EPA answered the question in 2006 when it outlined All Appropriate Inquiry (AAI)‎‎ in response to ‎CERCLA revisions that made new defenses available to some categories of landowners. In its AAI Rule, ‎EPA accepted ASTM Standard 1527-05 – “Standard Practice for Environmental Site Assessments: Phase ‎I Site Assessment Process” – as the manner by which due diligence was to be done. Standard 1527 ‎was updated in late 2013 and EPA sought to accept both the 2013 version and the previous 2005 ‎version as acceptable practice for AAI. Stakeholders concerned by having competing practices ‎interposed public comments stating that by so doing EPA was causing confusion in the ‎marketplace. As a result, EPA withdrew the proposed rule, leaving the 2006 AAI rule in effect. ‎Prospective purchasers, lenders, investors and others perform Phase I Environmental Site ‎Assessments for a variety of reasons, only one of which is to comply with the AAI rule. So what ‎diligence is due today with both an EPA accepted standard and a more rigorous one available?‎

The 2013 ASTM standard changes the previous standard in several ways including the following. First, the ‎new standard updates the definitions of a recommended environmental condition (REC), an historic ‎REC and a controlled REC. The new definitions allow the reviewer a more robust understanding of the ‎conditions on the property which, under the previous standard, might not have qualified as RECs and ‎therefore not called out to the reader for special consideration. Second, vapor is included in the ‎definition for migrate and migration. Vapor migration and intrusion into buildings has become a more ‎keenly watched issue for enforcement actions in some jurisdictions. Third, the definitions of “release” ‎and “environment” are more aligned with those found in the statute. Fourth, the standard provides a ‎method for obtaining historic information about a property’s environmental condition through agency ‎databases.‎

The new standard could be considered more robust and thus more useful to the user of the Phase I ‎report. However, it does not explicitly satisfy AAI at this time. We likely will request our next Phase I ‎be done to the new standard and ask our consulting team to confirm that by so doing it also conforms ‎to the requirements of AAI.‎