final rule setting federal standards for conducting all appropriate inquiries u.s. epa brownfields...
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Final Rule Setting Federal Standards for Conducting All Appropriate Inquiries
U.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 EPA’s 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 property’s 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