Commentary: EPA adopts 'all appropriate inquiry ' regulations

• Published in: The Daily Record (Baltimore, Md. : 1888)
• Main Author: Michael C. Powell and Todd R. Chason
• Format: Newspaper Article
• Language: English
• Published: Baltimore, Md BridgeTower Media Holding Company 28.11.2005
• Subjects: Brownfields; Certification; Consultants; Interviews; Liability

On Tuesday, Nov. 1, 2005, the Environmental Protection Agency issued its long-awaited rule on all appropriate inquiries (AAI), which now becomes the gold standard for environmental assessments. Prospective property purchasers who fail to follow AAI will not qualify for the limited liability protections accorded innocent purchasers under state and federal law. The AAI standard is also expected to be endorsed by the American Association for Testing and Materials (ASTM) - making it the starting point for Brownfields Revitalization Act remediations as well. Finally, failure to perform an assessment that meets the AAI standard prior to purchase could be evidence of negligence. Consequently, understanding the new rule is crucial for developers, financial institutions, municipalities and all others involved with urban renewal projects. When the Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as CERCLA) was originally enacted in 1980, neither Congress nor EPA was specific in defining the environmental investigation necessary to qualify for innocent purchaser protection. In response, a group of consultants and attorneys formed a committee and adopted what became known as the ASTM-1527 standard for environmental assessments. That standard specified many of the aspects of environmental assessments that are now common - such as the checking of governmental records and examination of title records for problematic historical uses of property. The standard was never approved by Congress or EPA, however, and so there was some doubt as to whether performing an ASTM standard assessment provided liability protection.In 2002, Congress raised the stakes by enacting the Small Business Liability Relief and Brownfields Revitalization Act. The Brownfields Act specifically affirmed the ASTM standard but only as an interim standard until EPA adopted regulations establishing a new standard. The new standard - the AAI rule - replaces ASTM and applies to all property transactions after November 1, 2006. The first significant difference between ASTM and AAI is the definition of environmental professionals. In most states, individuals performing assessments have never been required to hold any particular certification, license, education or have any particular experience. As a result, the quality of assessments varied widely from consultant to consultant.