In a final rule published on December 30, 2013, and effective immediately, the U.S. Environmental Protection Agency (EPA) has adopted a new standard for conducting All Appropriate Inquiries (AAI). The EPA’s action impacts private and public parties who, as bona fide prospective purchasers, innocent landowners, or contiguous property owners, are buying properties that are potentially contaminated and intend to claim a limitation on potential CERCLA liability. To satisfy AAI requirements, prospective purchasers and environmental professionals should comply with the newly published ASTM E 1527-13, rather than the earlier ASTM E 1527-05 standard, when conducting Phase I Environmental Site Assessments (ESA). The new requirements are expected to make Phase I ESAs more time intensive and costly.
Some of the most significant revisions found in ASTM E1527-13 include:
Migration of contaminants: The definition of migration has been expanded to include the movement of vapors in subsurface soils and groundwater. As a result, the environmental professional conducting the review must consider potential impacts to indoor air quality caused by vapor migration. However, the new standard specifically states that a full vapor encroachment screening is not required.
- Definitions: The new standard also includes revisions to the definitions of Recognized Environmental Condition (REC) and Historical Recognized Environmental Condition (HREC). A HREC is limited to past releases that have been remedied so that full use of the property is allowed. Further, the new standard adds the term Controlled Recognized Environmental Condition to describe past releases that have been managed to a regulatory standard, but contamination remains in place subject to certain restrictions or controls.
- Regulatory file and record review: Environmental professionals must review regulatory files pertaining to the listing of the property on state or federal environmental databases to determine whether the listing constitutes an Environmental Condition. If the environmental professional concludes that a regulatory file review is not warranted for any reason, the environmental professional must specifically state in the report the justification for omitting the review.
- User responsibility: The person intending to rely on the report to satisfy AAI must conduct or have conducted a title search for environmental liens and limitations on use of a property and must search judicial records in such instances where the jurisdiction only records or files such liens and limitations in judicial records. If the user fails to perform the search, the environmental professional must record this omission in the report and state whether the absence of this information is significant.
Although the EPA has not yet removed mention of the ASTM E 1527-05 from the AAI standard, the best practice for environmental professionals and parties seeking protection under AAI would be to immediately have all Phase I ESAs performed in full compliance with the requirements found in ASTM E1527-13.