General Brownfields Guidelines on All Appropriate Inquiries
EPA’s Brownfields program is designed to empower states, communities, and other stakeholders in economic redevelopment to work together in a timely manner to prevent, assess, safely clean up, and sustainably reuse brownfields. A brownfield is a property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. EPA’s Brownfields program provides financial and technical assistance for brownfields revitalization, including grants for environmental assessment, cleanup, and job training.
What are "All Appropriate Inquiries"?
The assessment or evaluation of a property to identify potential environmental contamination and assess potential liability for any contamination present at the property.
Reasons for conducting All Appropriate Inquiries
Under Comprehensive Environmental Response, Compensation, and Liability Act (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 Small Business Liability Relief and Brownfields Revitalization Act (the “Brownfields Amendments”) amended CERCLA to provide protections from liability for certain landowners and prospective purchasers of properties who can demonstrate compliance with specific statutory criteria and did not cause or contribute to contamination at the property. CERCLA provides three types of liability protections for landowners and prospective purchasers of real property:
- 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(40).
- 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 his 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)(1)(A).
- 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).
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).
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.
Highlights of the All Appropriate Inquiries rule
- The proposed rule is a performance-based standard. The objective of the proposed standards 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.
- Definition of "environmental professional." The proposed definition includes persons who possess sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property. The proposed definition includes persons who:
- hold a Professional Engineer's or Professional Geologist's license or registration and have three years of full-time relevant experience.
- are licensed or certified by a state, tribe or the federal government to perform all appropriate inquiries.
- have a baccalaureate or higher degree from an accredited institution of higher education in a relevant discipline of engineering, environmental science, or earth science and five years of relevant experience.
- Persons with 10 or more years of full-time relevant experience.
- Interviews of current and past owners and occupants. In the case of abandoned properties, must interview one or more neighboring property owners.
- Review of historical records for a property on previous owners and uses.
- Review government records concerning waste management practices.
- Conduct a visual on-site inspection of the property.
- Specialized knowledge or experience of property owner.
- Relationship of purchase price to value of the property, if not contaminated.
- Commonly known or reasonably ascertainable information about the property.
- Degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation.
- The proposed rule includes no requirements to conduct sampling and analysis.