EPA Issues Final Rule for “All Appropriate Inquiry” in Environmental Assessments

The United States Environmental Protection Agency (“U.S. EPA”) has issued its final rule defining “all appropriate inquiry” for environmental due diligence necessary to qualify for the defenses to liability contained in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA” or “Superfund”). This new rule, published in the Federal Register on November 1, 2005, will apply to all property acquisitions that close on or after November 1, 2006. Although the final rule dropped some of the harsher provisions of U.S. EPA’s proposed standard, the new rule differs from the industry standard ASTM Standard E 1527-00 in several significant respects, which may have a significant effect upon the cost and scope of environmental site assessments conducted as part of property acquisitions. Prospective purchasers failing to follow the requirements of the final rule will not qualify for the “innocent purchaser,” “adjacent landowner,” or “bona fide prospective purchaser” defenses to liability under CERCLA in any post-closing litigation.