Environmental Law Matters

As Scott Hitch noted in a previous post, a change to the federal rule regarding All Appropriate Inquiries ("AAI") is currently on notice for public review and comment. The comment period ends on September 16. The proposed change is prompted by recent changes in ASTM's 'Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment ["ESA"] Process'. The new ASTM Standard, designated E1527-13, results from an ASTM procedure requiring it to update individual standards at least every 8 years. The new Standard replaces the ASTM E1527-05. Currently, the AAI recognizes that an ESA prepared following the E1527-05 Standard meets the requirements of that rule and affords liability protection for "innocent" purchasers of property subsequently discovered to be contaminated. EPA's proposed amendment would extend that recognition to the E1527-13 Standard meaning that an ESA performed in compliance with the new ASTM standard would also meet the requirements of the AAI rule. The new Standard does not represent a dramatic departure from E1527-05, but there are some important changes. To facilitate an understanding of the changes, and to encourage informed comments from the public, EPA prepared a document that summarizes the basic differences between the ASTM E1527-05 Standard and E1527-13. While environmental professionals who operate under these Standards are still evaluating the changes, the provisions of ASTM E1527-13 may add to the time (and costs) required to complete a Phase I ESA, at least in some cases. This will most likely be the case in those situations where the environmental professional determines that there is a need for a review of agency files. Currently, such reviews are often limited to a review of regulatory databases, and industry observers believe that only about half of ESAs conducted under the current Standard include more formal file reviews. Among other things, the new Standard provides criteria to guide a decision about whether a file review should be conducted and requires an explanation of any decision not to conduct such a review. While the new Standard does not require reviews, the new criteria increase the focus on this issue. Thus, the specific facts of an individual site assessment will dictate whether a full review of agency files is deemed necessary. If so, this could add to the costs of a Phase I ESA report, but perhaps more significant could be the cost associated with the additional time to complete the report. For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.