                                       
                                       
                         RESPONSE TO COMMENTS DOCUMENT
                                       
      AMENDMENT TO STANDARDS AND PRACTICES FOR ALL APPROPRIATE INQUIRIES
                                       
                 Docket ID No. EPA - HQ - OLEM - 2021 - 0946.

On March 14, 2022, EPA published a direct final rule (87 FR 14174) to amend the All Appropriate Inquiries Rule to reference ASTM E1527-21, "Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process," and allow for its use to satisfy the requirements of the All Appropriate Inquiries Rule.  A companion proposed rule, also published on March 14, 2022, invited comment on the direct final rule and stated that if EPA received adverse comment on the proposal to reference the ASTM E1527-21 standard, the Agency would withdraw the direct final rule.  EPA received adverse comments on that action and published a notice of withdrawal of the direct final rule on May 2, 2022 (87 FR 25572).  EPA is now responding to those comments and finalizing the amendment to the All Appropriate Inquiries Rule referencing the ASTM E1527-21 standard practice and addressing the comments received in response to the March 14, 2022 proposed rule.  This document includes each of the comments received and EPA's responses to the comments. The original public comments can be viewed in regulations.gov by referencing the Docket Number: EPA - HQ - OLEM - 2021 - 0946.

EPA-HQ-OLEM-2021-0946-0005
Comment submitted by Menachem Sokolic
I am an environmental consultant with over 21 years' experience performing commercial and industrial real estate due diligence, including over 1,000 ASTM E1527 Phase I Environmental Site Assessments and other due diligence assessments. I am also an active member of the ASTM E50.02 Task Group responsible for preparing the new ASTM E1527-21 Phase I ESA standard, and worked diligently with the Task Group for several years and over hundreds of hours to generate the new standard.

I am submitting this comment to EPA's direct final rule amending 40 C.F.R. Section 312.11 (87 FR 14174- 14177, March 14, 2022) providing that ASTM E1527-21 ``Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process'' (E1527-21) may be used to satisfy the requirements of conducting all appropriate inquiries (AAI) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

With respect, I object to this direct final rule because it fails to remove the reference to the superseded (and now historical) ASTM E1527-13 standard and allows for its continued use to satisfy AAI.

The legislative history of CERCLA and numerous judicial opinions have held that Congress intended AAI to reflect evolving notions of "good commercial or customary practice". Over the last few years, determining what defined current "good commercial or customary practice" was the central focus of the ASTM Phase I ESA Task Group, and the new Phase I standard is the culmination of that effort.

EPA's decision to approve ASTM E1527-21 while also allowing ASTM E1527-13 to remain as an acceptable alternative for complying with AAI will create confusion in the marketplace. Instead of having the industry coalesce around one standard, the EPA's action will create a two-tier system. So long as the AAI allows for use of E1527-13, cost-sensitive parties are going to use this standard and fail to implement the quality of inquiries required by E1527-21.

Moreover, it is possible that litigation will arise from the continued use of E1527-13 after the EPA's approval of the E1527-21. This will cause property owners to become confused over how to comply with AAI and could unnecessarily inject further uncertainty about liability concerns over brownfield sites, which already have a host of challenges.

Since ASTM has concluded that E1527-13 no longer represented "good commercial or customary practice" and needed to be revised, I believe EPA has a statutory obligation to select E1527-21 as the ASTM alternative standard for complying with AAI. Indeed, when EPA recognized E1527-13, the agency removed the reference to the superseded E1527-05 (79 FR 60087- 60090, October 6, 2014).

Accordingly, I kindly request that EPA follow the process it previously used by withdrawing the direct final rule and issuing a new proposed rule recognizing that E1527-21 may be used to satisfy AAI and removing the reference to E1527-13 for commercial real estate transactions after the effective date of the amended rule.

Thank you for your consideration of this comment.
EPA Response:
   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.



