by Kerri Boddy
Senior Environmental Scientist
EPA’s Final Rule approving the ASTM E-1527-21 became effective on February 13, 2023, meaning that the updated standard may now be used to satisfy the All Appropriate Inquiries (AAI) rule. This is a critical development for property purchasers seeking to qualify for the bona fide prospective purchaser (BFPP) safe-harbor defense to property liability under Federal and some state Superfund laws. EPA’s approval of the ASTM E1527-21 Standard came by a notice of Final Rule published December 15, 2022, following an extended review process.
The Final Rule amends EPA’s AAI regulation to recognize ASTM E1527-21 as meeting the AAI Rule’s requirements and thereby allowing a new property owner to quality for exemption from current owner liability afforded by Section 101(35) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Final Rule became effective as of February 13, 2023. The prior standard (ASTM E1527-13) will continue to be valid for one year after publication of the new rule (i.e., to December 15, 2023). Beginning on December 16, 2023, only the E1527-21 standard will have EPA’s approval as meeting the requirements of AAI.
What are the changes and updates to ASTM E1527-21? Many terms have been redefined, new terms have been added, and many sections have been updated. However, most consultants will likely find that the overall process of preparing a report under E1527-21 is not significantly different and in some cases, the changes are actually an added relief for those already producing top quality reports. Does this mean the cost of a Phase I under 1527-21 will increase? In my opinion, the answer is no.
Let’s look at the major changes from ASTM E1527-13 to ASTM E1527-21.
In my opinion only, although important, many of these changes are not such that they place a significant change in the report process to what is already a quality report. Although, such changes should lead to greater consistency in the findings and conclusions and produce a stronger deliverable across the community. Also, in my opinion, the price of Phase I ESAs has in fact increased over the past 2-4 years for economic reasons, and not for any of the above-listed reasons.
How Can We Help?
If you are in need of a Phase I or II environmental site assessment or have other environmental concerns, please contact EI’s Senior Environmental Specialist, Kerri Boddy, at (502) 499-2985 or kboddy@ei1.com.