Many are familiar with the “Phase I Environmental Site Assessment Standard” issued by ASTM, used for satisfying “All Appropriate Inquiry” for environmental contamination. Last week, ASTM issued a revised standard, Phase I ESA Standard E1527-13, with an effective date of November 1, 2013. ASTM believes the 2013 version should be followed, instead of the prior version (issued in 2005), which the organization will discontinue publishing by the end of the year.
“All Appropriate Inquiry” is a critical threshold requirement before property acquisition for asserting any of the federal or state landowner liability defenses, such as the “innocent landowner” defense and the “bona fide prospective purchaser” defense. The existing EPA All Appropriate Inquiry rule (40 C.F.R. Part 312) states that the 2005 version of the ASTM E1527 standard meets the requirements of its rule.
There are several changes in the 2013 standard, and they are not dramatic, but there is a question whether the two versions might lead to different outcomes (e.g., identification of a “Recognized Environmental Condition”). Several aspects of the new standard involve the potential for obtaining additional information. As a result, it seems possible in some cases that more information might result in finding more Recognized Environmental Conditions. Many environmental professionals have said that the additional investigation will result in somewhat higher costs.
Now that the 2013 version of the standard has been published, a critical question for anyone obtaining or conducting a Phase I Site Assessment will be whether the 2013 version should be immediately implemented by the public and environmental professionals, or whether the 2005 version standard should continue to be used until the 2013 version is incorporated into EPA’s rule. EPA initially proposed that both were acceptable, stating its conclusion that there were no “legally significant differences” between its All Appropriate Inquiry rule and the 2005 and 2013 standards. However, EPA received several critical comments by those who pointed out that having two ASTM standards (one no longer being sold) would create significant confusion. EPA has reportedly informed ASTM that its rulemaking process to reference the revised standard as compliant with the “All Appropriate Inquiry” rule should be finalized by the end of the year.
Follow this link to purchase a copy of the new final Phase I ESA Standard E1527-13 from ASTM.
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On September 30, 2014, the United States District Court for the District of Arizona (Campbell, D.J.) issued an order in Yount v. Salazar, Nos. 11-8171 et al., 2014 WL 4904423 (D. Ariz. Sept. 30, 2014). As part of this order, the court determined that certain business plaintiffs’ alleged injuries did not fall within the "zone of interests" of the National Environmental Policy Act ("NEPA"), drawing in part on a recent Supreme Court opinion clarifying the zone-of-interests doctrine.