By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) announced that it will not issue a final rule for the Obama-era’s proposed regulations for financial responsibility requirements for certain hardrock mining (HRM) facilities. 82 Fed. Reg. ______ (Dec. __, 2017).

EPA Administrator Scott Pruitt announced that “after careful analysis of public comments, the statutory authority, and the record for this rulemaking, EPA is confident that modern industry practices, along with existing state and federal requirements [sufficiently] address risks from operating hardrock mining facilities.”  “Additional financial assurance requirements are unnecessary and would impose an undue burden on this important sector of the American economy and rural America, where most of these mining jobs are based.”

EPA was under a court ordered deadline to take final action on this rulemaking by December 1, 2017.

EPA’s actions confirm the Trump Administration’s hostility toward regulation. Specifically, EPA concluded that the “degree and duration of risk” associated with the modern hardrock mining industry “does not present a level of risk of taxpayer funded response actions that warrant imposition of financial responsibility requirements under CERCLA for this sector.” According to the Agency, the determination reflected EPA’s interpretation of the statute, EPA’s evaluation of the record for the proposed rule, and the approximately 11,000 public comments received by EPA on this proposed rulemaking.

EPA published proposed HRM financial responsibility regulations under section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) on January 11, 2017. The public comment period on the docket closed on July 11, 2017. The proposed rule was intended to “increase the likelihood that owners and operators will provide funds necessary to address the CERCLA liabilities at their facilities, thus preventing owners or operators from shifting the burden of cleanup to other parties, including the taxpayer.”

The U.S. Chamber of Commerce’s comments on the proposed rule, filed July 11, 2017, called upon EPA to make a determination that no rule was necessary.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. PerellisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Businesses and industries across the country which own or have interests in facilities and properties that may come under the broad scope of these new Superfund “Recommendations” will need to stay attuned and involved with what the Agency is doing relating to your interests. 

The U.S. Environmental Protection Agency recently released its Superfund Task Force Recommendations Report (Report). The report, ambitiously, provides “42 specific and detailed recommendations to streamline and improve the Superfund program.” Along with the Report, EPA Administrator Scott Pruitt also released a directive to EPA leaders and offices across the Agency of eleven “specific actions that should be implemented right away, with renewed focus,” including the identification, within 60 days, of the “sites where the risk of human exposure is not fully controlled.”

The Agency claims in its news release on the Report that “the recommendations of the Superfund Task Force, when implemented, will improve and expedite the process of site remediation and promote reuse.” The 42 Superfund Task Force recommendations are organized into five goals:

  1. Expediting Cleanup and Remediation;
  2. Re-invigorating Responsible Party Cleanup and Reuse;
  3. Encouraging Private Investment;
  4. Promoting Redevelopment and Community Revitalization; and
  5. Engaging Partners and Stakeholders.

In addition, the goals in the Task Force Report are accompanied by a set of strategies that include actions which are to commence in as little as 30 days from the Report’s approval.

A few of the notable recommendations include:

  • Providing “reduced-oversight incentives” to cooperative, “high-performing PRPs,” and use of enforcement tools as disincentives for protracted negotiations, or slow performance under cleanup agreements, including”
    • actively using enforcement authorities, including more prevalent issuance of unilateral orders to recalcitrant parties to discourage protracted negotiations
    • prohibiting PRPs from multiple chances to revise the same document when initial submittal is subpar
  • Focusing on sites which have “taken far too long to remediate” including:
    • establishing an “Administrator’s Top Ten” list which will get Administrator Pruitt’s weekly attention and
    • directing additional resources to sites that have been on the National Priorities List (NPL) for five years or longer;
  • Identifying third parties to invest in NPL sites and other “innovative tools” to “accelerate cleanups and promote reuse” such as:
    • utilizing alternative approaches to financing site cleanups, including environmental liability transfer and protections for third party investors and
    • working with PRPs to better integrate reuse needs into cleanup activities;
  • Prioritizing NPL sites where remedies have already been selected;
  • Encouraging the use of new technologies and clean up approaches by PRPs; and
  • Incentivizing PRPs who perform “timely, high quality cleanup” such as:
    • reducing oversight costs for PRPs that perform timely, high quality work and
    • increasing PRP and Agency adherence to project deadlines.