EPA-HQ-OLEM-2021-0946-0006
Comment Submitted by the Environmental Bankers Association
To Whom It May Concern: 
The Environmental Bankers Association (EBA) is submitting this comment to EPA's proposed rule (87 FR 14224-14227, March 14, 2022) and direct final rule amending 40 CFR Section 312.11 (87 FR 14174- 14177, March 14, 2022) proposing to and amending its All Appropriate Inquiries Rule (AAI) to reference the ASTM E1527-21 ``Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process'' (E1527-21) and allowing it use to satisfy the requirements of AAI. About the EBA: The EBA is a non-profit trade association representing the financial services industry. Established in 1994, EBA's members include lending institutions, property & casualty and life insurers, attorneys, and the environmental consulting and appraisal communities. EBA's membership is organizational based, and we currently have 123 organizational members, of which, 74 are affiliate organizations and 49 are banking firms. Of the 123 organizational members, we have 992 individual members collectively from these organizations. In response to heightened sensitivity to environmental risk issues, the need for environmental risk management, sustainable development, due diligence policies and procedures in financial institutions, the EBA engages with its members to invest in their success. The Environmental Bankers Association strongly supports EPA recognizing the updated ASTM E1527-21 as the ASTM Standard to satisfy and demonstrate conformance with the EPA's All Appropriate Inquiries (AAI) rule. The revisions in ASTM E1527-21 are appropriate and were necessary to align the standard practice with assessments already being conducted by reputable Environmental Professionals. Adherence to the new standard will improve the quality of Phase I assessments, providing benefit to EPA for brownfield site development and to commercial property owners, investors, and lenders. ASTM E1527-21 includes important updates that will reduce the risk of Users failing to identify conditions indicative of hazardous substance releases, potentially jeopardizing landowner liability protections to CERCLA. Adherence to the new standard should reduce the risk that property buyers will complete due diligence which fails to satisfy AAI. We do not support EPA continuing to recognize the ASTM E1527-13 standard as a means to satisfy AAI going forward. In November 2021 ASTM International published E1527-21 as the sole current standard and designated E1527-13 a historical standard. We recommend that the reference to 1527-13 be removed from the rule. The goal of ASTME1527-21 was to reflect current good commercial and customary practice based on professional experience and insight, improve quality and consistency, and to correct challenges noted during implementation of previous versions of the standard. An important revision was made to the definition of Recognized Environmental Condition which helps clarify the intent of the term. Other definitions were also added, including subject property and adjoining property, significant data gap, and property use limitation. Importantly, significant revisions were made to the historical research section which had not been substantively changed since 1994; however, research methods and resources have evolved and the revisions to that section reflect those changes. Other areas clarified in E1527-21 include dates for tasks used to establish report viability relative to AAI, deletion of obsolete database names which EPA has renamed or discontinued, requirements to include photographs of a property and a site map in a report, a requirement to discuss significant data gaps in the report conclusions, and an acknowledgment of emerging contaminants. New Appendices were also added providing examples of recognized environmental conditions and a flow chart that provides guidance and logic for evaluating findings (Fig X4.1 Simplified REC Logic). Recognition of two standards is likely to cause significant controversy and confusion in the industry since ASTM Committee E-50 has determined that the 2013 standard no longer meets good commercial and customary practice and ASTM now considers E1527-13 a historical standard. Further, having two standards recognized as meeting AAI will create a two-tier system; one for lower-cost, less thorough assessments prepared under E1527-13, and another for higher-quality assessments with consistency in application of key terminology, records reviews, and evaluation of findings. As environmental risk managers at major lending institutions we are on the front lines of review of Phase I ESAs. For us, time is of the essence, and the cost and time to redo due diligence is not welcome and often not possible. We strongly believe that the requirements of E1527-21 will raise the bar on the final quality of Phase I ESAs produced by Environmental Professionals (EPs) across the industry and urge the EPA to no longer recognize E1527-13 as a means to satisfy AAI.

EPA Response:
   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.
EPA-HQ-OLEM-2021-0946-0007
Comment submitted by Barry Smith
Amend the EPA rule to reflect current ASTM standard.

EPA Response:
   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.

EPA-HQ-OLEM-2021-0946-0008
Comment submitted by David Vieau
I am submitting this comment to EPA's proposed rule (87 FR 14224-14227, March 14, 2022) and direct final rule amending 40 CFR Section 312.11 (87 FR 14174- 14177, March 14, 2022) proposing to and amending its All Appropriate Inquiries Rule (AAI) to reference the ASTM E1527-21 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" (E1527-21) and allowing it use to satisfy the requirements of AAI. I'm a licensed Professional Geologist and Certified Hazardous Materials Manger with professional experience working on CERCLA investigation and cleanup projects since 1982. I've specialized in environmental site assessments since 1986 and brownfields remediation since 1991 (in Minnesota). I've been a voting member of ASTM Committee E50 since 1993. I have been a designated ASTM Instructor for its environmental site assessment standards El 527 and El 528 since 1994, and for its El 903 and E224 7 since their original publications in the late 1990s. I have also been an owner of an environmental consulting firm since 1987. I object to the proposed rule and direct final rule because it fails to remove the reference to the superseded and now historical ASTM El 527-13 standard and allows the continued use of El 527-13 to satisfy AAI. The environmental and engineering professions require adherence to current and nationally recognized industry standards for test methods and practices; to use outdated standards is cause for a negligence claim. The ASTM Standard Practice E1527-13 has significant deficiencies which the ASTM task force spent several years of effort correcting. To now dismiss that effort and include El527-13 along with the much improved, current and consensus-balloted E1527-21 makes a mockery of the AS'fM Voluntary Consensus process, exacerbates an already litigious business practice focused on environmental due diligence. When EPA recognized El527-13, the agency removed the reference to the superseded E1527-05 (79 FR 60087- 60090, October 6, 2014). Accordingly, EPA should follow the process it previously used by withdrawing the direct final rule and issuing a new proposed rule recognizing that that El527-21 may be used to satisfy AAI and removing the reference to E1527-13 for commercial real estate transactions after the effective date of the amended rule. Not to do so will smack of a sudden corrupt and nefarious influence upon EPA with intent to confuse and create chaos within the environmental consulting profession and among the universe of users seeking landowner liability protections under CERCLA.

EPA Response:
   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.


