It’s official. After months of delays, rumors and speculation, the US EPA has acknowledged that the newly revised ASTM Environmental Site Assessment standard, known as E1527-13, is consistent with the All Appropriate Inquires (AAI) rule. As described in the December 30, 2013 Federal Register announcement, the US EPA amended the AAI rule to reference ASTM E1527-13 as compliant with the standards and practices required to qualify for certain CERCLA liability protections as well as Brownfields grants. In fact, the US EPA now “strongly encourages” and “recommends that environmental professionals and prospective purchasers” use ASTM E1527–13 when conducting AAI compliant Phase I Environmental Site Assessments to identify releases and threatened releases of hazardous substances at commercial and industrial properties.
It is worth noting that while the newly amended AAI rule does not remove reference to the previous ASTM standard (E1527-05), “the Agency’s intent will be to promote the use of the current industry standard and reduce confusion associated with the regulatory reference to a standard no longer recognized as current by ASTM International and no longer marketed by the standards development organization.” The US EPA will publish an additional proposed rulemaking to remove the reference to the ASTM E1527–05 standard in the AAI rule sometime in the near future.
Is this a game changer for prospective purchasers seeking liability relief? Technically, no, as the AAI rule remains unchanged and the ASTM’s updated standard only includes “clarifications” and “additional guidance”. However, the “additional guidance” included in the revised ASTM standard emphasizes the need for regulatory agency file and records reviews as well as an assessment of vapor migration that many “Phase I shops” failed to fully consider as a cost saving measure. Interestingly, the US EPA felt it necessary to include an option to “examine the need to further modify the All Appropriate Inquiries Rule (40 CFR part 312) to explicitly require the types of enhanced activities provided for in the updated ASTME1527–13 standard” if these “enhanced activities” are not “being widely adopted”.
Some of the other clarifications and enhancements include:
- Updated REC definition to be more aligned with AAI requirements;
- Updated HREC definition to limit the application of HRECs to past releases that have been addressed to unrestricted residential use;
- Addition of a CREC definition (controlled REC), used for risk-based closures, where contaminants were allowed to remain under certain conditions;
- Clarification that “de minimis condition” is not to be used to describe a CREC;
- New definition for “release” and “environment” to better align with CERCLA definitions;
- New discussion about specific LLP and Brownfield Grantee “User” requirements;
- Added language to allow non-significant changes to conclusion statement; and
- Updated non-binding appendices including a revised Legal Appendix and added a “Business Environmental Risk” Appendix to provide references and resource guidance for common Business Environmental Risk issues.
To view the new standards click here.