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U.S. EPA Approves Use of Updated ASTM Phase I Standard for Specific Properties

ASTM International recently updated its Phase I environmental site assessment standard for assessing large rural and forestland properties.  This Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property, E 2247-16 (2016 rural property standard), replaces a 2008 version, numbered E2247-08. Purchasers of real property who intend to use the rural property standard for a closing on or after March 14, 2018, must use the 2016 standard.

Proposed purchasers seeking to establish the innocent purchaser, bona fide prospective purchaser or contiguous property owner defenses under the Comprehensive Environmental Response, Compensation and Liability Act must comply with the United States Environmental Protection Agency’s (U.S. EPA’s) All Appropriate Inquiries (AAI) standard at 40 C.F.R. pt. 312 prior to the purchase of the property.  While purchasers may follow the AAI criteria set forth in the regulations, most purchasers follow either the E1527-13 Phase I standard (defined below) or the 2008 rural property standard when performing pre-purchase Phase I environmental site assessments, as both standards are specifically identified in the regulation as satisfying AAI.

Effective March 14, 2018, the 2016 rural property standard replaces the 2008 standard for use in meeting AAI under EPA’s regulation. (Purchasers of real property who intend to use the rural property standard for a closing before March 14, 2018, however, may still use the 2008 standard.)  This change is of particular importance to solar and wind projects proposed for large tracts of rural and farmland property, as it allows for less rigorous onsite assessment than the site visit requirements used for assessing commercial and industrial properties, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, E 1527-13 standard.

Since Phase I environmental site assessments originated in 1986, the review of large rural and forestland properties has been difficult and time-consuming due to the site reconnaissance requirements alone.  The 2008 rural property standard alleviated some of the difficulties in the site reconnaissance requirements for assessing large rural tracts of property, as more particularly described in an earlier summary.

The 2016 rural property standard adds updated terminology that is used in the companion E1527-13 standard, but more importantly, changes some language that limited the more widespread use of the 2008 version.  First and foremost, the 2016 rural property standard eliminates the somewhat arbitrary 120-acres-or-more size requirement for use of the standard and simply requires the property to be “forestland” or “rural property.”  The standard includes a much broader definition of rural property, allows some alternative sourcing for agency records, and designates a specific time limit of 20 calendar days for receipt of materials requested by the consultant for review in completing Phase I.  The 20 calendar days requirement offers the benefit of an outside time limit, but also ensures that a Phase I environmental site assessment will take at least 20 days to complete if requested documentation is not received earlier. The 2016 rural property standard also relaxes some of the site visit criteria.