EPA Seeking to Amend All Appropriate Inquiry Rule (AAI)

EPA Seeking to Amend All Appropriate Inquiry Rule (AAI)

The U.S. Environmental Protection Agency (EPA) recently proposed to amend its All Appropriate Inquiry Rule (AAI). Under the proposed rule change, the Standards and Practices for All Appropriate Inquiries would be amended to update an existing reference to a standard practice recently revised by ASTM International. While many of the agency’s recent actions have generated controversy, the EPA expects this change to receive little opposition. The rule will become effective on September 18, 2017, without further notice, unless the EPA receives adverse comment by July 20, 2017.

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The EPA’s final rule specifically amends the AAI Rule to reference ASTM International’s E2247–16 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.’’ It also allows for its use to satisfy the statutory requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The AAI Rule currently references the 2008 version of the ASTM E2247–16 standard.

All Appropriate Inquiries Rule

In 2002, the Small Business Liability Relief and Brownfields Revitalization Act (Brownfields Amendments) revised CERCLA and limited Superfund liability for bona fide prospective purchasers and contiguous property owners. The environmental law specifically clarified the requirement that parties purchasing potentially contaminated land undertake ‘‘all appropriate inquiries’’ into prior ownership and use of property prior to purchasing the property in order to qualify for protection from CERCLA liability.

The EPA first promulgated regulations establishing standards and practices for all appropriate inquiries in 2005. The regulations expressly recognized ASTM International’s “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” as compliant with the AAI Rule and has revised the regulations. In 2008, the EPA amended the AAI Rule to recognize ASTM International’s ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property’’ as compliant with the rule. Since then, ASTM International has published a revised standard for conducting Phase I environmental site assessments of large tracts of rural and forestland properties, which the EPA now seeks to incorporate into the AAI Rule.

Impact of Proposed Changes to All Appropriate Inquiry Rule

As highlighted in the EPA’s final rule, the amendments will impact bona fide prospective purchasers, contiguous property owners, or innocent landowners that purchase large tracts of forested lands or large rural properties and intend to claim a limitation on CERCLA liability in conjunction with the property purchase. The changes will also affect entities conducting a site characterization or assessment on a property that consists of large tracts of forested land or a large rural property with a brownfields grant awarded under CERCLA. Assuming that the amended AAI Rule takes effect, these parties may use the ASTM E2247–16 standard practice to comply with the all appropriate inquiries requirements of CERCLA.

Do you have any questions regarding the proposed changes to the EPA’s All Appropriate Inquiry Rule? Would you like to discuss the matter further? If so, please contact me, Daniel McKillop, at 201-806-3364.