NEW STANDARDS FOR ENVIRONMENTAL DUE DILIGENCE AT CONTAMINATED SITES

NEW STANDARDS FOR ENVIRONMENTAL DUE DILIGENCE AT CONTAMINATED SITES

During 2011, ASTM International (“ASTM”), the international standards organization, has revised its standards for the performance of environmental site assessments. When contaminated property is sold, it must be assessed pursuant to ASTM standards to determine its current condition. This is required by federal and state law for the seller to preserve defenses to environmental liability claims.

EPA regulations require that “all appropriate inquiries” must be made into the environmental conditions of the property to preserve those defenses. This standard is typically met by the performance of a Phase 1 site assessment pursuant to ASTM standards. If particular issues are discovered, a Phase 2 site assessment may be performed.

ASTM recently updated its Phase 2 standards to include communication between the “user” who commissions the assessment and the “assessor” who performs it. The new standards require the user and assessor to agree upon a written statement of objectives that sets the scope of the investigation. These objectives are tailored to the user’s needs; they can limit the investigation to only certain parts of the site or certain contaminants, or expand it beyond the recognized environmental conditions (“RECs”) identified in a Phase 1 assessment.

In addition, ASTM has released a new “Standard Guide for Identifying and Complying with Continuing Obligations” (E2790-11). This is a guide for developing and implementing a “continuing obligation plan” required by the EPA. Since “continuing obligations” are broadly defined under CERCLA and its regulations, Courts may look to the new ASTM standards for more specific guidance.