Phase I:
All Appropriate Inquiry Developments
The Small Business Liability Relief and Revitalization Act (the Brownfields Law) signed into law by President Bush on January 11, 2002, attempts to clarify CERCLA liability provisions for certain landowners and potential property owners. The Brownfields Law provides liability protections for certain property owners, if the property owners comply with certain provisions, including conducting "all appropriate inquiry" into present and past uses of the property and the potential presence of environmental contamination on the property. The Brownfields Law amends Section 101(35)(B) of CERCLA to include an interim standard for conducting all appropriate inquiry and requires EPA to promulgate regulations that establish federal standards and practices for conducting all appropriate inquiry.
The all appropriate inquiry standards and practices are relevant to:
- the innocent landowner defense to CERCLA liability (§101 (35));
- the contiguous property exemption to CERCLA liability (§107 (q));
- the bona fide prospective purchaser exemption to CERCLA liability (§107 (r)(1) and (§101 (40)); and
- the brownfields site characterization and assessment grant programs (§104 (k)(2)).
EPA established a Negotiated Rulemaking Committee under the Federal Advisory Committee Act (FACA) and the Negotiated Rulemaking Act (NRA) for the purpose of conducting discussions and reaching consensus. On November 14, 2003, after more than six months of negotiation, the AAI Committee reached substantial consensus on a proposed regulation establishing an AAI standard. The AAI Committee's consensus proposal wasexpected to result in issuance of a new AAI rule by January 11, 2004. The January 11 deadline passed, however, without publication of a proposed rule in the Federal Register.
Currently, ASTM 1527 is the basis for conducting due diligence. When comparing the draft AAI rule to ASTM 1527 the major differences include:
- A broader scope of environmental inquiry.
- A performance-based approach to conducting all appropriate inquiry instead of a prescriptive approach.
- Extensive reliance on the EP’s professional judgment.
- The EP to have specific educational and experience requirements.
- Users to share certain types of information with the EP because their obligations in the AAI process are more defined.
- Identification of data gaps, a description of the efforts to resolve them, and an opinion about the impact of the data gaps on the ability to identify conditions indicative of releases or threatened releases of hazardous substances.
- The EP to express written opinions about the thoroughness and reliability of the data gathered in the AAI process and make certain affirmative declarations in the written AAI report about the EP’s credentials and qualifications.
The estimated date of the proposed rule is now December 2004, officially opening a 90-day public comment period. After any necessary changes are made, the EPA will promulgate the final regulation.
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