the Small Business 
Liability Relief and Brownfields Revitalization Act (``the Brownfields 
Law''). In general, the Brownfields Law amends CERCLA and provides 
funds to assess and clean up brownfields sites, clarifies CERCLA 
liability provisions for certain landowners, and provides funding to 
enhance State and Tribal clean up programs. Subtitle B of Title II of 
the Brownfields Law revises some of the provisions of CERCLA Section 
101(35) clarifying the requirements necessary to establish the innocent 
landowner defense under CERCLA in addition to providing Superfund 
liability limitations for bona fide prospective purchasers and 
contiguous property owners. Among the requirements added to CERCLA is 
the requirement that such parties undertake ``all appropriate inquiry'' 
into prior ownership and use of a property at the time at which a party 
acquires the property.
    The Brownfields Law requires EPA to develop regulations 
establishing standards and practices for how to conduct all appropriate 
inquiry and promulgate the standards within two years of its enactment. 
Congress included in the Brownfields Law a list of criteria that the 
Agency must address in the regulations establishing standards and 
practices for conducting all appropriate inquiry (section 
101(35)(2)(B)(ii)). The Brownfields Law also requires that parties 
receiving funding under the federal brownfields program to conduct site 
assessments must conduct the site assessment in accordance with the 
standards and practices for all appropriate inquiry established under 
the same provision of the Brownfields Law.

A. Negotiated Rulemaking

    EPA has decided to use the negotiated rulemaking process to develop 
proposed federal standards for conducting all appropriate inquiry. In 
the Brownfields Law, Congress mandated that EPA develop regulations 
establishing standards and practices for conducting all appropriate 
inquiry and set forth a series of criteria for the Agency to follow in 
developing the federal regulations. The most important reason for using 
the regulatory negotiation process for developing a proposed federal 
standard is that all stakeholders strongly support a consensual 
rulemaking effort. EPA believes a regulatory negotiation process will 
be less adversarial than the regulatory rulemaking process and that a 
regulatory negotiation will result in a proposed rule that will 
effectively reflect Congressional intent.
    A regulatory negotiation process will allow EPA to solicit direct 
input from informed, interested, and affected parities when drafting 
the regulation, rather than delay public input until the public comment 
period provided after

[[Page 10677]]

publishing a proposed rule; therefore, ensuring that the rule is more 
sensitive to the needs and limitations of both the parties and the 
Agency. A rule drafted by negotiation with informed and affected 
parties is expected to be more pragmatic and more easily implemented, 
therefore providing the public with the benefits of the rule while 
minimizing the negative impact of a regulation conceived or drafted 
without the input of outside knowledgeable parties. Since a negotiating 
committee includes representatives from the major stakeholder groups 
affected by or interested in the rule, the number of public comments on 
the proposed rule may be reduced and those comments that are received 
may be more moderate. EPA anticipates that there will be a need for few 
substantive changes to a proposed rule developed under a regulatory 
negotiation process prior to the publication of a final regulation.

