"All-Appropriate Inquiries and Environmental Site Assessments: A Message to Clients" Published by Institute of Brownfield Professionals - December 14, 2007

All-Appropriate Inquiries and Environmental Site Assessments: A Message to Clients is now available without charge at the website of the Institute of Brownfield Professionals ( www.brownfieldpros.org).

The pamphlet begins with a frightening description of the severe environmental risks many property owners and purchasers face: "Imagine purchasing a site for $500,000, only to learn later, during construction, that it's contaminated. That you are legally obligated to clean it up before work may continue. That the unanticipated cost will be $2 million. Or more. The risks are real. You cannot eliminate them, but you can manage them... by relying on qualified professionals to perform a study that comprises what the U.S. Environmental Protection Agency (EPA) terms an 'all-appropriate inquiry.'"

The publication continues, "A belief, never tested, grew that performance of an ASTM-standard Phase I ESA automatically entitled a purchaser to innocent-landowner protection, provided, of course, that the environmental professionals who conducted the AAI [all-appropriate inquiry] found no reason to suspect the property was contaminated (as defined by federal or state law)....

"All that changed because of federal regulations that went into effect on November 1, 2006. Now, those seeking CERCLA's innocent-landowner...protection need to abandon the notion that a standard procedure of some kind will be sufficient. Instead, a principal requirement for securing one of the three landowner-liability exemptions is retaining a qualified environmental professional to design and conduct an AAI appropriate for the property involved.

"The qualifications of the environmental professionals you select and the adequacy of your AAI have a direct bearing on your risk," the new Institute publication states, noting that those seeking innocent-landowner protection are required "to ensure the environmental professionals they retain are genuinely qualified. While the new AAI rules finally establish criteria for the 'environmental professional' designation, any number of individuals who meet those criteria are not necessarily competent to perform the type of AAI you need or, for that matter, even to understand the type of study you need. (The process EPA used to develop the criteria had to include 'grandfathering' and compromise to be successful. In fact, an individual does not need a high-school diploma to qualify as an environmental professional.)"

"Do not overestimate the risk management value of a Phase I ESA," the new pamphlet warns. It also advises that clients should "not presume that environmental professionals' professional liability insurance (PLI) will protect you...[or that] a lender's site-specific insurance policy (sometimes referred to as a 'bank-portfolio policy') protects you or makes an AAI unnecessary."

"Most experienced owners agree that the best 'insurance' is a trust-based relationship with astute, trustworthy professionals," the publication states, advising clients to be wary of consultants who are willing to agree to almost any terms and conditions clients might demand: "Professionals who don't care about their own risks cannot be expected to care about yours," the document warns. It then goes on to address issues such as third-party reliance, certifications, indemnities, and limitation of liability.

"If you already are dealing with a firm that employs experienced, quality-oriented environmental professionals, stick with it," the publication states. "Otherwise, locate Registered Brownfield Professionals (R.B.P.s) at the Institute website (www.brownfieldpros.org)."