EPA Allows Use of New Phase I Environmental Site Assessment Standard for Forestland and Rural Property

December 29, 2008

Beginning November 1, 2006, those seeking to establish the innocent purchaser, bona fide prospective purchaser or contiguous property owner defenses under the Comprehensive Environmental Response, Compensation and Liability Act were required to comply with the Environmental Protection Agency’s (“EPA’s”) then new “All Appropriate Inquiries” standard (“AAI”). At the time AAI was finalized as a regulation, ASTM International (“ASTM”) published “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” E 1527-05 (the “2005 ASTM Standard”). The final AAI rule specifically referenced the use of the 2005 ASTM Standard as satisfying the AAI requirements. Most consultants have used the 2005 ASTM Standard when performing Phase I environmental site assessments since late 2006. A summary of AAI is available on our website.

Since Phase I environmental site assessments originated in 1986, the review of large rural and forestland properties has been difficult and time consuming due to the site reconnaissance requirements alone. On December 23, 2008, EPA approved the use of a new standard for such assessments in meeting AAI. EPA issued a direct final rule published in the Federal Register on December 23, 2008 providing that use of ASTM “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property” E2247-08 (the “ASTM Forestland Standard”) will satisfy AAI. A purchaser does not have to use the ASTM Forestland Standard, but it allows for additional flexibility particularly with regard to the site reconnaissance for forestland and rural land of 120 acres or greater. Please see our detailed analysis of the ASTM Forestland Standard.

For more information on the ASTM Forestland Standard or AAI, please contact the authors.

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