Effective February 13, 2023, a new rule issued by the US Environmental Protection Agency (EPA) goes into effect that amends the All Appropriate Inquiries Rule (AAI rule 40 CFR Part 312) to reference ASTM International’s E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The rule establishes a 1-year sunset period for ASTM 1527-13 until December 15, 2023 (one year from the date of publication of the final rule) to allow time for consultants and users to have adequate opportunity to complete ongoing AAI investigations and to become familiar with the new standard.
E1527-21 includes several key changes from the previous 2013 standard, including:
- A revised definition of “Recognized Environmental Condition” (REC) to differentiate between an identified known release more clearly versus a “likely” release of hazardous substances or petroleum products to the subject property (with a de facto definition for “likely”).
- Greater emphasis on whether emerging contaminations, including PFAS, which are not currently listed as CERCLA hazardous substances should be included in the property evaluation as a “non-scope consideration.” emerging contaminants (such as PFAS) not currently listed as CERCLA hazardous substances that fall under the category of “non-scope considerations,” but may warrant inclusion within the scope of inquiries if such substances are regulated by the State or being considered for inclusion in the list of CERCLA hazardous substances.
- A requirement to identify significant data gaps in the conclusion section of the Phase I report.
- Clarification to the viability of Phase I reports for five key components of inquiries. Also noting that Phase I’s should describe the specific features, activities, uses, and conditions which both were and were not present at the subject property.
- Modifications to the eight standard historical sources and establishment of minimum expectations for records used for the subject property and adjoining properties. These modifications include revised definitions and additional instructions for “review of land title records,” “property use limitations,” “likely,” “significant data gaps,” “presumed viability,” and the “level of inquiry” depending on the future intended uses of the subject property.
- Revised the definition of “historical REC” (HREC) to clarify that conditions must meet current regulatory standards for unrestricted use.
Reports are completed to the new standard beginning in February 2023.
Innocent landowners, contiguous property owners, prospective purchasers and brownfield developers should familiarize themselves with the new standard for existing and future commercial real estate projects.
Click here to read final rule https://www.govinfo.gov/content/pkg/FR-2022-12-15/pdf/2022-27044.pdf
For more information contact Kristin Heimburger at firstname.lastname@example.org or Andy Basehoar at email@example.com
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