October 8, 2014
On October 6, 2014, EPA issued a final rule updating its All Appropriate Inquiries (AAI) Rule to remove the previous reference to the outdated 2005 ASTM International (ASTM) Standard Practice for Phase I Environmental Site Assessments and replace it with a sole reference to the 2013 Standard, ASTM E1527-13. As discussed in our client alert of November 11, 2013, doubt existed for almost a year because, without express direction from EPA, prospective purchasers and others conducting site assessments were forced to choose between relying on the outdated 2005 version of the ASTM Standard, which was referenced in EPA’s existing AAI Rule, or relying on the revised, November 2013 Standard, despite its not being named in the AAI Rule, because it was more recent and more stringent.
Although no other substantive changes were made to the AAI Rule, parties conducting site assessments should be mindful of certain critical aspects and impacts of the final rule:
First, the new final rule is not effective until a year from now, October 6, 2015. After that date, compliance with the 2013 Standard, but not the 2005 Standard, will satisfy the AAI test at 40 C.F.R. Part 312, which allows prospective purchasers to qualify for liability protection under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for contamination found on a property during a Phase I site assessment.