EPA will publish a final rule in the federal register on December 15th amending its All Appropriate Inquiries (AAI) Rule by recognizing ASTM E1527-21 as a method for complying with AAI and withdrawing the reference to ASTM E1527-13. The rule will become effective 60 days from the date of publication in the federal register. The rule is available HERE
The final rule represents a victory for industry commentators who had objected to EPA’s initial proposal to simply recognize ASTM E1527-21 while retaining the recognition of E1527-13. On March 14, 2022, EPA had published both a direct final rule and a proposed rule amending AAI. However, the agency received adverse comments retaining both ASTM versions of E1527. commenters pointed out that the updated standard now represented “good commercial and customary business practice,” and therefore should replace ASTM E1527-13 referenced by EPA, rather than merely being added as an additionally referenced standard. Other commenters stated that EPA’s continued acceptance of the 2013 version of the ASTM E1527 standard would create confusion within the marketplace because users will need to unnecessarily compare the costs and benefits of the use of the two standards when receiving multiple bids from potential contractors before environmental site assessment. As a result, EPA published a notification of withdrawal of the direct final rule on May 2, 2022 (87 FR 25572) and proceeded to evaluate the comments to the proposed rule.
Under the final rule, EPA has agreed to remove its reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments. However, to provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with all appropriate inquiries. The reference to the ASTM E1527-13 standard as compliant with the AAI rule will be removed from the reference section of the AAI Rule (40 CFR 312.11) one year following publication of this final rule A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the AAI Rule.