EPA Publishes Direct Final Rule on New ASTM Standard for Phase I All Appropriate Inquiries

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:

• Follow the EPA All Appropriate Inquiries Rule at 40 CFR part 312;
• Use the existing ASTM E1527-13 “Standard Practice for Phase I Environmental Site Assessments.” However, this option is only available for up to one year after this Final Rule becomes effective; and
• Follow the ASTM E2247-16 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.”

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.