A New Phase I Standard
On December 30, 2013, the Environmental Protection Agency (EPA) published a final rule approving the use of ASTM E1527-13, the standard for a Phase I Environmental Site Assessment, to satisfy All Appropriate Inquiry (AAI) for environmental due diligence. Compliance with AAI is necessary to qualify for the bona fide prospective purchasers and innocent landowner defenses under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The EPA intends to publish a proposed rule to remove the reference to the ASTM E1527-05 Phase I Standard in the All Appropriate Inquiries Rule.
The EPA recommends the use of ASTM E1527-13.
Primary changes to the Phase I standard include the following:
Controlled Recognized Environmental Condition (CREC) is a new term that has been added to the standard. An example of a CREC is a property that has obtained regulatory closure, but contamination remains which involves property use restrictions, activity use restrictions, institutional controls, engineering controls or continuing obligations.
Vapor is included as a contaminant medium with soil and groundwater. Therefore, vapor migration is required to be considered as part of the Phase I assessment.
Regulatory File Review – The new standard states that regulatory file reviews should be conducted for the subject property and any adjoining properties that are identified on the regulatory database report. If a regulatory file review is not conducted, the Environmental Professional must provide an opinion for not conducting a regulatory file review.