As covered in my previous post, the ASTM International (ASTM) released a revised standard for conducting Phase I Environmental Site Assessments (Phase I ESAs) – ASTM E1527-21. While the E1527-21 standard has been available for use since November, it has not been officially included in the CERCLA regulations as satisfying the All Appropriate Inquiries (AAI Rule).
On March 14, 2022, the U.S. EPA published a direct final rule to update CERCLA’s Standards and Practices for AAI to state that the ASTM E1527-21 standard is equivalent to the AAI Rule. This update does not require the use of ASTM E1527-21 to satisfy the AAI Rule, but would allow use of the standard to meet the AAI Rule. The update also retains the ability to use the ASTM E1527-13 or ASTM E2247-16 standards to meet the AAI Rule. The rule is expected to go into effect on May 13, 2022, unless the EPA receives significant negative comments.
In its review of the ASTM E1527-21 standard, the EPA found “no legally significant differences between the regulatory requirements and the ASTM E1527-21 standard.” Nevertheless, the EPA provided a “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.” This document is intended to “facilitate an understanding of the slight differences between the AAI Rule and the ASTM E1527-21 standard” and “the applicability of the E1527-21 standard to certain types of properties . . . .”
While the prior ASTM standards, particularly ASTM E1527-13, will continue to satisfy the AAI Rule for the time being, it is only a matter of time before it will be officially phased out. Therefore, parties seeking to satisfy the AAI Rule in order to qualify for CERCLA’s innocent landowner defenses, such as the bona fide prospective purchaser defense, should become familiar with the ASTM E1527-21 standard and consider requiring future Phase I ESAs to comply with the new standard.