The primary impact of this new rule will be seen in Phase One Environmental Site Assessments (ESA) which seek to satisfy AAI obligations.
Federal law prescribes that liability protection may be achieved, in part, by making “all appropriate inquiries” into the past ownership and uses of potentially contaminated real property. The new EPA regulation adopts the protocols set by ASTM E1527-21 (the 21 Standards) as the new standard by which to qualify for these protections. The 21 Standards replace the ASTM E1527-13 standards and practices (the 13 Standards), which have been used since August 15, 2013, to satisfy the AAI requirement. ASTM International reviews the 1527 standard for renewal every eight years.
The 21 Standards were developed with the goals of clarifying language, improving consistency in reports and updating requirements to conform with current practice. Though similar, the 21 Standards differ from the 13 Standards in several areas. The new 21 Standards require review of additional sources and types of information and may cause a slight increase in the cost and time of performing Phase One ESAs in certain cases.
Some of the more prominent changes implemented by the 21 Standards are:
To allow for a period of transition, while the 21 Standards are now effective, the 13 Standards may continue to be used to fulfill the AAI requirement, as well, through February 12, 2024.
For further information regarding the ASTM E1527-21 Standards, the All Appropriate Inquiries requirement, or the Comprehensive Environmental Response, Compensation, and Liability Act, please contact Alan Logsdon firstname.lastname@example.org, 215.400.2827) or Douglas Schleicher (email@example.com, 215.569.2795).
Co-authors Alan Logsdon, associate and Douglas Schleicher, partner are members of the Real Estate and Finance Department at Klehr Harrison.