On December 15, 2022, EPA took final action to amend the All Appropriate Inquiries Rule 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, and to remove after one year recognition of the previous version of that standard, ASTM E1527-13, as compliant with the All Appropriate Inquiries Rule.

This rule is effective (after 60 days) on February 13, 2023.

We had posted some months ago that it was hugely significant that this Phase l Environmental Site Assessment Standard was in Limbo because that assessment is conducted in the vast majority of the 5.6 million commercial real estate transactions each year in the United States (i.e., including for a real estate purchaser to avoid liability under CERCLA [the Superfund law]). Phase l reports are also used for a wide variety of other purposes, including for a company to demonstrate third party verified compliance with the E in ESG, environmental laws, to qualify for credits under the LEED and Green Globes green building rating systems, etc.

We had earlier posted in November 2021, that ASTM International had revised its Phase l Environmental Site Assessment Standard, in anticipation of adoption for use by the EPA. In that post, we described the significant changes in the 2021 version from the 2013 version.

Also, by way of background, on March 14, 2022, EPA published a direct final rule to amend the All Appropriate Inquiries Rule to reference the updated ASTM E1527-21 and also invited comment on the direct final rule stating that if EPA received adverse comment on the proposal the Agency would withdraw it. EPA received adverse comments on that action and published a notification of withdrawal of the direct final rule on May 2, 2022. Of note, EPA only received 13 comments (.. really, 13) on the proposed rule. After consideration of those comments, EPA is acting, as published in the Federal Register now specifically amending,

2. Section 312.11 is amended by:

a. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c), respectively;

b. Adding a new paragraph (a); and

c. Revising newly redesignated paragraph (c).

The new paragraphs read …

(a) The procedures of ASTM International Standard E1527-21 entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” …

(c) Until February 13, 2024, the procedures of ASTM International Standard E1527-13 entitled “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.”

Which is Federal government speak for EPA has, effective February 13, 2023, amended the All Appropriate Inquiries Rule to provide for the use of the recently revised ASTM International Standard ASTM E1527-21 to satisfy the all appropriate inquiries requirements under CERCLA for establishing the bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections.

EPA has also removed the current reference in the All Appropriate Inquiries Rule to the ASTM version E1527-13 as compliant with all appropriate inquiries. The removal of the reference to the historic standard as compliant with the all appropriate inquiries requirements will take effect one year following the publication of this final rule, that is, February 13, 2024.

Be assured this is a big deal. We can assist you in creating value and prospering with your selection of an environmental site assessment standard during this period of regulatory change and into the future.