On Aug. 15, U.S. Environmental Protection Agency (EPA) issued
notice in the Federal Register that it intends to endorse the
updated "Standard Practice for Environmental Site Assessments:
Phase I Environmental Site Assessment Process," issued by ASTM
International, through a Final Rule amending 40 C.F.R. Part 312.
See Environmental Protection Agency, Amendment to Standards and
Practices for All Appropriate Inquiries, 78 FR 49714 (Aug. 15,
2013) (link to proposed rule is here). If there are no adverse comments to
this direct Final Rule the rule will go into effect in 90 days, on
Nov. 13, 2013. The comment period for this Rule closes on Sept. 16,
This Final Rule will establish that EPA has determined that
compliance with the ASTM standard constitutes "All Appropriate
Inquiries" (AAI) for purposes of applying various provisions
of the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA or Superfund), such as innocent landowner and
bona fide prospective purchaser liability protections. However, EPA
will continue to consider adherence to the previous ASTM standards
as acceptable in evaluating claims for application of innocent
landowner defenses under CERCLA for transactions pre-dating this
new standard adoption. This continuing applicability of the older
environmental diligence standard may nevertheless be a source of
potential confusion for current landowners, potential purchasers,
environmental consultants, and attorneys.
While the framework for environmental diligence laid out in the
current ASTM standard, E1527-05, will largely remain in place, as
discussed in a
previous Barnes & Thornburg Client Alert, there are
several key changes in E1527-13. First, the new standard will
clarify the definition of "Recognized Environmental
Conditions" ("REC"), particularly the definition of
"Historical REC." Relatedly, E1257-13 will add a new
term, "Controlled Recognized Environmental Condition,"
which will refer to contamination that has been remediated, but
still may be the basis for ongoing or future land use or exposure
control obligations. Additionally, E1257-13 adds significant
discussion regarding the assessment of vapor intrusion and vapor
mitigation risks. Finally, the amended standard also places greater
emphasis on conducting regulatory file reviews, particularly of
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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