KMK Law Real Estate Blog

On December 30, 2013, U. S. EPA issued a final rule, 40 CFR 312.11, amending the “all appropriate inquiry” (AAI) rules adopted under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recognize that the performance of a Phase I Environmental Site Assessment (ESA) under the new ASTM E1527-13 “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process” (ASTM E1527-13) will satisfy the AAI requirements under CERCLA for innocent and bona fide prospective purchasers and contiguous property owners who are purchasing or leasing potentially environmental contaminated properties.  The effective date of this final rule is December 30, 2013. 

As an additional update to a previous posting, on November 6, 2013, ASTM issued the updated standard for Phase I Environmental Site Assessments, ASTM E 1527-13, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.

Should you have any questions or need guidance about EPA’s All Appropriate Inquiry Rules please contact Brian Babb at (513) 579-6963 or at bbabb@kmklaw.com.

To update an earlier posting, please note that effective October 29, 2013, EPA has withdrawn the direct final rule for the Amendment to Standards and Practices for All Appropriate Inquiries published on August 15, 2013.

Should you have any questions or need guidance about EPA’s All Appropriate Inquiry Rules please contact Brian Babb at (513) 579-6963 or at bbabb@kmklaw.com. 

Probably the most widely used environmental standard to emerge in the last ten years is the “All Appropriate Inquiry” (AAI) Rules which dictate the level of scrutiny a prospective real property purchaser must undertake to protect itself from environmental liability due to pre-existing contamination on the property.  Since 2005, U.S. EPA had made it perfectly clear how the AAI Rules could be satisfied.  However, in a recent and somewhat bizarre rulemaking action, EPA has left purchasers wondering what really constitutes “all appropriate inquiry.”  The problem stems from EPA’s attempt to finalize changes to its AAI Rules which ties AAI compliance to another standard that has yet to be issued by a separate non-governmental entity. 

On December 5, 2012, the United States Environmental Protection Agency (EPA) issued revised guidance to memorialize its position that commercial and industrial tenants can protect themselves from contamination liability under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or commonly referred to as Superfund) by relying on an “all appropriate inquiry” of the ownership and uses of the property, timely performed by the landlord, or by timely performing the all appropriate inquiry themselves. EPA’s prior guidance did not indicate these statutory defenses were available to tenants.