AAI

EPA Withdraws Final Rule That Would Have Recognized ASTM E1527-21 While Continuing To Recognize ASTM E1527-13

As we  predicted,  EPA received numerous negative comments to its Direct Final Rule that would have recognized that the new ASTM E1527-21 phase 1 standard may be used to comply with the All Appropriate Inquires (AAI) rule for asserting certain landowner liability defenses and qualify for brownfield grants. All of the comments criticized EPA’s plan to …

EPA Withdraws Final Rule That Would Have Recognized ASTM E1527-21 While Continuing To Recognize ASTM E1527-13 Read More »

Expect Adverse Comments as EPA Drops Ball on ASTM Recognition

In our prior blog, we announced that the Environmental Protection Agency (“EPA”) would publish a proposed rule and direct final rule proposing to amend and amending the All Appropriate Inquiries rule (“AAI”)  to reference the revised ASTM E1527-21 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process’’ (“E1527-21”) and allowing it to …

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EPA Scheduled to Publish Recognition of ASTM E1527-21 in March 14th Federal Register

EPA has released a pre-publication copy of its proposed and direct final rule to recognize E1527-21 as a method for complying with its All Appropriate Inquiries (AAI) Rule.  If EPA does not receive any negative comments, the final direct rule will become effective upon the expiration of the public comment period. Upon the effective date, …

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New Phase 1 Standard is Approved by ASTM Governing Body!

The ASTM E1527-21 is now official! It was approved  on November 1st after three years of development. I served as the co-chair of the legal sub-committee. Among the changes: Key terminology revisions: The terms “Recognized Environmental Condition” (REC); “Controlled Recognized Environmental Condition” (CREC); and “Historical Recognized Environmental Condition (HREC) have been strengthened to reduce misclassifications of …

New Phase 1 Standard is Approved by ASTM Governing Body! Read More »

EPA Issues Guidance For Continuing or Suspending Response Actions During COVID-19 Crisis

In our post discussing EPA’s Enforcement Discretion guidance, we mentioned that EPA was working on guidance for performing remedial actions during the Covid-19 crisis. On April 10th, EPA issued its “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19” (Interim Guidance) to regional offices when determining to continue, reduce, or pause on-site …

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Do Clients Have To Complete Consultant Questionnaires To Comply With AAI?

The short answer is no. Environmental consultants routinely submit environmental questionnaires to property owners and their clients as part of the phase 1 process. Some consultants tell their clients that they are obligated to complete the questionnaire to be able to comply with EPA’s All Appropriate Inquires (“AAI”) rule. A few go as far as …

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Major CMBS Lender Requiring EPs to Perform Site Inspections

We have previously discussed discussed here and in other forums how the All Appropriate Inquiries (AAI) Rule issued by EPA in 2005 is deeply flawed and has directly contributed to a worsening in the quality of phase 1 reports. This is ironic outcome since the reason EPA was instructed in the  2002 amendments to CERCLA  to issue …

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Problems Emerge with New CREC Definition

After a little more than six months after ASTM issued its new E1527-13 Phase 1 standard practice, problems are emerging over the new definition Controlled Recognized Environmental Condition (CREC) definition. The difficulties are related to the definition itself and differences among state environmental programs. Before discussing the CREC problems, a little background might be helpful …

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Time to Revisit AAI EP Definition?

Many environmental lawyers, consultants and professional organizations were deeply disappointed when EPA bowed to pressure from other government agencies and severely weakened the definition of Environmental Professional (EP) in its “All Appropriate Inquires” (AAI) rule that was published on November 1, 2005. The EP definition in the proposed AAI rule included minimum levels of education …

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NY Case Illustrates Dangers of Completing Environmental Questionnaires

The decision in Revell v Guido, 956 N.Y.S.2d 343 (App. Div-3rd Dept. 2012) is another example of the limits of “as is” contracts when it comes to environmental issues. The doctrine of caveat emptor is still valid in commercial transactions but may not insulate sellers from liability when they make misstatements in environmental questionnaires or …

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