EPA Says ASTM E1527-13 Satisfies CERCLA’s All Appropriate Inquiry
On Dec. 30, 2013, EPA issued a final rule amending its All Appropriate Inquiries Rule found at 40 CFR Part 312 to include ASTM International’s new E1527-13 “Standard Practice for Environmental Site Assessment: Phase I Environmental Site Assessment Process.” In issuing the rulemaking, EPA stated that the enhancements and clarifications in E1527-13 are “valuable improvements” reflecting “evolving best practices and a level of rigor” that will help prospective purchasers meet their continuing obligations under the 2002 Brownfields Amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA also stated that it intends to issue a proposed rule in the near future signaling its intent to delete references to the prior version of the standard, ASTM E1527-05, to minimize confusion regarding which standard should be followed.
As previously reported in prior editions of the Environmental Letter, the E1527-13 standard is the newest in a line of ASTM standard practices intended to define “good commercial and customary practice” for conducting a Phase I Environmental Site Assessment (Phase I ESA). ASTM published the first version of the standard in 1993, which was subsequently updated in 1997 and 2005, and most recently in 2013.
In adopting the 2002 Brownfields Amendments to CERCLA, Congress directed EPA to issue a rule defining the standards and practices for conducting All Appropriate Inquiries at a site. EPA developed the All Appropriate Inquiry rule and also accepted the procedures set forth in the then current version on the ASTM standard, E1527-05, as an alternate method for complying with the All Appropriate Inquiry requirement in the Brownfields Amendments to meet the minimum requirements for establishing landowner liability protection as set forth in the 2002 amendments.
The E1527-13 standard was published by ASTM International on Nov. 26, 2013. As discussed in previous editions of the Environmental Letter, the new standard includes a number of substantive revisions to the previous E1527-05 standard that will affect how Phase I ESAs are conducted and how Recognized Environmental Conditions (RECs) are identified and reported. The key differences between the 2005 standard and the 2013 standard include:
- The change in the definition of Historical Recognized Environmental Conditions (HRECs);
- The new concept of Controlled Recognized Environmental Conditions (CRECs);
- Regulatory file review requirements that may be broader than some consultants have followed in the past;
- An explicit requirement to address the vapor migration pathway; and
- The need to include the user required information.
The conduct of a proper Phase I ESA is the first step in an overall process for qualifying for one of the CERCLA landowner liability protections. As important as the Phase I ESA is as a pre-purchase obligation, buyers should be equally mindful of their post-closing “continuing obligations,” as EPA continues to take a harder look at compliance with these requirements under the law. Some of these obligations may include continued compliance with land use restrictions, taking reasonable steps in exercising appropriate care with regard to residual contamination of the facility, and avoiding impeding the effectiveness or integrity of institutional controls that may exist at the site. A thorough Phase I ESA report should identify any post-closing obligations in the report.
To view a complete PDF of the Environmental Letter March 2014 Issue, click HERE.