EPA-HQ-OLEM-2021-0946-0009
Comment submitted by The New York City Brownfield Partnership
The New York City Brownfield Partnership (the Partnership) is submitting this comment to EPA's proposed rule (87 FR 14224-14227, March 14, 2022) and direct final rule amending 40 CFR Section 312.11 (87 FR 14174- 14177, March 14, 2022) proposing to and amending its All Appropriate Inquiries Rule (AAI) to reference the ASTM El527-21 " Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" (E1527-21) and allowing it use to satisfy the requirements of AAI. The Partnership is a NYS incorporated nonprofit organization whose members include environmental consulting firms, environmental lawyers, environmental remediation contracting organizations, brownfield redevelopment organizations, and community-based organizations in New York City. Its mission includes advancing public awareness and understanding of benefits, opportunities, and best practices of brownfield redevelopment, promoting excellence in brownfield redevelopment by honoring successful brownfield projects as well as fostering collaborative relationships among brownfield ' developers, property owners, government agencies, and community groups. The Partnership recommends that the proposed rule and direct final rule remove the reference to the superseded ASTM E1527-13 standard and explicitly disallow the continued use ofE1527-13 to satisfy AAI. Allowing ASTM E1527-13 to remain as an acceptable alternative for complying with AAI will create chaos and confusion in the marketplace. El 527-21 represents what the industry now considers to be "good commercial and customary practice". One of the important clarifications of E 1527-21 is the clarification on the scope of historical research that should be conducted for a phase 1. Comprehensive historical research is critical for brownfield development so that developers understand their potential risks. Yet allowing E 1527-13 to continue to satisfy AAI will allow low cost providers to continue to produce deficient reports with the kind of inadequate historical research that E1527-21says no longer complies with current good commercial and customary practice. A recent New York case illustrates why the historic research clarifications of El527- 21 are critical for brownfield and why E 1527-2 1 should be the only ASTM standard that EPA should recognize as satisfying AAI. 1 Another important feature of El527-21 is the clarification about Controlled Recognized Environmental Conditions (CREC). Retaining El527- 13 will cause sites to be erroneously identified as having Recognized Environmental Conditions (REC) instead of CRECs which will cause many brownfield sites to be unduly stigmatized since many developers and lenders are wary of sites with RECs. Moreover, allowing two standards with differing requirements to satisfy AAI will cause property owners to become confused over how to comply with AAI and could unnecessarily inject further uncertainty about liability concerns over brownfield sites, which already have a host of challenges. A recent federal appeals court case on the bona fide prospective purchaser defense2 is an example of the liability uncertainty that will inserted into brownfield transactions if EPA allows two ASTM standards to satisfy AAI.3 When EPA recognized El527-13, the agency removed the reference to the superseded El527-05 (see 79 FR 60087- 60090, October 6, 2014). Accordingly, the Partnership requests EPA follow the process it previously used by withdrawing the direct final rule and issuing a new proposed rule recognizing that that E 1527-21 may be used to satisfy AAI and removing the reference to E 1527- 13 for commercial real estate transactions after the effective date of the amended rule.

EPA Response:
   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.


EPA-HQ-OLEM-2021-0946-0010
Comment submitted by The Brownfield Coalition of the Northeast
The Brownfield Coalition of the Northeast (BCONE) is submitting this comment to EPA's proposed rule (87 FR 14224-14227, March 14, 2022) and direct final rule amending 40 CFR Section 312.11 (87 FR 14174- 14177, March 14, 2022) proposing to and amending its All Appropriate Inquiries Rule (AAI) to reference the ASTM E1527-21 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" (E1527-21) and allowing it use to satisfy the requirements of AAl. BCONE provides a platform for exchange of ideas/best practices on the benefits of brownfield remediation, resilience and sustainable redevelopment to facilitate economic activity and growth in its work with public, private and regulatory stakeholders in our region. BCONE's geographic coverage extends from Maine to Maryland. The diversification ofBCONE members allows us to provide educational resources to the public, the private sector, universities and colleges, and communities. Our regional composition allows us to share local success stories and to recognize the importance ofreal estate markets that cross state borders (such as NYC metro area, which includes parts ofNJ, CT and PA). BCONE provides research, white papers, articles, biogs, and shares insights with federal, local, and state decision makers to further pr9mote resilience and sustainable brownfield redevelopment. BCONE recommends that the proposed rule and direct final rule remove the reference to the superseded ASTM E 1527-13 standard and explicitly disallow the continued use of E 1527-13 to satisfy AAI. Allowing ASTM E 1527-13 to remain as an acceptable alternative for complying with AAI will create chaos and confusion in the marketplace. E1527-21 represents what the industry now considers to be "good commercial and customary practice". One of the important clarifications of El527-2 l is the clarification on the scope of historical research that should be conducted for a phase 1. Comprehensive historical research is critical for brownfield development so that developers understand their potential risks. Yet allowing E1527-13 to continue to satisfy AAI will allow low cost providers to continue to produce deficient reports with the kind of inadequate historical research that E 1527-21 says no longer complies with current good commercial and customary practice. A recent New York case illustrates why the historic research clarifications ofE 1527-21 are critical for brownfield and why E 1527-21 should be the only ASTM standard that EPA should recognize as satisfying AAI. I 1 See BankUnited, N.A v. Merritt Envtl. Consulting Corp., 360 F. Supp. 3d 172 (S.D.N.Y. 2018) Another important feature of E1527-2 l is the clarification about Controlled Recognized Environmental Conditions (CREC). Retaining E1527-13 will cause sites to be erroneously identified as having Recognized Environmental Conditions (REC) instead of CRECs which will cause many brownfield sites to be unduly stigmatized since many developers and lenders are wary of sites with RECs. Moreover, allowing two standards with differing requirements to satisfy AAI will cause property owners to become confused over how to comply with AAl and could unnecessarily inject further uncertainty about liability concerns over brownfield sites, which already have a host of challenges. A recent federal appeals court case on the bona fide prospective purchaser defense2 is an example of the liability uncertainty that will inserted into brownfield transactions if EPA allows two ASTM standards to satisfy AAI.3 When EPA recognized E 1527-13, the agency removed the reference to the superseded El 527-05 (see 79 FR 60087- 60090, October 6, 2014). Accordingly, the Partnership requests EPA follow the process it previously used by withdrawing the direct final rule and issuing a new proposed rule recognizing that that E 1527-21 may be used to satisfy AAI and removing the reference to E 1527-13 for commercial real estate transactions after the effective date of the amended rule.
EPA Response:
   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.



