This article first appeared on my Green Building Law Update blog. In an effort to promote and expand the emergent body of sustainability and green building law, I began blogging. The Green Building Law Update blog is intended for the entire environmental industrial complex (not just for lawyers).

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September 16, 2013 is the final day to offer a comment on the U.S. EPA’s direct final rule allowing the use of the new ASTM E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” to satisfy the requirements for conducting “all appropriate inquiries” to qualify for liability protections.

It is surprising to some that EPA is proposing to add the new ASTM E1527-13 Phase I procedure as an alternative to the existing ASTM E1527-05 Phase I procedure in lieu of replacing it. This means beginning November 13, 2013, parties will need to choose which Phase I procedure to use in each transaction.

A party conducts a Phase I assessment to perform all appropriate inquiries, as bona fide prospective purchaser, contiguous property owner, or innocent landowner, when purchasing real estate to establish a limitation on liability under the Comprehensive Environmental Response, Compensation and Liability Act (i.e., the Superfund law) in conjunction with the purchase of a potentially contaminated property.

EPA expressly notes in the rule that there is no legally significant difference between the regulatory requirements (for having made all appropriate inquiries about potential contamination) in the old version versus the new ASTM E1527 standard.

ASTM E1527-13 adds a new defined term “Controlled Recognized Environmental Condition” for hazardous substance releases that have been partially addressed through remediation, but where some contamination remains in place under certain restrictions or conditions. As a corollary, the definition of a “Historical Recognized Environmental Condition” is revised to limit applicability to situations where past contamination has been addressed to unrestricted residential standards.

ASTM E1527-13 alters the definition of “migrate” to include releases that migrate to the surface as vapor. Because ASTM E1527-05 expressly excludes consideration of indoor air quality concerns, vapor intrusion risks are not considered in Phase I assessments. However, under ASTM E1527-13, possible indoor air quality impacts from vapor intrusion will need to be addressed if there is subsurface soil or groundwater contamination at or near the site.

These definitional changes will likely increase the number of recognized environmental conditions identified in Phase I reports, increasing the costs of the Phase I assessment, and triggering more requests for a Phase II assessment. And while the new procedure is arguably more comprehensive, it is not more stringent, not necessarily yielding better information, and should not simply become the new market standard. Love Canal lead to strict liability under CERCLA for owners of land and prospective owners will now need to evaluate which Phase I procedure is necessary and desirable in each instance to limit their liability from contaminated property.

The EPA rule is at New Phase I Final Rule