On December 15, 2022, the United States Environmental Protection Agency (EPA) took final action to approve the new ASTM International standard for conducting Phase I environmental site assessments. As previously noted, ASTM adopted the revised standard, officially known as ASTM 1527-21, last year. The revised standard represents best practices for conducting Phase I environmental site assessments.
Effective February 13, 2023, the "All Appropriate Inquiries Rule" will reference the revised ASTM 1527-21 standard and allow for use of the standard to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Compliance with CERCLA's "all appropriate inquiries" requirements before the property acquisition date is essential to qualify for one of CERCLA's few statutory defenses, such as those for bona fide prospective purchasers, innocent landowners and contiguous property owners. Fortunately,EPA's adoption of the ASTM 1527-21 standard means that compliance with the standard satisfies these requirements.
Consistent withEPA's prior approvals of the ASTM Phase I environmental assessment standard, parties can continue to use the prior standard (ASTM 1527-13) until February 13, 2024. After that time, use of the ASTM 1527-13 standard will no longer qualify as complying with CERCLA's all appropriate inquiries requirements.
Even thoughEPA will allow the use of the old standard for the one-year phase out period, the revised standard represents best practices for conducting environmental site assessments. As such, prudent purchasers should consider using the revised standard during the phase out period of the old standard.
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