EPA Issues Final Rule Regarding Liability Defenses Under CERCLA

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On December 30, 2013, the Environmental Protection Agency (EPA) published a final rule amending the standards for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to include ASTM International’s standard practice. The final rule specifically amends the “All Appropriate Inquiries Rule” at 40 CFR Part 312 to include ASTM International’s E1527-13, or their “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.”

The final rule differs from the August 2013 direct final rule in that EPA recommends that Phase I environmental assessments follow the standards set forth in ASTM E1527-13, instead of ASTM E1527-05, rather than allowing both to standards to be deemed acceptable. ASTM’s E1527-13 standard includes a few changes from the E1527-05 standard. Some of the changes include:

 

  • Historical Recognized Environmental Condition (HREC) is now limited to only past releases that have been addressed to a degree allowing for unrestricted use of the property,
  • The inclusion of a new term, “Controlled Recognized Environmental Condition” (CREC) that is defined as past releases that have been addressed but allow contamination to remain in place subject to the implementation of required controls, and
  • Vapor intrusion pathway must be considered as indoor air quality impacts from vapor intrusion pathways must be examined if there is a groundwater contamination at or near the site.

The rule went into effect on December 30, 2013.