CERCLA Historical Background

1980: The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) passed by Congress, aka, SuperFund. The law gave the EPA broad powers to investigate and remediate the worst contaminated sites in the country. The initial investigation consisted of a detailed review of the available background information, inspection of the off-site area and inspection of the on-site area. This process was known as "Preliminary Environmental Site Assessment" or "environmental due diligence." This is the precursor to the Phase I Environmental Site Assessment process.
  • CERCLA contained a concept called "strict liability" - liability without fault. This meant that an "innocent purchaser" of a property could be held liable although they did not cause the contamination.

 

CERCLA Background

Overview of All Appropriate Inquiries Requirements
 for Phase 1 site assessments

AAI & ASTM E 1527-00:
Key Points | Chart of Key Differences

AAI & New ASTM E 1527-05:
Key Difference - Petroleum

Federal Register PDF Document:
40 CFR Part 312 Standards and Practices for All Appropriate Inquiries; Final Rule
1986: Congress passed the "Superfund Amendment Reauthorization Act," aka, SARA. As part of SARA, the EPA included liability protection known as the "innocent landowner provision" for purchasers of property, as long as the purchaser completed "All Appropriate Inquiry" consistent with "good commercial real estate practices." Congress created the "innocent landowner" provisions in 1986.

1993: American Society for Testing and Materials (ASTM) published the ASTM E-1527 Standard Practice for Phase I Environmental Site Assessments and ASTM E-1528 Standard Practice for Transaction Screens. These standards were the accepted standards for the minimum levels of environmental due diligence within both the environmental consulting, legal, and financial services industries.

2002 Brownfields Amendments: The passage of the Small Business Liability Relief and Revitalization Act, the Federal "Brownfields Act," an amendment to CERCLA, required EPA to develop standards and practices for conducting "all appropriate inquires." The ASTM E-1527-97 and -00 were found to be inconsistent with applicable law because neither met the statutory criteria.

  • The 2002 Brownfields Amendments added potential liability protections for "contiguous property owners" and "bona fide purchasers" who also must demonstrate they conducted all appropriate inquiries, among other requirements, to benefit from the liability protection.

2005: The Federal EPA  finalized "Standards and Practices for All Appropriate Inquiries," published in the Federal Register, Part III Environmental Protection Agency, 40 CFR Part 312 dated November 1, 2005. 

  • The effective date for these regulations is November 1, 2006. The EPA specified ASTM 1527-00 for Phase I Site Assessments as the designated "interim standards."
  • After November 1, 2006  only ASTM E1527-05 will meet the AAI regulations.