Purchaser's Participation In Environmental Diligence — Securing BFPP Defenses Against CERCLA Liability

A new standard for Phase I Environmental Site Assessments (Phase I) went into effect this week. Beginning on February 13, if a Phase I is used to establish purchaser's performance of "all appropriate inquiries" during its environmental diligence in order to establish a Bona Fide Prospective Purchaser defense under CERCLA, the Phase I must be performed pursuant to the new ASTM E1527-21 standard (ASTM Standard). Importantly, the ASTM Standard imposes requirements upon the real estate purchaser to make several disclosures in connection with the preparation of the Phase I. This Advisory is intended to provide practical tips for satisfying this lesser-known aspect of the "All Appropriate Inquiries" safe harbor for a Bona Fide Prospective Purchaser defense under CERCLA.