EPA amends rule which incorporates the new ASTM E1527-21 standard into its standards and practices for all appropriate inquiries
On December 15, 2022, the U.S. EPA took final action to amend the Standards and Practices for All Appropriate Inquiries to reference ASTM International’s E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The final rule allows for the use of ASTM International E1527-21 to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Currently, the All Appropriate Inquiries Rule (40 CFR part 312) allows for the use of the ASTM E1527-13 to conduct all appropriate inquiries.
This final action comes after EPA received adverse comments on the direct final rule (87 FR 14174) published on March 14, 2022, allowing both ASTM E1527-21 and ASTM E1527-13 to be used simultaneously. Amongst other things, commenters raised concerns regarding the potential confusion associated with the Agency's recognition of an outdated standard that no longer reflects ASTM International's customary business standard. Subsequently, the Agency withdrew the direct final rule on May 2, 2022 (87 FR 25572).
This final action brings finality to the amendment of the All Appropriate Inquires Rule (AAI) and addresses commenters' concerns by removing reference to ASTM E1527-13. However, the Agency is providing a sunset period of one year from the publication of this final rule to provide parties adequate opportunity to complete ongoing AAI investigations and allow all parties to become familiar with the updated industry standard.
The Agency clarifies in the final action that parties purchasing potentially contaminated properties are not required to use ASTM E1527-21 to conduct all appropriate inquiries. In fact, any party seeking protection under CERCLA's bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections, or a brownfields site assessment under CERCLA Section 104(k) may use the following options to conduct all appropriate inquiries:
- Regulatory requirements of the All Appropriate Inquiries Rule at 40 CFR part 312
- ASTM E1527–13 ‘‘Standard Practice for Phase I Environmental Site Assessments’’ until February 13, 2024
- ASTM E2247–16 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property"
- ASTM E1527–21 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”
The rule takes effect Monday, February 13, 2023. Click here to read the final rule.
This is for informational purposes only. It is not intended to be legal advice and does not create or imply an attorney-client relationship.Download PDF