United States: ASTM's 2021 Standard Soon To Be Referenced In EPA's All Appropriate Inquiries (AAI) Rule

In November, 2021, the American Standard for Testing and Materials (ASTM) published its E1527-21 (-21 Standard), its 2021 update to its Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, for use to satisfy the requirements of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)'s All Appropriate Inquiries Rule (AAI). ASTM submitted a formal request to the United States Environmental Protection Agency (EPA) to reference the -21 Standard as compliant with AAI and, on March 14, 2022, EPA published both a preliminary rule and a direct final rule which set forth EPA's intent to amend AAI to permit use of the -21 Standard in satisfaction of AAI. If EPA does not receive any adverse comments on the proposed rule, the direct final rule will go into effect on May 13, 2022. If, however, one or more adverse comments is received, EPA will withdraw the direct final rule and address comments in a subsequent final rule.

Updating "Good Commercial and Customary Practice"

In developing its published -21 Standard, ASTM sought input from users and environmental consultants nationwide. One of ASTM's primary goals in crafting the -21 Standard was to ensure production of quality Phase I environmental site assessments (ESAs) and their resulting reports. ASTM's objectives in crafting the -21 Standard were threefold:

• Clarify and improve existing language
• Update the standard to reflect current customary practice
• Strengthen the deliverable (report)

ASTM has clearly met these objectives. As EPA correctly expressed in its proposed and final direct rules, the -21 Standard is not controversial and, therefore, is not expected to engender adverse comments.

What are the Significant Changes from E1527-13?

The -21 Standard contains revised and new definitions, making the requirements stronger and clearer than those in the 2013 version, such as:

• Rewording the definition of Recognized Environmental Condition (REC). The prior definition of REC covered three examples, two of which used the term "likely," without defining it, leaving it to a wide array of interpretations. The -21 Standard now defines the word "likely" to mean that 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 therein.
• Clarifying that Historical Recognized Environmental Conditions (HRECs) and Controlled Recognized Environmental Conditions (CRECs) are only those that affect the subject property, and that current regulatory standards be considered to determine whether the controls meet those standards as concerns unrestricted use.
• Replacing E1527-13's use of the broader term "property use restrictions" with the term "property use limitations," to capture a wider variety of risk-based mitigation end points.
• Providing definition of a "significant data gap," which E1527-13 required to be identified, but failed to define.

The -21 Standard includes clearer emphasis on property identification, specifically:

• Provides that the subject property is defined by its current boundaries (boundaries commonly change throughout the years).
• Pointing out that properties may be different in use, size, configuration and/or address than in the past.
• Providing that research of additional addresses may provide further information to meet objectives.

Further, the -21 Standard:

• Requires that the subject property's use be more specifically identified. For example, if the subject property is retail, industrial, or manufacturing, additional standard resources must be reviewed if they are likely to identify a more specific use and are reasonably ascertainable.
• Provides additional clarity with respect to identification of RECs, and discusses the multi-step process for identification of CRECs and HRECs, including a helpful appendix that breaks down their definitions and provides a flowchart diagram and simple examples.
• Requires more specific information in connection with historical research of the subject property, adjoining properties and the surrounding area - e.g., clearer emphasis on current property identification, more specific information on property use, etc..
• Requires review of aerials, topos, fire insurance maps, and city directories, if reasonably available, and if not, requiring a reason for that omission. It also requires review of additional resources, as needed.
• In researching the subject property, requires identification of past uses of adjoining properties that are obvious for the purpose of evaluating whether those uses may have led to RECs on the subject property.
• Adds a new section addressing historical research of adjoining properties. In particular, during research of the subject property, past uses of adjoining properties that are obvious must be identified to evaluate the likelihood that past uses may have led to RECs in connection with the subject property. If aerials, topos, fire insurance maps, and city directories have been researched for the subject property, if they provide coverage for the adjoining properties, and if that research is likely to be useful in meeting the objective, those documents must also be reviewed for the adjoining properties.
• Significantly, adds "Emerging Contaminants" to the list of non-scope considerations, the most currently significant of which are per- and poly-fluoroalkyl substances (PFAS), many of which are likely to be brought within CERCLA's definition of hazardous substances in the near future. Given this, prudence would suggest that Phase I ESAs include assessment for PFAS, where appropriate.

Which Standard Should be Applied?

Of course, until the -21 Standard is officially adopted, ASTM E1527-13 remains the applicable standard. After adoption of the -21 Standard, ASTM E1527-13 will become a historical standard. Until then, there is no requirement that the -21 Standard be employed; however, it is the author's preference that environmental professionals use and cite ASTM E1527-13, but ensure (and note in the report) that the Phase I ESA also satisfies the requirements of the -21 Standard.

The -21 Standard is significant, not because it substantially revises ASTM E1527-13 (it does not), but because it brings clarity where it was lacking, keeps the standard current, and makes for a stronger assessment overall.

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