Brownfields Update for the Pacific Northwest

A new rule establishing clear federal standards for the processes used to assess properties for environmental contamination is expected to encourage more urban redevelopment.

The All Appropriate Inquiries rule was announced Nov. 2 at the Brownfields Conference in Denver, Colo., by Stephen L. Johnson, administrator of the Environmental Protection Agency (EPA). The rule was published Nov. 1 in the Federal Registrar and becomes effective one year following the date of publication.

“By making risk management less of a guessing game and more of a science, we are expanding the number of problem properties that will be transformed back into community assets,” Johnson says in a recent EPA press release.

The All Appropriate Inquiries rule is expected to increase private cleanups of brownfield properties while reducing urban sprawl, affecting annually more than 250,000 commercial real estate transactions across the nation, according to the EPA. The rule increases certainty of Superfund liability protection and improves information about environmental conditions of properties.

All appropriate inquiries is the process of evaluating a property’s environmental conditions and assessing potential liability for any contamination.

The final rule establishes specific regulatory requirements for conducting all appropriate inquiries into the previous ownership, uses and environmental conditions of a property for the purpose of qualifying for certain landowner liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Until the rule becomes effective in a year, parties may use either the requirements in the All Appropriate Inquiries final rule or the requirements of the interim standard established in the Small Business Liability Relief and Brownfields Revitalization Act.

The rule is expected to affect most directly people or businesses purchasing commercial property, or any property that will be used for commercial or public purposes, and who may, after purchasing the property, seek to claim protection from CERCLA liability for releases or threatened releases of hazardous substances. Parties who receive grants under the EPA’s Brownfields Grant program to assess and characterize properties must comply with all appropriate inquires standards.

Under the rule, many of the inquiry’s activities must be conducted by, or under the supervision of, someone who qualifies as an environmental professional. The rule includes specific educational and experience requirements for an environmental professional. The environmental professional must have a state- or tribal-issued certification or license and three years of relevant full-time work experience; or a bachelor’s 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.

The All Appropriate Inquiries rule requires the inquiry of this environmental professional to include:

Additional inquiries to be conducted by or for the prospective landowner or grantee include:

The rule was developed collaboratively with groups such as realtors, bankers, environmental interest groups, the retail industry, environmental justice organizations and state, tribal and local governments. For a complete reading of the rule, visit www.epa.gov/brownfields.