Written by Luke H. Legere, Esq.
Current and prospective property owners who may wish to be able to invoke certain legal defenses to liability under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) should be aware that the United States Environmental Protection Agency (EPA) has amended its regulations governing such defenses.
The update to EPA’s so-called All Appropriate Inquiries (AAI) regulations, 40 CFR Part 312, was announced in a Final Rulemaking published in the December 15, 2022 Federal Register. CERCLA requires EPA to promulgate regulations outlining standards and practices for a party to conduct AAI prior to acquiring land.
For those who are unfamiliar with AAI, it is essentially a prerequisite to claiming protection from CERCLA liability as an “innocent” landowner, abutting property owner, or prospective purchaser. The AAI regulations govern Due Diligence standards and practices used in evaluating environmental conditions at a site, which may impact responsibility and/or liability for contamination for the property.
Effective February 13, 2023, the AAI regulations will incorporate the current ASTM E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The Final Rulemaking incorporates the current standard (E1527-21) for entities attempting to qualify for CERCLA liability protections by conducting AAI.
EPA did include a sunset clause for landowners who have already begun Phase I investigations using the prior ASTM E1527-13 standard. The amended regulations allow for use of that old standard until December 15, 2023, or one year from publication of the Final Rule.
The current ASTM E1527-21 Phase I standard was introduced in November 2021. Some of the key changes from the prior Phase I standard worth noting include new definitions (e.g., the term “Property Use Limitation”), expanded guidance (e.g., distinguishing between Recognized Environmental Condition, Controlled Recognized Environmental Condition, and Historical Recognized Environmental Condition with diagrams and examples). Also, the current Phase I standard incorporates modern, best practices for historical research (e.g., aerial photographs, fire insurance mapping, and topography).
As a result of the recent Final Rulemaking pursuant to CERCLA, EPA has now incorporated the updated ASTM Phase 1 standards into its AAI regulations. Engineers and consultants, property owners and managers, buyers and sellers, lenders and investors, commercial and industrial tenants, attorneys and their clients, and others who wish to find safe harbor from certain Superfund liabilities, will be attending to the new clarity and objectivity in the All Appropriate Inquiry part of their Due Diligence.
During the comment period for this new rule, the EPA received various support, objections, questions, concerns, and other observations. They reflect the many and varied regulated, affected, and otherwise interested communities who use, would use, interpret or apply the AAI safe harbor provision. Such comments were submitted by risk managers from lending institutions, committee members who participated in the 2013 and 2021 revisions to the ASTM E1527 Phase 1 standards, licensed professionals in the field, the New York City Brownfield Partnership, the Environmental Bankers Association, the Brownfield Coalition of the Northeast, several environmental consulting firms, the U.S. Chamber of Commerce, and others.
LUKE H. LEGERE, Esq. is a Partner with McGregor Legere & Stevens, PC. He helps clients with a broad range of environmental, land use, and real estate issues including coastal and inland wetlands and waterways, zoning, subdivision, development agreements, conservation restrictions, state and local enforcement actions, stormwater, solid waste, hazardous waste, air pollution, site remediation, regulatory takings, affordable housing, and energy facility siting.
Mr. Legere routinely represents clients in permitting matters before conservation commissions, planning boards, zoning boards of appeals, boards of health, and other local environmental and land use boards and officials. He frequently represents clients in administrative enforcement proceedings and adjudicatory hearings before state agencies such as the Department of Environmental Protection (“DEP”). He regularly handles litigation in state and federal courts at both the trial and appellate levels.
Mr. Legere often writes and speaks on topics such as the Wetlands Protection Act, Chapter 91, Watershed Protection Act, Article 97, water pollution control, non-zoning wetlands bylaws, zoning and land use, regulatory takings, and brownfields. He has had articles published in newsletters for the Massachusetts Association of Conservation Commissions (“MACC”), Real Estate Bar Association (“REBA”), and Association of Massachusetts Wetlands Scientists (“AMWS”). He is the author of the Water Pollution Control chapter of the Massachusetts Continuing Legal Education’s (“MCLE”) treatise on Environmental Law.
Mr. Legere teaches a course on Legal Research and Writing at New England Law | Boston. He leads workshops for the Citizen Planner Training Collaborative (“CPTC”) offering guidance to members of local boards on the State Zoning Act, Special Permits and Variances, and Writing Reasonable and Defensible Decisions. He regularly serves as a panelist for MCLE’s “Practicing with Professionalism” program.
Mr. Legere has served as co-chair of the Boston Bar Association’s Wetlands, Waterways, and Water Quality Committee. He served two terms on the Board of Directors for the Queechy Lake Club, a non-profit corporation dedicated to the preservation and protection of Queechy Lake in Canaan, NY.
Mr. Legere is a graduate of Colgate University and New England Law | Boston, cum laude.
Mr. Legere has enjoyed success in court and agency administrative proceedings, and is often able to achieve his clients’ desired result by finding creative solutions to negotiate settlement for seemingly intractable disputes.