POINT: For Inquiring Minds
Answers to Your AAI Questions
By Sven-Erik Kaiser
What is all appropriate inquiries (AAI)?
It is the process of evaluating a property’s environmental conditions and assessing potential liability for any contamination. It is a form of environmental due diligence and is similar to a Phase I environmental site assessment.
Why should I care?
The all appropriate inquiries rule is applicable to any party who may seek to claim protection from Superfund liability as a bona fide prospective purchaser, an innocent landowner or a contiguous property owner. In addition, anyone using an EPA brownfield grant to assess and characterize property must comply with the all appropriate inquiries standard.
Why am I reading about AAI?
EPA published a final rule establishing standards and practices for conducting all appropriate inquiries on November 1, 2005. The rule will impact the estimated more than 250,000 Phase I environmental site assessments conducted annually.
Why did EPA do that?
It was required under the Small Business Liability Relief and Brownfields Revitalization Act (Brownfields Law).
When does the rule take affect?
The final rule is effective November 1, 2006 — one year after the Federal Register publishing date. Until the rule is effective, one can use either the new standard or the independent industry standards (ASTM E1527-97, E1527-00 or E1527-05). Once the rule is effective, one can use either the rule or ASTM E1527-05.
When do I have to do AAI?
All appropriate inquiries must be conducted or updated within one year of the date of acquisition of a property. If the inquiries are conducted more than 180 days prior to the acquisition date, certain aspects must be updated.
What do I have to do?
Many of the inquiry’s activities must be conducted by or under the supervision or responsible charge of an environmental professional as defined in the rule. The inquiry an environmental professional conducts must include:
- interviews with past and present owners, operators and occupants
- reviews of historical sources of information
- reviews of federal, state, tribal and local records
- a visual inspection of the property and adjoining sites
- commonly known or reasonably found information
- the degree of obviousness of the presence or likely presence of contamination at the property and the ability to detect the contamination
Additional inquiries that must be conducted by or for the prospective purchaser or grantee include:
- searches for environmental cleanup liens
- assessments of any specialized knowledge or experience of the prospective landowner
- an assessment of the relationship of the purchase price to the fair market value of the property, if the property was not contaminated
- commonly known or reasonably found information
Who qualifies as environmental professionals?
For the purposes of conducting all appropriate inquiries, an environmental professional must have sufficient education, training and experience to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases on, at, in, or to a property. Specific requirements include:
- a Professional Engineer’s (P.E.) license, a Professional Geologist’s license (P.G.), or other federal, 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
- 10 years of relevant full-time work experience.
Is conducting all appropriate inquiries all I have to do to get a defense to Superfund
liability?
Conducting all appropriate inquiries prior to property acquisition is only the first step for obtaining relief from Superfund liability. Once a property is acquired, the owner must take due care regarding any contamination at the property. In particular, landowners must undertake reasonable steps to stop any continuing releases. Failure to meet the continuing obligations could result in a court denying protection from Superfund liability.
Does the rule have a checklist of activities?
The rule is based on a set of objectives and performance factors that guide the environmental professional in conducting the inquiries. The performance factors guide the individual aspects of the investigation toward the objectives of collecting the necessary information about the uses and ownership of a property and identifying conditions indicative of releases at the property.
The rule intentionally avoids a checklist approach to allow environmental professionals the flexibility to apply professional judgment and expertise in conducting the inquiries to ensure that the best available information is obtained during the inquiries.
What if I can’t get all of the information required by the AAI standard?
The rule requires that data gaps be identified, addressed where possible, and the significance documented where the gap affects the ability to identify conditions indicative of releases of hazardous substances.
Do I have to conduct sampling?
The rule does not require sampling and analysis, although it discusses that sampling can be valuable in determining the presence and extent of contamination at a property.
Will EPA review or approve all appropriate inquiries?
The rule does not include any new reporting or disclosure requirements to EPA or any other government entity. Existing requirements to notify regulators of releases of hazardous substances are unaffected by the rule. BFN
Sven-Erik Kaiser is with the U.S. EPA’s Office of Brownfields Cleanup and Redevelopment. Any opinions expressed in this article are the views of the author and do not necessarily represent the views of the U.S. EPA.
COUNTERPOINT: AAI Raising the Bar
COUNTERPOINT: AAI Indeed for Inquiring Minds
COUNTERPOINT: AAI a Small Beacon in the Fog of Brownfields
Read our 2004 Point/Counterpoint on AAI, written before the rule was final.
Learn more about AAI.
