EPA has received much criticism for its decision published in its Final Rule, December 30, 2013 (78 Fed. Reg. 79319) to allow both ASTM E-1527-05 and E-1527-13 as meeting the all appropriate inquiries requirements necessary to claim one or more Brownfield Defenses. These defenses are innocent landowner, bona fide prospective purchaser and contiguous property owner. EPA announced in its Final Rule that it planned to initiate rulemaking to definitely require version 1527-13 in the near future. According to some commenters the '05 version is less onerous, and, therefore, less costly. Other commenters fear inconsistent treatment of all appropriate inquiries and mass confusion.
Lost in the argument though, is what a state may require of a prospective purchaser to establish the innocent landowner defense. Most states have remedial action statutes similar to federal law making landowners responsible or liable parties for contaminated property. The ability to claim the innocent landowner defense could be as much, if not more important at the state level. In Tennessee, for example, to claim the innocent landowner defense one must use the current version of ASTM E-1527 in effect at the time of acquisition in order to create a presumption of all appropriate inquiry. Tenn. Code Ann. § 68-212-202(4)(F)(ii). Version 1527-13 was published by ASTM on November 6, 2013. Therefore, all acquisitions after that date must comply with the the 2013 version regardless of what the federal rule states. ASTM E 1527-13 is sold by ASTM and is not made available from state or federal agencies.
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