Brownfields All Appropriate Inquiries
All Appropriate Inquiries, or AAI, is the process of evaluating a property's environmental conditions and assessing potential liability for any contamination. Every Phase I environmental site assessment conducted with EPA Brownfields Assessment Grant funds must be conducted in compliance with the AAI Final Rule at 40 CFR Part 312. The AAI Final Rule provides that ASTM International Standard E1527-13 (“Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”) and E2247-16 (“Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property”) are consistent with the requirements of the final rule and can be used to satisfy the statutory requirements for conducting AAI. AAI may be conducted in compliance with either of these standards to obtain protection from potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser.
On this page:
- Background on AAI
- Brownfields Grantees and AAI Requirements
- Highlights of the Requirements of the AAI Rule
The 2002 Small Business Liability Relief and Brownfields Revitalization Act (the “Brownfields Amendments”) to CERCLA, also known as Superfund, required EPA to promulgate regulations establishing standards and practices for conducting AAI. The AAI final rule was published in the Federal Register on November 1, 2005 (70 FR 66070) and went into effect on November 1, 2006.
What are All Appropriate Inquiries?
AAI is the process of evaluating a property’s environmental conditions and assessing potential liability for any contamination.
Reasons for conducting All Appropriate Inquiries
Under CERCLA, persons may be held strictly liable for cleaning up hazardous substances at properties that they either currently own or operate, or owned or operated in the past. Strict liability under CERCLA means that liability for environmental contamination may be assigned based solely on property ownership.
The Brownfields Amendments amended CERCLA to provide liability protections for certain landowners and potential property owners who did not cause or contribute to contamination at the property and can demonstrate compliance with specific provisions outlined in the statute, including conducting AAI into present and past uses of the project. CERCLA provides protection from liability for certain landowners and prospective purchasers of real property, including:
- Innocent landowners are persons who can demonstrate, among other requirements, that they “did not know and had no reason to know” prior to purchasing a property that any hazardous substance that is the subject of a release or threatened release was disposed of on, in, or at the property. Innocent landowners must meet the criteria set forth in CERCLA §101(35)(A).
- Contiguous property owners are persons who own property that is contiguous or otherwise similarly situated to a facility that is the only source of contamination found on the property. Such persons must demonstrate that they had “no reason to know” prior to purchasing a property that any hazardous substance that is the subject of a release or threatened release was disposed of on, in, or at the property. Contiguous property owners must comply with the criteria set forth in CERCLA §107(q).
- Bona fide prospective purchasers may buy property with knowledge of contamination, provided they bought the property after January 11, 2002 and meet the criteria set forth in CERCLA §101(40) and 107(r).
- Units of state or local government that acquire ownership or control involuntarily through bankruptcy, tax delinquency or abandonment, CERCLA Section 101(20)(D).
- Government entities that acquire property through eminent domain, CERCLA Section 101(35)(A)(ii).
Persons subject to the All Appropriate Inquiries requirements
- Commercial and government entities purchasing property, and all individuals purchasing property for non-residential use, who may, after purchasing a property, seek protection from CERCLA liability for releases or threatened releases of hazardous substances.
- Any party who receives a Brownfields grant awarded under CERCLA Section 104(k)(2)(B) and uses the grant to conduct site characterization or assessment activities.
EPA’s Brownfields Program provides direct funding, in the form of competitive grants, for brownfields assessments and cleanup, for the capitalization of revolving loan funds, and to support environmental job training programs. Eligible entities for brownfields grants include states, tribes, local governments, regional governments, and quasi-governmental entities.
Brownfields grantees are prohibited from using grant money to pay response costs at a brownfields site for which the grantee is potentially liable under CERCLA. To be eligible for an EPA Brownfields grant to address contamination at brownfields properties, eligible entities must demonstrate that they meet one of the liability protections or defenses set forth in CERCLA by establishing that they are an innocent landowner, contiguous property owner, bona fide prospective purchaser, or government entity that acquired the property involuntarily through bankruptcy, tax delinquency or abandonment, or by exercising power of eminent domain. To claim protection from liability as an innocent landowner, contiguous property owner, or bona fide prospective purchaser, property owners, including state and local governments, must conduct AAI before acquiring the property and comply with all continuing obligations after acquiring the property.
The specific documentation and reporting requirements for AAI are provided in 40 CFR §312.21 (Results of Inquiry by an Environmental Professional) and §312.31 of the final rule, and in ASTM E1527-13 and ASTM E2247-16. The fact sheets below summarize the required reporting requirements and provide a checklist to assist Brownfields grantees in assuring compliance with the provisions of the AAI rule.
The final AAI rule is a performance-based standard. The objective of the standard is to conduct inquiries into past uses and ownerships of a property and visually inspect the property to identify conditions indicative of releases and threatened releases of hazardous substances on, at, in, or to the subject property.
Who can perform AAI?
Many AAI-required activities must be conducted by, or under the supervision or responsible charge of, an individual who meets the definition of an “environmental professional.” The AAI rule defines an environmental professional as someone who possess the specific education, training, and relevant experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases of hazardous substances on, at, in, or to a property. The definition includes persons who have:
- A state or tribal issued certification or license and three (3) years of full-time work experience.
- A bachelor’s degree or higher from an accredited institution of higher education in a relevant discipline of science or engineering and five (5) years of full-time relevant work experience.
- Ten (10) or more years of relevant, full-time work experience.
When must AAI be conducted?
- AAI must be conducted or updated within one year before the date of acquisition of a property.
- Certain aspects or provisions of AAI (i.e., interviews of current and past owners, review of government records, on-site visual inspection and searches for environmental cleanup liens) must be conducted or updated within 180 days before acquiring ownership of a property.
What specific activities does the AAI rule require?
- Interviews with current and past owners, operators, and occupants. In the case of abandoned properties, interview one or more neighboring property owners.
- Review of historical sources of information.
- Review of federal, state, tribal and local government records.
- Visual inspection of the facility and adjoining properties.
- Review of commonly known or reasonably ascertainable information about the property.
- Assessment of the degree of obviousness of the presence or likely presence of contamination at the property and the ability to detect the contamination.
- Identification of any significant data gaps in information collected that affects the ability of the environmental professional to identify conditions indicative of releases or potential releases of contaminants.
- The results of an AAI investigation be documented in a written report, signed by an environmental professional.
Additional inquiries that must be conducted by or for the prospective landowner or grantee include searches for environmental cleanup liens, assessment of any specialized knowledge or experience of the prospective landowner (or grantee), and assessment of the relationship of the purchase price to the fair market value of the property if the property was not contaminated.