EPA-HQ-OLEM-2021-0946-0011
Comment submitted by Anonymous
The ASTM Standard Practice for Phase I Environmental Site Assessments, E1527-2021 contains a significant deficiency that must be addressed prior to approval of its use by the U.S. EPA.  Specifically, E1527-21 added the term "property use limitation" in Section 3.2.69.  This term and its use are inconsistent with current EPA guidance and the CERCLA statue and should be removed prior to the U.S. EPA's acceptance of E1527-21 as an acceptable practice to meet the requirements of 40 CFR 312.

Discussion
Upon review of the entire text of 42 USC 9601 et seq. I was not able to find the term "property use limitation" in the statute. Neither the EPA's 2019 Common Elements nor the Agency's June 2020 Superfund Liability Protections for Local Government Acquisitions after the Brownfields Utilization, Investment, and Local Development Act of 2018, (both of which are listed as referenced documents in Section 2 of E1527-21) use of the term "property use limitation".   The Common Elements states at footnote 39 that the party "must take reasonable steps to stop any continuing release; prevent any threatened future release; and prevent or limit human environmental or natural resource exposure to any previously released hazardous substances".  The definition of "property use limitation" in E1527-21 does not describe how a "property use limitation" achieves this stated requirement of the Common Elements.
In addition, on page 12 of the 2019 Common Elements, the Agency discusses "land use restrictions" and institutional controls".  If the Agency wanted to use the term "property use limitation", clearly it could have done so in 2019 or in the June 2020 guidance on the BUILD Act of 2018. Unlike activity and use limitations (as defined in Section 3.2.2 of E1527-21and in ASTM's E2091, Standard Guide for Use of Activity and Use Limitations, Including Institutional and Engineering Controls), "property use limitations" as defined in Section 3.2.69 of E1527-21 are neither legal or physical restrictions on the use of the land or property.  Unlike Activity and Use Limitations (AULs) as defined in E2091, there is no defined enforcement entity or enforcement mechanism for "property use limitations".  Indeed, a subsequent owner of the property can argue that he/she is not bound by the "property use limitations" imposed by the previous owner because the new owner is not a signatory to the "property use limitation".  
   
The definition of "property use limitation" in E1527-21 does not indicate that the property use limitation is publicly available for review.  40 CFR 312.26(b)(6) requires the review of "registries or publicly available lists of engineering controls" and 40 (CFR 312.26(b)(7) requires the review of "Registries or publicly available lists of institutional controls, including environmental land use restrictions, applicable to the subject property". 

EPA Response:

      The ASTM standard is not an EPA regulation, and its use is not required to comply with the All Appropriate Inquiries regulation or any other EPA regulations.  Also, in the March 14 Direct Final Rule and the accompanying Proposed Rule, EPA clearly stated that it was not requesting comment on the ASTM standard.  Industry standards may include elements that are not within the scope of the All Appropriate Inquiries rule.  Use of the ASTM E1527-21 standard is not required for compliance with the All Appropriate Inquiries regulation.  Therefore, EPA does not consider the additional elements mentioned by the commenter as a reason to avoid recognition of the revised E1527-21 standard as compliant with the All Appropriate Inquiries rule.  Requests to modify the ASTM standards should be directed to ASTM.


EPA-HQ-OLEM-2021-0946-0012
Comment submitted by Georgina Dannatt

I am writing these comments based on my personal involvement the due diligence assessment profession commencing in the 1980s, as a risk manager for lending institutions since 1994, and participation in ASTM International committees. First, I am in strong support of EPA recognizing the ASTM E1527-21 standard as satisfying All Appropriate Inquiries (AAI). The revisions are appropriate and will go a long way to improving the quality of Phase I assessments in general. Second, I do not support EPA continuing to recognize the ASTM E1527-13 standard as a future means to satisfy AAI.

