Final Rule Setting Federal Standards for Conducting All Appropriate Inquiries U.S. EPA Brownfields Program

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Final Rule Setting Federal Standards for
Conducting All Appropriate InquiriesU.S. EPA
Brownfields Program
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Small Business Liability Relief and Brownfields
Revitalization Act

• Provided new liability protections for purchasers
  of potentially contaminated properties.
• Parties can purchase contaminated property with
  knowledge of the contamination and not be held
  liable if they comply with certain conditions.

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Small Business Liability Relief and Brownfields
Revitalization Act

• New liability protections for
• Bona fide prospective purchasers
• Contiguous property owners
• Revised provision
• Innocent landowner

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Statutory Requirements for CERCLA Liability
Protections

• Threshold Criteria
• Purchaser is not a responsible party and not
  affiliated with a responsible party.
• Conduct All Appropriate Inquiries prior to
  purchase.
• Continuing Obligations after purchase

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Small Business Liability Relief and Brownfields
Revitalization Act

• The 2002 Brownfields Amendments to CERCLA require
  EPA to develop regulations establishing standards
  and practices for conducting all appropriate
  inquiries.
• Statute lists ten criteria EPA must include in
  regulations
• Statute establishes interim standard

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Overview of the Rulemaking Process

• The proposed All Appropriate Inquiries (AAI)
  regulation was developed through a negotiated
  rulemaking process
• Proposed rule was published on August 26, 2004
• Public comment period ended November 30, 2004
• Final Rule in Federal Register November 1, 2005

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Effective Date

• The effective date for the final rule is November
  1, 2006, one year after publication in the
  Federal Register.
• Until November 1, 2006, either the final
  regulation (or ASTM E1527-05) or the interim
  standard (ASTM E1527-00 or E1527-97) can be used
  to satisfy the statutory requirements for
  conducting all appropriate inquiries.
• After November 1, 2006, parties must follow the
  provisions of the final rule or use the ASTM
  E1527-05 standard.

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Applicability of the Rule

• The final rule is applicable to
• Parties who may potentially claim protection from
  CERCLA liability as
• an innocent landowner,
• a bona fide prospective purchaser, or
• a contiguous property owner and
• Parties who receive grants under the EPAs
  Brownfields Grant program to assess and
  characterize properties
• Parties applying for Brownfields grants who must
  establish BFPP status

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Why Comply with AAI?

• Required if seeking protection from CERCLA
  liability
• Required of parties who receive EPA Brownfields
  Assessment Grants
• To understand potential environmental risks
  associated with a property prior to purchase
• Gain information that will help property owner
  comply with continuing obligations after
  purchase

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Continuing Obligations

• Comply with land use restrictions
• Do not impede effectiveness or integrity of
  institutional controls
• Take reasonable steps
• Provide cooperation, assistance and access
• Comply with CERCLA information requests and
  subpoenas

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All Appropriate Inquiries Final Rule

• Final Rule is very similar to proposed rule
• Public commenters generally supported proposed
  rule
• Majority of comments were on the proposed
  definition of environmental professional

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Changes from the Proposed Rule

• Definition of Environmental Professional
• Shelf Life (clarifications)
• Searches for Institutional Controls
• Information gathered by purchaser or user

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Overview of the Final Rule

• Definition of Environmental Professional
• AAI must be conducted within one year prior to
  acquisition
• Objectives and Performance Factors
• Interviews
• Reviews of Historical Sources of Information
• Searches for Institutional and Engineering
  Controls
• Reviews of Government Records
• Visual Inspection

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Definition of Environmental Professional

• Person overseeing the AAI and who signs report
  must meet definition.
• Environmental Professional is
• Person who has sufficient specific education,
  training, and experience to exercise professional
  judgment to develop opinions and conclusions
  regarding the presence or releases or threatened
  releases of hazardous substances and

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Definition of Environmental Professional (cont.)

• Hold a P.E., P.G., or other state or federal
  government certification or environmental
  professional license and have 3 years of relevant
  full-time experience as environmental
  professional OR
• Have a degree in science or engineering and 5
  years of relevant full time experience OR
• Have 10 years of relevant full-time experience.

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Definition of Environmental Professional (cont.)

• Relevant Experience
• Participation in the performance of all
  appropriate inquiries investigations,
  environmental site assessments, or other site
  investigations that may include environmental
  analyses, investigations, and remediation which
  involve the understanding of surface and
  subsurface environmental conditions and the
  processes used

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When to conduct AAI

• All appropriate inquiries must be conducted
  within one year prior to acquiring the property
• Certain aspects of all appropriate inquires must
  be conducted or updated within 180 days of
  purchase date.
• Previously-conducted all appropriate inquiries
  may be used as sources of information, even if
  more than a year old.

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Objectives and Performance Factors

• Identify conditions indicative of releases or
  threatened releases of hazardous substances.
• Identify particular information
• Uses and occupancies of property
• Uses of hazardous substances
• Waste management activities
• Corrective actions and response activities
• Institutional and engineering controls
• Nearby and adjoining properties with
  environmental conditions

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Objectives and Performance Factors (cont)

• Gather information required to meet standards
  that is
• Publicly available,
• Obtainable within reasonable time and cost
  constraints, and
• Can be practically reviewed.
• Review and evaluate thoroughness and reliability
  of information gathered.

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Interviews

• Current owners/occupants
• Past owners/occupants and others, if necessary to
  meet objectives and performance factors
• Neighboring property owners, if property is
  abandoned

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Reviews of Historical Sources of Information

• Review records covering a period of time back to
  the propertys first developed use or when it
  first had structures
• Records may include, but are not limited to
• Aerial photos
• Fire insurance maps
• Building department records
• Chain of title
• Land use records

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Reviews of Government Records

• Must review Federal, State, and Local government
  records (or data bases containing government
  records) for subject and nearby properties
• Review Tribal records if property is located on
  or near tribal-owned lands

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Reviews of Activity and Use Limitations

• The required search for institutional and
  engineering controls is limited to the subject
  property
• Search for recorded environmental cleanup liens
  those filed or recorded under federal, state,
  tribal or local law
• Registries of engineering controls (if available)
  may provide information on nearby properties with
  remaining environmental contamination

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Visual Inspections

• On-site visual inspection of subject property
• Limited exemption from requirement to perform the
  inspection on-site
• Visual inspection of adjoining properties
  (nearest vantage point)
• EPA recommends that the environmental
  professional perform visual inspection

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Retention of Previous AAI Requirements (SARA)

• Final Rule retains previous all appropriate
  inquiries requirements from previous innocent
  landowner provisions (under SARA)
• Relationship between purchase price vs. value of
  property, if not contaminated
• Specialized knowledge
• Commonly known and reasonable ascertainable
  information
• Degree of obviousness and ability to detect

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Data Gaps

• Environmental Professional must identify data
  gaps that affect his or her ability to identify
  conditions indicative of releases or threatened
  releases of hazardous substances on, at, in, or
  to the subject property.
• Comment on significance of data gaps
• Sampling and analysis may be prudent to address
  data gaps not required

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References ASTM E1527-05

• Final rule references the ASTM E1527-05 standard
  as consistent and compliant with the regulatory
  standards.
• Site assessments conducted according to the ASTM
  E1527-05 standard will be recognized as compliant
  with final rule.

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Additional Information

• Additional Information available at
  www.epa.gov/brownfields
• Federal Register Notice
• Fact sheets
• Response to Comments Document
• overmeyer.patricia_at_epa.gov
• paar.dorrie_at_epa.gov
• peterson.alan_at_epa.gov