Comparison of All Appropriate Inquiries Regulation

and

ASTM E2247-08 Phase I Environmental Site Assessment Process for
Forestland or Rural Property Standard

Introduction

On November 1, 2005, EPA issued a Final Rule (40 CFR 312) establishing
standards and practices for conducting all appropriate inquiries (AAI)
as required under sections 101(35)(B)(ii) and (iii) of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), as
amended.  Section 312.11 of the Final Rule stated that ASTM
International Standard E1527-05, “Standard Practice for Environmental
Site Assessments: Phase I Environmental Site Assessment Process” may
be used to comply with the AAI requirements. 

ASTM International recently revised a similar Phase I environmental
assessment standard, specifically ASTM E2247-08, “Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process for Forestland or Rural Property.” The ASTM
E2247-08 standard is similar to the ASTM E1527-05 standard in format,
process, and areas of coverage. In fact, many of the sections in ASTM
E2247-08 are taken verbatim from the ASTM E1527-05 text. The newly
revised standard, although essentially congruent to the ASTM E1527-05
Phase I Environmental Assessment Standard, provides additional guidance
for the assessment of large tracts of land that are undeveloped or used
primarily for forest and agricultural purposes.

This document presents a comparison of the AAI regulatory requirements
and the requirements of the ASTM E2247-08 standard. It also provides an
opinion as to whether E2247-08 is compliant with the AAI regulation.

Exhibit 1 presents a summary of each of the major sections in the AAI
regulation and the relevant or corresponding sections of the E2247-08
standard. The first column in Exhibit 1 provides a list of the major
activities required by the AAI final rule. The second column provides
citations to the applicable sections of the regulation where the
requirements are discussed. The third column in Exhibit 1 presents the
corresponding sections of the ASTM E2247-08 standard. The fourth column
in Exhibit 1 provides a brief description of any differences between the
two standards. As shown throughout the exhibit, the differences between
the AAI regulatory requirements and the newly revised ASTM E2247-08
standard are minor in nature, and generally reflect the applicability of
the ASTM standard to forestland and rural properties. 

Summary of Differences

ASTM E2247-08 is quite similar to ASTM E1527-05, and meets the
requirements set forth in the AAI regulation. Although there are some
minor differences between the AAI regulation and the ASTM standard, most
are related to the scope and applicability of the ASTM E2247-08
standard. Exhibit 1 identifies these minor differences between the AAI
regulation and the ASTM E2247-08 standard. Some of the differences
identified between the AAI regulation and the ASTM E2247-08 standard
also exist between the AAI regulation and ASTM 1527-05 standard. The
differences discussed below are specific to the ASTM E2247-08 standard. 
However, none of the differences between the ASTM E2247-08 standard and
the all appropriate inquiries final rule are of a nature that cause the
ASTM E2247-08 standard to be non-compliant with the AAI requirements.

The AAI regulation is applicable to all land use types.  The ASTM
E2247-08 standard, however, was specifically developed for use in
conducting a Phase I environmental assessment on property 120 acres or
greater of undeveloped rural and forestlands. The standard also may be
used to assess properties 120 acres or greater with a developed use of
managed forestland and/or agriculture. The standard allows that the
property may contain isolated areas of other land uses.  The standard
states that the 120 acres do not need to be contiguous, although they
should be part of the same commercial real estate transaction and have
substantially the same land use. Although the specific land use focus of
the ASTM E2247-08 standard reflects a narrower scope than the AAI
regulation, it still meets the requirements of the AAI regulation. 

Section 312.24 of the AAI regulation requires review of historical
sources of information to cover a period of time from the present back
until the time when the property first contained structures or was first
used for “residential, agricultural, commercial, industrial or
governmental purposes.” ASTM E2247-08 requires historical record
review back to 1940 or the property’s first developed use, later
defining developed use which includes “agricultural or forestry uses
or placement of fill.” The recognition of forestry use as a
“developed use” is consistent with the provisions and standards of
AAI.

Conclusion

Based on the analysis provided above and Exhibit 1, ASTM E2247-08,
“Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process for Forestland or Rural
Property” is compliant with the AAI regulation.

Exhibit 1

Definitions and Requirements	Final AAI Regulation	ASTM E2247-08
Description of Differences

Section 312.1    Purpose, applicability, scope and disclosure
obligations.

Purpose	312.1(a)	1.1, 7.1	The AAI regulation provides a standard
specifically related to the requirements of CERCLA §§ 101(35)(B)(i)(I)
and 101(35)(B)(ii) and (iii). 

