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Volume X, Number 191

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Environmental Site Assessments in the New Year

By final rule issued Dec. 30, 2013, U.S. EPA has updated the environmental site assessment standard for “all appropriate inquiries” (AAI) under the Federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The EPA rulemaking adopts the new version of the ASTM Phase I environmental site assessment standard (E1527-13) which replaces the 2005 version previously approved by EPA as satisfying AAI.

AAI requirements are critical to assess environmental conditions arising from past operations at a property, so that an owner or operator can qualify for the bona fide prospective purchaser, innocent landowner or contiguous property owner defenses to CERCLA strict liability (and often for state law counterparts).

As we previously reported, EPA on Aug. 15, 2013 promulgated direct final and proposed rules allowing the use of either the 2005 or 2013 ASTM Phase I standard to satisfy AAI. In response to adverse comments objecting to this uncertainty and suggesting the 2013 ASTM standard was superior, EPA withdrew its previous direct final rule on October 29 (as we predicted in September).

However, the EPA’s Dec. 30 final rule effectively adopts the previously proposed rule providing that ASTM E1527-13 is equivalent to AAI, but does not remove the 2005 ASTM standard from the regulation. Rather, EPA only recommends use of the 2013 ASTM Phase I standard, and also indicates that it will propose to remove the reference to the 2005 ASTM Phase I standard in the “near future” by a subsequent rulemaking.

In endorsing the 2013 ASTM Phase I standard, EPA states that utilizing the new version will provide “greater clarity for prospective purchases with regard to potential contamination at a property.” 78 Fed. Reg. 79319 at 79321. Differences between the 2005 and new 2013 ASTM standards include definitions of different types of Recognized Environmental Conditions (RECs) (including “Controlled” and “Historical” RECs), regulatory file review procedures, and clarifications on vapor migration assessment in the Phase I process as described in our previous Alert.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume IV, Number 4


About this Author

Joel Bowers Environmental Attorney

Environmental lawyer Joel Bowers is dedicated to finding creative solutions to even the most difficult enforcement proceedings and complex deals. Joel is experienced in transforming technical analysis into practical legal counsel that takes into account big-picture client objectives.

Joel focuses his practice on environmental compliance and enforcement, including air quality and chemical regulation. He advises on remediation, corrective action and voluntary cleanups, as well as cost recovery defense.

In addition, Joel advises on environmental diligence for commercial and real...

Charles Denton Environmental Attorney

Charlie Denton represents an array of clients in environmental and toxic tort litigation, enforcement defense, regulatory compliance solutions and pollution insurance coverage disputes. He also serves as an alternative dispute resolution (ADR) neutral mediator and arbitrator. Persistent and highly collaborative, Charlie can take complicated issues and challenges and then identify a strategic path to achieve the client’s objectives.

Charlie’s representation of industrial, municipal, institutional, educational and individual clients includes judicial and administrative environmental...

David Gillay Environmental attorney Barnes Thornburg

David R. Gillay is a partner in Barnes & Thornburg's Environmental Department. Before joining the department in 2001, he obtained an advanced environmental engineering degree and practiced as an environmental consultant on various projects across the country.

David's legal practice primarily concentrates on the following subjects: underground storage tank regulation, including Indiana's Excess Liability Trust Fund; Brownfields projects; remediation projects dealing with soil, surface water and groundwater contamination under a wide variety of regulatory...

Timothy Haley, Barnes Thornburg Law Firm, Indianapolis, Environmental Law Attorney,

Timothy A. Haley is a partner in the Environmental Department in Barnes & Thornburg LLP’s Indianapolis, Indiana office.

Mr. Haley focuses his practice on regulatory issues arising from environmental laws. These issues include planning and diligence in business and real estate transactions, permitting, administrative rulemaking proceedings, administrative enforcement defense and other administrative or civil litigation. Mr. Haley also advises clients during acquisitions of potentially environmentally impaired properties, and on compliance...