For businesses and industries across the country which own or have interests in facilities and properties that may come under the broad scope of these new Recommendations, diligence and attention are the key words. Stay tuned and involved with what the Agency is doing relating to your interests.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Kay R. Bonza, and Craig B. Simonsen

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Seyfarth Synopsis: With the EPA adding the consideration of vapor intrusion in its Superfund site investigations, hundreds of sites that previously would not rank high enough to qualify for listing on the National Priorities List of contaminated sites would now likely qualify.

The U.S. Environmental Protection Agency (EPA) has just released a pre-publication version of its final rule to add a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS).  EPA defines subsurface intrusion as the migration of hazardous substances, pollutants, and contaminants from the unsaturated zone or the surficial (shallow) ground water into overlying structures. The most common form of subsurface intrusion is vapor intrusion.  Vapor intrusion occurs when vapor-forming chemicals from sources including dry cleaning solvents and industrial de-greasers in ground water or soil migrate into buildings and other enclosed spaces, posing a threat to indoor air quality.

We had blogged previously when the Agency proposed this new rule. See EPA Plans to Ease Path to Superfund Listing: Vapor Intrusion Component to be Added to the Hazardous Ranking System. Before this rulemaking, the EPA addressed SsI at sites only when those sites were listed on the National Priorities List (NPL) for another contamination issue.  By adding the consideration of vapor intrusion to the HRS, hundreds of sites that previously would not rank high enough to qualify for listing on the NPL could now qualify based soley on the threat of vapor intrusion. NPL listing is a prerequisite to EPA spending sums over $2 million to investigate and conduct remedial actions under Superfund.  NPL-listed sites are generally more expensive to remediate and more difficult to sell than are other environmentally distressed properties.

In his blog on the topic Mathy Stanislaus, Assistant Administrator for the Office of Land and Emergency Management, indicates that the new rule will allow the “EPA site assessment program to address two additional types of sites: those that either have only subsurface intrusion issues, and those with subsurface intrusion issues that are coincident with a groundwater or soil contamination problem.”

In its support materials for the proposal, EPA noted that the Government Accountability Office (GAO) had concluded that “if vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon.”  The HRS is Appendix A to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), and is used by EPA to identify hazardous waste sites eligible to be added to the NPL.

The Agency has also provided an FAQ and an Interim SsI Superfund Chemical Data Matrix Table.

According to EPA’s news release on the rule, “this regulatory change does not affect the status of sites currently on or proposed to be added to the NPL. This modification only augments criteria for applying the HRS to sites being evaluated in the future.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

shutterstock_132968252Seyfarth Synopsis: The Northern District of Indiana rejected the insurer’s assertion that its pollution exclusion clauses unambiguously included all contaminants.

Indiana, unlike other jurisdictions, is pro-insured when it comes to providing coverage for damages arising from pollution events. This is so even where the insurance policy attempts to exclude coverage.

Old Republic Ins. Co. v. Gary-Chicago Int’l Airport Auth., No. 15-cv-00281 (N.D. Ind., July 25, 2016), is the latest in a line of cases to hold that, in Indiana, if an insurer wants to exclude coverage for pollution, the policy must state with specificity the contaminants and pollutants for which coverage is excluded.

In Old Republic, the Northern District of Indiana denied Old Republic Insurance Company’s (Old Republic) motion for summary judgment, finding that Old Republic must pay defense costs arising from contamination at the Gary-Chicago International Airport (Airport) because of ambiguities in the insurance policies issued by Old Republic.

This case involved an environmental pollution insurance coverage dispute between Old Republic and the Gary-Chicago International Airport Authority (Airport Authority). Old Republic filed a complaint for declaratory relief and reimbursement of defense costs against the Airport Authority after the Indiana Department of Environmental Management (IDEM) initiated an action against the Airport Authority in connection with pollution at the Airport. Old Republic asked the Court to declare that, based on the “absolute pollution exclusion” clauses in the applicable insurance policies Old Republic issued to the Airport Authority, it did not have a duty to defend or indemnify the Airport Authority with respect to this IDEM action.