B. The Concept of Negotiated Rulemaking

    Usually, EPA develops a proposed rulemaking using Agency staff and 
consultant resources. The concerns of affected parties are made known 
through various informal contacts, the circulation of a draft proposal 
to known affected parties for their informal comment, through advance 
notices of proposed rulemaking published in the Federal Register, or 
formal consultation with an advisory committee. After the notice of 
proposed rulemaking is published for comment, affected parties may 
submit arguments and data defining and supporting their positions with 
regard to the issues raised in the proposed rule. All communications 
from affected parties are directed to the Agency. In general, there is 
not much communication among parties representing different interests. 
Many times, effective regulations have resulted from such a process. 
However, as Congress noted in the Negotiated Rulemaking Act, such 
regulatory development procedures may ``discourage the affected parties 
from meeting and communicating with each other, and may cause parties 
with different interests to assume conflicting and antagonistic 
positions * * *'' (Sec. 2(2)). Congress also stated that ``adversarial 
rulemaking deprives the affected parties and the public of the benefits 
of face-to-face negotiations and cooperation in developing and reaching 
agreement on a rule. It also deprives them of the benefits of shared 
information, knowledge, expertise, and technical abilities possessed by 
the affected parties.'' (Sec. 2(3)).
    Using negotiated rulemaking to develop the proposed rule is 
fundamentally different. Negotiated rulemaking is a process in which a 
proposed rule is developed by a committee composed of representatives 
of all those interests that will be significantly affected by the rule. 
Decisions are made by consensus, which generally require concurrence 
among the interests represented. The process is started by the Agency's 
careful identification of all interests potentially affected by the 
rulemaking under consideration. To help in this identification process, 
the Agency publishes a notice in the Federal Register, such as this 
one, which identifies a preliminary list of interests and requests 
public comment on that list. Following receipt of the comments, the 
Agency establishes an advisory committee representing these various 
interests to negotiate a consensus on the terms of a proposed rule. 
Representation on the committee may be direct, that is, each member 
represents a specific interest, or may be indirect, through coalitions 
of parties formed for this purpose. The Agency is a member of the 
committee representing the Federal government's own set of interests. 
The negotiated rulemaking advisory committee is facilitated by a 
trained mediator, who facilitates the negotiation process. The role of 
this mediator, or facilitator, is to apply proven consensus building 
techniques to the advisory committee setting.
    Once a regulatory negotiation advisory committee reaches consensus 
on the provisions of a proposed rule, the Agency, consistent with its 
legal obligations, uses such consensus as the basis of its proposed 
rule, to be published in the Federal Register. This provides the 
required public notice and allows for a public comment period. Other 
participants and other interested parties retain their rights to 
comment, participate in an informal hearing (if requested) and judicial 
review. EPA anticipates, however, that the pre-proposal consensus 
agreed upon by this Committee will effectively address all major issues 
prior to publication of a proposed rulemaking.

C. Proposed Rule Setting Standards for All Appropriate Inquiry

    The negotiated Rulemaking Act allows EPA to establish a negotiated 
rulemaking committee if it is determined that the use of the negotiated 
rulemaking procedure is in the public interest. We understand that 
voluntary standards developed by standards developing organizations, 
such as the ASTM 1527-2000 standard, are available and are currently 
being used to conduct all appropriate inquiry in conjunction with 
private real estate property transactions. In addition, site assessment 
protocols have been established under the federal Superfund program and 
Resource Conservation and Recovery Act (RCRA) corrective action 
programs. Similarly, many State response programs include site 
assessment requirements. We intend to develop federal regulations that 
build upon the depth of experience accrued in both the public and 
private sectors in implementing these standards and programs. We 
believe that building upon currently available private sector standards 
for undertaking all appropriate inquiry as well as building on the 
experience of state and federal government site assessment programs is 
the most efficient and economical way to develop federal regulatory 
standards that will both meet the criteria set in the Brownfields Law 
and ensure minimal disruption to the private market and state and 
federal site assessment programs.
    EPA has determined that the regulatory negotiation process will 
ensure that we obtain a diverse array of input from both private sector 
stakeholders and state program officials who are familiar with and 
experienced in implementing processes to conduct all appropriate 
inquiry. During the fall of 2002, we initiated the convening stage of 
the negotiated rulemaking process to identify appropriate stakeholder 
groups and solicit advice and input from experienced public and private 
sector users of similar standards. We retained an expert facilitator to 
contact parties potentially affected by the all appropriate inquiry 
rule to determine whether or not stakeholders are interested in 
participating in a negotiated rulemaking process and determine the 
potential for stakeholder issues to be successfully addressed through a 
regulatory negotiation. Following an evaluation of stakeholder interest 
and input during the convening process, our facilitator determined that 
there is sufficient enthusiasm among stakeholders for a negotiated 
rulemaking process and almost all stakeholders that we identified and 
interviewed expressed a belief that potential issues and differences 
between interested parties could be successfully addressed and 
negotiated through the regulatory negotiation process. A description of 
the issues raised by identified stakeholders and a list of interested 
stakeholders, as well as the findings of our facilitator are contained 
in the final report entitled Convening Assessment Report on the

[[Page 10678]]

Feasibility of a Negotiated Rulemaking Process to Develop the All 
Appropriate Inquiry Standard Required Under the Small Business 
Liability Relief and Brownfields Revitalization Act. A copy of this 
final report is included in the regulatory docket for today's notice.

