In the December 15, 2022, Federal Register (FR 76578), EPA took final action to amend the All Appropriate Inquiries Rule (AAI Rule), 40 CFR part 312, to recognize the updated ASTM International standard for conducting Phase I environmental site assessments (ESAs), ASTM E1527-21, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” This action allows the updated ASTM standard to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The ASTM E1527-21 standard officially became effective on February 13, 2023. Use of the previous E1527-13 standard will be phased out over one year (i.e., through February 14, 2024).

What are key differences between ASTM E1527-21 and the standard it is replacing, ASTM E1527-13?

Key differences between ASTM E1527-13 and ASTM E1527-21 include:

• New definitions and clarifications for terms such as “review of land title records,” “property use limitations,” “likely,” “significant data gaps,” “presumed viability,” and “level of inquiry.”
  
  
• Clarity in the definition of a Recognized Environmental Condition (REC). A note was added to the REC definition that provides that use of the word “likely” is a condition “which is neither certain nor proved, but can be expected or believed by a reasonable observer based on the logic and/or experience of the environmental professional, and/or available evidence, as stated in the report to support the opinions given.” The definition of a REC was divided into three sections to add what is “likely” and should be updated in Phase I report templates:
  
  
  • Presence of a hazardous substance or petroleum product due to a release to the environment;
  • Likely presence of a hazardous substance or petroleum product due to a release or likely release to the environment, or;
  • Presence of a hazardous substance or petroleum product under conditions that pose a material threat of a future release to the environment.
    
    
• The reorganized definition of the REC analysis encourages the use of the term “Subject Property” only throughout a Phase I report when describing the property that is the subject of the Phase I ESA.
  
  
• The new REC definition adds a new explanatory note the “likely” contamination “is neither certain nor proved.” The clarification attempts to standardize subjectivity in identifying a REC, and a Phase I should include the logic behind a “likely presence” of contamination but does not have to provide proof.
  
  
• Section 8.3, Historical Research was revised to update the procedures for researching subject, adjoining, and surrounding properties. If aerial photographs, fire insurance maps, local street directories, and historical topographical maps are reasonably ascertainable and provide coverage of any adjoining properties, they should be reviewed. If a resource was not reviewed for an adjoining property, the environmental professional should explain in the report why that resource was not reviewed.
  
  
• Section 9, Site Reconnaissance clarifies that the Phase I report should describe which of the specific features, activities, uses, and conditions both were and were not present at the subject property.
  

• Viable Life of an E1527-21 Phase I Report (Section 4.6.2): The new standard indicates that the Phase I report will remain viable if it was completed no more than 180 days prior to the date of acquisition. The life of a Phase I ESA can be extended up to one year if the following five specific components of the report have been updated:
  
  1. Interviews
  2. Searches for recorded environmental cleanup liens
  3. Review of government records
  4. Site reconnaissance of the subject property and adjacent properties
  5. Update of the Environmental Professional Declaration
  
  

  The dates on which each of the components were completed must be identified in the Phase I report, and the 180-day or 1-year time period begins with the date upon which the first of these components was completed.
  

• Emerging Contaminants: The new standard provides guidance (Sections 13.1.5.15 and Section X6.10) that until an emerging contaminant is regulated as a federal CERCLA hazardous substance, such substances (e.g., PFAS) are not required to be included in the scope of a Phase I ESA. However, the new standard also indicates that the inclusion of such substances can be added to the Phase I ESA as a “Non-Scope Consideration” and be addressed if the user of the Phase I wishes the environmental consultant to do so. This can be particularly important for Phase I ESAs conducted in states that already have adopted regulatory standards for such substances, or in states where the adoption of regulatory standards is anticipated in the near future. Similarly, Section X6.11 clarifies that the inclusion of petroleum products is not based on CERCLA applicability but rather because petroleum products are of concern with respect to commercial real estate, and current custom and usage is to include an inquiry into the presence of petroleum products when conducting an ESA of commercial real estate.
  

Interested in learning more?

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