NEWS FLASH: EPA RECOGNIZES ASTM FORESTLAND STANDARD AS AAI-COMPLIANT

EPA Replaces Reference to Old E 2247 Standard to Reflect 2016 Revisions

At our May PRISM conference, Patricia Overmeyer, the Land Revitalization Coordinator at the U.S. EPA’s Office of Brownfields Cleanup and Redevelopment, gave the audience a heads up that a direct final rule recognizing ASTM Phase I Forestland Standard (E2247-16) as AAI-compliant was imminent. Just over a month later—on June 20, 2017—the U.S. EPA published notice in the Federal Register of its intent to amend the All Appropriate Inquiry rule (40 CFR Part 312) to include ASTM Standard E2247-16 – “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.”

The comment period ends this week, and if the agency does not receive any adverse comments, the rule is effective on September 18, 2017.

What It Means

This development revises the federal AAI rule to reflect ASTM’s 2016 updates to E2247, which outlines a process for conducting Phase I ESAs on large tracts of land. Prior to this, the AAI rule referenced ASTM’s E1527-13 Phase I ESA standard, as well as the 2008 version of the forestland standard.

The AAI Rule, as amended, reflects that parties can meet the AAI requirement by having a qualified environmental professional conduct an environmental investigation in accordance with:

  • the regulatory requirements for AAI contained in 40 CFR Part 312,
  • the ASTM Standard E1527-13 (Standard Practice for Phase I Environmental Site Assessments), or
  • the revised ASTM Standard E2247-16.

Environmental professionals providing due diligence on large rural/forestland properties should advise their clients about the amendment, and ensure that they are following the new E2247-16 standard, particularly if CERCLA liability protection is a due diligence goal.

Updates to the E2247 Standard

Many of the recent changes to the forestland/rural property standard involved making it consistent with its sister E1527-13 standard, including adoption of the same definition of “recognized environmental condition:”

“the presence or likely presence of any hazardous substances or petroleum products in, on, or at a property due to any release to the environment; under conditions indicative of a release to the environment or under conditions that pose a material threat of a future release to the environment. De minimis conditions are not recognized environmental conditions.”

ASTM also revised the standard to include specific guidance related to where environmental liens and Activity and Use Limitations may be recorded and found to reflect current language in E 1527-13.

The standard also previously defined a minimum property size of 120 acres, but the latest revision removed this “arbitrary minimum property size restriction,” allowing E2247-16 to be applied to rural/forestland properties of any size.

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