The United States Environmental Protection Agency (“EPA”) has finalized a rule clarifying that going forward the newly approved ASTM E1527-13 standard will be the only acceptable standard for Phase I Environmental Site Assessments (“Phase I ESAs”), for parties seeking to perform All Appropriate Inquiry (“AAI”). This much-awaited clarification, published in the October 6, 2014 Federal Register, will eliminate confusion caused by EPA’s current practice of allowing both ASTM E1527-13 and the previous version, ASTM E1527-05, for performing the AAI required for a prospective purchaser to avail itself certain liability protections under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”).
As was proposed, the final rule requiring exclusive use of ASTM E1527-13 for AAI has a delayed effective date of October 6, 2015 to allow completion of investigations currently being conducted under the old standard.
Although exclusive use of ASTM E1527-13 will not be required for another year, it is best practice to discontinue reliance on ASTM E1527-05 and to begin using only the new standard going forward. As Quarles & Brady discussed in previous client alerts in January and July 2014, the new ASTM E1527-13 is more thorough in its coverage of indoor air concerns, including evaluating risks of contaminants entering buildings via soil vapor migration, which is a growing concern both in enforcement and litigation. ASTM E1527-13 also has more stringent requirements regarding the review of government agency files when the subject property of the Phase I ESA or an adjoining property is identified in a standard environmental records source.