On December 30, 2013, US EPA issued its final rule approving use of ASTM E 1527-13 Standard Practice for Environmental Site Assessments to satisfy the All Appropriate Inquiry (AAI) requirements under CERCLA Section 101(35)(B). The rule is effective immediately. As expected and reported in our prior frESH law blog, US EPA clarified that “today’s rule does not require that any party use this standard” and prospective purchasers can continue to use ASTM E1527-05.
Nonetheless, US EPA also announced that “in the near future” it intends to propose removing the reference to ASTM E1527-05 from the AAI rule. US EPA believes ASTM E1527-13 provides greater clarity to prospective purchasers with regard to potential contamination and enhances the procedures in ASTM E1527-05. As a result, “EPA recommends that environmental professionals and prospective purchasers use the ASTM E1527-13 Standard.”
To assist in understanding the changes between ASTM E1527-05 and ASTM E1527-13, US EPA developed and referenced in the final rule the document “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.” Our prior frESH law blog also discusses the changes.
The rule Preamble discusses at some length the clarification in ASTM E1527-13 of the requirement to assess the potential for migration of vapors to the target property in addition to assessing vapors originating from a target property. However, US EPA also advised that, “in its view,” vapor migration has always been a relevant inquiry under the AAI rule depending on site-specific conditions. This may bring into question whether prior Phase I environmental site assessments that did not consider vapor migration comply with the spirit of the AAI rule. Phase I ESA users, including purchasers, developers, investors and lenders, would be well served to require Phase I environmental site assessments going forward to comply with ASTM E1527-13.