EPA Issues Proposed Rule to Remove Reference to ASTM E1527-05 in All Appropriate Inquiries Rule

by Perkins Coie
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On June 17, 2014, the U.S. Environmental Protection Agency published a proposed rule to amend the standards and practices for complying with the “All Appropriate Inquiries” rule under the Comprehensive Environmental Response, Compensation, and Liability Act and its implementing regulations, 40 C.F.R. part 312.  Amendments to CERCLA adopted in 2002 required EPA to publish regulations establishing standards and practices for conducting “All Appropriate Inquiries,” which is the process by which a party acquiring real property evaluates the site’s environmental conditions and potential for contamination.  The party must follow these standards and practices to qualify for certain defenses from liability under CERCLA if a subsequent dispute arises concerning historical contamination at the site.  Under the existing regulations, the All Appropriate Inquiries investigation may be based on either the prior 2005 site assessment standard published by ASTM International or on the newer standard published by ASTM International in 2013.  The proposed rule published today would eliminate the use of the prior 2005 standard. 

On December 30, 2013, EPA published a final rule that approved the use of the 2013 standard, ASTM E1527-13, Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process.  A description of that final rule can be found here.  Although the 2013 final rule preserved the ability of those conducting environmental site assessments to use the prior 2005 ASTM standard (ASTM E1527-05), EPA stated its intent to publish a proposed rule to amend the regulations to remove the reference to the 2005 standard.  The proposed rule published today follows through on this statement.  Comments on the proposed rule must be received by EPA by July 17, 2014.

Thus, EPA’s proposed rule does not include any changes to the substantive standards and practices set forth in the All Appropriate Inquiries rule amended on December 30, 2013.  Instead, the proposed rule merely limits the methods by which a party may conduct All Appropriate Inquiries investigations under CERCLA.  If the proposed rule is finalized, parties would be able to follow only the ASTM E1527-13 standard, not the prior version.

In November 2013, ASTM International designated the prior ASTM E1527-05 standard as a “historical standard.”  The revised ASTM E1527-13 standard is the currently recognized, consensus-based standard within the industry for conducting All Appropriate Inquiries investigations under CERCLA.  EPA reasons in the proposed rule that the removal of the reference to the “historical standard” reduces confusion and promotes the uniform use of the revised ASTM E1527-13 standard. 

EPA proposes that the rule, if and when finalized, will take effect one year after the final rule is issued in order to allow continued use of the ASTM E1527-05 standard for parties that have already begun All Appropriate Inquiries investigations.  Additionally, the rule will not be retroactive.  For properties acquired between November 1, 2005 and the effective date of the new rule, if and when finalized, use of the ASTM E1527-05 standard will constitute compliance with the All Appropriate Inquiries rule.

The changes to ASTM E1527-13 confirm the existing procedures for conducting Phase I Environmental Site Assessments and support the current regulatory framework requiring All Appropriate Inquiries.  Most parties have already begun using this standard.  For those parties, the removal of the reference to the prior ASTM E1527-05 standard is not anticipated to have a significant impact.  Those parties that do not yet use the ASTM E1527-13 standard, however, should begin to revise their procedures accordingly.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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