When the United States Environmental Protection Agency (EPA) published its final rule in December 2013 modifying the standards and practices for conducting “all appropriate inquires” concerning potentially contaminated real estate under CERCLA, and formally approved updated ASTM Standard E1527-13, it signaled its intent to pursue further rulemaking to remove the reference to ASTM Standard E1527-05. EPA has now made good on its promise, with implications for commercial lenders.

On June 17, 2014, EPA issued a proposed rule that will formally eliminate the reference to ASTM Standard E1527-05 from its "all appropriate inquiries rule." Once the rule becomes effective[1], purchasers of real property that desire to utilize an ASTM Environmental Site Assessment to meet the due diligence standards of the “all appropriate inquiries rule” must obtain an ESA that is performed under updated ASTM Standard E1527-13.

As noted in our earlier post on this topic, updated ASTM Standard E1527-13 makes several major and minor changes to the ESA process. The major changes include a revised definition of Recognized Environmental Condition, requiring that vapor migration be considered just like contaminated water migration, and expanding both the scope of the “regulatory agency file” search process by the environmental professional and the efforts the environmental professional must make to ascertain the validity of the information found from those file searches.