On August 21, 2013, we wrote here that the United States Environmental Protection Agency approved the new ASTM Phase I environmental due diligence standard (ASTM E1527-13). In a move that caught many observers by surprise, however, the EPA stated that both the old and the new ASTM standards could be used to satisfy a party’s need to perform “all appropriate inquiry” in order to obtain defenses to property owner liability for historic contamination. There was considerable confusion over whether a party should use the old or new standard.
When it approved the use of new ASTM standard, EPA indicated that it was approving the new standard as a direct final rule for immediate use because it assumed there would be no negative public comments. The agency was wrong, and it did receive significant negative feedback to its action. The main objections were to the confusion created by allowing the use of either the old ASTM standard or the new standard.
As a result, on October 29, 2013 EPA withdrew its current approval of the new ASTM standard and now plans to approve the new standard through the more formal, and time consuming, administrative rulemaking process.
Therefore, at this time, parties looking to perform environmental due diligence should continue to use only the old ASTM standard until the USEPA formally adopts the new standard.
