More than a year following the publishing of the new ASTM E1527-21 Phase I Environmental Site Assessment (Phase I ESA) standard by ASTM International, prospective purchasers, financial institutions and consultants received word that the USEPA published a Final Rule to amend the All Appropriate Inquiries (AAI) rule on December 15, 2022. The rule will go into effect on February 13, 2023, making the ASTM E1527-21 Phase I ESA standard AAI compliant.
EPA Actions
Earlier this year, the USEPA completed their review of the new standard and proposed amending the Standards and Practices for AAI to allow for the new ASTM E1527-21 Phase I ESA standard to be referenced and used. Comments were due by April 13, 2022 and the rule was expected to go into effect on May 13, 2022.
On May 2, 2022, the USEPA withdrew its proposed Final Rule following the submission of adverse comments primarily related to the continued recognition of the historical ASTM E1527-13 Phase I ESA standard as AAI compliant. In the recently passed Final Rule, the USEPA acknowledges the potential confusions associated with the recognition of a historical standard that is no longer considered current by ASTM International. Therefore, the USEPA has decided that ASTM E1527-13 will “sunset” on February 13, 2024 to allow for ongoing projects to be completed.
What’s Changed
As discussed in TRC’s January 25, 2022 article “New Phase I ESA Standard will Affect Environmental Due Diligence”, the Phase I ESA standard helps to identify the standards and practices of environmental due diligence, helping to ensure that prospective purchasers of commercial or industrial properties can obtain legal protection under the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). In addition, TRC outlined changes that would be recognized and implemented upon approval of the updated standard, including: clarifying definitions of a Recognized Environmental Condition (REC), Controlled REC (CREC), and Historical REC (HREC); when to consider emerging contaminants as a Business Environmental Risk (BER); how to properly review applicable historical research resources such as topographic and fire insurance maps, aerial photographs, and city directories for on- and off-site properties; and more. These revisions were intended to increase consistency of future reports industry-wide.
TRC’s Recommendation
TRC recommends becoming familiar with the new ASTM E1527-21 Phase I ESA standard and to plan for Phase I ESA reports finalized on or after February 13, 2023 to be in compliance with the new standard. However, Phase I ESA reports completed in accordance with ASTM E1527-13 will be acceptable until February 13, 2024. TRC’s Due Diligence CORE team continuously monitors ASTM E1527 news and updates and will share additional information as it becomes available.
Our CORE team works together to ensure the experience and expertise across TRC can be accessed to meet challenges and provide the best service to help protect our clients. Contact Our Experts Below To Learn More.
Michael Kurinsky
Mike Kurinsky is a TRC Project Manager who specializes in transactional due diligence. He has over 17 years of experience and is based in Cleveland, Ohio. He and his team assist clients with environmental due diligence and compliance evaluations for domestic and international projects. He regularly assists with projects performed through Ohio’s Voluntary Action Program (VAP). Contact Mike at mkurinsky@trccompanies.com.
Joshua Morris
Josh Morris is a TRC Project Manager and Due Diligence and ISRA Specialist with 11 years of experience based in Northern New Jersey. He and his team assist clients with environmental due diligence (i.e., Phase I Environmental Site Assessments and Preliminary Assessments), transaction advisory services and compliance with New Jersey’s Industrial Site Recovery Act (ISRA) and Site Remediation Program. Contact Josh at jmorris@trccompanies.com.