GASTON & ASSOCIATES

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Environmental Business News Current Environmental Issues                                                                                                                                                        September 2004

Review of the new “All Appropriate Inquiry”Standard

Who Can Conduct “All Appropriate Inquiry?” 

Stated Qualifications for Assessors

 Interim Standards for Conducting “All Appropriate Inquiry”

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 Gaston and Associates Environmental Consulting 

20 Truman, Suite 108    Irvine, CA 92620  

       Phone: 949-2620440        Fax: 949-262-0750

web: GastonAssociates.com

 © Gaston and Associates2005

The previous issue of this newsletter discussed the new All Appropriate Inquiry (AAI) guidelines for conducting Phase I Environmental Site Assessments.  The new guidelines are in preparation by an EPA-designated committee.  The current industry standard for conducting a Phase I ESA is the American Society for Testing and Materials (ASTM) Standard E 1527-00.  The new federal regulations will change the current Phase I standard of practice.  Under the January 2002 Brownfields Law signed by President Bush, Congress ordered EPA to adopt a federal standard for “all appropriate inquiry” (AAI).  This is the term for the investigation into a property’s potential for environmental contamination prior to purchase.  The new EPA guidelines will mark the first time that environmental due diligence has been codified into a federal regulation.

The draft AAI rule applies to a broader range of properties than the ASTM E 1527-00 standard. The ASTM E 1527-00 standard is limited solely to commercial properties and the innocent landowner defense (although the ASTM standard is currently in the process of being revised and expanded).  In contrast, the new draft AAI rule extends beyond commercial properties to include residential properties in certain cases.  Under the Federal Brownfields Law, owners of any residential property used for commercial purposes (irrespective of the number of units), as well as residential properties under government ownership, will now be required to conduct a Phase I under the AAI rule in order to be protected from CERCLA liability. Moreover, AAI will be mandatory for all grantees whose environmental inquiries are funded under EPA’s Brownfields program.

Title 40, Chapter I of the federal Code of Regulations, Subchapter J, Part 312.10 discusses who can conduct the AAI property review. 

Section 312.20 states that ‘All Appropriate Inquiries’ pursuant to CERCLA §101(35)(B) must include an inquiry by an environmental professional as defined in §312.10.  That section presents a rather detailed discussion of precisely what (or who), in the eyes of the Committee, constitutes “an environmental professional’. 

 The proposed rule states that an environmental professional is “a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property sufficient to meet the objectives and performance factors in (the rule) and that such a person must meet the following professional and educational requirements: 

(1)      Possess a current professional engineer or geologists license or registration issued by a state, tribe, or US territory, plus three years relevant experience; or

(2)    Be licensed or certified by the federal government, a state, tribe, or US territory to conduct environmental inquiries, plus three years experience; or

(3)    Have a bachelor’s or higher degree from an accredited institution of higher learning in a relevant discipline (engineering, environmental science, or earth science), plus five years experience; or

(4) A degree or higher from an accredited institution of higher learning and ten years experience.  

The above criteria were compiled to indicate what is deemed necessary and adequate academic and professional training for those who would conduct the AAI assessments and to discourage unqualified individuals from conducting these surveys.   

According to a recent EPA Fact Sheet, the law sets two different interim standards for conducting "all appropriate inquiry" that apply depending on the date the property was purchased. These standards will remain in effect until EPA promulgates final federal standards.

1. Properties purchased prior to May 31, 1997, the law provides that a court shall consider the following when making a determination with respect to a defendant: specialized knowledge or experience of the defendant, relationship of the purchase price to the value of uncontaminated property, commonly known information about the property, obviousness of contamination, and the ability of the defendant to detect contamination by appropriate detection.

 2. Properties purchased after May 31, 1997, the law requires the use of procedures developed by the American Society for Testing Materials (ASTM), in particular ASTM's standard E1527-97, or "Standard Practice for Environmental Site Assessment: Phase I Environmental Site Assessment Process." In the final rule "Clarification to Interim Standards and Practices for All Appropriate Inquiry Under CERCLA and Notice of Future Rulemaking Action," EPA establishes that the current ASTM standard, E1527-00, will also meet the "all appropriate inquiry" requirement for site characterizations and assessments.    

                                                                 -Will Gaston   __________________________________________________________

This material is provided for information purposes only and is not intended as and cannot be considered to be legal advice. Before taking any action based on this information you should consult your legal counsel.