On November 6, 2013, ASTM issued its revised standard practice for conducting Phase I Environmental Site Assessments (ESA), with an effective date of November 1, 2013. Now the wait begins to see if EPA will continue to allow the 2005 version of the Phase I ESA standard E1527-05 to satisfy the All Appropriate Inquiries Rule (AAI) at 40 CFR Part 312, or whether the new revised E1527-13 completely supersedes the prior version.
The announcement earlier this week by ASTM comes despite the lack of certainty regarding whether individuals can continue to use and rely on the 2005 Phase I ESA Standard to satisfy AAI. AAI, of course, is the common element that allows persons to claim defenses and protection from CERCLA liability under one of three landowner liability protections:
- Bona fide prospective purchaser;
- Contiguous property owner; and
- Innocent landowner.
When EPA issued a Direct Final Rule on August 15, 2013 (78 Fed. Reg. 49690) approving the use of E1527-13 to satisfy AAI, the agency noted that the revised version was not the only mechanism for satisfying the CERCLA All Appropriate Inquiries standard. In particular, EPA made clear that the 2005 version, E1527-05, would also satisfy the AAI Standard. “The Agency notes that there are no legally significant differences between the regulatory requirements and the two ASTM E1527 standards.” 78 Fed. Reg. at 49692.
On October 29, 2013 (78 Fed. Reg. 64403), EPA was forced to withdraw the Direct Final Rule because of adverse comments received in the rulemaking docket. EPA is now reviewing the public comments it received. According to ASTM’s November 6 Press Release, the agency intends to issue a final AAI rule by the end of the year.
Individuals interested in obtaining a copy of the new final Phase I ESA Standard E1527-13 can do so from ASTM through this link.