On Jan. 11, 2002, President Bush signed the Small Business Liability Relief and Brownfields Revitalization Act, Public Law 107-118 ("the Brownfields Amendments"). Among other things, the Brownfields Amendments limited CERCLA liability for certain purchasers of contaminated property, including bona fide prospective purchasers and contiguous land owners, while clarifying requirements necessary to establish the innocent landowner defense under CERCLA. The amendments state that parties purchasing potentially contaminated property must undertake "all appropriate inquiries" (often referred to as "AAI").

 

 

Animal feeding operations ("AFOs"), which include confined animal feeding operations ("CAFOs"), emit a host of chemicals into the air, including ammonia, hydrogen sulfide, particulate matter and volatile organic compounds ("AFO emissions"). Air emissions studies have found a correlation between AFO emissions and potential negative health impacts, such as increased rates of asthma. Yet, despite knowledge of these studies, the United States Environmental Protection Agency ("EPA") has not made a finding that AFO emissions can "reasonably be anticipated to endanger public health or welfare." Therefore, the agency has not added AFO emissions to the list of pollutants under Section 108 of the Clean Air Act ("CAA") and has not established limits (known as National Ambient Air Quality Standards or "NAAQS") for the maximum allowable concentrations of AFO emisions. See 42 U.S.C. §§ 7408(a)(1)(A)-(C) & 7409. Several residents of Winneshiek County, Iowa, who - as it turns out - teach at, have attended or have children that attend a school that was the focus of one of the studies, sued the EPA to force the agency to regulate AFO emissions. They argued that the CAA places a "nondiscretionary duty" on the agency to regulate AFO emissions and to designate AFOs as stationary sources.

 

The Indiana Department of Environmental Management ("IDEM") has updated forms related to obtaining a Comfort Letter or Site Status Letter for brownfields sites. The purpose of the update was to address the timeline for compliance with the All Appropriate Inquiries ("AAI") Rule for qualification as a bona fide prospective purchaser under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") and corresponding state law. The AAI Rule requires that AAI must be completed within one year prior to the purchase date of the real property to establish the bona fide prospective purchaser defense.