On November 1, 2005, the U.S. EPA published its final rule pertaining to the Standards and Practices for All Appropriate Inquiries AAI . Shortly thereafter, ASTM published its updated E1527-05 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. Much has been written about the new requirements and latest landowner liability protections LLP’s that evolved as a result of Congress’ actions and the new EPA rule i.e., the addition of the contiguous property owner CPO and bona fide prospective purchaser BFPP defenses to Comprehensive Environmental Response, Compensation, and Liability Act CERCLA liability . There is, however, one aspect of the AAI Rule and revised Standard that remains a source of confusion. It lies within the very last sentence of the AAI Rule, wherein it states: “The inquiry of the environmental professional should include an opinion regarding additional appropriate investigation, if any.” FR Doc. 05-21455, §312.31 b , Page 66113 . This directive is carried through to the new ASTM Standard, wherein it states, in part, “The environmental professional should provide an opinion regarding additional appropriate investigation, if any, to detect the presence of hazardous substances or petroleum products” ASTM Section 12.6.1 . The problem is that this language has been interpreted by many within the industry as guidance that directs that recommendations regarding the collection of new data through, for example, sampling and analysis, are now appropriate even mandated as part of the completion of a Phase I Environmental Site Assessment ESA . Such interpretation is misguided, and will have a profound impact on the commercial real estate industry, if not clarified. The position here is that if EPA intended to do away with the finality of a Phase I ESA except where recognized environmental conditions REC’s are identified in the context of specific uncertainties and mandated the collection of new data such as that associated with sampling and analysis, it could have chosen to do so but did not, as Section X of the Preamble language to the EPA Rule itself proclaims. First and foremost, the CERCLA a.k.a., Superfund, through its 1986 amendments, already included a provision that in order to qualify for the so-called “innocent landowner defense” to CERCLA, a subset of the CERCLA third party defense presented within 42 U.S.C. §9607 b 3 , one must satisfy a number of criteria, including: “the degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate investigation” CERCLA §312.31 . Thus, we are not charting new ground here. The requirement to conduct appropriate investigation has always been a
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