U.S. EPA Approves Alternative Approach for Conducting All Appropriate Inquiry for Purchase of Large Rural and Agricultural Properties
By Andy Bowman, Attorney, Bingham Greenebaum Doll LLP
On December 23, 2008, U.S. EPA published a final rule amending the so-called “All Appropriate Inquiries Rule” to incorporate newly released ASTM International E2247-08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.”
Persons purchasing 120 acres or more of underdeveloped rural property or forested land or with a developed use of only managed forestland and/or agriculture may, but are not required to, use ASTM E2247-08. The prospective purchase may elect to use the ASTM E1527-05 standard or the AAI Rule at 40 CFR Part 312 to guide an appropriate inquiry. Under E2247-8, the 120 acres need not be contiguous and may include isolated areas of non-forested or non-rural property.
The ASTM E2247-08 standard is quite similar to the AAI Rule and E1527-05; however, there are few important differences, including:
- E2247-08 has a more stringent standard for historical records reviews than the AAI Rule. The AAI Rule requires that the historical records review cover a period from the present back until when the property first contained structures or was first used for residential, agricultural commercial or industrial uses. E2247-08 requires the historical records review back to 1940 or the property’s first developed use, including agricultural or forestry uses or placement of fill.
- Under the AAI Rule, the person seeking the environmental site assessment is required to search for liens but is not required to share the information with the environmental professional. E2247-08 states that the lien information shall be provided to the environmental professional.
- E2247-08 includes a more comprehensive list of governmental and historical records to be reviewed than the AAI Rule.
The amendment will become effective on March 23, 2009. The final rule can be reviewed at 73 Federal Register 78651 (December 23, 2008).