EPA Promulgates Final AAI Rule Adopting 2013 ASTM Phase I Standard

The Environmental Protection Agency has promulgated a final rule updating its all appropriate inquiry (“AAI”) regulations to include the latest version of ASTM International’s voluntary standard for conducting a Phase I environmental site assessment.

The rule, which took effect on publication on December 30, 2013, means parties can use the 2013 ASTM standard (E1527-13) for Phase I site assessments for potential environmental contamination and liability to satisfy AAI requirements for certain liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).  Parties must conduct all appropriate inquiry into the past ownership and uses of sites to qualify for the innocent landowner, contiguous property owner and bona fide prospective purchaser defenses to CERCLA liability.

The most significant changes to the Phase I standard are the language used to describe environmental issues, including the terms recognized environmental condition, controlled recognized environmental condition and historical recognized environmental condition.

In its Dec. 30 rule, the EPA stated that the 2013 ASTM standard is superior to the 2005 version.  It said use of the 2013 standard will result “in greater clarity for prospective purchases with regard to potential contamination at a property.”  Even so, the agency did not remove the 2005 ASTM standard from its AAI regulations in the Dec. 30 rule but instead “recommended” use of the superior 2013 standard.  However, the agency said it would publish a proposed rule to remove the reference to E1527-05 from its AAI rule in the “near future.”

One important change is that the revised standard modifies the definition of recognized environmental condition (“REC”) to designate a specific kind of release to the environment in or on the property.  The change will align the standard with CERCLA and AAI, but the goal of the Phase I assessment process is still identification of RECs, which are the presence or likely presence of hazardous substances at a property as a result of a release, past release or likely release.

The 2013 standard also adds a new term: controlled recognized environmental condition (“CREC”).  The term describes situations where a release, such as a spill or leak, has occurred and was addressed to the satisfaction of the regulator.

In another area, E1527-13 changes the definition for historical recognized environmental condition (“HREC”).  The revised HREC refers to a situation where a past release has been addressed completely to closure, with no significant impacts remaining and no ongoing land-use restrictions, he said.

The new standard also revises the definition of “migrate/migration” to specifically include vapor migrations.  There has been an increased focus on vapor intrusion at all levels of environmental regulation.  Vapor intrusion is the potential for vapors from contaminated soil or groundwater to enter a structure situation above such contaminants.

The definitions of “release” and “environment” were also revised to clarify that the definitions have the same meanings as the definitions in CERCLA.

The rule means compliance with the voluntary ASTM 2013 Phase I standard satisfies the all appropriate inquiries requirement to qualify for certain landowner liability protections under CERCLA.

John M. Flynn is Carruthers & Roth’s chief counsel on environmental matters – helping his clients understand the sometimes significant and unanticipated implications of environmental law on personal and business planning, business organization, real estate transactions and creditor rights. He can be reached at 336.478.1148 or jmf@crlaw.com.

 

For media inquiries, please contact: Erin Molinaro | ekm@crlaw.com