ASTM has withdrawn E1527-13 as an active standard and it has been replaced by E1527-21. The revised ASTM E1527-21 standard represents thousands of hours of work from 2018 to 2021 to incorporate good commercial and customary practice into the standard, and improve the overall quality of assessments for purposes of satisfying AAI and identifying environmental risks. Over 250 bank and insurance company risk managers, environmental consultants, data providers, and property acquisition professionals worked together on the Task Group on a consensus basis to prepare the revisions. I personally participated in 6 sub-groups. The revisions underwent several rounds of a rigorous balloting process, resolution of negative votes, and were agreed upon by industry members.

Numerous sections were updated. I will focus on one, the Historical Research section, where updating was urgently needed since the language had not changed since 1994. In the intervening decades, additional and different resources have become available which are now considered current good commercial and customary practice. The revision acknowledges that many resources are now accessed through electronic means that were not typical in 1994. The layout of the entire section has been logically reorganized for ease of understanding. It should be noted determination of uses of properties is a very important task within a Phase I assessment, and past uses are often the main source of environmental risk. Under the AAI rule, inquiry into the use of both the subject and adjoining properties was always required but this was not made sufficiently clear in in prior versions of the standard. One goal of the Task Group was to set forth the minimum amount of due diligence already being conducted by most practitioners for both subject and adjoining properties (e.g., review of the "Big 4" resources listed in Section 8.3.8), striking a balance for Environmental Professional (EPs) to conduct sufficient inquiries while allowing professional judgment and the availability and usefulness of resources to be considered. Another revision is to have EPs explain their rationale in their reports if resource research is omitted so the User can better understand if additional historical resources may be available or further inquiries might be prudent.

Currently, there are environmental consulting firms offering two level of assessments and while others offer a bare minimum approach in order to offer low costs. Often the lowest level of inquiry does not "answer the questions" nor adequately determine the environmental risk of a property. Allowing the two ASTM standards to coexist would allow this bare minimum approach to continue for Brownfield properties and acquisitions, which can result in property buyers unwittingly purchasing a contaminated site with potential exposures for property occupants.

Recognizing only one ASTM standard will reduce potential chaos in the industry, and that standard should be E1527-21. I respectfully request that reference to ASTM E1527-13 as a means for future satisfaction of AAI be removed from the rule.

EPA Response:

   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.

