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June 2022 – US EPA Flip Flops

US EPA Flip Flops on its Approval of ASTM E1527-21

On November 1, 2021, ASTM International’s (ASTM’s) Committee on Environmental Assessment, Risk Management, and Corrective Action approved a new standard for conducting Phase I environmental site assessment (ESAs). The new standard, E1527-21 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, replaced the prior ASTM Phase I Standard Practice (ASTM E1527-13), which was approved in 2013. The highly anticipated update represented significant modifications to the standard based on lessons learned that were intended to reflect current industry practices as well as promote greater consistency for both consultants performing ESAs and users. In addition, ASTM incorporated per- and polyfluoroalkyl substances (PFAS) into its methods for assessing potentially contaminated properties.

The stated purpose of ASTM E1527-21 is to define good commercial and customary practice in the United States of America for conducting an ESA of a parcel of commercial real estate with respect to the range of contaminants within the scope of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and petroleum products. As such, the practice is intended to permit a user to satisfy one of the requirements to qualify for the CERCLA landowner liability protections (LLPs).

In a pair of March 14, 2022, Federal Register notices, the U.S. Environmental Protection Agency (US EPA) published both a direct final rule and a proposed rule updating its All Appropriate Inquiry (AAI) standard to incorporate the revisions of ASTM E1527-21 into its existing AAI regulation. US EPA had planned to make the direct final rule effective May 13, 2022, without further notice, unless it received adverse comments, at which point it would withdraw that rule and instead use the proposed rule to address comments and eventually finalize the AAI rule update. In response to adverse public comments that were received, US EPA withdrew its approval of ASTM E1527-21 on May 2, 2022. US EPA has said it will proceed with the usual rulemaking to finalize the proposed rule. The agency will respond to the negative comments as part of the rulemaking.

One of the primary issues cited in the adverse comments was US EPA’s failure to remove the reference to the superseded 2013 ASTM standard. Commenters requested that US EPA withdraw the direct final rule and propose a new rule endorsing ASTM E1527-21 and removing the reference to the 2013 standard. US EPA has stated that it retained the reference to E1527‑13 to provide greater flexibility to brownfield developers and grantees; however, commenters argued this approach would lead to confusion, allow for sub-standard assessments and reports, and work directly against the goal of ASTM E1527-21 to promote a more consistent and better work product. Commenters also pointed out that allowing environmental professionals to comply with both standards would likely lead to future litigation and the increased risk of liability relating to AAI defenses.

Until US EPA issues a new rule incorporating ASTM E1527-21 into its AAI regulation, Phase I ESA users should request that environmental professionals conducting Phase I ESAs on their behalf, at minimum, comply with the 2013 standard, which will satisfy current AAI requirements. In addition, users can also request that environmental professionals incorporate the revised procedures prescribed in ASTM E1527-21 that are not already included in the 2013 standard. This approach will allow users to qualify for CERCLA LLPs under the AAI regulation and to take advantage of the benefits associated with the more robust assessment procedures presented in the 2021 standard.

Joe Kraycik, P.G.

Senior Consulting Geoscientist