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New All Appropriate Inquiries (ASTM) Phase 1 Environmental Site Assessment Standards Endorsed by EPA as Constituting “All Appropriate Inquiries” under Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

On Aug. 15, U.S. Environmental Protection Agency (EPA) issued notice in the Federal Register that it intends to endorse the updated “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” issued by ASTM International, through a Final Rule amending 40 C.F.R. Part 312. See Environmental Protection Agency, Amendment to Standards and Practices for All Appropriate Inquiries, 78 FR 49714 (Aug. 15, 2013) (link to proposed rule is here). If there are no adverse comments to this direct Final Rule the rule will go into effect in 90 days, on Nov. 13, 2013. The comment period for this Rule closes on Sept. 16, 2013.

This Final Rule will establish that EPA has determined that compliance with the ASTM standard constitutes “All Appropriate Inquiries” (AAI) for purposes of applying various provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), such as innocent landowner and bona fide prospective purchaser liability protections. However, EPA will continue to consider adherence to the previous ASTM standards as acceptable in evaluating claims for application of innocent landowner defenses under CERCLA for transactions pre-dating this new standard adoption. This continuing applicability of the older environmental diligence standard may nevertheless be a source of potential confusion for current landowners, potential purchasers, environmental consultants, and attorneys.

While the framework for environmental diligence laid out in the current ASTM standard, E1527-05, will largely remain in place, as discussed in a previous Barnes & Thornburg Client Alert, there are several key changes in E1527-13. First, the new standard will clarify the definition of “Recognized Environmental Conditions” (“REC”), particularly the definition of “Historical REC.” Relatedly, E1257-13 will add a new term, “Controlled Recognized Environmental Condition,” which will refer to contamination that has been remediated, but still may be the basis for ongoing or future land use or exposure control obligations. Additionally, E1257-13 adds significant discussion regarding the assessment of vapor intrusion and vapor mitigation risks. Finally, the amended standard also places greater emphasis on conducting regulatory file reviews, particularly of adjacent properties.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume III, Number 228

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Joel Bowers Environmental Attorney
Partner

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...

574-237-1287
Charles Denton Environmental Attorney
Partner

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...

616-742-3974
David Gillay Environmental attorney Barnes Thornburg
Partner

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...

317-231-7474
Timothy Haley, Barnes Thornburg Law Firm, Indianapolis, Environmental Law Attorney,
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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...

317-231-6493