We recently outlined the proposed updated standards for Phase I Site Assessments, including how prospective owners and lessees should prepare for potential changes. The Environmental Protection Agency (EPA) just issued a Proposed Rule to adopt these new standards in the coming months.
The rule seeks to amend the "All Appropriate Inquiries Rule" to reference ASTM International's E1527–21 ''Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.'' Once final, the rule will allow those conducting ESAs for prospective land purchases and leases to use the new standards to meet the "All Appropriate Inquiries" requirements and to qualify for environmental liability defenses under the Comprehensive Environmental Response, Compensation and Liability Act, including the innocent landowner and bona fide prospective purchaser defenses.
Notably, the proposed rule would not require any entity to use the updated standard to qualify for CERCLA defenses. These entities may still use the ASTM E1527–13 standard, which is currently in effect. However, the revised standard requires a higher level of scrutiny and stronger guidance regarding emerging contaminants such as PFAS. It's a good idea for buyers to start asking their consultants to use the new standards, regardless of the final rule's outcome.
EPA is accepting comments on the rule until April 13. EPA notes that if it receives no adverse comment, the rule will automatically go into effect. However, media reports indicate that there will be adverse comments, suggesting that the new rule may take a bit longer to become final.
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