EPA Amends All Appropriate Inquiries Rule

On December 15, 2022, the U.S. Environmental Protection Agency (EPA) published a Final Rule to amend its All Appropriate Inquiries (AAI) Rule. The AAI Rule is the EPA regulation that sets the process for conducting an inquiry into a property’s environmental conditions in order to obtain protections from liability under the federal Superfund Law, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The amended rule updates the reference to the latest American Society for Testing and Materials (ASTM) E1527-21 Standard Practice as one method for conducting a Phase I Environmental Site Assessment (Phase 1 ESA) that would satisfy EPA’s AAI requirements. The rule takes effect on February 13, 2023 — but allows a one-year transition before EPA will no longer accept the former ASTM Phase I ESA standard (E1527-13) as meeting the AAI requirement.

ASTM International published the updated ASTM E1527-21 on November 1, 2021, which EPA determined sufficient to comply with the AAI Rule. Previously, on March 14, 2022, EPA published a final rule to adopt ASTM E1527-21 — but also to retain the predecessor standard as satisfying the AAI rule. But EPA withdrew the March 14, 2022, rule in response to adverse comments that retaining both standards might confuse the marketplace users. Now, in the December 15, 2022, Final Rule, EPA has addressed that concern by setting a one-year sunset period for using E1527-13.

The Final Rule does not require use of the ASTM E1527-21 standard; prospective purchasers have several other options for meeting the CERCLA AAI requirements, including the following:

• Follow the EPA AAI Rule at 40 CFR part 312.
• Use the existing ASTM E1527-13 “Standard Practice for Phase I Environmental Site Assessments.” However, this option is available only until February 13, 2024.
• Follow the ASTM E2247-16 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property” (where applicable).

The ASTM E1527-21 standard clarifies key terms and the length of time a site assessment report remains valid, expands the scope of historical research necessary to satisfy the standard, and recognizes emerging contaminants, which the ASTM E1527-13 standard does not do. As noted in our previous Sidley post on this topic, the ASTM E1527-21 standard is the first Phase I ESA standard to incorporate guidance on  per- and polyfluoroalkyl substances (PFAS).

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.