For years, environmental professionals, regulators, prospective property purchasers, landowners, and other entities involved in the acquisition or development of potentially contaminated property have relied upon the ASTM E1527-05 standard as the instruction manual for conducting All Appropriate Inquiry (AAI) in order to claim a limitation against CERCLA liability. However, on November 6, 2013, ASTM International, officially announced revisions to the standard by releasing the new ASTM E1527-13 standard, which is now the most current version of its Phase I Environmental Site Assessment protocol. Soon after its release, EPA took final agency action by revising 40 C.F.R. Part 312 to adopt the new ASTM E1527-13 standard as another method for conducting AAI. On December 30th of 2013, the U.S. Environmental Protection Agency (EPA) issued a final rule revising the methods by which the All Appropriate Inquires Rule can be complied with.

Although many sections of the ASTM E1527-13 standard remain unchanged from the ASTM E1527-05 version, pertinent changes between the two standards are summarized as follows:

  • The ASTM definition of "Recognized Environmental Condition" has been revised to better conform to the All Appropriate Inquiries Rule, which provides that site assessments be conducted to identify "conditions indicative of releases and threatened releases of hazardous substances on, at, in, or to the subject property." In addition, the definition clarifies that de minimis conditions are not recognized environmental conditions.
  • The ASTM definition of "Historic Recognized Environmental Condition" has been revised to clarify that the term only includes past releases that have been addressed to a level of unrestricted residential use.
  • The ASTM added the controversial, defined term "Controlled Recognized Environmental Condition" to the ASTM E1527-13 Standard in order to describe conditions where previous releases at a site that underwent risk-based closures were addressed, yet contaminants were allowed to remain in place under certain conditions or restrictions.
  • The ASTM definition of "de minimis condition" has been revised to provide the user with added assurances that information on past corrective actions conducted at the site will be provided in the Phase I report.
  • The ASTM definition of "migrate/migration" has been revised to clarify that contaminants that migrate via vapor in or from the subsurface or soils are considered Recognized Environmental Conditions.
  • The ASTM definitions of "release" and "environment" have been revised to conform to the definitions contained in the CERCLA statute.
  • The "User Responsibilities" section of the ASTM E1527-13 Standard has been revised to clarify that the Environmental Professional must request that the user provide the information and materials listed throughout section 6 of the standard. If the user does not supply the requested information, the Environmental Professional must evaluate whether the lack of information constitutes a data gap, and its significance.
  • Section 8.2.2 of the ASTM E1527-13 standard includes a more standardized framework for verifying agency information obtained from regulatory databases. If a site is identified on one or more record sources in conducting the database review, the Environmental Professional should review the pertinent regulatory records and files. If the Environmental Professional elects not to conduct a file review of the pertinent records, he or she must document within the report the reasons for not doing so.
  • Section 12.8 of the ASTM E1527-13 Standard provides the Environmental Professional with additional flexibility in drafting the conclusion statement as part of the Phase I report.
  • The ASTM E1527-13 standard further clarifies that information and materials provided in the appendices of the standard shall only be used for guidance and background information purposes, and that AAI reports need not follow any specific outline in order to comply with AAI or other ASTM requirements.

To further assist environmental practitioners in understanding the revisions and new requirements contained in the ASTM E1527-13 standard, EPA has published a guidance document, titled "Summary of Updates and Revisions to ASTM E1527 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process - How E1527-13 Differs from E1527-05."

Under CERCLA's Brownfield Amendments, parties purchasing or taking an interest in potentially contaminated property are required to undertake AAI in order to limit potential liability under CERCLA and to qualify as either an innocent landowner, a bona fide prospective purchaser, or a contiguous property owner. Federal regulations at 40 C.F.R. Part 312 continue to outline the requirements for undertaking the requisite All Appropriate Inquiry. The federal regulations continue to reference the ASTM E1527-05 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process as an authorized standard for conducting AAI.

EPA has not yet formally prohibited the use of the ASTM E1527-05 standard in order to complete AAI. However, EPA has indicated "its intent to publish a proposed rule, in the near future, that will propose amending the All Appropriate Inquiries final rule to remove the previous reference to the ASTM E1527- 05 Phase I Environmental Site Assessment Standard." 78 Fed. Reg. 79,320 (Dec. 30, 2013).

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