EPA-HQ-OLEM-2021-0946-0013
Comment submitted by LaBella Associates

On behalf of LaBella Associates (LaBella), I am submitting this comment to EPA's proposed rule (87 FR 14224- 14227, March 14, 2022) and direct final rule amending 40 CFR Section 312.11 (87 FR 14174- 14177, March 14, 2022) proposing to and amending its All Appropriate Inquiries Rule (AAI) to reference the ASTM E1527-21 ``Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process'' (E1527-21) and allowing it use to satisfy the requirements of AAI. LaBella is a multidisciplinary firm providing engineering, land surveying, planning, environmental consulting, architecture, code compliance, construction services, transportation planning, and traffic engineering to clients in the private and public sectors. LaBella provides a variety of focused environmental services designed to meet the needs of our clients during property transactions. Our environmental due diligence program evaluates potential liabilities associated with past and present land usage. LaBella performs over 1,000 environmental due diligence reports annually for a variety of financial institutions, real estate developers, attorneys, other private entities, and municipal clients. As an environmental consultant with over 17 years of experience performing environmental due diligence services on commercial and industrial properties for a variety of Users, I strongly support EPA's direct final rule to amend the All Appropriate Inquiries Rule to reference ASTM International's E1527-21 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" and allow for its use to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation, and Liability Act. However, I respectfully disagree with the EPA's indication within its final ruling that ASTM International's Previous standard practice, ASTM E1527-13, may continue to be used to meet All Appropriate Inquiries. ASTM's E1527-13 Standard expired after eight years, necessitating the work of the ASTM E50.02 Task Group to prepare an updated standard to build upon the good commercial and customary practices outlined in the dated standard with the issuance of the E1527-21 Standard in November of 2021. The continued acceptance of the dated (and historical) 2013 standard will create confusion within the marketplace as Users will be forced to make an "apples to oranges" comparison when soliciting bids for Phase I Environmental Site Assessments, with Environmental Professionals continuing to utilize the dated standard potentially achieving a competitive edge solely as a result of discounted pricing being offered when compared to the good commercial and customary practices outlined by ASTM within the E1527-21 Standard. In addition to the marketplace confusion realized by the continued acceptance of both a historical and updated standard as meeting AAI, it will become commonplace for reports completed under the two standards to include different pieces of information and or reach different conclusions based on the improvements to the dated E1527-13 Standard maybe by the ASTM E50.02 Task Group within the E1527-21 Standard. Below highlights two slight, but significant differences between the historical and recent standards: Environmental Lien Searches  -  Searches for recorded environmental cleanup liens are specified within 40 CFR 312 as an additional inquiry to be completed by the person seeking to establish liability protection under AAI. Within 40 CFR 312, it is indicated that this information could then be provided to the Environmental Professional undertaking the inquiry. While the completion of an environmental lien search is not a component required to be completed by the Environmental Professional as specified within the ASTM Phase I ESA Standards, such searches are commonly performed by Environmental Professionals or contracted to be completed through third parties as part of the Phase I ESA. Specifically, ASTM E1527-13 notes that environmental liens should be reported to the Environmental Professional and that the user should either (1) engage a title company, real estate attorney, or title professional to undertake a review of reasonably ascertainable recorded land title records and lien records for environmental liens and AULs currently recorded against or relating to the property, or (2) negotiate such an engagement of a title company, real estate attorney, or title professional as an addition to the scope of work of the Environmental Professional. The search for environmental liens and AULs in this section is in addition to the Environmental Professional's search of institutional and engineering control registries, generally completed as part of the Environmental Professional's regulatory and/or historical research completed in accordance with the Phase I Standard. In practice, title searches completed for Phase I ESAs under the 2013 standard often search only the most recent title record for this information. Within the revised ASTM E1527-21 Standard, it is noted that users may rely upon two different methods in order to identify environmental liens or Activity Use Limitations (AULs) recorded against a property. In relation to the completion of Title Search Information Reports (Section 6.2.2 - Method 2), the revised standard includes specific information regarding the scope of the Title Search Information Reports, specifying that these reports shall review land title records for documents recorded between 1980 and the present. If judicial records are not reviewed, the title search information report shall include a statement providing that the law or custom in the jurisdiction at issue does not require a search for judicial records in order to identify environmental liens. Given that standard practice for title searches under the 2013 standard are often limited to the most recent title record information, the added discussion regarding the scope of Title Search Information Reports in the revised Phase I Standard amounts to additional requirements for the User to ensure compliance with All Appropriate Inquiries, thereby suggesting that the title search requirements under the -13 standard are inadequate to meet current regulations. In addition, it should be noted that, while Title Searches are an out of scope item for Environmental Professionals under the ASTM Phase I Standards, it is common practice for these searches to be conducted and/or coordinated by Environmental Professionals as a non-scope item within Phase I ESAs. Therefore, consistency of methodology in how these searches are being conducted is important to ensure that Users are complying with the requirements for AAI. Definition Changes  -  REC/CREC/HREC AAI specifies that the inquiry by the Environmental Professional must be documented within a written report that indicates at a minimum whether the inquiry has identified conditions indicative of releases or threatened releases of hazardous substances [and in the case of inquiries conducted for persons identified in § 312.1(b)(2) conditions indicative of releases and threatened releases of pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802)] on, at, in, or to the subject property. The ASTM Phase I ESA Standard has identified three potential classifications for these conditions; specially Recognized Environmental Conditions (RECs), Controlled Recognized Environmental Conditions (CRECs), and Historical Recognized Environmental Conditions (HRECs). Clarifications were made within the ASTM E1527-21 Standard regarding each of these conditions in order to make clear the definitions and allow for the consistent application of these terms by Environmental Professionals. With regard to RECs, the 21 Standard includes a discussion/clarification of the term "likely" as it relates to the definition of a REC: the likely presence of hazardous substances or petroleum products in, on, or at the subject property due to a release or likely release to the environment. The clarification of the term "likely" will help to create a consistent application of the REC opinion by Environmental Professionals. Without discussion regarding the term "likely," the dated 13 Standard creates a vague REC definition allowing significant leeway by Environmental Professionals when considering if the research completed within the Phase I ESA has indicated identified conditions indicative of a release or threatened release as specified in 40 CRF 312. With regard to CRECs, the 21 Standard includes significant additional discussion regarding the process the Environmental Professional shall take in assessing previous releases that were addressed with residual impact remaining, subject to the implementation of required controls, including a clarification that additional migration pathways that may not have been previously known or assessed are taken into account. The additional specifications/clarifications to the CREC definition could create a situation where a past release identified as a CREC under the 2013 Standard may now be classified as a REC under the 2021 standard, due in part to the identification of additional migration pathways. In this case, a Phase I ESA completed under the 2013 Standard may only call for maintenance of the in-place controls while a Phase I ESA completed under the 2021 standard may call for additional investigation into the previously unassessed additional migration pathway. Similarly, the 21 Standard includes additional discussion regarding HRECs, and the newly updated standard alters the definition of an HREC to be a previous release that has been addressed to the satisfaction of the applicable regulatory authority or authorities AND (as opposed to "or" in the 2013 standard) meeting unrestricted use criteria established by the applicable regulatory authority or authorities without subjecting the subject property to any controls. The ambiguity of the 2013 Standard could allow for mischaracterization of a previous release as an HREC while additional impact remains above regulatory criteria simply due to regulatory sign-off, while the clarification of the HREC definition, as well as the additional discussion regarding applications of the HREC terminology, should afford Users with a more reliable assessment of former release under the 2021 Standard. While these changes should not ultimately impact the identification of conditions indicative of releases or threatened releases of hazardous substances [and in the case of inquiries conducted for persons identified in § 312.1(b)(2) conditions indicative of releases and threatened releases of pollutants, contaminants, petroleum and petroleum products, and controlled substances (as defined in 21 U.S.C. 802)] on, at, in, or to the subject property as specified in 40 CFR 312, the differences in how an Environmental Professional interprets the definitions of REC, CREC, and HREC could create a situation where a Phase I ESA completed to the 2013 Standard may not identify potential liabilities associated with impacts remaining on a property after remediation and/or spill closure. In such an event, the party seeking liability protection under AAI may not be aware of the potential for remaining impacts that may require further assessment or should be considered when assessing potential environmental risk relative to past uses and activities at the Subject Property. Due to the potential for marketplace confusion and for different conclusions to be reached based solely on the completion of Phase I ESA under a historical and dated 2013 Standard versus the recently updated 2021 Standard designed to outline the good commercial and customary practices required by Environmental Professionals in the completion of inquires of commercial real estate meeting AAI, I believe that the EPA should alter its final direct ruling accepting the ASTM E1527-21 Standard to disallow the continued acceptance of the out-of-date ASTM E1527-13 Standard as complying with AAI.
EPA Response:

