AAI Rules Take Effect November 1, 2006 - October 19, 2006

Silver Spring, MD: New “all appropriate inquiry” (AAI) rules go into effect November 1, 2006, significantly altering the procedures purchasers of contaminated properties must use to achieve “innocent landowner” status and thereby avoid the harsh financial penalties that can be imposed through the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also known as “Superfund”).

According to Institute of Brownfield Professionals (IBP) President W. Jerrold Samford, P.G., R.B.P., “Prior to the new AAI rules going into effect, the appropriate procedure was assumed to be the performance of a phase-one environmental site assessment [ESA]. For the most part, this is a standardized procedure that was often applied by people with little or no prior environmental science education or experience. No matter who performed the phase-one ESA, however, if its results indicated no reason to suspect a property was contaminated, and the phase-one turned out to be wrong, the purchaser of the property assumedly would have been immune from an EPA lawsuit claiming a CERCLA violation, and seeking recovery for the cost of clean-up.”

Mr. Samford explained that, to the best of his knowledge, that assumption was never tested in court and, now, it will not have to be. “The new AAI rules require a purchaser to retain a qualified environmental professional to conduct an appropriate study and, for the first time, the federal government has defined what ‘environmental professional’ means.”

According to the new rules, an “environmental professional” is an individual who has education, training, and experience necessary to exercise the professional judgment needed to develop opinions and conclusions about conditions that indicate that CERCLA-listed environmental contaminants have been or could be released on, at, in, or to a property. The individual also needs to have a 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 ten years of relevant full-time work experience.

Mr. Samford believes that the new federal requirements are insufficient to safeguard public health, safety, and welfare when the property in question is a brownfield; i.e., a property known or assumed to be contaminated by virtue of its prior uses.

“We are under intense pressure to revitalize brownfield properties,” Mr. Samford said. “Most of these sites are located in urban areas. Being able to reuse them as industrial, commercial, and other sites – even residential – helps counter urban sprawl; can bring jobs to where the people live, cutting down on the need for commuting and even more public transportation; expands the tax base; and revitalizes the neighborhood. But taking a prudent approach is essential, because what’s hidden underground, if it’s not detected and dealt with properly, can have a huge impact on the people who buy the property, the people who use it, all their neighbors, and the community itself.”

Mr. Samford explained that there can be no standard procedure for conducting an all appropriate inquiry for a brownfield site. “The brownfield professional who leads the study needs the ability to identify the contaminants that have to be looked for, the nature of the tests that have to be conducted, the nature of the sampling techniques that are going to be used, and the locations where samples will be obtained. The professional also must be able to interpret the results of testing, prepare a report, and explain findings and their implications to other members of the brownfield team. There’s far too much at stake to leave such responsibilities to amateurs. While some folks with ten years’ experience conducting phase-one ESAs may believe their experience gives them the wherewithal to perform an AAI for a brownfield site, that’s just not so, and it would be up to the client to make that determination. For their own protection, clients need to ensure that the environmental professionals they select are qualified.”

The IBP was established in large part to help identify individuals who are qualified not only because they meet the new federal criteria, but also because they meet the more stringent requirements established by the IBP, requiring that those who are licensed engineers and geologists also have proven brownfield consulting experience. Those who do can obtain the Registered Brownfield Professional (R.B.P.) designation issued by the IBP. All IBP members are accessible via the Institute of Brownfield Professionals website: www.brownfieldpros.org. The new AAI rules also are available at the website, as is information on the screening process used by the IBP and guidance on how to select an environmental professional.

Established in 2004, the Institute of Brownfield Professionals is an educational organization whose mission is to:

•    provide a forum for discussion of business, regulatory, and technical issues of common interest; 
•    represent members in regulatory matters; 
•    provide educational and training media and fora to advance members’ knowledge and capabilities; 
•    certify the apparent qualifications of environmental professionals; and 
•    promote members’ availability to serve those who need the services of environmental professionals.

Download the new EPA Standards and Practices for All Appropriate Inquiries; Final Rule

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