EPA Announces Final Rule Eliminating ASTM Phase I ESA Standard E1527-05 from CERCLA “All Appropriate Inquiries Rule”

On October 6, 2014, the EPA announced a final rule amending the “All Appropriate Inquiries Rule” [40 CFR Part 312] (“AAI Rule”) for conducting environmental site investigations of potentially contaminated property.

The final rule removes reference to the ASTM International 2005 standard – ASTM E1527-05 – as an acceptable standard for undertaking “all appropriate inquiries” necessary to qualify for certain liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), including the bona fide prospective purchaser defense and innocent landowner defense. In June of this year, EPA had announced its intention to eliminate the reference to the 2005 standard, which was replaced in 2013 by an updated standard, ASTM 1527-13, that contains new requirements.

The purpose of the final rule is to “reduce any confusion associated with the regulatory reference to a historical standard that is no longer recognized by its originating organization [ASTM International] as meeting its standards for good customary business practice.”

EPA also believes that its final rule will promote the use of the updated 2013 ASTM standard. As EPA notes, most environmental professionals are likely already using the updated standard, described as “a currently recognized industry consensus-based standard to conduct all appropriate inquiries as provided under CERCLA.”

The effective date for the new rule is October 6, 2015, “to provide parties with an adequate opportunity to complete AAI investigations that may be ongoing [under the 2005 standard] and to become familiar with the updated industry standard (ASTM E1527-13).”

For more information on the AAI Rule and the updated ASTM 1527-13 standard, see our prior blog post.

-- Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at des@bcltlaw.com or (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com or (415) 228-5435.

EPA Proposes Elimination of ASTM Phase I ESA Standard E1527-05 from CERCLA All Appropriate Inquiries Rule

The EPA has announced a proposal to amend the “All Appropriate Inquiries Rule” for conducting environmental site investigations of potentially contaminated property. The proposed amendment will eliminate ASTM E1527-05 (“Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”) as an acceptable standard for undertaking “all appropriate inquiries” necessary to qualify for certain liability protections under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

The All Appropriate Inquiries Rule, 40 CFR part 312 (“AAI Rule”), outlines environmental investigations and inquiries that prospective property purchasers must undertake to qualify for certain liability protections under CERCLA, including the bona fide prospective purchaser defense, contiguous property owner defense, and innocent landowner defense. The requirements also apply to recipients of certain EPA grant funds. In 2005, the AAI Rule recognized a standard published by ASTM International, ASTM E1527-05, as a standard that satisfies these requirements.

In December 2013, the EPA published a final rule that formally identified the recently published ASTM E1527-13 as another acceptable standard. ASTM E1527-13 updated ASTM E1527-05 by, among other things,

• clarifying and redefining certain key terms, such as “recognized environmental conditions” (or “RECs”), “historical RECs,” and “controlled RECs,” 
• explicitly recognizing that potential vapor migration and releases must be considered, and
• providing additional guidance relating to regulatory agency file and records review.

When EPA formally incorporated the updated ASTM E1527-13 standard into the AAI Rule in December 2013, the agency stated that it “strongly encourages prospective purchasers of real property to use the updated ASTM E1527-13 standard when conducting all appropriate inquiries.” However, EPA chose not to eliminate reference to the 2005 standard altogether, at that time. 

By now removing reference to ASTM E1527-05 from the AAI Rule, EPA hopes to “reduce any confusion associated with the regulatory reference to a historical standard that is no longer recognized by its own promulgating organization as meeting its standards for good customary business practice,” and to “promote the use of the standard currently recognized by ASTM International . . . .”   

EPA is proposing that the effective date for removal of the reference to ASTM E1527-05 be one year following publication of the final rule, “to provide parties with an adequate opportunity to complete AAI investigations that may be ongoing and to become familiar with the updated industry standard (ASTM E1527-13).”

A separate ASTM standard identified in the AAI Rule for “Forestland or Rural Property” (ASTM E2247-08) is unaffected by today’s proposed rule.

 

--Don Sobelman and Nicole Martin

For more information, contact Donald Sobelman at (415) 228-5456, des@bcltlaw.com, or Nicole Martin at (415) 228-5435, nmm@bcltlaw.com.