Today, USEPA published a long-anticipated Final Rule adopting the ASTM E1527-21 standard for Phase I Environmental Site Assessment. Here are some of the main points purchasers, developers, lenders, and others involved in commercial real estate transactions need to know:
- As of February 13, 2023, the amendment to the All Appropriate Inquiry Rule (AAI) will go into effect, recognizing ASTM E1527-21 as the standard that satisfies AAI to support a defense to CERCLA liability.
- The previous standard—ASTM E1527-13, will continue to be recognized for another year, through February 13, 2024. However, after that time, the ASTM E1527-13 standard will sunset and will no longer be recognized by EPA as satisfying AAI. Accordingly, either standard may be used for Phase I Environmental Site Assessments through February 13, 2024, but after that date, only the ASTM E1527-21 standard should be used.
- The one-year sunset for ASTM E1527-13 is a revision to the final rule originally published by USEPA on March 14, 2022, which was withdrawn on May 2, 2022, that would have recognized both the E1527-13 and E1527-21 standards as satisfying AAI. The Final Rule is intended to address commenters’ objections that EPA recognition of both standards simultaneously would cause market confusion.
- The Final Rule recognizes that the E1527-21 standard constitutes current “good commercial and customary business practice”.
For more information on key changes to the ASTM standard, see our March 29, 2022, alert, “EPA proposes approval of the update to the national standard for Phase I Environmental Site Assessments.”