Environmental Liability

Brownfields Liability

The Comprehensive Environmental Response, Compensation and Liability Act and amendments (CERCLA/Superfund) provide that the responsibility of correcting past environmental problems can fall to a current owner or new buyer. However, EPA recognized undiscovered conditions could remain hidden until after purchase. The 2002 Small Business Liability Relief and Brownfields Revitalization Act (the Act) provides for liability protection from future EPA action if the interested party conducts “all appropriate inquiries” (AAI) on their properties.

It requires the innocent landowner or purchaser of potentially contaminated property to conduct a defined level of research for the AAI. The Act establishes standards and practices to conduct "all appropriate inquiries". These inquiries rarely involve chemical testing. These inquiries include an industry practice in our community called ASTM E-1527, or the "ASTM Phase I Standard.”

ASTM E 1527 Standard Practice-Phase I Environmental Site Assessment Process

The purpose of this practice is to define good commercial and customary practices for conducting an environmental site assessment or a parcel of commercial real estate concerning the range of contaminants within the scope of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. §§960) and petroleum products. As such, this practice is intended to permit a user to satisfy one of the requirements to qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations on CERCLA liability ("landowner liability protections”, that is, the practices that constitute “all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice” as defined at 42 USCU.S.C. § 9601(35)(B). Otherwise known as the ASTM E 1527-05 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.