   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.

EPA-HQ-OLEM-2021-0946-0014
Comment submitted by U.S. Chamber of Commerce
Thank you for the opportunity to provide comments on the Environmental Protection Agency's (EPA) proposed direct final rule to "amend the All Appropriate Inquiries Rule to reference ASTM International's E1527-21 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" and allow for its use to satisfy the requirements for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation, and Liability Act." The U.S. Chamber of Commerce represents all the relevant sectors named and additional areas of the value chain across the broad economy impacted by the proposal. We are encouraged that the updated standard will offer clear and consistent guidelines for property ownership and development. Ensuring that CERCLA liability does not apply is critical for businesses across the United States. The notion of brownfields to greenfields is an important step in ensuring that communities can optimize the economic vitality and quality of life as property moves back into productive use, especially for innocent landowners and prospective purchasers. We are, however, sharing the following concerns with EPA's proposal:

  Continued use of 2013 standard. Our members urge EPA to make the transition to the new 2021 standard and eliminate the flexibility to apply either 2013, 2021, or other standards. The new ASTM standard requires agreed on methods and records to justify the property determination. 

 Inclusion of PFAS as a non-scope contaminant. Until EPA finalizes the rule designating PFOS and PFOA as hazardous substances under CERCLA, inclusion as part of the ASTM standard, even as a non-scope issue, may lead to additional potential CERCLA liability prematurely for landowners and potential buyers. The business community supports accelerating cleanups to address PFAS risks to our employees, customers, and communities where we operate. We urge EPA to engage with stakeholders and provide a formal notice and comment period for the proposed ASTM standard as called for under the Administrative Procedures Act and the Congressional Review Act with a robust process that supports this effort. Please feel free to contact us with any questions or if you wish to discuss.


 EPA Response:

   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.
   In response to the commenter's concern regarding the ASTM E1527-21 standard's reference to emerging contaminants, the Agency points out that the ASTM standard is not an EPA regulation, and its use is not required to comply with the All Appropriate Inquiries regulation or any other EPA regulations.  Also, in the March 14 Direct Final Rule and the accompanying Proposed Rule, EPA clearly stated that it was not requesting comment on the ASTM standard.  With regard to that commenter's concern that the reference to emerging contaminants in the ASTM E1527-21 standard as an "out of scope" consideration may lead to additional potential CERCLA liability prematurely for landowners and potential buyers, the Agency disagrees.  The ASTM standard does not include within its definition of "recognized environmental condition" any constituents beyond those that meet the definition of a CERCLA hazardous substance or constituents that are considered to be a petroleum product.   Also, industry standards may include elements that are not within the scope of the All Appropriate Inquiries rule.  Therefore, the inclusion of the reference to "emerging contaminants" as well as the inclusions of other additional elements in the ASTM E1527-21 standard does not warrant EPA avoiding recognition of the ASTM E1527-21 Phase I Environmental Site Assessment Process as compliant with the All Appropriate Inquiries regulation.  The ASTM standard is not an EPA regulation, and its use is not required to comply with the All Appropriate Inquiries regulation or any other EPA regulations.

EPA-HQ-OLEM-2021-0946-0015
Comment submitted by GLE Associates, Inc.
The ASTM E1527-21 standard was developed by input from industry professionals, regulators, and Users to include clarifications regarding the scope of work of a Phase I ESA that define good commercial and standard practices. Allowing Users to choose between the -13 standard and the -21 standard will only lead to confusion in the industry, a less thorough and consistent report, and potential liability concerns. We encourage EPA to consider the positive benefits of the updated -21 standard, and remove reference to the -13 standard in the proposed rule.

 
EPA Response:

   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.

EPA-HQ-OLEM-2021-0946-0016
Comment submitted by Lawrence Schnapf
I am submitting this comment objecting to EPA's proposed rule (87 FR 14224-14227, March 14, 2022) and direct final rule amending 40 CFR Section 312.11 (87 FR 14174- 14177, March 14, 2022)  proposing to and amending its All Appropriate Inquiries Rule (AAI) to reference the ASTM E1527-21 ``Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process'' (E1527-21) and allowing it use to satisfy the requirements of AAI.  My objection is based on EPA's proposal to retain E1527-13 as an option to demonstrate compliance with AAI. 

