Energy and Environment MonitorU.S. EPA is proposing to amend the All Appropriate Inquiry (AAI) Rule at 40 CFR Part 312 to reference a new standard by ASTM International for Phase I environmental site assessments. The new standard, ASTM E2247-08, “Standard Practice for Environmental Site Assessment: Phase I Site Assessment Process for Forestland or Rural Property,” addresses property uses and environmental concerns typical of large tracts of forested or rural land. For example, the new standard provides for the use of remote sensing methods such as the use of aerial photography or flyovers.
The AAI Rule provides that ASTM International standard E1527-05, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” may be used to comply with the all appropriate inquiries requirements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). U.S. EPA is proposing to conclude that the new standard for large tracts of forest land and rural property is compliant with the AAI Rule.
Parties potentially affected include the forest industry, other natural resource industries, conservation organizations, forest and rural real estate professionals, lenders, resource management agencies, and environmental consultants. Specifically, the new standard may affect parties claiming a limitation on CERCLA liability as bona fide prospective purchasers, contiguous property owners, or innocent land owners who are purchasing large tracks of forested lands or large rural properties. In addition, any party conducting a site characterization or assessment on a property that consists of large tracks of forested or rural land with a brownfields grant awarded under CERCLA may be affected. This would include state and local governments that receive brownfields site assessment grants.
While there are differences between the regulatory requirements and the two ASTM standards, U.S. EPA maintains that the differences are “minor in nature”. Most of the differences relate to applicability and scope. The AAI Rule applies to all properties and includes controlled substances. The new standard applies to 120 acres or greater of forest land or rural property or with a developed use of only managed forest land and/or agriculture. The 120 acres do not have to be contiguous; however, the non-contiguous areas should have substantially the same general land use and be part of the same transaction. The property may contain isolated areas of non-forest land and non-rural property. The new standard expressly states that controlled substances are not within its scope; however, controlled substances must be included if the assessment is conducted under a U.S. EPA brownfields assessment and characterization grant and the grantee requests that controlled substances be included within the scope of the investigation. The new standard also discusses threatened and endangered species and non-point source pollution which are not addressed in the AAI Rule.
In addition to applicability and scope, some other differences include the following:
ü Additional inquiries, 40 CFR §312.22: The AAI Rule provides that a person seeking liability protection or conducting assessments with brownfields grants may provide to the environmental professional information on environmental cleanup liens, specialized knowledge, relationship of purchase price to fair market value, and other commonly known information to the user. The new standard imposes upon the user the responsibility to collect the information and requires the user to report environmental cleanup liens information to the environmental professional.
ü Interviews with past and present owners, operators, and occupants, 40 CFR §312.23: The AAI Rule requires that the current owner and an occupant be interviewed. The new standard states that the key site manager or someone with knowledge of the property should be interviewed.
ü Reviews of historical sources of information, 40 CFR §312.24: The new standard provides a more detailed list than the AAI Rule of documents to be used in an historical review, including activities likely to be found on large tracts of forested or rural land, such as oil/mineral development and livestock dipping vat records. The new standard is also more stringent than the AAI Rule with respect to the period to be covered in the review and requires that all records back to 1940 or back to the property’s first developed use, which is specifically defined to include forestry use, whichever is earlier, be used.
ü Searches for recorded environmental cleanup liens, 40 CFR §312.25: The AAI Rule gives the user the choice to retain the information or share it with the environmental professional. The new standard requires the user to provide the information to the environmental professional.
ü Reviews of federal, state, tribal, and local government records, 40 CFR §312.26: The new standard provides a more expansive list of secondary environmental records sources than the AAI Rule. The secondary sources include records for the optional scope areas including inventory of threatened and endangered species and best management practice violations for water quality protection. Additional record sources specifically reference Department of Natural Resources and Division of Forestry. The new standard requires that the user notify the environmental professional before site reconnaissance of commonly known or reasonably ascertainable information about the property.
U.S. EPA’s proposed amendments would not require the use of the new standard but allows parties the option of using the new standard. Parties purchasing large tracks of forest land or rural property may choose to follow the specific requirements of the AAI Rule or the ASTM E1527-05 standard.
U.S. EPA published the proposed rule (73 Fed. Reg. 78716) and a direct final rule (73 Fed. Reg. 78651) December 23, 2008. Unless U.S. EPA received adverse written comment by January 22, 2009, the rule automatically takes effect March 23, 2009. For additional information concerning all appropriate inquiries requirements under CERCLA for Phase I environmental site assessments, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.
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