LEGAL Environmental Due Diligence Rule Effective Nov. 1 By: Margaret A. Hill and Charles T. Blocksidge As required by Congress, EPA published a final rule establishing federal standards for the conduct of conducting "all appropriate inquiry" into the prior ownership, use and environmental conditions of real property for the purpose of qualifying for landowner liability protection under the Comprehensive Environ- mental Response, Compensation and Liability Act (also known as "Superfund"). EPA's all appropriate inquiry or due diligence Rule became effective November 1, 2006. By way of background, persons One School. Unlimited Possibilites. All Levels of Training For: USCG Licensing STCW Compliance S.M.A.R.T. Simulation Regulatory & Onboard Training Free! Come in or call for your Free 84-page full color Career Reference Manual & Course Catalog. It's packed with helpful information! Employment Opportunities Visit us online for a Virtual Tour of our school Now Available! Leading the industry for over 20 years Visit Our Website: www.mptusa.com Email Us: email@example.com Maritime Professional Training Masters, Mates and Engineers, Inc. 1915 South Andrews Avenue, Ft. Lauderdale, FL 33316 Ph: +1.954.525.1014 Toll Free: 1.888.839.5025 Maritime Professional Training. All Rights Reserved. can be held strictly liable under Superfund for remediating releases or threatened releases of hazardous substances on property that they either currently own or operate, or owned or operated at the time of disposal. One of the limited defenses to Superfund's strict liability scheme is available to persons who can demonstrate, among other requirements, that they conducted all appropriate inquiry and "did not know and had no reason to know" prior to purchasing a property that there was a release of hazardous substances on, in, or at the property. The Rule provides the criteria and process that must be followed by prospective purchasers to rely upon this defense in order to avoid or minimize Superfund liability. In brief, the criteria required for conducting all appropriate inquiry or due diligence include: prescribed inquiries by an "Environmental Professional"; interviews with past and present owners and operators to learn about potential contamination; reviews of historical sources to determine previous uses and occupancies for the property; searches for environmental liens; reviews of governmental records regarding waste disposal and environmental management activities relevant to assessing contamination; visual inspections of the facility and adjoining property; any specialized knowledge or experience on the part of the purchaser; the relationship of the purchase price to the value of the property; commonly known or reasonably ascertainable information about the property; and the degree of obviousness as to the presence of contamination on the property and the ability to detect the contamination by further investigation. The primary objectives of the Rule are to identify: current and past property uses and occupancies, the presence of hazardous substances, waste management and disposal activities, current and past corrective actions and responses to address releases, engineering and/or institutional controls, and adjacent and nearby properties that have "environmental conditions" that could affect the property under investigation. Environmental due diligence investigations, under EPA's Rule, will be conducted for the most part by an "Environmental Professional". Environmental Professionals must have specific education, training and experience in order to develop opinions and conclusions regarding the environmental conditions associated with a specific property. An Environmental Professional is defined by the Rule to include: (1) a Professional Engineer or 14 · MarineNews · December, 2006
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