At the end of December 2013, the updated ASTM International Standard for Phase I Environmental Site Assessments, ASTM E1527-13, was incorporated by the EPA into its All Appropriate Inquiries (“AAI”) rule. Complying with EPA’s AAI rule is critical to one’s ability to assert the innocent landowner defense and/or to establish oneself as bonafide prospective purchaser for purposes of CERCLA liability as provided for in the Brownfields Amendments.
When this new E1527-13 standard was adopted by the EPA last year, EPA elected not to remove the reference to the prior ASTM E1527-05 standard from its AAI rule, which left some uncertainty as to which standard would qualify for compliance with the provisions of the AAI rule. Because the 2013 standard required evaluation of vapor migration and contained updated definitions of Recognized Environmental Conditions, it was considered the more conservative approach despite its generally higher cost*.
However, in October 2014, EPA eliminated the uncertainty surrounding which standard to follow by publishing a final rule that eliminates the 2005 standard. This final rule will take effect October 16, 2015. Parties undertaking environmental due diligence should confirm that any Phase I, Phase I update or reliance letter satisfies the new E1527-13 standard if they desire to seek the protections afforded by the Brownfields Amendments.
If you have questions about an environmental due diligence or any other environmental matter, please contact one of our experienced environmental law attorneys: Mike Schopmeyer, Kent Brasseale, Monica Edwards, or Michael E. DiRienzo. Our attorneys take pride in professionally and cost-effectively steering our clients through the environmental due diligence, site investigation and remediation process.
*See June 2013 article for changes made to the ASTM standard.
About the Author
Monica E. Edwards, a Partner at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, is a member of the KDDK business, environmental, intellectual property, and real estate law practice teams. Monica draws upon her scientific experience as a technical services chemist and prior environmental consultant in her practice of environmental law. Her background helps her assist clients in performing environmental due diligence, negotiating environmental settlement agreements, coordinating site clean-ups, prosecuting historical environmental insurance claims, and recovering environmental defense and indemnity costs.
Monica’s intellectual property experience includes the registration, assignment and renewal of trademarks and copyrights. She is also frequently involved with the licensing and defense of intellectual property and the negotiation of confidentiality agreements on clients’ behalf.