EPA publishes rule to incorporate the new ASTM E1527-21 standard into its standards and practices for all appropriate inquiries

UPDATE:  On May 2, 2022, EPA withdrew the direct final rule for Standards and Practices for All Appropriate Inquiries published on March 14, 2022 (87 FR 14174). The direct final rule will not take effect due to adverse comments received by the agency. EPA will address the comments in a subsequent final action.

The Environmental Protection Agency (EPA) is taking direct final action to amend its standards and practices for all appropriate inquiries (set forth at 40 CFR part 312) to include the ASTM International’s E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” This final action will allow for the use of this new standard to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

This direct final rule amends the all appropriate inquiries rule (AAI) setting federal standards for the conduct of “all appropriate inquiries” at 40 CFR part 312. The AAI rule sets forth standards and practices necessary for fulfilling the requirements of CERCLA section 101(35)(B) to obtain CERCLA liability protection.

As a result of this action, parties purchasing potentially contaminated properties will have the option to use the newly referenced ASTM E1527-21 standard practice to comply with AAI to establish a limitation on CERCLA liability in connection with the property purchase.  Significantly, the final rule does not disallow the use of the previously recognized standards (ASTM E1527-13 or ASTM E2247-16), as EPA concluded that there are no legally significant differences between the ASTM E1527-13 and the revised ASTM E1527-21.

In general, the revised ASTM E1527-21 standard provides clarification on key terms and site research and reconnaissance requirements, includes more instructions and additional appendices. Additionally, ASTM provides new updated standards in assessing emerging contaminants or substances not yet defined as hazardous substances under CERCLA. EPA found minor differences between the AAI regulatory requirements and the newly revised ASTM E1527-21 (and prepared a comparison chart illustrating these differences) but concluded that the revised standard still complies with AAI under CERCLA.

The rule is set to become effective on May 13, 2022, unless EPA receives adverse comment to the rule by April 13, 2022, in which case EPA will withdraw the final rule, and address all public comments in a subsequently promulgated final rule.