D. Agency Commitment

    In initiating this regulatory negotiation process, EPA is making a 
commitment to provide adequate resources to ensure timely and 
successful completion of the process. This commitment includes making 
the process a priority activity for all representatives, components, 
officials, and personnel of the Agency who need to be involved in the 
rulemaking, from the time of initiation until such time as a final rule 
is issued or the process is expressly terminated. EPA will provide 
administrative support for the process and will take steps to ensure 
that the negotiated rulemaking committee has the dedicated resources it 
requires to complete its work in a timely fashion. These include the 
provision or procurement of such support services as: Properly equipped 
space adequate for public meetings and caucuses; logistical support; 
word processing and distribution of background information; the service 
of a facilitator; and such additional research and other technical 
assistance as may be necessary.
    To the maximum extent possible consistent with the legal 
obligations of the Agency, EPA will use the consensus of the regulatory 
negotiation committee as the basis for the rule proposed by the Agency 
for public notice and comment. The Agency is committed to publishing a 
consensus proposal that is consistent with the legal mandate of the 
Brownfields Law.

E. Negotiating Consensus

    As discussed above, the negotiated rulemaking process is 
fundamentally different from the usual development process for 
developing a proposed rule. Negotiation allows interested and affected 
parties to discuss possible approaches to various issues rather than 
only asking them to respond to details on an Agency proposal. The 
negotiation process involves a mutual education of the parties by each 
other on the practical concerns about the impact of such approaches. 
Each committee member participates in resolving the interests and 
concerns of other members, rather than leaving it up to EPA to bridge 
different points of view.
    A key principle of negotiated rulemaking is that agreement is by 
consensus of all the interests. Thus, no one interest or group of 
interests is able to control the process. The Negotiated Rulemaking Act 
defines consensus as the unanimous concurrence among interests 
represented on a negotiated rulemaking committee, unless the committee 
itself unanimously agrees to use a different definition. In addition, 
experience has demonstrated that using a trained mediator to facilitate 
this process will assist all potential parties, including EPA, to 
identify their interests in the rule and so to be able to reevaluate 
previously stated positions on issues involved in this rulemaking 
effort.

III. Proposed Negotiating Procedures

A. Key Issues for Negotiation

    We anticipate the issues to be addressed by the Negotiated 
Rulemaking Committee on All Appropriate Inquiry may include:
    [sbull] Balancing the goals and priorities of state regulatory 
programs, privately-developed consensus standards, and the 
Congressional mandate for a federal standard for conducting all 
appropriate inquiry.
    [sbull] Developing clear and concise standards that address each of 
the statutory criteria (Section 101(35)(B)(iii) of CERCLA).
    [sbull] Balancing the need to put abandoned properties back into 
productive reuse with concerns for public health and environmental 
protection.
    [sbull] Balancing a need for clear and comprehensive standards that 
will ensure a high level of certainty in identifying potential 
environmental concerns without imposing time consuming and 
unnecessarily expensive regulatory requirements.
    [sbull] Defining the shelf life of an assessment and the extent to 
which an assessment, or the results of all appropriate inquiry, may be 
transferred to subsequent property owners.
    [sbull] Minimizing disruptions to the current real estate market 
due to the development of a federal standard that is different from 
current industry protocols while ensuring that the federal standard is 
protective and in compliance with statutory criteria.
    [sbull] Identifying the extent to which sampling and analysis of 
potentially contaminated property may be required to document the 
presence, or the lack of, environmental contamination.
    [sbull] Identifying what information is necessary on the potential 
contamination of adjacent and adjoining properties, as well as 
underlying groundwater resources.
    [sbull] Establishing a list of contaminants to include in the 
investigation when conducting all appropriate inquiry.

B. Committee Formation

    The negotiated rulemaking Committee will be formed and operated in 
full compliance with the requirements of the Federal Advisory Committee 
(FACA) in a manner consistent with the requirements of the Negotiated 
Rulemaking Act.

C. Interests Involved/Committee Membership

    The Agency intends to conduct the negotiated rulemaking proceedings 
with particular attention to ensuring full and adequate representation 
of those interests that may be significantly affected by the proposed 
rule setting standards for conducting all appropriate inquiry. Section 
562 of the NRA defines the term ``interest'' as ``with respect to an 
issue or matter multiple parties which have a similar point of view or 
which are likely to be affected in a similar manner.'' Listed below are 
parties which the Agency has identified tentatively as being 
``significantly affected'' by the matters that may be included in the 
proposed rule.
    EPA anticipates that the negotiating committee will be composed of 
approximately 25 members representing parties of interest to the 
rulemaking. EPA will monitor membership carefully to ensure that there 
is a balanced representation from affected and interested stakeholder 
groups. EPA anticipates that the committee will contain the following 
types of representatives:
    [sbull] Environmental Interest Groups
    [sbull] Environment Justice Community
    [sbull] Federal Government
    [sbull] Tribal Government
    [sbull] State Government
    [sbull] Local Government
    [sbull] Real Estate Developers
    [sbull] Bankers and Lenders
    [sbull] Environmental Professionals
    We point out that one purpose of this notice is to determine 
whether federal standards for conducting all appropriate inquiry will 
significantly affect interests that are not listed above, as well as 
whether the list provided below identifies accurately and 
comprehensively a group of stakeholders representing the interests 
listed above. We invite comment and suggestions on the list of 
``significantly affected'' interests, as well as the list of suggested 
stakeholders, or committee members.
    EPA recognizes that the regulatory actions we take under this 
program may at times affect various segments of society in different 
ways, and that this may in some cases produce unique ``interests'' in a 
proposed rule based on

