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EPA Proposes to Accept Only ASTM Standard E1527-13 for AAI

Environmental Law Alert George J. Marek, Lawrence W. Falbe, Lauren G. Harpke

To alleviate confusion caused by allowing two different standards for “All Appropriate Inquiry” (“AAI”), the United States Environmental Protection Agency (“EPA”) recently issued a proposed rule in the Federal Register to clarify that the newly approved ASTM E 1527-13 standard will be the only acceptable standard for Phase I Environmental Site Assessments (“Phase I ESAs”) going forward. 79 Fed. Reg. 34480 (Jun. 17, 2014). (See our previous client alert dated January 2014 for additional background information). Satisfying the requirements of AAI is important for parties who are purchasing properties, because AAI provides potential liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The proposed rule is intended to eliminate confusion and possible conflicts resulting from the existing version of the rule that allows reliance on either ASTM Standard E1527-05 or E1527-13 to perform a Phase I ESA to achieve AAI. EPA received negative comments on its approach to allow reliance on either standard. Specifically, many of the public comments predicted confusion regarding the applicability of the dual standards and predicted widespread reliance on the older and less stringent (but somewhat less expensive) standard despite EPA’s recommendation that consultants and prospective purchasers use the newer standard.

In response to the public comments, EPA issued this proposed rule to clarify that Phase I Environmental Site Assessments going forward must rely on the newer, more stringent ASTM Standard E1527-13 which requires soil vapor mitigation analysis and new regulatory file review requirements. Once the new rule is adopted, reliance on ASTM Standard E1527-05 will no longer be acceptable under the All Appropriate Inquiries standard.

Requiring exclusive use of ASTM 1527-13 will result in consistent due diligence requirements and expectations. The EPA anticipates a delayed effective date to allow completion of investigations currently being conducted under the old standard.

For more information, please contact any of the following: George Marek at (414) 277.5537 / george.marek@quarles.com, Larry Falbe at (312) 715.5223 / lawrence.falbe@quarles.com, Lauren Grahovac Harpke at (414) 277.5183 / lauren.harpke@quarles.com, or your Quarles & Brady attorney.