All Appropriate Inquiry (AAI) is the process of evaluating the previous uses and ownership of a property in order to identify potential environmental impact and assess potential liability for any contamination present at the property. The EPA established the AAI Rule to define the scope of the inquiry required to enable certain landowners avoid liability for clean-up under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
EPA states that “…every Phase I assessment conducted with EPA Brownfields Assessment Grant funds must be conducted in compliance with the All Appropriate Inquiries Final Rule at 40 CFR Part 312. The All Appropriate Inquiries Final Rule provides that the ASTM E1527-05 and E1527-13 standards are consistent with the requirements of the final rule and may be used to comply with the provisions of the rule.”
Why should I perform All Appropriate Inquiry?
Rationale for conducting AAI is to enable certain landowners to obtain protection from liability to clean up hazardous substances at properties that they own/operate or previously owned/operated.
Six years after CERCLA was enacted, it was amended through the Small Business Liability Relief and Brownfields Revitalization Act (“2002 Brownfields Amendments”) which provides funding to clean up and revitalize Brownfields and offers liability protections to certain property owners: the Innocent Landowner, Contiguous Property Owner, or a Bona Fide Prospective Purchaser. Property owners may qualify for protection from liability through these defenses if they perform appropriate due diligence that meets the requirements of the AAI rule prior to purchase. The purpose of the landowner liability protections is to encourage people to make use of EPA’s Brownfields Program and safely clean up contamination and sustainably reuse/redevelop Brownfields.
Performing Environmental Due Diligence to the AAI rule
EPA’s AAI Rule stipulates the due diligence requirements that any party claiming Landowner Liability Protection, and parties who receive grants under the Brownfields Grant Program must comply with. The environmental site assessment must be completed by (or under the supervision or responsible charge of) a qualified environmental professional.
Specifically, the inquiry must include:
- interviews with past and present owners, operators and occupants;
- reviews of historical sources of information;
- reviews of federal, state, tribal and local government records;
- visual inspections of the facility and adjoining property;
- commonly known or reasonably ascertainable information; and
- degree of obviousness of the presence or likely presence of contamination at the property and the ability to detect the contamination.
For more information, see this EPA All Appropriate Inquiries Rule Factsheet.
On December 30, 2013, the AAI Rule was amended to reference to the updated standard practice for the Phase I Environmental Site Assessment Process: ASTM E1527-13. Although ASTM E1527-05 technically continues to meet AAI, ASTM E1527-13 replaces its predecessor as the industry best practice and EPA advises parties seeking to claim protection from liability under CERCLA to follow the most up to date standard format. You can read about the key changes included in ASTM E1527-13 that affect the AAI process in more detail here.