[[Page 10679]]

income, gender, or other factors. Particular attention will be given by 
the Agency to ensure that any unique interests that have been 
identified in this regard, and that may be significantly affected by 
the proposed rule, are fully represented.
    EPA tentatively identified the following list of possible interests 
and parties as representing the above list of interested stakeholder 
groups. The following list includes those organizations tentatively 
identified by EPA as being either a potential member of the Committee, 
or a potential member of a coalition that would in turn nominate a 
candidate to represent one of the significantly affected interests 
listed above:
    [sbull] U.S. Environmental Protection Agency
    [sbull] Sierra Club
    [sbull] Environmental Defense
    [sbull] Center for Public Environmental Oversight
    [sbull] Partnership for Sustainable Brownfields Redevelopment
    [sbull] Association of State and Territorial Solid Waste Management 
Officials
    [sbull] National Association of Attorneys General
    [sbull] Gila Tribe, Department of Environmental Quality
    [sbull] U.S. Conference of Mayors
    [sbull] National Association of Local Government Environmental 
Professionals
    [sbull] National Association of Home Builders
    [sbull] The Real Estate Roundtable
    [sbull] National Association of Industrial and Office Parks
    [sbull] Trust for Public Land
    [sbull] National Brownfields Association
    [sbull] Bank of America
    [sbull] Freddie Mac
    [sbull] Mortgage Bankers Association
    [sbull] Wasatch Environmental
    [sbull] National Groundwater Association
    [sbull] Associated Soil and Foundation Engineers
    The list of potential parties shown above is not presented as a 
complete or exclusive list from which committee members will be 
selected, nor does inclusion on the list of potential parties mean that 
a party on the list has agreed to participate as a member of the 
committee or as a member of a coalition. The list merely indicates 
parties that EPA has tentatively identified as representing 
significantly affected interests in the outcome of the proposed rule 
establishing federal standards for the conduct of all appropriate 
inquiry. This document gives notice of this process to other potential 
participants and affords them the opportunity to request representation 
in the negotiations. The procedure for requesting such representation 
is set out under Section I ``General Information'' part of this 
document. In addition, comments and suggestions on this tentative list 
are invited.
    The negotiating group should not exceed 25 members. The Agency 
believes that more than 25 members would make it difficult to conduct 
effective negotiations. EPA is aware that there are many more potential 
participants, whether they are listed here or not, than there are 
membership slots on the Committee. The Agency does not believe, nor 
does the NRA contemplate, that each potentially affected group must 
participate directly in the negotiations; nevertheless, each affected 
interest can be adequately represented. To have a successful 
negotiation, it is important for interested parties to identify and 
form coalitions that adequately represent significantly affected 
interests. These coalitions, to provide adequate representation, must 
agree to support, both financially and technically, a member to the 
Committee whom they will choose to represent their ``interest.''
    It is very important to recognize that interested parties who are 
not selected to membership on the Committee can make valuable 
contributions to this negotiated rulemaking effort in any of several 
ways:
    [sbull] The person could request to be placed on the Committee 
mailing list, submitting written comments, as appropriate;
    [sbull] The person could attend the Committee meetings, which are 
open to the public, caucus with his or her interest's member on the 
Committee, or even address the Committee (usually allowed at the end of 
an issue's discussion or the end of the session, as time permits); or
    [sbull] The person could assist in the work of a workgroup that 
might be established by the Committee.
    Informal workgroups are usually established by an advisory 
committee to assist the Committee in ``staffing'' various technical 
matters (e.g., researching or preparing summaries of the technical 
literature or comments on particular matters such as economic issues) 
before the Committee so as to facilitate Committee deliberations. They 
also might assist in estimating costs and drafting regulatory text on 
issues associated with the analysis of the affordability and benefits 
addressed, and formulating drafts of the various provisions and their 
justification previously developed by the committee. Given their 
staffing function, workgroups usually consist of participants who have 
expertise or particular interest in the technical matter(s) being 
studied.
    Because it recognizes the importance of this staffing work for the 
Committee, EPA will provide appropriate technical expertise for such 
workgroups. EPA requests comment regarding particular appointments to 
membership on the regulatory negotiation committee. Members can be 
individuals or organizations. If the effort is to be fruitful, 
participants should be able to fully and adequately represent the 
viewpoints of their respective interests. Those who wish to be 
appointed as members of the committee should submit a request to EPA, 
in accordance with the public participation procedures outlined in 
Section I ``General Information'' of this notice.
    The list of potential committee members provided above includes 
those who have been tentatively identified by EPA as being either a 
potential member of the Committee, or a potential member of a coalition 
that would in turn nominate a candidate to represent one of the 
significantly affected interests, also listed above.

