The US Environmental Protection Agency (EPA) has published a Direct Final Rule to to confirm that the recently updated ASTM Standard E2247-16: Phase I Site Assessment Process for Forestland or Rural Property satisfies the due diligence requirements for the “bona fide prospective purchaser” and “innocent landowner” defenses under CERCLA (as well as the “contiguous property owner” protection). These defenses protect the purchaser or landowner from liability associated with potential contamination of the property.
The “All Appropriate Inquiries” Rule (40 CFR Part 312) imparts standards and practices for performing an environmental due diligence investigation to the extent necessary to claim one of the CERCLA liability defenses, which include an inquiry by an environmental professional and additional efforts to identify conditions indicative of releases or threatened releases of hazardous substances and other pollutants.
From the start, the AAI rule has cited the ASTM E1527 “Standard Practice for Environmental Site Assessments: Phase I Site Assessment Process” as meeting its requirements. Later, EPA published a rule revision to recognize that the ASTM E2247 standard practice, which modified the Phase I Environmental Site Assessment process somewhat to make it more practicable for very large forested and rural tracts of land, also met the AAI rule requirements. The E2247 standard provides for alternatives to a full physical walk-over and direct visual observation to satisfy the required site reconnaissance by an environmental professional. Interest in the acquisition of relatively large tracts of land for solar and wind power projects is seen as inviting wider use of the ASTM E2247 standard.
This latest EPA action allows use of a 2016 revision to the ASTM E2247 standard to demonstrate compliance with the AAI rule. The most significant change in the 2016 version is elimination of a 120-acre minimum parcel size requirement for use of the standard. Instead, the property must only be, as broadly defined in the standard, “forestland” or “rural property”. Other changes include a 20-day limit on receipt of documentation as requested by the environmental professional conducting the assessment (thus setting an outside time limit on how long the investigation must be allowed to continue) and additional flexibility for site visits and agency records review.
For further information regarding the AAI rule or assistance with your environmental due diligence requirements (practically anywhere in the contiguous US!) please contact T. Cozzie Consulting.