Proposed Rule To Allow Use of ASTM E1527-13 For All Appropriate Inquiries

Written By: Caltha LLP | Published On: 16th August 2013 | Category: Due Diligence, Environmental Site Assessment | RSS Feed

In advance of the revised ASTM standard being finalized, EPA has proposed to amend the Standards and Practices for All Appropriate Inquiries to reference ASTM International’s E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and allow for its use to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation, and Liability Act. EPA’s proposed rule includes no changes to the All Appropriate Inquiries Rule other than to add an additional reference to the new ASTM E1527-13 standard. Written comments must be received by September 16, 2013.

The current ASTM standard practice, E1527-05, will expire in 2013 and must be replaced with a revised standard. ASTM has been working on draft versions of E1527-13 for a few years and anticipates releasing the new standard in September or October 2013. Until replaced, E1527-05 remains the current version of this ASTM standard practice for Phase 1 ESAs.

Click here to review some key proposed changes to the ASTM standard

 

As background, in 2002 the Small Business Liability Relief and Brownfields Revitalization Act (“the Brownfields Amendments”) was passed. In general, the Brownfields Amendments to CERCLA provide funds to assess and cleanup brownfields sites; clarifies existing and establishes new CERCLA liability provisions related to certain types of owners of contaminated properties; and provides funding to establish or enhance State and Tribal cleanup programs. The Brownfields Amendments revised some of the provisions of CERCLA Section 101(35) and limit liability under Section 107 for bona fide prospective purchasers and contiguous property owners, in addition to clarifying the requirements necessary to establish the innocent landowner liability protection under CERCLA. The Brownfields Amendments clarified the requirement that parties purchasing potentially contaminated property undertake “all appropriate inquiries” into prior ownership and use of property prior to purchasing the property to qualify for protection from CERCLA liability.

The Brownfields Amendments required EPA to develop regulations establishing standards and practices for how to conduct all appropriate inquiries. EPA promulgated regulations in 2005 in which EPA referenced and recognized as compliant with the final rule, the ASTM E1527-05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Standard Process.” In December 2008, EPA amended the final rule to recognize another ASTM standard as compliant with the direct final rule, ASTM E2247-08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.” Therefore, the final rule (40 CFR part 312) allows for the use of the ASTM E1527-05 standard or the ASTM E2247-08 standard to conduct all appropriate inquiries, in lieu of following requirements included in the final rule.

EPA is now proposing to amend the all appropriate inquiries final rule to allow for the use of the revised ASTM standard, E1527-13, for conducting all appropriate inquiries, as required under CERCLA for establishing the bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections. Once final, parties seeking liability relief under CERCLA’s landowner liability protections, as well as recipients of brownfields grants for conducting site assessments, will be considered to be in compliance with the requirements for all appropriate inquiries, if they comply with the procedures provided in the ASTM E1527-13, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.”

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