United States: Environmental Protection Agency Releases Rule Officially Authorizing New ASTM Standard for All Proper Environmental Due Diligence Claims
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On March 14, the U.S. Environmental Protection Agency (“EPA”) issued a direct final rule in the Federal Register (87 FR 14174) amending the Standards and Practices for All Appropriate Inquiries (“AAI”) at 40 CFR Part 312 to reference ASTM International’s E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and permit its use to satisfy the requirements for conducting all appropriate investigations under of the CERCLA law (Comprehensive Environmental Response, Compensation and Liability Act). The EPA has stated that ASTM E1527-21 has been found to be equivalent to the requirements of all relevant agency inquiries, which outline the standards and practices necessary to meet CERCLA’s requirements to obtain protection. of CERCLA responsibility and to perform site characterizations and assessments with the use of brownfields grants. The direct rule did not prohibit the use of previously recognized standards (ASTM E1527-13 or ASTM E2247-16), nor does it change the requirements of the previously promulgated AAI rule.
The EPA further noted in the rule that it found no legally significant differences between the regulatory requirements and ASTM E1527-21. However, to help understand the slight differences between the AAI rule and the ASTM E1527-21 standard, as well as the applicability of the E1527-21 standard to certain types of properties, the EPA has developed the document “Comparison of All Appropriate Inquiries Regulations, the ASTM E1527-13 Phase I Environmental Site Assessment Process and the ASTM E1527-21 Phase I Environmental Site Assessment Process. The document provides a comparison of the two ASTM E1527 standards.
While there is currently no action to remove earlier ASTM standards, in particular ASTM E1527-13, from the list of means by which parties can meet AAI requirements, it should be noted that in the past, such action eventually led to the removal of old standards from the list of acceptable AAI methods. As such, parties would be prudent to review the comparison document provided by the EPA and plan accordingly.
“Parties purchasing potentially contaminated properties can use ASTM E1527-21 Standard Practice to comply with all appropriate inquiry requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This rule does not require any entity to use this standard. Any party wishing to claim liability protection under one of CERCLA’s landowner liability protections may follow the regulatory requirements of the All Appropriate Investigations Rule at 40 CFR Part 312, use ASTM E1527- 13 “Standard Practice for Phase I Environmental Site Assessments”, use ASTM E2247-16 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property”, or use the recognized standard in this direct final rule, ASTM E1527-21, to comply with all appropriate CERCLA inquiries. »
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The rule will go into effect on May 13, 2022, unless the EPA receives adverse comments by April 13, 2022. The EPA does not take comments on the content of ASTM E1527-13, just its inclusion in the list of appropriate standards for AAI. .
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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