In a direct final rule, the EPA is allowing the use of an updated nongovernmental consensus standard—American Society for Testing and Materials (ASTM) E2247-16, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property—to meet the All Appropriate Inquiries (AAI) requirement applicable to purchases of forestland and rural property.
According to the Agency, the revised standard varies only slightly from the Agency’s own AAI regulations at 40 CFR Part 312, and parties may use either set of instructions to qualify for the innocent landowner defense under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Section 12d of the National Technology Transfer and Advancement Act of 1995 directs agencies to use technical standards that are developed or adopted by voluntary consensus standards bodies unless their use would be inconsistent with applicable law or otherwise impracticable.
“ASTM International is an internationally recognized voluntary consensus standard body,” states the EPA. “[ASTM E2247-16] includes an environmental site assessment process that EPA finds is not inconsistent with the standards and practices included in the All Appropriate Inquiries Rule.”
ASTM Request for Review
The EPA promulgated regulations that set standards and practices for AAIs in November 2005. In the final regulation, the Agency referenced and recognized as compliant with the final rule ASTM E1527-05, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. The regulation was amended in December 2013 to recognize a revision, ASTM E1527-13. In 2008, the EPA also amended the AAI Rule to recognize ASTM E2247-08, the precursor of ASTM E2247-16. Both ASTM E2247-08 and ASTM E2247-16 are referenced as acceptable in Part 312. The current final rule responds to ASTM’s request that the EPA review the acceptability of ASTM E2247-16 for use in AAIs under CERCLA.
Potentially Affected Parties
Entities seeking to meet the AAI standard and who are potentially affected by the direct final rule include public and private parties who, as bona fide prospective purchasers, contiguous property owners, or innocent landowners, are purchasing large tracts of forested lands or large rural properties and intend to claim a limitation on CERCLA liability in conjunction with the property purchase. In addition, any entity conducting a site characterization or assessment on a property that consists of large tracts of forested land or a large rural property with a brownfields grant awarded under CERCLA Section 104(k)(2)(B)(ii) may be affected by this action. This includes state, local, and tribal governments that receive brownfields site assessment grants.
Comparisons Available
To facilitate an understanding of the latest revisions, the EPA developed a summary of the differences between ASTM E2247-08 and ASTM E2247-16, which is included in the rulemaking docket (Docket EPA-HQ-OLEM-2016-0786). Also in the docket is Comparison of the All Appropriate Inquiries Regulation, the ASTM E1527-13 Phase I Environmental Site Assessment Process and the ASTM E2247-16 Phase I Environmental Site Assessment Process for Forestland or Rural Property Standard. This document provides an overview of the similarities and “slight differences” between the AAI regulatory requirements and the requirements included in the two ASTM Phase I environmental site assessment standards.
EPA’s direct final rule was published in the June 20, 2017, FR.