The Environmental Protection Agency Revises All Appropriate Inquiry Regulations

• Jurisdiction: United States,Federal
• Publication year: 2023
• Citation: Vol. 1 No. 3

[Page 235]

Bryan Keyt, Erin Brooks, Brittainy Cavender, and John Kindschuh ^*

In this article, the authors discuss a final rule enacted recently by the Environmental Protection Agency amending the Standards and Practices for All Appropriate Inquiries regulations.

The Environmental Protection Agency (EPA) has published a final rule ¹ amending the Standards and Practices for All Appropriate Inquiries ² (AAI) to incorporate and adopt the American Society for Testing and Materials (ASTM) International's recent E1527-21 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment (ESA) Process."

Significantly, these changes affect what constitutes a valid Phase I ESA for purposes of AAI. Entities with financial interests in real property, including prospective purchasers and tenants, lenders, private equity, investors, insurers, and other stakeholders should be familiar with the changes to ensure any Phase I ESA satisfies the updated requirements.

The EPA has created a helpful chart ³ that compares the new standard to the previous ASTM E1527-13. Below, we highlight some of the significant changes between the old and new ASTM standards.

Significant Changes

While ASTM E1527-21 does not make any substantive changes to AAI itself, there are numerous differences between the two standards to consider. While not intended to be a complete list of changes, some of those differences are discussed below.

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Recognized Environmental Condition

■ The new standard updates the definition to clarify what constitutes a recognized environmental condition (REC).

■ The prior ASTM E1527-13 standard used "likely" when describing three instances in which a REC is identified.
■ Under the new standard, the term "likely" is no longer used to describe every instance in which a REC is found. Rather, it is used only when describing a single instance in which the likely presence of hazardous substance is sufficient to establish a REC.

■ The new standard clarifies that the term "likely" means a condition "which is neither certain nor proved, but can be expected or believed by a reasonable observer."
■ Under the new standard, the Historical REC (HREC) and Controlled REC (CREC) categories are further developed to help simplify the REC logic and delineate among RECs, HRECs, and CRECs. The new standard includes a flow chart to illustrate these distinctions and promote uniformity.

Consultant's Responsibility Versus User's Responsibility

■ The

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