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

2 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.

3 Small Business Liability Relief and Brownfields Revitalization Act New liability protections for: Bona fide prospective purchasers Contiguous property owners Revised provision: Innocent landowner

4 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

5 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

6 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

7 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 E ) or the interim standard (ASTM E or E ) 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 E standard.

8 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

9 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

10 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

11 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

12 Changes from the Proposed Rule Definition of Environmental Professional Shelf Life (clarifications) Searches for Institutional Controls Information gathered by purchaser or user

13 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

14 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

15 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.

16 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…

17 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.

18 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

19 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.

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

21 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

22 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

23 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

24 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

25 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

26 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

27 References – ASTM E Final rule references the ASTM E standard as consistent and compliant with the regulatory standards. Site assessments conducted according to the ASTM E standard will be recognized as compliant with final rule.

28 Additional Information Additional Information available at Federal Register Notice Fact sheets Response to Comments Document