ASTM E2247-08 provides a standard for conducting a Phase I environmental
site assessment  of a property 120 acres or greater of forestland or
rural property or with a developed use of only managed forestland and/or
agriculture.  The property need not be contiguous; however, the
non-contiguous areas should have substantially the same general land use
and be part of the same transaction.  The property may contain isolated
areas of non-forestland and non-rural property. In addition, the ASTM
standard states that the practice has utility for a wide range of uses
outside of potential CERCLA liability.

Applicability	312.1(b)	1.1, 4.1, 4.2	The AAI regulation applies to all
properties if the owner wants to qualify for CERCLA liability
protections or those conducting site characterization and assessments
with the use of a grant awarded under CERCLA § 104(k)(2)(B), without
limit to a particular land use. 

Although its use is not limited to CERCLA purposes only, ASTM E2247-08
applies specifically to identifying environmental conditions on
forestland, agricultural, and rural properties of at least 120 acres.
The 120 acres do not have to be contiguous, and can have isolated areas
of non-rural/forested land. 

Scope	312.1(c)	1.1, 1.1.2, 1.3, 4.1, 4.2.1, 4.2.2	AAI includes Petroleum
Products and Controlled Substances within its scope for persons
conducting AAI with grants awarded under the authorities of CERCLA 104
(k) (2) (B). 

ASTM E2247-08 includes petroleum products in its scope because they may
be of concern on parcels of forestland or rural property, not because
they are applicable to the CERCLA landowner liability protections.
Controlled substances are specifically defined as "not within the scope
of" ASTM E2247-08, but ASTM E2247-08 notes that controlled substances
must be included if the assessment is conducted under an EPA Brownfields
Assessment and Characterization Grant where the grantee requests that
controlled substances be included within the scope of the
investigations.

ASTM E2247-08 also discusses two environmental considerations outside
its scope and not addressed in the AAI regulation. These considerations
may be applicable to the condition of the property under certain
circumstances: 

	1. Threatened and Endangered Species

	2. Non-point source pollution

The inclusion of these considerations in the ASTM E2247-08 standard does
not affect compliance with the AAI regulatory requirements.

Disclosure Obligations	312.1(d)	Not Specified	ASTM E2247-08 does not
address disclosure obligations for either the user or environmental
professional. This lack of disclosure obligations is not significant
because the AAI regulation does not include any disclosure requirements,
but merely notes that it does not limit or expand any disclosure
requirements otherwise required under CERCLA.

Section 312.10     Definitions	 	 

Definition of Abandoned Property	312.10(b)	3.2.1	None

Definition of Adjoining Properties	312.10(b)	3.2.4	None

Definition of Data Gap	312.10(b)	3.2.21	The AAI regulation indicates
that the data gap applies to efforts by the environmental professional
and to the efforts of any person listed in 312.1(b) to gather the
specific information required by §§ 312.20(e)(1) and (e)(2). 

The E2247-08 standard indicates that a data gap includes any missing
information that “affects the ability of the environmental
professional to identify recognized environmental conditions,”
including missing information resulting from the inability of the user
(prospective property owner) to provide information to the environmental
professional.

Definition of Environmental Professional 	312.10(b)	3.2.32, X2.1	None.
ASTM E2247-08 specifically refers to the definition provided in the AAI
regulation.

Definition of Relevant Experience	312.10(b)	X2.2	None

Definition of Good Faith	312.10(b)	3.2.38	None

Definition of Institutional Controls	312.10(b)	3.2.46	None

Section 312.11     References	 	 

References	312.11	2	Similar and essentially the same. The AAI reference
section lists compliant standards. 

The E2247-08 standard lists other standards and practices that may be of
use or of interest to persons using the E2247-08 standard.

Section 312.20      All appropriate inquiries	 

List of Components in All Appropriate Inquiries	312.20(a)	6, 7	None

Shelf Life of the Written Report 	312.20(b)-(c)	4.6	None

Use of Previous Reports Prepared by Others	312.20 (c)-(d)	4.7	Similar
and essentially the same.  The AAI regulation and the ASTM E2247-08
standard both recognize that environmental site assessments include
information that is relevant to subsequent users and should be
considered to avoid duplicating efforts in the future.  The ASTM
E2247-08 also addresses the contractual and legal obligations to
subsequent users of the site assessments, only in stating that they are
beyond the scope of the practice.

The AAI regulation states that AAI may include the results and
information contained in a previous inquiry so long as the prior AAI was
done in compliance with the requirements of CERCLA §§ 101(35)(B),
101(40)(B) and 107(q)(A)(viii); the information was collected or update
within one year prior to the date of acquisition of the subject
property; previously collected information is updated to include
relevant changes in the conditions of the property and specialized
knowledge; and the following were conducted within 180 days prior to
that acquisition:

Interviews with past and present owners, operators, and occupants

Searches for recorded environmental cleanup liens

Reviews of federal, tribal, state, and local government records

Visual inspections of the facility and of adjoining properties

The declaration by the environmental professional;

ASTM E2247-08 states that prior environmental site assessments may be
used so long as the information was generated as a result of procedures
that meet or exceed the requirements of ASTM E2247-08 and there is a
current investigation of conditions likely to affect recognized
environmental conditions in connection with the property.  This standard
also states generally that additional tasks may be necessary to document
conditions that may have changed materially since the prior assessment
was done. 

