EPA Direct Final Rule on New Phase I ESA ASTM Standard
EPA published a direct final rule (87 FR 14174) to amend the Standards and Practices for All Appropriate Inquires (“AAI”) rule by referencing ASTM International’s new E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The new rule will become effective on May 13, 2022, unless adverse comment is received.
EPA is not expecting adverse comment because the rule still allows the use of prior referenced AAI standards ASTM E1527-13 (Commercial Property) or ASTM E2247-16 (Forestland or Rural Property). EPA is not accepting comments on the ASTM standards themselves. The only comments accepted are those responding to EPA’s recognition in the rule action that ASTM E 1527-21 is compliant with all appropriate inquires requirements.
EPA has determined that both the 2013 and 2021 standards “satisfy the all appropriate inquiries requirements under CERLCA for establishing the bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections.” In particular, the agency explains “that there are no legally significant differences between the regulatory requirements and the ASTM E1527- 21 standard.” There are some practical differences, however. EPA provides a twelve-page exhibit describing “Notable Differences” between the two ASTM standards. Generally, EPA characterizes these differences as definition clarifications and additional instructions for key concepts including analysis of information and Phase I ESA reporting content. (See March 4, 2022 Phase I ESA Site Assessment Standard Update).
ASTM E1527-21 was developed after thorough evaluation of experiences with the 2013 standard to better address and clarify the compliance process. It is prudent to consider and compare the updated differences for improvements to “good commercial and customary practice” in Phase I ESA reporting and AAI compliance work.