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EPA Incorporates the Current ASTM E1527-21 Phase I Standard into the Existing “All Appropriate Inquiry” Regulations
As published in today’s Federal Register, the United States Environmental Protection Agency (EPA) published a Final Rulemaking to amend the existing AAI regulations, found at 40 CFR Part 312, the federal environmental due diligence practices and standards relevant to ensuring a landowner’s ability to qualify for certain defenses to CERCLA liability. The Final Rule will incorporate the current ASTM E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” into the AAI regulations and will become effective on February 13, 2023. See link to today’s Final Rulemaking here.
EPA previously proposed to incorporate the current ASTM E1527-21 standard into the AAI regulations back in March 2022 through a dual proposed rulemaking and direct final rulemaking process. See our firm’s earlier summary here. However, due to several adverse comments received by the EPA, the agency withdrew the Direct Final Rulemaking in order to address these. Today’s publication and Final Rulemaking addresses the prior adverse comments incorporating the current ASTM E1527-21 standard. Note that the ASTM E1527-21 Phase I standard was previously published by ASTM International back in November 2021. See our firm’s earlier summary of the current E1527-21 Phase I standard here.
As noted in EPA’s Response to Comments document contained within the Final Rulemaking, the adverse comments mainly dealt with EPA’s proposed references to the prior ASTM E1527-13 Phase I standard. Commenters believed that allowing parties to comply with either the current E1527-21 standard or prior E1527-13 standard for a period of time would create confusion for entities attempting to qualify for CERCLA liability protections by conducting AAI. Commenters also noted that the current E1527-21 standard represents “good commercial and customary business practice” and therefore should replace references to the prior E1527-13 standard.
In response to the adverse comments received, the EPA has decided to remove references to the prior E1527-13 standard in the Final Rulemaking. However, in order to provide parties with an adequate opportunity to complete any Phase I investigations that may be on-going and to also allow parties to become familiar with the current E1527-21 standard, the EPA has provided a sunset period for the removal of the prior E1527-13 standard. This sunset period is one year from publication of today’s Final Rule or December 15, 2023.