On December 15, 2022, USEPA issued a final rule amending the All Appropriate Inquiries Rule (“AAI” Rule) to include ASTM International’s E1527-21 Standard, and retire the E1527-13 Standard.
Three key highlights of the amended AAI rule:
- Effective date: Feb. 13, 2023
- Expiration date for the E1527-13 Standard: Feb. 13, 2024.
- The rule does not omit ASTM E1527-21’s reference to emerging contaminants.
First, the amended AAI Rule takes effect 60 days after publication, meaning it will become effective on February 13, 2023. Once the rule takes effect, parties performing Phase I ESA’s may use E1527-21 to comply with CERCLA’s all appropriate inquiries requirement.
Second, the amended AAI Rule removes reference to ASTM E1527-13. The amended rule provides that users may continue to use ASTM E1527-13 for one year after the effective date of the revised rule. Thus, parties may use ASTM E1527-13 to complete Phase I ESA’s for purposes of satisfying the AAI Rule until February 13, 2024.
Third, the revised AAI Rule does not omit ASTM E1527-21’s reference to “emerging contaminants.” E1527-21 added emerging contaminants as non-scope considerations to Phase I ESAs and, despite comments expressing concern about E1527-21’s reference to emerging contaminants, including PFAS, the amended AAI Rule does not omit ASTM E1527-21’s reference to “emerging contaminants.” It is important to note that: (1) the ASTM standard is not a USEPA regulation and, thus, USEPA could not amend the ASTM standard, (2) use of E1527-21 is not required for compliance with the AAI rule, and (3) E1527-21 contemplates the evaluation of emerging contaminants as a non-scope item. Thus, under the revised AAI rule, parties using E1527-21 to complete Phase I ESA’s in satisfaction of the AAI Rule may, but are not required to, include emerging contaminants in the Phase I ESA’s defined scope of work. Emerging contaminants, such as PFAS, are substances that are not defined as hazardous substances under CERCLA, but that have the potential to develop into environmental liabilities under future regulations
In determining whether to use the E1527-13 or -21 Standard, parties obtaining Phase I ESA’s in the next several months should take careful note of the “calendar” for when the revised rule takes effect, and when the E1527-13 standard expires. Further, parties should consider the potential for inclusion of emerging contaminants in their Phase I ESA’s defined scope of work, particularly the PFAS family of substances a certain subset of which USEPA recently proposed be added to the list of hazardous substances regulated under CERCLA.
If you have questions about the amended AAI Rule or how it applies to your Phase I ESA, please contact your Vorys attorney.