All insurance policies at issue contained the following exclusion:

This policy does not cover claims directly or indirectly occasioned by, happening through or in consequence of: . . . (b) pollution and contamination of any kind whatsoever….

This is known as an “absolute pollution exclusion.” There parties to this action agreed that there was an oily sheen and that environmental testing had detected concentrations of benzo(a)pyrene, arsenic, and PCBs at the Airport site. Even so, the parties disagreed over whether the “absolute pollution exclusion” remained ambiguous, as ambiguities must be resolved in favor of the insured.

The Seventh Circuit previously held, following the approach recognized by the Indiana Supreme Court, that an absolute pollution exclusion will be enforced where an insurer specifically indicates what falls within the exclusion. Visteon Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 777 F.3d 415 (7th Cir. 2015). Following that approach, the Court concluded that Old Republic’s policies were ambiguous: “Old Republic’s pollution exclusion does not explicitly indicate what constitutes ‘pollution’ or ‘contamination’ so that an ordinary policyholder of average intelligence would know to a certainty that Old Republic would not be responsible for damages arising out of the oily sheen, benzo(a)pyrene, arsenic, and PCBs discovered at the Airport.”

Indiana insureds should be mindful that even broadly worded pollution exclusions may not be enforced if the policy fails to specify exactly what pollutants or contaminants fall within the policy’s exclusions.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Environmental Litigation and Toxic Torts Team.

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000042612884_MediumSeyfarth Synopsis: The Eighth Circuit found that a class action could not be sustained in an environmental pollution case because “the class lacks the requisite commonality and cohesiveness to satisfy Rule 23.”

In Karl Ebert v.  General Mills, Inc., No. 15-1735 (8th Cir. May 20, 2016), the United States Court of Appeals for the Eighth Circuit found that the District Court erred in certifying a  proposed class of plaintiffs in an environmental pollution case because “the class lacks the requisite commonality and cohesiveness to satisfy Rule 23.” The case was remanded for further proceedings at the District Court.

In this its appeal to the Eighth Circuit, General Mills, Inc., challenged the District Court’s grant of class certification because each plaintiff will need to prove individualized issues of injury, causation, and damages.

In the underlying litigation the plaintiffs, all owners of residential properties in a Minneapolis neighborhood near a General Mills facility, sued General Mills, alleging that the company caused trichloroethylene (TCE) to be released onto the ground and into the environment near the plaintiffs’ neighborhood. The plaintiffs claimed that, as a result of the contamination, TCE vapors migrated into the surrounding residential area, threatening the health of the residents and diminishing the value of their property.

For nearly thirty years, General Mills participated in groundwater clean-up and remediation efforts in the plaintiffs’ neighborhood under the direction of, and in conjunction with, the federal government and the State of Minnesota. In late 2011, in cooperation with the State of Minnesota, General Mills began to evaluate the potential of migration of TCE in the form of vapor from shallow groundwater to the soil above. As noted by the District Court, General Mills installed vapor mitigation systems (VMSs) in 118 homes in the neighborhood.

The plaintiffs first learned of the TCE vapor contamination in 2013, and each of the named plaintiffs received customized VMSs. Seeking to represent a class, the residents asserted five legal claims: (1) violation of CERCLA; (2) common law negligence; (3) private nuisance; (4) willful and wanton misconduct; and (5) violation of the Resource Conservation and Recovery Act. Personal injury claims were not included in the complaint, in a deliberate attempt to avoid class certification problems. This will be discussed below.

The District Court found that the requirements of Federal Rule of Civil Procedure 23 were satisfied, and certified the proposed class. However, the Eighth Circuit reversed, finding that the class lacked the requisite commonality and cohesiveness to satisfy Rule 23.

Specifically, the Eighth Circuit noted that the District Court had attempted to artificially narrow the issues and the class membership so as to create class standing by first excluding personal injury claims and any plaintiffs with identifiable personal injury claims, and then by limiting claims to whether injunctive relief would be warranted. The District Court had bifurcated the action into two phases. It first certified a class under Rule 23(b)(2) to determine whether injunctive relief was appropriate. It then set up a second phase under Rule 23(b)(3) to determine the money-damage portion of the case  .