D. Good Faith Negotiation

    Committee members should be willing to negotiate in good faith and 
have the authority, from his or her constituency, to do so. The first 
step is to ensure that each member has good communications with his or 
her constituencies. An intra-interest network of communication should 
be established to bring information from the support organization to 
the member at the table, and to take information from the table back to 
the support organization. Second, each organization or coalition 
should, therefore, designate as its representative an official with 
credibility and authority to insure that needed information is provided 
and decisions are made in a timely fashion. Negotiated rulemaking 
efforts can require a very significant contribution of time by the 
appointed members that must be sustained for up to a year. Other 
qualities that can be very helpful are negotiating experience and 
skills, and sufficient technical knowledge to participate in 
substantive negotiations.
    Certain concepts are central to negotiating in good faith. One is 
the willingness to bring all issues to the bargaining table in an 
attempt to reach a consensus, instead of keeping key issues in reserve. 
The second is a willingness to keep the issues at the table and not 
take them to other forums. Finally, good faith includes a willingness 
to move away from the type of positions usually taken in a more

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traditional rulemaking process, and instead explore openly with other 
parties all ideas that may emerge from the discussions of the 
committee.

E. Facilitator

    The facilitator will not be involved with the substantive 
development of the standard. Rather, the facilitator's role generally 
includes:
    [sbull] Facilitating the meetings of the committee in an impartial 
manner; and
    [sbull] Impartially assisting the members of the Committee in 
conducting discussions and negotiations;

F. EPA Representative

    The EPA representative will be a full and active participant in the 
consensus building negotiations. The Agency's representative will meet 
regularly with various senior Agency officials, briefing them on the 
negotiations and receiving their suggestions and advice, to effectively 
represent the Agency's views regarding the issues before the Committee. 
EPA's representative also will ensure that the entire spectrum of 
federal governmental interests affected by the all appropriate inquiry 
rulemaking, including the Office of Management and Budget, the 
Department of Justice, and other Departments and agencies, are kept 
informed of the negotiations and encouraged to make their concerns 
known in a timely fashion.

G. Committee Notice and Schedule

    EPA will have an open public meeting of all parties to discuss the 
possibility of using negotiated rulemaking on April 15, 2003. The 
Public Meeting will be held in Learning Forum Rooms A and B of the 
Marriott Learning Complex in the Ronald Reagan Building at 1300 
Pennsylvania Avenue NW., Washington, DC 20004. The meeting is scheduled 
for 1 p.m. to 3 p.m. If EPA proceeds with a negotiated rulemaking 
committee on all appropriate inquiry, EPA plans for the Committee to 
begin deliberations in May, 2003 and conclude negotiations in December, 
2003.
    After evaluating the comments on this announcement and the requests 
for representation, EPA will issue a notice that will announce the 
establishment of the committee and its membership, unless after 
reviewing the comments, it is determined that such an action is 
inappropriate. The negotiation process will begin once the committee 
membership roster is published in the Federal Register.

IV. Comments Requested

    EPA requests comments on whether it should use negotiated 
rulemaking to develop draft language for this rule and the extent to 
which the issues, parties and procedures described above are adequate 
and appropriate.

    Dated: February 27, 2003.
Thomas P. Dunne,
Associate Assistant Administrator, EPA Office of Solid Waste and 
Emergency Response.
[FR Doc. 03-5324 Filed 3-5-03; 8:45 am]
BILLING CODE 6560-50-P