The Phase I Standard Used For CERCLA Defenses Will Stay The Same – For Now

On May 2, 2022, the U.S. Environmental Protection Agency ("EPA") withdrew its direct final rule that would have amended 40 C.F.R. Part 312 to recognize ASTM's updated E1527-21 standard (the "2021 Standard") as satisfactory to fulfill the "all appropriate inquiries" requirement of certain defenses to liability under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). As we previously reported, purchasers of real property must fulfill the "all appropriate inquiries" requirement in order to assert the innocent landowner, contiguous property owner, or bona fide prospective purchaser defenses to CERCLA liability. These defenses limit a purchaser's liability for historic contamination that predates their ownership. The regulations at 40 C.F.R. Part 312 currently specify that a Phase I Environmental Site Assessment ("Phase I") prepared in compliance with the ASTM E1527-13 standard (the "2013 Standard") can be used to satisfy the "all