The Eighth Circuit noted that the use of this sort of “hybrid certification,” insulating the (b)(2) class from (b)(3) the money-damage portion of the case, is “an available approach that is gaining ground in class action suits.” Newberg on Class Actions § 4:38. While Rule 23(b)(3) requires common questions of law or fact to predominate over questions affecting only individual members, Rule 23(a)(2) requires only the establishment of a common question pertaining to an injury suffered by all class members. In this case, though, the Circuit Court concluded that this action could not proceed as a class under either Rule 23(b)(2) or Rule 23(b)(3).

As to Rule 23(b)(2), the Eighth Circuit found the central required element of “cohesiveness” to be lacking. For relief as a class, “the relief sought must perforce affect the entire class at once,” citing Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011). As a result, the Eighth Circuit found that “[i]t is the disparate factual circumstances of class members that prevent the class from being cohesive and thus unable to be certified under Rule 23(b)(2).”

For Rule 23(b)(3), the Eighth Circuit concluded that individual issues would predominate the inquiry. Notwithstanding the District Court’s attempt to exclude questions on individualized exposure, the Eighth Circuit found: “any limitations in the initial action are, at bottom, artificial or merely preliminary to matters that necessarily must be adjudicated to resolve the heart of the matter.”

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

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Seyfarth Synopsis: The 9th Circuit confirmed that an EPAs request for information letter investigating a Superfund cleanup site is a “suit” triggering an insurer’s duty to defend.

This week, the Ninth Circuit Court of Appeals affirmed a District Court decision that an information request issued by the U.S. Environmental Protection Agency in connection with an investigation into a Superfund cleanup site is a “suit” triggering an insurer’s duty to defend. Ash Grove Cement Company v. Liberty Mutual Insurance Company, et al., Nos. 13-35900, 13-35905, and 14-35298 (9th Cir. May 11, 2016).

In the underlying case, Ash Grove received an information request from the EPA pursuant to section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9604(e) (104(e) letter), about contamination at the Portland Harbor Superfund Site. Ash Grove promptly forwarded the 104(e) letter to its insurers.

In briefing, the insurers argued that the 104(e) letter was not a “suit” under Oregon law. The Ninth Circuit, though, had previously held that a 104(e) letter is a “coercive information demand” that is “an attempt to gain an end through legal process,” and was therefore a “suit” under Oregon law. Anderson Bros., Inc. v. St. Paul Fire & Marine Ins. Co., 729 F.3d 923, 932-33, 935 (9th Cir. 2013). The Court also rejected the insurers’ argument that the intention of the parties could not have been to treat a 104(e) letter as a “suit,” because the policies distinguished between a “claim” and a “suit.” Id. at 933-34. In addition, the Court addressed and rejected the insurers’ contention that a 104(e) letter cannot constitute a “suit” because it does not require that an “insured take action with respect to contamination within the State of Oregon.” Id. at 934-35.

Finally, the insurers argued, even if the 104(e) letter constituted a suit, their duty to defend ceased after Ash Grove submitted its response to the letter. The Court disagreed, noting that Oregon law provides that the duty “continue[s] as to each unit [of property] until the Record of Decision for that unit [i]s filed.” Schnitzer Inv. Corp. v. Certain Underwriters at Lloyd’s of London, 104 P.3d 1162, 1169 (Or. Ct. App. 2005), aff’d, 137 P.3d 1282 (Or. 2006).

By Andrew H. Perellis and Craig B. Simonsen

EPA SignThe U.S. Environmental Protection Agency (EPA) has just announced a proposed rule to add a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS).  Addition of a Subsurface Intrusion Component to the Hazard Ranking System, RIN 2050-AG67 (February 3, 2016).

By adding the consideration of vapor intrusion, hundreds of sites that previously would not rank high enough to qualify for listing on the National Priorities List (NPL) would now likely qualify. NPL listing is a prerequisite to EPA spending sums over $2 million to conduct remedial actions. NPL-listed sites are generally more expensive to remediate and more difficult to sell than are other environmentally distressed properties.

