Update On Performing A Phase I Environmental Site Assessment: What Standard Should Apply To Render Protection Against Liability?

For many years, it has been standard practice for prospective purchasers and even tenants to conduct a Phase I Environmental Site Assessment ("ESA") before acquiring a new property interest. This is for two important reasons: (1) to learn the environmental condition of the property, and (2) to create an affirmative defense against what could otherwise be strict liability for existing environmental contamination or contamination that migrates from an adjacent property. Under the Comprehensive Environmental Response, Compensation and Liability Act, ("CERCLA"), otherwise known as Superfund, and similar state laws across the country, a new owner or operator of a contaminated property can be held liable for releases caused by others unless it has performed reasonable due diligence on the property prior to obtaining or beginning operations on the property. Under CERCLA, the amount of due diligence that is necessary to avoid strict liability is called All Appropriate Inquiry