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. In addition, the following appropriate inquires must be completed within the 180 days prior to the purchase of the property:
- 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.
Under the revised forms, the 180 days (and the one-year shelf life for Phase I reports) runs from the earliest date upon which required information was collected or site investigation was conducted. Importantly, the 180 days does not run from the date of the report. This fact is significant to prospective purchasers of brownfields sites seeking bona fide prospective purchaser status because if more than 180 days has elapsed from the initial activity related to data collection or site inspection prior to taking title to the property, then an update will be necessary to comply with the AAI rule. If an update is not obtained, the purchaser may have blown its opportunity to qualify for the defense and may be held liable for the costs of cleaning up contamination.