In its support materials, the EPA noted that the Government Accountability Office (GAO) had concluded that “if vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon.” The HRS is Appendix A to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), and is used by EPA to identify hazardous waste sites eligible to be added to the NPL.

SsI can be defined as the migration of hazardous substances, pollutants, or contaminants from contaminated groundwater or soil into an overlying building. SsI may result in exposure to harmful levels of hazardous substances, that may be amplified by extended time spent in buildings where SsI occurs. The EPA claims that this may raise the lifetime risk of cancer or chronic disease. In an effort to ensure that SsI contamination is consistently evaluated, the EPA has proposed to add an HRS component that will allow EPA to evaluate threats posed by SsI.

The Agency has provided an HRS Subsurface Intrusion webpage to afford the regulated community and interested parties with more detailed information on the rulemaking.

The EPA Administrator, Gina McCarthy, signed the Notice of Proposed Rulemaking on February 3, 2016.  The public comment period for the proposed rule will be sixty days from the date of publication in the Federal Register.

By Andrew H. Perellis, Jeryl L. Olson, and Ilana R. Morady

On October 6, 2014, EPA finalized an amendment to the “All Appropriate Inquiries” (AAI) rule to remove the reference to ASTM E-1527-05. 79 Fed. Reg. 60087. This means that ASTM E-1527-05 is no longer adequate to establish landowner and lender liability protections under CERLA. Buyers, sellers, and lenders take note: you will now need to ensure that your AAI is conducted under the newer 2013 ASTM standard.

“All Appropriate Inquiries,” or AAI, is the process of evaluating a property’s environmental conditions and assessing the likelihood of any contamination. Buyers, Sellers and Lenders involved in the transfer of real estate, including real estate transferred as part of a corporate merger, acquisition or asset sale, know that ASTM E-1527 is the typical starting point for conducing AAI and thus obtaining landowner and lender liability protections under the environmental statute CERCLA. In 2013, the 2005 ASTM standard was revised (see our article, SOMETHING NEW IS IN THE AIR:  Important Changes to ASTM E 1527 “Phase I” Environmental Due Diligence, to read more about the 2013 revisions). EPA’s policy at the time was that both ASTM E1527-05 and E1527-13 were consistent with the AAI rule at 40 CFR Part 312.  Now, however, EPA has amended the AAI rule  to remove the reference to ASTM E-1527-05, thus rendering the 2005 standard inadequate for establishing CERCLA landowner and lender liability protections.

The amendment comes after EPA received many adverse comments in response to its decision to allow both ASTM E1527-05 and E1527-13. Commenters stated that using two standards could create confusion, especially since even ASTM no longer recognizes 2005 as meeting its standards for good customary business practice. EPA ultimately agreed, and is now requiring the 2013 standard to establish AAI. Thus, if you are commissioning a Phase 1 audit report to establish AAI, you will need to make sure  the environmental consultant performing the Phase 1 relies upon ASTM E1527-13.

By Andrew H. Perellis and Patrick D. Joyce

The Ninth Circuit Court of Appeals recently held that a district court must provide deeper scrutiny to Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9601 et seq. (1980), consent decrees.

The August 1, 2014 decision in State of Arizona v. Ashton Company Inc. Contractors and Engineers, et al., No. 12-15691 (9th Cir. August 1, 2014) changes what had previously been a virtual rubber stamp of approval into a significant hurdle to speedy CERCLA settlements.  The case addressed liability of several potentially responsible parties (PRPs) under CERCLA and the Arizona Water Quality Assurance Revolving Funds (WQARF). The State of Arizona was seeking recovery of cleanup costs resulting from the contamination of the Broadway-Patano Landfill Site, a hazardous waste site in Tucson, Arizona.

After an investigation that ended in 2009, the State sent settlement offers to those PRPs who had requested early settlement and were also de minimis parties.  The proposed settlement agreements required each settling party to pay a specified amount in exchange for a release of liability under CERCLA and WQARF.

