EPA Publishes Final Rule Approving ASTM’s New Standard for Phase I ESAs

EPA published a final rule approving ASTM E1527-13, its new standard for a Phase I Environmental Site Assessments. The “all appropriate inquiries” standard, set forth in 40 C.F.R. § 312, is a pre-purchase inquiry  for purchasers who seek to buy land without incurring environmental liability. The innocent landowner, contiguous property owner, and bona fide prospective purchaser defenses to CERCLA liability require that the prospective owner seeking to establish a liability defense undertake “all appropriate inquiries” into the prior ownership and use of the property prior to purchase. Prior to this final rule, a prospective purchaser could meet “all appropriate inquiries” by following the requirements as set forth in 40 C.F.R. § 312 or by complying with ASTM standard E 1527-05. A prospective purchaser can now satisfy “all appropriate inquires” by compliance with ASTM standard E 1527-13. ASTM standard E 1527-13 contains several significant revisions. These revisions include the following: 

  1. The addition of “controlled recognized environmental condition” (CREC),  or sites where past releases have occurred and are subject to institutional controls;
  2. New definitions for recognized environmental condition (REC) and historical recognized environmental condition (HREC);
  3. A new requirement for file reviews if necessary to determine the presence of RECs;
  4. A new requirement to consider vapor intrusion as a possible condition;
  5. A new requirement to search judicial records and title records to identify activity and use limitations; and
  6. Revised language requiring the environmental professional conducting the Phase I ESA to identify whether or not a regulatory file review is necessary.    

This rule became effective December 30, 2013. For now, compliance with either ASTM E 1527-13 or ASTM E 1527-05 will satisfy the “all appropriate inquiries” standard. However, in the final rule EPA also announced its intent to propose removing ASTM E 1527-05 from the list of approved industry standards. 

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