Environmental Law

Contact: Andrew Brought; Spencer Fane Britt & Browne LLP (Missouri, USA)

When EPA issued its Direct Final Rule on August 15, 2013 (78 Fed. Reg. 49690), approving the use of the new proposed 2013 Phase I Environmental Site Assessment (ESA) standard (ASTM E1527-13) to satisfy the All Appropriate Inquiries Rule, 40 CFR Part 312, the agency specified it would withdraw the Final Rule and it would not take effect if EPA received an adverse comment during the comment period. That has now happened as an adverse comment was received on August 28. Consequently, EPA will withdraw the final rule (if it does what it said it would do) and rely upon the companion Proposed Rule issued simultaneously on the same day, 78 Fed. Reg. 49714, and respond to comments in order to proceed with a final rule. 

At issue is whether ASTM’s new Phase I ESA Standard E1527-13 supersedes or replaces the current 2005 version E1527-05. EPA’s Final Rule specified that entities are not required to use the 2013 Phase I ESA standard to satisfy AAI. Rather, the 2013 Phase I ESA is just one mechanism for satisfying AAI according to the agency. In particular, EPA made clear that the 2005 version, E1527-05, would also satisfy the AAI Standard. “The Agency notes that there are no legally significant differences between the regulatory requirements and the two ASTM E1527 standards.” 78 Fed. Reg. at 49692.

Read more at: Spencer Fane's Environmental Law Solutions Blog