Type: Law Bulletins
Date: 01/18/2023

Setting a New Standard - EPA Initiates Rulemaking To Adopt ASTM Issues E1527-21 as a New Standard for Phase I Environmental Site Assessments

EPA has adopted ASTM E1527-21, a new standard for conducting Phase I Environmental Site Assessments (Phase I) from The American Society for Testing and Materials (ASTM) Committee on Environmental Assessment. The new rule is effective Feb. 13, 2023.

E1527-21 makes important changes to ASTM E1527-13, the current standard for Phase Is. The changes clarify language, improve consistency in the report deliverables, and ensure that Phase Is reflect current good commercial and customary practice. ASTM E1527-21 establishes new requirements and provides clarity for a bona fide prospective purchaser’s compliance with the All Appropriate Inquiry Rule (AAI) in 40 C.F.R. Part 312 — a crucial aspect of the bona fide prospective purchaser defense to liability under the Comprehensive Environmental Response, Compensation & Liability (CERCLA) Act (42 U.S.C. §9601). Though there are a number of minute changes, the following are particularly significant.

The new standard adds greater specificity to the definitions of many AAI requirements. The updated definitions include modifications of the definition for a recognized environmental condition; differentiation of recognized environmental conditions, historically recognized environmental conditions, and controlled recognized environmental conditions; the timing of a valid Phase I; and what constitutes a significant data gap.

The new standard adds requirements to comply with the AAI Rule, including specifying that Phase Is must contain certain historical records, review of additional resources if the site has an industrial past; include specific photographs and maps; and that the user provides land title records that describe any environmental liens or Activity/Use Limitations at the site.

Importantly, the new standard provides guidance on emerging contaminants. Under E1527-21, until an emerging contaminant is regulated as a federal CERCLA hazardous substance, such substances are not required to be included in an E1527-21 Phase I. This means emerging contaminants, such as PFAS, are not required to be included in the scope of a Phase I. As with the past Phase I, the new E1527-21 Standard may include emerging contaminants as a “non-scope consideration” if the user of the Phase I wishes.

With EPA’s adoption of E1527-21 through formal rulemaking, practitioners and consultants must be prepared to ensure compliance with E1527-21 by Feb. 13, 2023.

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