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CHANGES TO PHASE I ENVIRONMENTAL AUDITS (Part I)

property saleASTM International, is a widely recognized standards development organization that, recently issued ASTM International E1527-13 Standard Practice for “Environmental Site Assessments: Phase I Environmental Site Assessment Process”.  As we previously blogged,  EPA was considering a change in ASTM audit  standards. As anticipated on December 30, 2013 EPA announced that persons conducting an all appropriate inquiry prior to purchasing land,  may use ASTM’s new standard to comply with the All Appropriate Inquiries Rule.  EPA has made it clear that this announcement of the final rule is not a mandate, as the All Appropriate Inquiries Rule does not yet reference this specific ASTM standard.

A properly conducted environmental audit is necessary for the future landowner to determine whether the property has contamination present and to demonstrate that the landowner made such a reasonable inquiry.  For those entities that are considering the purchase of a historically contaminated parcel and are pursuing status as a bona fide prospective purchaser and innocent landowner status, or parties that are pursuing Brownfield grants awarded under CERCLA, they will want to comply with this change in ASTM’s standard for undertaking a Phase I audit.

By way of background, in 2002 the Brownfield Amendments to CERCLA set forth a requirement that EPA develop regulations and standard practices for conducting an all appropriate inquiry.  EPA in 2005 referenced ASTM E1527-05 as setting forth the standard for conducting a Phase I Environmental Site Assessment and the EPA in 2008 updated this to incorporate ASTM E2247-08.

When the ASTM Association completed its preparation of the ASTM E1527-13, it contacted the EPA and requested a determination as to whether EPA considered ASTM’s revised standard as being compliant with the All Appropriate Inquiries Rule.  EPA has made it clear that the issuance of this final rule is a determination, based on EPA’s finding that the ASTM E1527-13 standard is compliant with All Appropriate Inquiry Rules.

This final rule originally went out to public comment in August of 2013, and EPA received significant adverse comments and EPA chose to withdraw the rule on October 29, 2013.  With this passage of the final rule on December 30, 2013,  EPA made it clear that it will now proceed with amending the All Appropriate Inquiry Rule to reference ASTM E1527-13 and will allow for public comment on that specific issue.

About Susan J. Sadler

Susan J. Sadler is a founding Member of Dawda, Mann, Mulcahy & Sadler, PLC. She is the head of the Environmental, Energy and Sustainability practice group. She concentrates her legal practice on a broad spectrum of environmental issues.

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