The update to EPA’s so-called All Appropriate Inquiries (AAI) regulations, 40 CFR Part 312, was announced in a Final Rulemaking published in the December 15, 2022 Federal Register.  CERCLA requires EPA to promulgate regulations outlining standards and practices for a party to conduct AAI prior to acquiring land.   

For those who are unfamiliar with AAI, it is essentially a prerequisite to claiming protection from CERCLA liability as an “innocent” landowner, abutting property owner, or prospective purchaser.  The AAI regulations govern Due Diligence standards and practices used in evaluating environmental conditions at a site, which may impact responsibility and/or liability for contamination for the property.  

Effective February 13, 2023, the AAI regulations will incorporate the current ASTM E1527-21 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The Final Rulemaking incorporates the current standard (E1527-21) for entities attempting to qualify for CERCLA liability protections by conducting AAI. 

EPA did include a sunset clause for landowners who have already begun Phase I investigations using the prior ASTM E1527-13 standard.  The amended regulations allow for use of that old standard until December 15, 2023, or one year from publication of the Final Rule.  

The current ASTM E1527-21 Phase I standard was introduced in November 2021.  Some of the key changes from the prior Phase I standard worth noting include new definitions (e.g., the term “Property Use Limitation”), expanded guidance (e.g., distinguishing between Recognized Environmental Condition, Controlled Recognized Environmental Condition, and Historical Recognized Environmental Condition with diagrams and examples). Also, the current Phase I standard incorporates modern, best practices for historical research (e.g., aerial photographs, fire insurance mapping, and topography).  

As a result of the recent Final Rulemaking pursuant to CERCLA, EPA has now incorporated the updated ASTM Phase 1 standards into its AAI regulations. Engineers and consultants, property owners and managers, buyers and sellers, lenders and investors, commercial and industrial tenants, attorneys and their clients, and others who wish to find safe harbor from certain Superfund liabilities, will be attending to the new clarity and objectivity in the All Appropriate Inquiry part of their Due Diligence.

During the comment period for this new rule, the EPA received various support, objections, questions, concerns, and other observations. They reflect the many and varied regulated, affected, and otherwise interested communities who use, would use, interpret or apply the AAI safe harbor provision. Such comments were submitted by risk managers from lending institutions, committee members who participated in the 2013 and 2021 revisions to the ASTM E1527 Phase 1 standards, licensed professionals in the field, the New York City Brownfield Partnership, the Environmental Bankers Association, the Brownfield Coalition of the Northeast, several environmental consulting firms, the U.S. Chamber of Commerce, and others.