EPA Proposes to Eliminate Dual Standard for “All Appropriate Inquires” under CERCLA

by Pillsbury Winthrop Shaw Pittman LLP

EPA Proposes Rule to eliminate the dual standard for compliance with the “All Appropriate Inquiries” requirement for the Innocent Purchaser, Bona Fide Prospective Purchaser and Contiguous Property Owner Defenses to CERCLA.

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) imposes strict liability for the costs of environmental contamination on four classes of responsible parties, including current owners of contaminated properties. The statute provides liability for even “innocent owners” who had nothing to do with the contamination-causing activities. The Small Business Liability Relief and Brownfields Revitalization Act (“Brownfields Act”) of 2002 provided funds for brownfields revitalization and amended CERCLA to provide some liability relief for certain types of property owners. Specifically, the Brownfields Act limited CERCLA liability under Section 107 (42 U.S.C. § 9607) for bona fide prospective purchasers and contiguous property owners, and clarified the requirements for an innocent landowner defense. One of the requirements to qualify for these defenses is that a purchaser of contaminated property must undertake “all appropriate inquiries” (“AAI”) into prior ownership and prior uses of the site. 42 U.S.C. § 9601(35)(B).

In 2005, EPA promulgated regulations establishing standards and practices for conducting AAI. 70 Fed. Reg. 66070; 40 C.F.R. pt. 312 et seq. Specifically, EPA authorized use of ASTM1 E1527-05 “Standard Practice for Environmental Site Assessment Process” (commonly called “Phase I” assessments) to comply with AAI requirements.2 Phase I environmental site assessments are standard industry tools prepared by environmental professionals to evaluate the potential for environmental contamination at a property. They commonly include a review of databases and historical records to identify other potential sources in the vicinity of the property, a site inspection, interviews with key personnel about the property’s historical use, and an evaluation of known or reasonably ascertainable information about the property. Phase I assessments do not typically include sampling or laboratory analysis.

In November 2013, ASTM published an update to the Phase I standards contained in ASTM E1527-13. In addition to minor definitional changes, the 2013 revision to ASTM E1527 adopted one significant change; the new version requires the environmental professional conducting the Phase I to undertake a review of agency files and records about the property. This extensive review is not required by the 2005 standard and is commonly treated as an “add-on” for Phase I assessments.

On December 30, 2013, EPA published a final rule authorizing use of ASTM E1527-13 to comply with the AAI Rule. 78 Fed. Reg. 79319. This final rule did not remove reference to the 2005 standard. Thus, although EPA made clear that reliance on the updated ASTM Phase I standard would satisfy a purchaser’s AAI obligations under CERCLA, EPA left significant uncertainty as to whether a Phase I without agency file review was sufficient to meet AAI requirements because EPA did not remove the reference to the 2005 Phase I standard.

Commentators prophesized that this dual-qualification system for complying with the AAI Rule would result in significant confusion in the market, cost disadvantages to small businesses, uncertainty about liability concerns over brownfield sites, and ultimately litigation. While this predicted parade of horribles has not been observed at any significant level, last week EPA issued another Proposed Rulemaking to eliminate the potential confusion. On June 17, 2014, EPA proposed to amend the AAI Rule in 40 CFR 312 to remove the reference to ASTM E 1527-05. According to EPA’s proposal, the “proposed action removes the reference to a standard that ASTM International no longer recognizes as current and that it no longer represents as reflecting its current consensus-based standard.” 79 Fed. Reg. 34480.

For properties acquired between November 1, 2005 and the effective date of the Proposed Rule, the 2005 ASTM standard will satisfy the AAI Rule. Further, to accommodate investigations which may be ongoing at the time the rule goes into effect, EPA anticipates a one-year delay in the effective date of the final action to provide adequate time for parties to complete ongoing investigations and become familiar with the updated 2013 standard. EPA is accepting comments on the Proposed Rule until July 17, 2014.

Although use of the 2013 ASTM standard will be slightly more expensive, the elimination of the dual standard for compliance with the AAI Rule should not be controversial. A single standard will reduce uncertainty in the application of the innocent purchaser, bona fide prospective purchaser, and contiguous property owner defenses to CERCLA. It also will reduce the potential for litigation over compliance with this standard for purposes of the AAI defense.

  1. ASTM International is an international standards organization that develops and publishes voluntary consensus technical standards for a wide range of materials, products, systems, and services.
  2. In 2008, EPA further authorized use of ASTM E2247-08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property” (73 FR 78716) to comply with AAI requirements.


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.

© Pillsbury Winthrop Shaw Pittman LLP | Attorney Advertising

Written by:

Pillsbury Winthrop Shaw Pittman LLP

Pillsbury Winthrop Shaw Pittman LLP 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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.