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New “All Appropriate Inquiry” Rules Take Effect Soon
October 24, 2006

New “all appropriate inquiry” (AAI) rules go into effect November 1, 2006, significantly altering the procedures purchasers of contaminated properties must use to achieve “innocent landowner” status and thereby avoid the harsh financial penalties that can be imposed through the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as “Superfund”).

According to Institute of Brownfield Professionals (IBP) President W. Jerrold Samford, P.G., R.B.P., “Prior to the new AAI rules going into effect, the appropriate procedure was assumed to be the performance of a phase-one environmental site assessment [ESA]. For the most part, this is a standardized procedure that was often applied by people who were able to call themselves ‘environmental professionals’ even though they had little or no prior environmental science education or experience. No matter who performed the phase-one ESA, however, if its results indicated no reason to suspect a property was contaminated, and the phase-one turned out to be wrong, the purchaser of the property assumedly would have been immune from an EPA lawsuit claiming a CERCLA violation, and seeking recovery for the cost of clean-up.”

Mr. Samford explained that, to the best of his knowledge, that assumption was never tested in court and, now, it will not have to be. “The new AAI rules require a purchaser to retain a qualified environmental professional to conduct an appropriate study and, for the first time, the federal government has defined what ‘environmental professional’ means.”

According to the new rules, an “environmental professional” is an individual who has the education, training, and experience necessary to exercise the professional judgment needed to develop opinions and conclusions about conditions that indicate that CERCLA-listed environmental contaminants have been or could be released on, at, in, or to a property. The individual also needs to have a state- or tribal-issued certification or license and three years of relevant full-time work experience; or a baccalaureate degree or higher in science or engineering and five years of relevant full-time work experience; or ten years of relevant full-time work experience.

The Institute of Brownfield Professionals believes that the new federal requirements are insufficient to safeguard public health, safety, and welfare when the property in question is a brownfield; i.e., a property known or assumed to be contaminated by virtue of its prior uses.

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