The All Appropriate Inquiries Rule at 40 CFR Part 312 (the “AAI Rule”) protects prospective purchasers of property from liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) for certain environmental conditions if the prospective purchaser conducts an investigation and completes other steps that meet the requirements of the AAI Rule. Pursuant to 40 CFR 312.11, the AAI Rule states that prospective purchasers who comply with specified industry standards issued by the American Society for Testing and Materials (“ASTM”) are deemed to have complied with the AAI Rule.
Prior to December 30, 2013, this meant that a prospective purchaser would utilize ASTM Standard 1527-05 for use in meeting the AAI Rule requirements. However, in 2013, ASTM published an updated standard for review and comment (the “ASTM Standard 1527-13”). On December 30, 2013, the U.S. Environmental Protection Agency issued its final rule approving the use of ASTM Standard 1527-13 for use in meeting the AAI requirements under CERCLA and its implementing regulations.
ASTM Standard 1527-13 contains several revised and/or new definitions. For example, the definition of Recognized Environmental Condition (“REC”) has been simplified to provide as follows:
The presence or likely presence of any hazardous substances or petroleum products in, on, or at a property: (1) due to release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment. De minimis conditions are not recognized environmental conditions.
Further, the definition of Historical Recognized Environmental Condition (“HREC”) has been revised to include a past release of any hazardous substances or petroleum products that have occurred in connection with the property and have been addressed to the satisfaction of the applicable regulatory authority or meeting unrestricted use criteria established by a regulatory authority, without subjecting the property to any required controls. This is a new limitation on HRECs, because the definition was not previously limited to only those conditions remediated to the satisfaction of regulatory authorities for unrestricted use.
There is also a new term introduced in the ASTM Standard 1512- 13 called a Controlled Recognized Environmental Condition (a “CREC”), which is a REC resulting from a past release of hazardous substances or petroleum products that has been addressed to the satisfaction of the applicable regulatory authority, with hazardous substances or petroleum products allowed to remain in place subject to the implementation of required controls. The CREC was created to recognize a condition that has been remediated but there is still a restriction on the property related to the prior condition.
Under the ASTM Standard 1527-13, the inquiry about the property must include the potential for vapor migration issues. This means that an environmental professional investigating a property is required to assess whether there are potential indoor air quality impacts from vapor intrusion pathways if there is subsurface soil and/or groundwater contamination at or near the site.
Under the revised standard, additional regulatory file reviews may be required. If the property or any of the adjoining properties is identified on a federal, state or tribal record listed in the revised standard, then a file review should be conducted for that adjoining property. Previously, the ASTM Standard 1527-05 only required a file review to be completed for the site that was the subject of the AAI Inquiry. Note that if the environmental professional doesn’t conduct the file review, the environmental professional must document the reason for choosing not to do so in the Phase I Environmental Site Assessment.