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January 02, 2014
EPA adds revised AAI standard to regs

In a final rule, the EPA has approved the use of an updated American Society for Testing and Materials (ASTM) standard for all appropriate inquiries (AAIs) that must be conducted to limit liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for prospective purchasers, contiguous property owners, or innocent landowners who are purchasing potentially contaminated property. 

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The added standard—ASTM 1527-13, “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process”—revised 1527-05, which ASTM issued in 2005, in ways the EPA believes enhance the usefulness of the standard in identifying potential releases and threatened releases of hazardous substances at commercial and industrial properties. 

2002 brownfields amendments
The AAI requirements were developed by the EPA as required by the 2002 Small Business Liability Relieve and Brownfields Revitalization Act, which amended CERCLA.   The amendments provide that parties purchasing potentially contaminated property must undertake AAIs into prior ownership and use of the property at issue before purchase to qualify for protection from CERCLA liability.  Also, as required by the amendments, the EPA issued regulations establishing standards and practices for conducting AAIs.  Those regulations indicated that ASTM 1527-05 could be used to comply with the AAI requirements.

EPA’s current action authorizes that both ASTM 1527-05 and ASTM 1527-13 may be used to meet the AAI requirements.  However, the Agency also states that it intends to propose removal of reference to ASTM 1527-05 from the federal 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.

Stronger emphasis on vapor migration
The EPA notes that ASTM 1527-13 improves upon the previous 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 environmental condition and historical recognized environmental condition, an added definition for controlled recognized environmental condition, a clarification to 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.

While prospective purchases may continue to make use of ASTM 1527-05 in AAIs, the EPA says it “strongly encourages” that ASTM 1527-13 be used.

The final AAI rule was published in the December 30, 2013, FR.

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