EPA Rule Adopts Revised ASTM Phase I Environmental Site Assessment Standard as Alternative Means to Conduct All Appropriate Inquiry

by Pullman & Comley, LLC
Contact

The United States Environmental Protection Agency issued a final rule on December 30, 2013, endorsing ASTM E1527-13, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” as an alternative means of conducting pre-purchase “all appropriate inquiry” (“AAI”) into the prior use and environmental condition of real property. The rule is effective upon publication. The Federal Register notice of the action is here.

The AAI Rule, 40 C.F.R. Part 312, defines the level of investigation necessary to qualify for certain landowner liability protections under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund).

The widely-used 2005 version of the ASTM standard was developed in parallel with the original AAI Rule, which expressly cited it as a compliance option. In accordance with ASTM International’s standards development process, the 2005 edition came up for review to confirm consensus and identify provisions in need of updating. The revised version was published in November 2013 following several years of work by a task group comprised of public and private stakeholders including EPA staff.

Highlights of the revised ASTM standard include:

  • New provisions regarding evaluation of the vapor migration as possible “condition indicative of a release;"
  • Revised and expanded “recognized environmental condition” definitions, including a new “CREC” (controlled REC) category;
  • Clarification of the roles of environmental professional and owner in the assessment process; and
  • Clarification regarding the scope of regulatory record review.

As part of the rulemaking process, EPA prepared a concise summary of changes to the ASTM standard. The summary is available from the online docket here.

Most of the changes are incremental. EPA endorsed them as representative of “the evolving best practices and level of rigor that will afford prospective property owners necessary and essential information when making property transaction decisions and meeting continuing obligations under the CERCLA liability protections.”

With respect to identification of “recognized environmental conditions” or “RECs,” the revised standard clarifies the treatment of situations where historic contamination is present on a property and in compliance with regulatory requirements, but subject to institutional or engineered controls. In Connecticut, examples would include residential use limitations under an Environmental Land Use Restriction or Notice of Activity and Use Limitation, or an engineered control variance. Under the 2005 standard, the only available categories were REC, historic REC (HREC) or “de minimis.” Task group discussions revealed no consensus among environmental professionals about which category best fit properties with such controls. The CREC definition is the result, and conforming changes make clear that REC, HREC, CREC and “de minimis” are mutually exclusive categories.

In announcing the final rule, EPA repeatedly stressed that the changes in E1527-13 conform to EPA’s expectations about the conduct of AAI. For example, EPA said that “in its view, vapor migration has always been a relevant potential source of release or threatened release that … may warrant identification when conducting [AAI].” Similarly, EPA said that the new standard’s additional guidance concerning regulatory file review “clarifies that an environmental professional should make efforts to review and document the validity of information found from searches of agency databases.”

Comments on the initial EPA proposal expressed concern about adopting the 2013 version of E1527 without simultaneously deleting the existing reference to the now-superseded 2005 version. In the final rule, EPA announced that it will propose a separate rulemaking to delete reference to E1527-05. Meanwhile, EPA “recommends” and “strongly encourages” use of E1527-13. And with or without a supplemental rulemaking to delete reference to E1527-05, EPA warned that if the “enhanced standards and practices” of E1527-13 are not widely adopted, “EPA may examine the need to further modify” the AAI Rule to require them.

EPA’s adoption of E1527-13 for AAI purposes is most directly relevant where CERCLA landowner liability protections or brownfields grant eligibility are of interest. But EPA’s rulemaking also carries the endorsement that the revised standard “reflects the evolving best practices and level of rigor” expected in environmental due diligence. It thus confirms that the revised ASTM standard will be of interest to users of Phase I site assessments – property purchasers, property developers, financing and lending institutions – whether CERCLA landowner liability protections are a focus of environmental due diligence or not.

[View source.]

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.

© Pullman & Comley, LLC | Attorney Advertising

Written by:

Pullman & Comley, LLC
Contact
more
less

Pullman & Comley, LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.