ASTM’s 2021 Standard Soon to Be Referenced in EPA’s All Appropriate Inquiries Rule

In November 2021, ASTM International (formerly known as the American Society for Testing and Materials) published its E1527-21 (-21 Standard), its 2021 update to its Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. The -21 Standard is intended to satisfy the requirements of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)’s All Appropriate Inquiries Rule (AAI). The ASTM submitted a formal request for the Environmental Protection Agency (EPA) to reference the -21 Standard as compliant with AAI.

On March 14, 2022, the EPA published both a preliminary rule and a direct final rule setting forth the EPA’s intent to amend AAI to permit use of the -21 Standard in satisfaction of the AAI. Had the EPA not received adverse comments on the rule, the direct final rule would have gone into effect on May 13, 2022. The EPA did, however, receive adverse comments and, therefore, withdrew the direct final rule on May 2, 2022. It now intends to address adverse comments in a subsequent final action.

Of the adverse comments received, the majority objected to the rule permitting the -13 standard to remain as an acceptable alternative to comply with AAI. In other words, under the proposed rule, Phase I studies conducted under either the -13 standard or the -21 standard would be deemed sufficient to satisfy AAI. Because ASTM’s -21 standard improves upon the shortfalls of the -13 standard and brings the practice in line with “good commercial and customary practices,” as required by AAI, permitting the continued use of the historical (-13) standard does not make a great deal of sense. As noted in the comments, EPA attempted this method when it proposed the -13 standard as complying with AAI by providing that the then-current standard (E1527-05) would also be sufficient to satisfy AAI. After similar adverse comments, EPA eventually removed its reference to the -05 standard. Given this, it is likely that EPA will remove similar reference to the -13 standard in its final regulation.

Updating "Good Commercial and Customary Practice"

In developing its published -21 Standard, the ASTM sought input from users and environmental consultants nationwide. One of the 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. The 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)

The ASTM has clearly met these objectives.

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 conditions 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” (which was not previously defined) with the term “property use limitations,” to capture a wider variety of risk-based mitigation end points.
• Providing a definition of “significant data gap,” which E1527-13 required to be identified, but failed to define.

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

• Providing 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.

The -21 Standard also specifies two methods users may employ to satisfy their responsibility to search for environmental liens and activity and use limitations:

• Method 1 provides that a user may satisfy its requirements by relying upon customary title insurance documentation such as preliminary title reports or title commitments.
• Method 2 provides an alternative process, whereby a user may rely upon title search information reports such as condition of title, title abstracts, and activity and use limitation/environmental lien reports as long as the information identifies environmental covenants, environmental easements, land use covenants and agreements, environmental liens, and other environmental land use restrictions and controls. Search information reports must review land titles records dating back to 1980. If judicial records are not reviewed, the report must include a statement that the law of custom of the jurisdiction at issue does not require a search for judicial records in order to identify environmental liens.

Further, the -21 Standard:

• Requires that the subject property’s use be more specifically identified. For example, if the subject property’s purpose 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. The -21 Standard includes 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. This puts a clearer emphasis on current property identification, more specific information on property use, etc.
• Requires review of aerials, topographic maps, fire insurance maps, and city directories, if reasonably available, and if not, requiring a reason for that omission.
• Adds a new section addressing historical research of adjoining properties. In particular, during research of the subject property, obvious past uses of adjoining properties must be identified to evaluate the likelihood that past uses may have led to RECs. If aerials, topographic maps, 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 and other emerging contaminants, such as 1,4 dioxane, where appropriate.

Which Standard Should Be Applied?

Of course, until the -21 Standard is officially adopted, ASTM E1527-13 remains the applicable standard. Assuming the EPA revises its proposed rule to remove reference to the -13 standard, upon its adoption of the -21 standard, the -13 standard will become a historical one. 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.