EPA Proposes to no Longer Accept 2005 Version of ASTM Standards and Practices for Environmental Site Assessments as Basis for CERCLA Defenses in Favor of 2013 Updated Standard


On June 17, 2014, EPA published a Proposed Rule to no longer acknowledge the 2005 version of ASTM International’s recently updated version of its standard for environmental site assessments – Standard 1527-13 – to meet the standards and practices for “all appropriate inquiries,” as set forth in the Brownfields Amendments to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and 40 C.F.R. Part 312. Parties meeting the “all appropriate inquiries” test may qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations on liability under CERCLA. EPA had previously announced its intention to publish this proposed rule in the preamble to its December 30, 2013 Final Rule providing that a prospective purchaser or tenant of contaminated property may now use Standard 1527-13 to meet the standards and practices for “all appropriate inquiries” limitations on liability under CERCLA. Since that time, EPA has acknowledged both the 2005 and 2013 versions of the standard, but once the June 17 Proposed Rule is finalized only the 2013 version of the standard will qualify.

The 2013 version of the ASTM Standard includes several changes from the 2005 version. For example, the definition of “Recognized Environmental Condition,” is clarified and a new term, “Controlled” Recognized Environmental Condition is included. In addition, the standard contains new provisions regarding vapor intrusion and vapor mitigation risks. There is also a greater emphasis on conducting regulatory file reviews, particularly with respect to adjacent properties.

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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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