Objectives	312.20(e)	1.2, 7.1	Similar and essentially the same. The
objectives of the AAI regulation are to set forth the standards and
practices that are intended to result in the identification of
conditions indicative of releases and threatened releases of hazardous
substances on, at, in, or to the subject property in order to satisfy
CERCLA liability protection or Brownfield Assessment grants. 

The objectives of ASTM E2247-08 are to set a standard practice for
environmental site assessments for forestland or rural property to
identify recognized environmental conditions for commercial property
transactions.

Contaminants of Concern 	312.20(e)(2)	1.1	The AAI regulation applies to
hazardous substances (and if conducted under 312.1(b)(2) adds
pollutants, contaminants, petroleum and petroleum products, and
controlled substances). The ASTM E2247-08 applies to the broad range of
contaminants within the scope of CERCLA and petroleum products. As noted
above, the scope for ASTM E2247-08 generally does not include Controlled
Substances, but recognizes their applicability under EPA Brownfields
Assessment and Characterization Grants. 

Performance Factors	312.20(f)	8.1.3, 8.1.4, 7.3.1	None

Data Gaps 	312.20(g)	8.2.3, 12.7	None. The ASTM E2247-08 standard states
that a data gap itself  is not inherently significant. It is only
significant if other information and/or professional experience raises
reasonable concerns involving the data gap. This same concept with
regard to data gaps is addressed in the AAI rule.

Section 312.21     Results of inquiry by an environmental professional

Requirements for Inquiries of the Environmental Professional	312.21(b)
7.2, 6	The ASTM E2247-08 standard fully addresses the provisions
required in the AAI regulation. Both the AAI rule and the ASTM E2247-08
standard require that the investigation include a review of records,
interviews, and a site visit. 

The AAI regulation requires that prospective property owners and the
environmental professional conduct interviews with past and present
owners and visual inspections; review government records, historical
sources, commonly known or reasonably ascertainable information, and the
degree of obviousness of the presence and the ability to detect the
contamination and take into account commonly known or reasonably
ascertainable information, the degree of obviousness and ability to
detect contamination. 

The ASTM E2247-08 standard requires the environmental site assessment to
include: records review; site reconnaissance; interviews with present
and past owners, operators, and occupants of the property and local
government officials; and an evaluation and report. In addition, the
user must review title and judicial records for environmental liens and
activity and use limitations, report specialized or actual knowledge or
experience of the user, purchase price, any commonly known or reasonably
ascertainable information, and maps of the property. 

Both the AAI regulation and the ASTM E2247-08 standard require that the
final report include an opinion regarding additional appropriate
investigation, if the environmental professional holds such an opinion.





Definitions and Requirements	Final AAI Regulation	ASTM E2247-08
Description of Differences

Report Requirements	312.21(c)	12.6, 12.7, 12.13.2	Both require the
report to contain opinions as to whether there are conditions indicative
of release and identification of data gaps. Both the AAI regulation and
the ASTM E2247-08 standard require that the final report include a
statement that the person signing the report meets the definition of an
environmental professional provided in section 312.10 of the AAI
regulation.

Signed Declarations to Be Included in the Written Report	312.21(d)
12.12, 12.13	The declaration required of the environmental professional
is more specific in ASTM E2247-08 than in the AAI regulation. Both
require a declaration that the environmental professional meets the
definition defined in §312.10 and that the AAI investigation was
performed in conformance with 40 CFR Part 312. 

ASTM E2247-08 requires an additional statement that the Phase I
assessment was performed in conformance with ASTM E2247-08.

Section 312.22     Additional inquiries	 	 

Additional Inquiries	312.22(a)	6.2, 6.3, 6.5, 6.6	The AAI regulation
assigns the task of developing information on environmental cleanup
liens, specialized knowledge, relationship of purchase price to fair
market value, and commonly known information to the person seeking
liability protection or conducting assessments with Brownfields grants.
The AAI regulation states that this data may be provided to the
environmental professional. 

The ASTM E2247-08 standard goes further and states that it is the
user’s responsibility to collect the information and the user shall
report environmental cleanup liens information to the environmental
professional. 

Section 312.23     Interviews with past and present owners, operators,
and occupants

Interview with the Subject Property Current and Past Owners and
Occupants 	312.23(b), 312.23(c)	10	The AAI regulation states that the
current owner and occupant must be interviewed. Additionally, at least
one of the following groups must be interviewed, to the extent necessary
to achieve the objectives and performance factors: current or past
facility managers; past owners or occupants; or employees of current or
past occupants. 

