On December 15, 2022, the Environmental Protection Agency (EPA) issued a final rule amending the All Appropriate Inquiries Rule (AAI Rule), to include ASTM E1527-21 as satisfying requirements for conducting all appropriate inquiries (AAI) under CERCLA.
The new ruling went into effect on February 13, 2023. The prior version of the ASTM Phase I standard (E1527-13) will continue to be accepted as satisfying AAI for one year until February 13, 2024 , after which it will no longer be accepted.
The goal for the most recent revision included providing a standard with greater consistency in the Phase I Environmental Site Assessment (ESA) deliverable and addresses changes needed based on litigation that occurred since the last standard was published in 2013.
As a member of the ASTM committee, EBI has been providing Phase I ESAs to clients that comply with the frequently evolving standards for over three decades and our team of nationwide experts are prepared for this final rule going into effect. EBI’s Stephanie Trueb, ESA Technical Director – Real Estate Services, currently participates in the ASTM E1527 Task Group.
What does this mean for you?
The ruling directly impacts clients who have not updated their scope of work to reference the latest ASTM standard. Clients should make efforts to update their scope of work if they still reference the 2013 standard, or older standards. We’re here to help! Reach out and learn more today.
Keeping up with ASTM standards
The ASTM E1527 standard was first published in 1993 and has gone through several revisions approximately every seven to eight years, with the most recent update published in November 2021. See below for a refresher on the key changes from the 2021 revision.
Recognized Environmental Condition (REC), Historical Recognized Environmental Condition (HREC), and Controlled Recognized Environmental Condition (CREC) definitions were narrowed for consistency in interpretation and clarification. Examples of REC, HREC, and CREC were added for greater clarification along with a breakdown of the REC definition.
- REC definition: added “likely” instead of “indicative of” and defined “likely” within the definition
- In order to determine if a concern is an HREC or a CREC, the consultant must review the regulatory files/prior reports – they need to have data to make the determination.
- Property Use Limitation (PUL) (new): Limitation or restriction on current or future use of a property in connection with a response to a release, in accordance with the applicable regulatory authority or authorities that allows hazardous substances or petroleum products to remain in place at concentrations exceeding unrestricted use criteria. PULs can be implied or inferred (example: continued commercial or industrial use)
- Significant fata hap (new): A data gap that affects the ability of the environmental professional to identify a recognized environmental condition. Significant data gaps and how they affect the ability to identify RECs/CRECs must be discussed in the conclusions as well as if additional information would assist in determining the presence of RECs/CRECs.
- Emphasis on the big four sources – aerials, Sanborns, topos, city directories – ESAs must research all four and if any are unavailable, the ESA should state the reasoning why they weren’t researched
- Emphasis on conducting the same level of research on adjacent properties as subject property to identify potential issues that might affect subject property
Emerging contaminants was added to the list of “non-scope considerations” that clients may choose to include in their ESA Scope of Work – example of an emerging contaminant is PFAS (per-and polyfluoroalkyl substances).
Consistent deliverable changes
- Use of “subject property” instead of just “property” to differentiate between the subject of the ESA and any other properties
- Photographs are now required
- Site Plan showing key features is now required