EPA Publishes Direct Final Rule on New ASTM Standard for Phase I All Appropriate Inquiries
Dec 15 2022
On December 15, 2022, the EPA published a Final Rule to amend EPA’s All Appropriate Inquiries Rule to allow the use of the revised American Society for Testing and Materials (ASTM) E1527-21 Standard Practice for Environmental Site Assessments for conducting Phase I Environmental Site Assessments to satisfy the EPA’s All Appropriate Inquiries (AAI) for establishing a CERCLA defense. The rule takes effect Monday, February 13, 2023—60 days from the date of publication. The former ASTM E1527-13 Phase I ESA standard will no longer be accepted by the EPA as meeting the AAI requirement after February 13, 2024 – one year after publication of this rule.
The new rule gives buyers better clarity on which ASTM phase I standard will meet the AAI requirements under CERCLA (the federal Comprehensive Environmental Response, Compensation, and Liability Act). ASTM published the ASTM E1527-21 phase I standard in 2021 and in March 2022 EPA proposed allowing prospective purchasers of property to continue using ATSM E1527-13 indefinitely, as well as using the new ASTM E1527-21 to meet the AAI requirement for establishing CERCLA defenses to liability. After receiving public input on the proposed changes, this Final Rule includes a one-year sunset period for using previous ASTM E-1527-13 standard.
This final rule does not require a person to follow the ASTM E1527-21 standard. Parties purchasing potentially contaminated property have several other options for meeting the CERCLA AAI requirements, including:
The review of the AAI requirements and the proposed changes are designed to provide greater clarity to the process. The ASTM E1527-21 standard contains numerous improvements including clarifications of key terms, an expansion in the scope of historical research, clarification of the report’s shelf life, and a recognition of emerging contaminants which the ASTM E1527-13 standard does not do.
Click here to read Womble Bond Dickinson’s March 2022 client alert on the proposed rule changes for additional background.