All Appropriate Inquiry Changes Worth Noting?

The following blog post was submitted by Mark Resch, LPG, a geologist at The Dragun Corporation.

The United States Environmental Protection Agency (USEPA) proposal to amend the All Appropriate Inquiries (AAI) regulation (40 CFR Part 312) was not the type of riveting news that’s going to make great cocktail conversation. But it’s worth noting that the EPA is proposing to adopt the use of ASTM 1527-13, the “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” What is interesting (or not) is that EPA is proposing to allow the use of the new 1527-13 or the current 1527-05. So, which standard is the right version to use for your environmental due diligence?

The recent EPA announcement aside, it’s worth looking at the ASTM 1527-13 nuances. At the time of this writing, 1527-13 has not been released and is not “official.” But some of the changes from the current standard (1527-05) have been discussed widely among environmental peers.

Key changes to 1527-13 include: (1) revised definitions for Recognized Environmental Condition (REC), Historical REC (HREC), and a new definition Controlled REC (CREC), (2) incorporating the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) definition for a “release,” (3) the recommendation that regulatory agency files be reviewed if the target property or an adjoining property is identified in a regulatory agency record, and (4) a new definition for “migrate” that includes vapor.

The proposed changes are relatively minor and represent good environmental practices that, when necessary, are already being performed by competent environmental professionals using 1527-05.

You have to wonder if the introduction of this updated and new standard is just a change for change sake. It would appear that having two “acceptable” standards only blurs the line further as to what constitutes AAI and, therefore, the innocent landowner defense. With this blurring of the line, for providers of environmental due diligence, it might be better to double down on the quality review process… and make sure the E&O insurance is paid up.

All this boils down to this: it’s not about which standard is correct, but whether you are receiving professional advice from a trusted environmental professional and trusted legal counsel.

If you have any questions, or need assistance with environmental due diligence, please feel free to contact our office at 248.932.0228

If you would like to see the announcement follow this link http://www.gpo.gov/fdsys/pkg/FR-2013-08-15/pdf/2013-19763.pdf

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