When purchasing property, Hirschler recommends conducting environmental due diligence in order to evaluate environmental conditions and potential risks associated with the property. A Phase I Environmental Site Assessment (Phase I) conducted in accordance with the appropriate ASTM standard qualifies as “All Appropriate Inquiry” (AAI), which then affords a potential purchaser liability protection for any pre-existing contamination at the property.
ASTM E1527-13 has been the applicable standard for Phase Is since 2013, and it is the current standard identified by the Environmental Protection Agency (EPA) as meeting AAI under 40 C.F.R. § 312. In November 2021, ASTM issued a revised standard: E1527-21. Subsequently, EPA issued a rule on March 14, 2022, adopting ASTM E1527-21, which was set to become final in May if no adverse comments were received. Unfortunately, the rule did not become final after EPA received numerous adverse comments.
So, what ASTM standard should be used in the interim? Ensure that your Environmental Professional prepare a Phase I that complies with both ASTM standards. The new 2021 standard should be cited, incorporating the various changes, but the report also should cite and comply with the 2013 standard, since, technically, it is the only standard formally approved by EPA as meeting AAI.
Unsure whether your Phase I has the appropriate information and includes all of the changes from ASTM E1527-21? Hirschler attorneys can review your Phase I to ensure compliance. If an environmental issue occurs in the future, your liability protection as an “innocent purchaser” who conducted AAI will not be assured unless your Phase I appropriately considered all of the relevant ASTM requirements.
Kristen M. Chatterton