EPA Withdraws Final Rule That Would Have Recognized ASTM E1527-21 While Continuing To Recognize ASTM E1527-13

As we  predicted,  EPA received numerous negative comments to its Direct Final Rule that would have recognized that the new ASTM E1527-21 phase 1 standard may be used to comply with the All Appropriate Inquires (AAI) rule for asserting certain landowner liability defenses and qualify for brownfield grants.

All of the comments criticized EPA’s plan to allow the obsolete E1527-13 to continue to be used to comply with AAI.  The commenters uniformly objected to EPA’s approach because they believed it would cause confusion in the marketplace and create a loophole that would allow substandard phase 1 providers to undercut the market. None of the comments posted on the EPA website for the rulemaking supported this dual approach.  I submitted negative comments which can be read here.

As a result, EPA announced in today’s Federal Register that the agency was withdrawing the Direct Final Rule because of the negative comments. EPA said it will proceed with the usual rulemaking to finalize the proposed rule. The agency will respond to the negative comments as part of the rulemaking.

In 2013, EPA tried the same approach when it issued a direct final rule and proposed rule to recognize E1527-13 but not withdraw the reference to the superseded E1527-05 standard. In response to negative comments, the agency withdrew the direct final rule, finalized the recognition of E1527-13 and then conducted a separate rulemaking to remove the reference to E1527-05 which was completed in 2014.

AAI is supposed to represent what  constitutes “good commercial and customary practice.” ASTM E1527-21 represents what the industry has determined to be “good commercial and customary practice”. Since ASTM is at least as stringent as E1527-13, parties concerned about complying with AAI should not be concerned about using E1527-21. Since there are certain advantages to use E1527-21 over E1527-13 especially when determining if residual contamination is a Recognized Environmental Condition (REC) or Controlled REC (CREC),  users may want to ask their environmental consultants to reference both standards in their phase 1 reports until EPA completes its rulemaking.

Here’s hoping that EPA decides to use common sense and withdraws the reference to the outdated E1527-13 as part of the current rulemaking and not engage in another two-step dance.




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