On December 30th, the Environmental Protection Agency took final action amending the “All Appropriate Inquiries Rule” to now reference ASTM International’s E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” 

In the guidance that accompanied the new regulation, EPA made clear that persons conducting Phase I Environmental Site Assessments “may” [i.e., should] use the procedures included in this new standard to comply with the All Appropriate Inquiries Rule.

The 2006 All Appropriate Inquiries Rule established specific regulatory requirements for conducting inquiries into the previous ownership, uses, and environmental conditions of a property for the purposes of qualifying for certain landowner liability protections under Federal CERCLA (Superfund) laws. Parties must follow the standards set forth in the ASTM E1527-05 Phase I Environmental Site Assessment Process or otherwise comply with the requirements of the Rule to obtain protection from potential liability under Federal (and often State) laws as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser.

Recall, as described in our earlier blog post, Flummox: EPA Withdraws New Phase I Environmental Site Assessment Rule , on August 15, 2013, EPA published a substantially similar direct final rule also to amend the All Appropriate Inquiries Rule to reference this same 2013 version of ASTM International’s E1527, but in response to adverse comments the agency withdrew the regulation.

Having responded to the adverse comments, in the Final Rule issued this Monday, EPA is recognizing the newly issued ASTM E1527-13 Phase I Standard as compliant with the All Appropriate Inquiries Rule. While in EPA’s view, the new version provides an improved process the increased bureaucratic reports may increase costs.

Significantly, and different from the earlier regulation in the comments released by EPA is “in the near future, EPA intends to publish a proposed rulemaking to remove the reference to the ASTM E1527-05 standard.” That is, while the earlier regulation would have permitted more than one Phase I standard, EPA has now advised that the standard in use since 2006 will be withdrawn.

Interestingly, the new guidance also addresses comments about changes in the new standard in the instance of vapor releases, or the potential presence or migration of vapors associated with hazardous substances or petroleum products. A surprise to many, EPA notes that “both the All Appropriate Inquiries Rule and the ASTM E1527-05 standard already call for the identification of potential vapor releases or vapor migration at a property.”

The new ASTM E1527-13 standard is available from ASTM International at www.astm.org.

The new regulation is effective immediately. If we can assist prospective land owners, lenders, those pursuing LEED certification, and others in determining what implications this new Phase I standard will have on your business interests do not hesitate to call Stuart Kaplow.