EPA Amends All Appropriate Inquiry Rule

December 29, 2008
by BRENDA HUSTIS GOTANDA
MGKF News Flash

On December 23, 2008, the U.S. Environmental Protection Agency (EPA) issued a direct final rule (available here) amending the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) All Appropriate Inquiries (AAI) regulation to provide another option for meeting AAI requirements in circumstances where parties are purchasing large tracts (greater than 120 acres) of forested land or large rural properties. The rulemaking allows such parties to use the new ASTM Standard E2247-08 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forested or Rural Property" to comply with the CERCLA AAI requirements necessary to establish the innocent landowner defense, qualify for the bona fide prospective purchaser or contiguous property owner liability protections, or conduct a brownfields grant site assessment. The new rule does not require any party to use the new ASTM standard and the preamble states that parties may still comply with 40 C.F.R. Part 312 or ASTM Standard E1527-05 in order to satisfy the CERCLA AAI provisions. EPA will receive comments on the rulemaking until January 22. If no adverse comments are received by that time, then the direct final rule will become effective on March 23, 2009 without further notice.