EPA Amends the All Appropriate Inquiries Rule for Phase I Environmental Site Assessments

On December 15, 2022, the EPA took final action to amend the Standards and Practices for All Appropriate Inquiries (“AAI”) to allow the use of the ASTM International revised standard. Specifically, the published final rule amends the All Appropriate Inquiries Rule (“AAI Rule”), which sets federal standards for the conduct of “all appropriate inquiries” at 40 CFR Part 312, to reference ASTM International’s E1527–21 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,’’ and allows for its use to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The rule is effective on February 13, 2023 and allows for a one year grace period during which time the previous version of the standard, ASTM E1527-13, will be recognized as compliant with the AAI Rule. 

The revisions to the AAI rule are noteworthy as ASTM includes specific language addressing consideration of emerging contaminants, including Perfluorooctanesulfonic Acid (PFOS), Perfluorooctanoic Acid (PFOA) and other Per- and Polyfluoroalkyl Substances (PFAS) compounds, which were not included in the 2013 ASTM standard. A user has the option of including assessment of “emerging contaminants,” including PFAS compounds as non-scope or business environmental risk consideration. Although, on the surface, the potential consideration of PFAS compounds does not fundamentally change the scope of a Phase I ESA that satisfies the AAI rule. However, the inclusion PFAS compounds may act as a harbinger of things to come. Notably, EPA recently proposed to regulate PFAS compounds under CERCLA.1 If PFAS compounds are, in fact, designated as CERCLA hazardous substances, the ASTM standard requires evaluation of PFAS compounds as a necessary component of a Phase I ESA.   

As we have stated in our previous blogs on the topic, PFAS are ubiquitous and found in unexpected places. The question becomes what would trigger this out of scope Phase I request to assess the risk of PFAS impacts at a real property, what would this out of scope item look like and what use does the information have. In most cases, a PFAS evaluation is unwarranted unless there is direct evidence of potential use of significant quantities of PFAS at a property (e.g, fire suppressant; manufacture of coatings). In addition, whether or not there are state standards applicable to PFAS may influence a decision to include PFAS in the scope of work. Some non-scope emerging contaminants may be considered a hazardous substance (or some equivalent) under applicable state law. If that is the case, environmental professionals are cautioned and encouraged to consider such substances when conducing a Phase I ESA. Appropriate caution should be exercised to keep from sliding down the slippery slope of PFAS without a clear end goal.



1As previously reported in September by Kilpatrick Townsend, Regulating PFAS Under CERCLA – Ambiguities and Uncertainties with Reporting Obligations, EPA proposed a rule to designate PFOA and PFOS as hazardous substances under CERCLA. Should the proposed rule officially designate these PFAS compounds as hazardous substances, they would become subject to Phase I Environmental Site Assessment review. 
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