On Dec. 30, 2013, the U.S. Environmental Protection Agency issued a final rule accepting the use of a revised industry standard for the conduct of an initial environmental assessment of properties by an environmental technical professional. This assessment is commonly referred to as a Phase I Environmental Site Assessment, or simply a Phase I. In addition to providing the history of operations, and an initial identification of potential environmental conditions, at a property, a Phase I is the mechanism whereby a prospective purchaser or tenant can document that they undertook the level of inquiry required to defend against liability for environmental conditions under certain environmental laws.

The federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) creates strict, and joint and several, liability for the cleanup of an environmentally contaminated site for owners (past and present) and certain tenants at such a site. Among the limited defenses under CERCLA are those of the “innocent purchaser,” “adjacent landowner” or “bona fide prospective purchaser.”

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