ASTM E2247-08 states that the key site manager or someone with knowledge
of the property should be interviewed.  Additionally, a reasonable
attempt to interview current occupants must be made. If such attempts
fail and subsequently results in a lack of information that results in
the environmental professional’s inability to render an opinion
regarding the environmental conditions at the property, then the
environmental professional would, under the ASTM E2247-08 standard, have
to document the lack of information as a data gap.  This is similar to
the AAI regulation.

Definitions and Requirements	Final AAI Regulation	ASTM E2247-08
Description of Differences

Interviews Conducted at Abandoned Properties	312.23(d)	10.5.5	None.

Section 312.24     Reviews of historical sources of information

Review of Historical Sources: Suggested Sources	312.24(a)	8.3	The ASTM
E2247-08 standard provides a more detailed list of documents to be used
in historical review including activities likely to be found on large
tracts of rural or forested land (oil/mineral development, livestock
dipping vat records).

Review of Historical Sources: Period to Be Covered 	312.24(b)	8.3.2	The
AAI regulation requires that the historical record review must cover a
period of time as far back in the history of the subject property as it
can be shown that the property contained structures or from the time the
property was first used for residential, agricultural, commercial,
industrial or governmental purposes. 

ASTM E2247-08 indicates that all records back to 1940, or back to the
property's first developed use, whichever is earlier, should be used.
"Developed use" specifically includes forestry use. The ASTM E2247-08
standard is more stringent than the AAI final regulation.

Section 312.25     Searches for recorded environmental cleanup liens

Searches for Recorded Environmental Cleanup Liens	312.25	6.2, 6.4,
10.9.1.10	Both the regulation and the standard require a search for
liens, however, AAI allows the user to retain the information or share
it with the environmental professional, whereas ASTM E2247-08 states
that the information shall be provided to the environmental
professional. 

Section 312.26     Reviews of Federal, State, Tribal, and local
government records

Government Records Review: List of Records 	312.26(a), 312.26(b)	6.2,
8.2.1.1, 8.2.2, 8.3.4	The ASTM E2247-08 standard provides a more
expansive list of secondary environmental records sources than the AAI
regulation (8.2.2). These secondary sources include records for the
optional scope areas including inventories of threatened and endangered
species and best management practice violations for water quality
protection. Additional record sources specifically reference Department
of Natural Resources and Division of Forestry.

Government Records Review: Search Distance	312.26(c), 312.26(d)	8.1.2,
8.2.1.1	None



Definitions and Requirements	Final AAI Regulation	ASTM E2247-08
Description of Differences

Section 312.27     Visual inspections of the facility and of adjoining
properties

Site Visit: Requirements 	312.27(a), 312.27(b)	9	The AAI regulation
requires that visual inspections of the facility be conducted or updated
within 180 days of and prior to the date of acquisition.

ASTM E2247-08 standard states that a prior environmental site assessment
may be used for the purposes of guidance (without time limitation), but
shall not be relied upon without new site reconnaissance.  This is
similar to the AAI regulation.

Site Visit: Limitations	312.27(c)	9.2.4	None

Section 312.28     Specialized knowledge or experience on the part of
the defendant

Specialized Knowledge or Experience	312.28	6.3	The AAI regulation
requires the user to take into account any specialized knowledge of the
area around the property and the conditions of adjoining properties.

ASTM E2247-08 does not explicitly require the user to provide the
environmental professional with specialized knowledge about adjacent
properties.  However, both the AAI regulation and the ASTM E2247-08
standard state that the goal is to use specialized knowledge that is
relevant to property conditions in order to identify conditions
indicative of releases or to identify RECs.  Therefore, if there is
relevant specialized knowledge, the user (or prospective property owner)
is required to take the information into account.

Section 312.29     The relationship of the purchase price to the value
of the property, if the property was not contaminated

The Relationship of the Purchase Price to the Value of the Property
312.29	6.5	None

Section 312.30     Commonly known or reasonably ascertainable
information about the property

Commonly Known or Reasonably Ascertainable Information about the
Property	312.30	4.1, 6.6	Similar requirements, but the ASTM E2247-08
standard adds that the user should notify the environmental professional
of this knowledge prior to site reconnaissance.



Section 312.31     The 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 Degree of Obviousness of the Presence or Likely Presence of
Contamination	312.31	12.6, 12.8, X.3	Similar requirements, but the ASTM
E2247-08 standard is more specific with the items to be addressed, such
as "items initially suspected to be a recognized environmental condition
and subsequently determined, upon further evaluation, to not be
considered a recognized environmental condition."



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