The State initiated the lawsuit to receive judicial approval of the proposed settlement agreements.  However, several non-settling PRPs moved to intervene in the case, objecting to the proposed settlement agreements.  The intervenors argued the State had not provided enough information to the district court to allow the court to make an decision on whether the proposed settlement agreements were fair and reasonable and consistent with CERCLA’s objectives.

The district court approved the proposed settlement agreements, deferring to the Arizona Department of Environmental Quality’s (ADEQ) judgment that “the public interest is best served through entry of th[e] agreement[s].” State of Arizona v. Ashton Company Inc. Contractors and Engineers, et al., No. 10-634 (D. Az. February 21, 2012). The Ninth Circuit Court of Appeals partially reversed the district court’s decision, saying the court had failed to independently scrutinize the terms of the settlements, as required under CERCLA.

Traditionally, early consent decrees have been used as a way to remove de minimis parties from litigation so the court can focus on determining liability for those PRPs who were more involved at a site.  Making a liability determination is not typically a speedy process, as liability is not based solely on the mass or volume of waste provided.  Rather, more complex factors are often taken into consideration including: concentration of hazardous substances contributed, type of hazardous materials contributed, knowledge of effects on the environment, and whether disposal was done in good faith.

In reversing the district court, the Ninth Circuit found the district judge had given too much deference to ADEQ’s assurances that the settlements were fair and reasonable.  Further, the Ninth Circuit criticized the district court for not even discussing the amount each settling PRP would pay.  Rather, the district court merely found the settling PRPs were de minimis because ADEQ calculated their liability to be between 0.1% and 0.2% of the total $75 million cost.  The Ninth Circuit found that a state agency such as ADEQ (unlike U.S. EPA) was not entitled to deference concerning its interpretation of CERCLA, a federal statute, and the district court “may not abdicate its responsibility to independently determine that the agreements are fair, reasonable, and consistent with CERCLA’s objectives.”

After Arizona v. Ashton, to satisfy the Ninth Circuit’s mandate for deeper scrutiny of settlement agreements, the settling parties will now have to provide a suitable record showing that the allocation underlying the settlement is appropriate.  Requiring increased judicial scrutiny of CERCLA settlements is particularly appropriate in light of CERCLA’s provision giving contribution protection to settling parties.  A non-settlor who ultimately pays more than its fair-share of liability has no recourse against parties that have settled and enjoy contribution protection.  As such, judicial scrutiny of whether a settlement is appropriate mitigates against early settlors getting a ‘sweetheart deal.”

By Jeryl L. Olson

In follow-up to our August 16, 2013, blog regarding the EPA’s Direct Final Rule installing the new ASTM E1527-13 as an alternative, updated process for conducting Phase I environmental due diligence, it should be noted the Agency has indicated (in an email to BNA reporter Pat Ware) that it will WITHDRAW that rule.  78 Fed. Reg. 64403 (Oct. 29, 2013).

The ASTM E1527 standard is identified in 40 CFR Part 312 as the standard to be followed to ensure a user of the standard can assert Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) affirmative defenses (innocent purchaser and bona-fide prospective purchaser defenses) to CERCLA liability for contaminated real property,  The ASTM E1527 standard is universally used in real estate transactions to assess environmental conditions on properties subject to transactions.

The withdrawal is based on comments received by EPA which criticize not just the terms and conditions of the 2013 version of the ASTM standard, but EPA’s interpretation of how and when the new standard can be used. BNA reports that comments were received which criticized the Agency’s position that users may rely on either the 2005 or the 2013 versions of the standard when performing Phase I assessments. The BNA reported criticisms suggest that because the 2013 standard will be more expensive, institutional users of the standard (e.g. lenders) who tend to be high-volume purchasers of consulting services for Phase I assessments will continue the use of the 2005 standard, which is less expensive, thus rendering the 2013 standard at best moot, but most likely, confusing and potentially controversial to the myriad users of Phase I reports.

It is expected that consultants who have been gearing up for the new 2013 standard which was anticipated to become effective late this fall, will fall back for now and will be proposing services based solely on the 2005 standard.