All Appropriate Inquiries becomes final rule
One year after it was published in the Federal Register, the definition of All Appropriate Inquiries–the process followed to evaluate a property’s environmental conditions and assess potential liability for any contamination–is now a final rule.
The final rule does not differ significantly from the interim standard. It includes all the main activities previously performed as part of environmental due diligence: site reconnaissance, records review, interviews and documentation of recognized environmental conditions. However, it enhances the inquiries by extending the scope of a few of the environmental due diligence activities, according to information from EPA. It also requires that significant data gaps or uncertainties be documented.
For example, the final rule requires the property’s current owner or occupants to be interviewed. The interim standard required only that a reasonable attempt be made. The final rule also includes provisions for interviewing past owners and occupants of the property. Under the interim standard, an environmental professional needed to ask only the current property owner about past uses.
In addition, the final rule requires an interview with an owner of a neighboring property if the site is abandoned. Under the interim standard, this was an option. It includes specific documentation requirements if the property cannot be visually inspected, as well.
The final rule requires an environmental professional’s inquiry to include:
- Interviews with past and present owners, operators and occupants
- Reviews of historical sources of information
- Reviews of federal, state, tribal and local government records
- Visual inspections of the facility and its adjoining properties
- Commonly known or reasonable ascertainable information
- Degree of obviousness of the presence or likely presence of contamination at the property and the ability to detect the contamination
All appropriate inquiries must be conducted or updated within a year of the date of the property’s acquisition. Many of the inquiry’s activities must be conducted by, or under the supervision of, someone who qualifies as an environmental professional. The final rule includes specific educational and experience requirements. The environmental professional must have one of the following:
- A state- or tribal-issued certification or license and three years of relevant full-time work experience
- A bachelor’s degree or higher in science or engineering and five years of relevant full-time work experience
- 10 years of relevant full-time work experience
A copy of the Final Rule Federal Register notice and several fact sheets summarizing the final rule’s requirements are available on the EPA Web site: www.epa.gov/brownfields/regneg.htm.
