On December 30, 2013, EPA published a final rule that recognizes the new ASTM International Phase I Environmental Site Assessment standard (ASTM E1527-13, released on November 6, 2013) as an acceptable method to meet the requirements for “all appropriate inquiries” (AAI) under CERCLA and the AAI regulations. Although EPA did not eliminate reference to the prior standard (ASTM E1527-05) as an option for meeting AAI, the final rule notes that the new standard contains improvements over the previous version. Unlike the withdrawn direct final rule, in the promulgated final rule EPA expressly recommends that parties use ASTM E1527-13 and states its intent to issue a proposed rule for public comment in the near future that would remove ASTM E1527-05 as an option to meet AAI. The final rule took effect on December 30, 2013.
As we described in our previous Environmental Update Proposed EPA Rule Offers Choice Between ASTM Environmental Site Assessment Standards, the primary changes in the revised ASTM Phase I standard include:
- New and amended definitions of recognized environmental conditions
- A more explicit focus on vapor intrusion
- Updated regulatory file review requirements
EPA withdrew its direct final rule in September 2013 after receiving negative comments on the proposed rule. In light of the changes to the ASTM standard, some commenters expressed concern that allowing parties to use either the 2005 or 2013 standard to meet AAI requirements might create confusion in the industry. Commenters also found the rule to be inconsistent with the fact that ASTM E1527-13 was intended to supersede ASTM E1527-05. In explaining its decision in the preamble of the final rule, EPA acknowledges and fundamentally concurs with these comments:
Although today’s action will not remove the current reference in the All Appropriate Inquiries Rule to the ASTM E1527-05 standard, EPA agrees with commenters that the revised ASTM E1527-13 standard includes improvements to the previous standard and its use will result in greater clarity for prospective purchases with regard to potential contamination at a property. Therefore, EPA recommends that environmental professionals and prospective purchasers use the ASTM E1527-13 standard.
In this rulemaking, EPA reminds parties that while the ASTM Phase I standard is an acceptable means to satisfy AAI, it is not the only method of compliance, and that the AAI rule itself contains “Standards and Practices” for environmental professionals to follow. See 40 CFR § 312, Subpart C. However, considering EPA’s recommendation to use ASTM E1527-13 instead of ASTM E1527-05 and its intent to propose a rule to eliminate ASTM E1527-05 as an acceptable method to comply with AAI, we anticipate ASTM E1527-13 will become the primary standard for meeting AAI requirements. EPA has not indicated a timeframe for releasing the subsequent proposed rule, but stay tuned for updates in the coming months.