EPA Amends All Appropriate Inquiries Rule to Add New ASTM Standard

On February 13, 2023, a new rule issued by the US Environmental Protection Agency (EPA) goes into effect that amends the All Appropriate Inquiries Rule (AAI rule 40 CFR Part 312) to reference ASTM International's E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The rule establishes a 1-year sunset period for the use of standard E1527-13.

Use of ASTM E1527-21 satisfies the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in order to qualify a buyer for Landowner Liability Defenses to Superfund liability.

E1527-21 includes several key changes from the previous 2013 standard, including:

• A revised definition of "Recognized Environmental Condition" (REC) to more clearly differentiate between an identified known release versus a "likely" release of hazardous substances or petroleum products to the subject property (with a de facto definition for "likely").
• Greater emphasis on emerging contaminants (such as PFAS) not currently listed as CERCLA hazardous substances that fall under the category of  “non-scope considerations,” but may warrant inclusion within the scope of inquiries if such substances are regulated by the State or being considered for inclusion in the list of CERCLA hazardous substances.
• A requirement to identify significant data gaps in the conclusion section of the Phase I report.
• Clarification to the viability of Phase I reports for five key components of inquiries.
• Modifications to the eight standard historical sources and establishment of minimum expectations for records used for the subject property and adjoining properties.
• Revised the definition of "historical REC" (HREC) to clarify that conditions must meet current regulatory standards for unrestricted use.

The complete rule is available for review at the Federal Register.