In 2002, President Bush signed into law the “Brownfield Amendments” to the federal Superfund law. Superfund is the law designed to address sites contaminated with hazardous substances. The Brownfield Amendments clarified the requirements to establishing the innocent landowner defense to Superfund liability. The Brownfield Amendments also provided new liability protection for “contiguous property owners” – those owning property contiguous to the source of contamination; and for a new class of landowners- “bona fide prospective purchasers.” With this latter protection, for the first time since the enactment of Superfund in 1980, a person may purchase property with the knowledge that it is contaminated without incurring liability for the contamination, if certain conditions are met. To qualify for any of these landowner defenses to Superfund liability, a person must undertake “all appropriate inquiries” into the prior ownership and uses of the property.
In the Brownfield Amendments, Congress directed the Environmental Protection Agency (“EPA”) to issue a rule on what constitutes “all appropriate inquiries.” Congress also adopted by reference the standard practice for conducting environmental assessments promulgated by the American Society of Testing and Materials (“ASTM”) as the interim standard until EPA’s final rule goes into effect.
EPA recently published its final rule on “all appropriate inquiries,” which does not differ significantly from the interim standard, but there are some changes. For instance, under the final rule, interviewing the subject property’s current owner or occupant becomes mandatory. The final rule also specifies the qualifications for an environmental professional who must conduct the necessary environmental assessment. EPA’s final rule will not become effective until November 2006. In the meantime, both environmental consulting professionals and those buying property for development or other commercial use should familiarize themselves with the requirements of this rule.
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