EPA Proposes Deleting 2005 ASTM Phase I Standard as Approved Due Diligence Option

June 20, 2014

The United States Environmental Protection Agency (EPA) issued notice in the August 15, 2013, Federal Register of a direct final rule allowing purchasers to follow ASTM’s then-new Phase I standard E1527-13, in addition to E1527-05, in meeting the federal “all appropriate inquiries” (AAI) requirements. The AAI requirements are critical to the innocent purchaser, bona fide prospective purchaser and contiguous landowner defenses to liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Due to adverse comments on the proposed rule, EPA withdrew it on Oct. 29, 2013. Apparently, the comment of concern was that allowing the use of both E1527-05 and E1527-13 would be confusing to purchasers.

On December 30, 2013, EPA published a direct final rule adding E1527-13 to the approved list, such that both standards could be used to meet AAI. EPA also announced its intent at that time to issue a subsequent regulation proposing to eliminate E1527-05 as a standard that can be used to meet AAI. The proposed regulation to eliminate E1527-05 appeared in the Federal Register on June 16, 2014. EPA indicated that it plans to provide a one-year period after the final rule is adopted before the 2005 standard is discontinued, which is similar to how EPA phased in E1527-05 in 2005 when it replaced two earlier versions. This one-year period is intended to allow time for users to switch to the newer standard without adversely affecting current transactions. EPA is accepting comments on the proposed rule to eliminate E1527-05 until July 17, 2014.

For more detailed information on the material differences between E1527-05 and E1527-13, please see our November 2013 summary, which was prepared after ASTM issued E1527-13, or contact any of the attorneys listed on the left.