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June 23, 2014
2005 AAI standard heading for exit

The EPA has taken the next step in updating its all appropriate inquiries (AAI) regulations (40 CFR 312), which affect purchases of contaminated properties, by proposing to drop its reference in the regulatory language to an out-of-date, or “historical,” standard.  Specifically, the Agency’s proposal would remove all references to ASTM International’s 2005 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process (ASTM 1527–05).

In November 2013, the ASTM replaced ASTM 1527–05 with ASTM 1527–13.  Promptly, in December 2013, the EPA issued a final rule, indicating that parties that purchase contaminated properties may use ASTM 1527–13 to comply with the AAI regulations.  In that action, the Agency did not prohibit the use of ASTM 1527-05, but “strongly encouraged” the use of ASTM 1527–13 instead.

The Agency also indicated that it intended to propose removal of references to ASTM 1527–05 from the regulations to eliminate confusion associated with a standard no longer recognized as current by the ASTM and no longer marketed by the standards development organization as reflecting its current consensus-based standard.

2002 Brownfields amendments

The AAI requirements were developed by the EPA as required by the 2002 Small Business Liability Relief and Brownfields Revitalization Act, which amended the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The amendments provide that parties purchasing potentially contaminated property must undertake AAI into prior ownership and use of the property at issue before purchasing to qualify for protection from CERCLA liability.

Also, as required by the amendments, the EPA issued regulations establishing standards and practices for conducting AAI. The EPA has indicated that any party that wants to conduct AAI under CERCLA may either follow the regulations at 40 CFR 312 or use the referenced ASTM standard.

One-year extension

In the proposal, the EPA says it anticipates that some parties, at the time the Agency publishes a final rule to remove reference to ASTM E1527–05, may still be using the historical standard to comply with the AAI provisions.

Therefore, the Agency says that it anticipates providing for a delayed effective date of the final action to provide parties with an adequate opportunity to complete AAI investigations that may be ongoing and to become familiar with ASTM E1527–13.  Accordingly, the EPA proposes an effective date for removing the reference to ASTM E1527–05 in the AAI rule as 1 year after the publication of the final rule.

Stronger emphasis on vapor migration

The EPA notes that ASTM 1527–13 improves on the historical standard and reflects the evolving best practices and level of rigor that will afford prospective property owners necessary and essential information when making property transaction decisions and meeting continuing obligations under CERCLA liability protections.

“In particular, the new ASTM E1527–13 standard enhances the previous standard with regard to the delineation of historical releases or recognized environmental conditions at a property and makes important revisions to the standard practice to clarify that all appropriate inquires and phase I environmental site assessments must include, within the scope of the investigation, an assessment of the real or potential occurrence of vapor migration and vapor releases on, at, in, or to the subject property,” says the EPA.

Other revisions include updated definitions of “recognized environmentalcondition” and “historical recognized environmental condition”; an added definition for “controlled recognized environmental condition”; a clarification of the definition of “de minimis condition”; a revised definition of “migrate/migrations” to specifically include vapor migration; and a revised definition of “release” to clarify that the term has the same meaning it does in CERCLA.

The AAI proposal was published in the June 17, 2014, FR.

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