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Environmental Protection Agency Publishes Rule Officially Allowing New ASTM Standard for All Appropr

Environmental Protection Agency Publishes Rule Officially Allowing New ASTM Standard for All Appropriate Inquiry Environmental Diligence Requirement
March 16, 2022 by Freedom S.N. Smith, Partner
On March 14, the United States Environmental Protection Agency (“EPA”) published a direct final rule in the federal register (87 FR 14174) amending the Standards and Practices for All Appropriate Inquiries (“AAI”) at 40 CFR part 312 to reference ASTM International's E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” and allow for its use to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The EPA stated that the ASTM E1527-21 standard was determined to be equivalent to the agency's all appropriate inquiries requirements, which set forth the standards and practices necessary for fulfilling the requirements of CERCLA to obtain CERCLA liability protection and for conducting site characterizations and assessments with the use of brownfields grants.  The direct rule did not disallow the use of the previously recognized standards (ASTM E1527-13 or ASTM E2247-16), and it does not alter the requirements of the previously promulgated AAI Rule.  

The EPA further noted in the rule that it found no legally significant differences between the regulatory requirements and the ASTM E1527-21 standard. However, to facilitate an understanding of the slight differences between the AAI Rule and the ASTM E1527-21 standard,  as well as the applicability of the E1527-21 standard to certain types of properties, the EPA developed the document “Comparison of All Appropriate Inquiries Regulation, the ASTM E1527-13 Phase I Environmental Site Assessment Process, and ASTM E1527-21 Phase I Environmental Site Assessment Process.” The document provides a comparison of the two ASTM E1527 standards.  

While there is no current action to remove prior ASTM standards, particularly ASTM E1527-13, from the list of ways that parties can meet AAI requirements, it should be noted that in the past such a step has eventually led to retirement of older standards from the list of acceptable AAI methods.  As such, parties would be prudent to review the EPA’s provided comparison document and plan accordingly.

“Parties purchasing potentially contaminated properties may use the ASTM E1527-21 standard practice to comply with the all appropriate inquiries requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). This rule does not require any entity to use this standard. Any party who wants to claim protection from liability under one of CERCLA's landowner liability protections may follow the regulatory requirements of the All Appropriate Inquiries Rule at 40 CFR part 312, use the ASTM E1527-13 “Standard Practice for Phase I Environmental Site Assessments,” use the ASTM E2247-16 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property,” or use the standard recognized in this direct final rule, the ASTM E1527-21 standard, to comply with the all appropriate inquiries provision of CERCLA.”  

Read more here. 

The Rule will be effective on May 13, 2022, unless the EPA receives adverse comments by April 13, 2022.  The EPA is not taking comments on the contents of ASTM E1527-13, just its inclusion in the list of standards appropriate for the AAI.  

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

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