It defies credulity that EPA would adopt this approach after its experience in 2013 when EPA also published a proposed and direct final rule to recognize the then new E1527-13 while retaining the reference to the replaced E1527-05. This proposed approach resulted in numerous negative comments that forced EPA to withdraw the final direct rule and then commence a separate rulemaking to remove the reference to the superseded E1527-05. The definition of insanity has been said to be repeating the same thing and expecting a different result. At the very least, this seems to be arbitrary and capricious. 
I was extensively involved in the 2013 and 2021 revisions to ASTM E1527 Phase 1 Standard and served as chair of the legal focus group for both revisions. However, I am submitting my comments in my individual capacity as the principal of Schnapf LLC and are informed from my 38 years as a transactional-based environmental lawyer. My practice primarily concentrates on environmental risks associated with corporate, real estate and brownfield transactions; commercial financing including asset-based lending, syndicated loans, mezzanine loans and distressed debt; bankruptcy, workouts and corporate restructuring. My clients include national and local brownfield developers and a variety of lenders. I also have extensive experience with brownfield redevelopment and financing, including representing affordable housing developers and assisting local development corporations or not-for-profit organizations with their brownfield planning programs. 
I have also written numerous articles on environmental law, am the author of "Managing Environmental Liability in Transactions and Brownfield Redevelopment" published by JurisLaw Publishing as well as a contributing author for several chapters of "Brownfield Practice and Law: The Cleanup and Redevelopment of Contaminated Properties" and the  "Environmental Law Practice Guide," both published by Lexis Publishing. I was also the general editor/contributing author of "Environmental Issues in Business Transactions" published by the Business Law Section of the ABA. 
I served as the chair of the Environmental Law Section of the New York State Bar Association (NYSBA) and co-chair of the NYSBA Brownfield Task Force. I also served as the chair of the Brownfield Committee of the Environmental Business Association of New York from 2002-2008. 
EPA's proposed and final direct rule would establish a dual standard for meeting the requirements of its AAI rule which is which necessary to establish the CERCLA landowner liability protections and for brownfield grantees. Having two standards also conflicted with congressional intent when it established the CERCLA landowner liability protections.
The legislative history of CERCLA and numerous judicial opinions clearly state that Congress intended all appropriate inquiries (AAI) to reflect evolving notions of "good commercial or customary practice."  The ASTM task force spent several years reviewing E1527 and current industry practices, and determined that E1527-13 needed to be revised because of the proliferation of inconsistent and deficient reports as well as to reflect current industry practices, particularly the scope of research into the historic use of properties. Thus, E1527-21 represents what the industry now considers to be "good commercial and customary practice". E1527-21 was also revised to response to some litigation involving deficient Phase I reports issued since E1527-13 became effective.   
EPA says in its proposed and direct final rule that retaining E1527-13 will provide brownfield developers and grantees with greater flexibility. However, the only flexibility EPA's approach will create is to give low-cost phase providers more freedom to issue deficient reports while potentially exposing brownfield developers and grantees to greater liability. In other words, the touted flexibility will be outweighed by the consequences of this approach. 
EPA's decision to approve ASTM E1527-21 while also allowing ASTM E1527-13 to remain as an acceptable alternative for complying with AAI, will create chaos and confusion in the marketplace. It will undermine AAI, expose these parties to potential liability and complicate brownfield redevelopment. Instead of allowing the industry to coalesce around one standard, the EPA's action will create a two-tier system. 
Permitting E1527-13 to continue to satisfy AAI will allow the providers of low-cost, inferior quality reports to continue to skimp on the kind of critical historical research that E1527-21 clarifies is necessary and consistent with good commercial and customary practices. By retaining the reference to E1527-13, EPA will enable the very shoddy work that ASTM tried to address when it issued E1527-21. 
Furthermore, retaining E1527-13 may continue to cause sites to be erroneously identified as having Recognized Environmental Conditions (RECs) instead of Controlled RECs (CRECs) which will cause an unknown number of brownfield sites to be unduly stigmatized since many developers and lenders are wary of sites with RECs. 

Moreover, the existence of dual standards with differing requirements will result in litigation challenging assertions of property owners or operators that they complied with AAI. Concurrent standards will also expose consultants to breach of contract and professional malpractice claims. 
As mentioned above, recent caselaw has injected uncertainty into what parties have to do to demonstrate compliance with AAI.  Retaining dual ASTM standards will cause property owners to become further confused over how to comply with AAI and could unnecessarily inject further uncertainty about liability concerns over brownfield sites, which already have a host of challenges. 
Since ASTM has concluded that E1527-13 no longer represented "good commercial or customary practice" and needed to be revised, EPA has a statutory obligation to select E1527-21 as the ASTM alternative standard for complying with AAI. EPA's action will actually contravene its Congressional direction for AAI to reflect evolving notions of good commercial and customary practice. 
Accordingly, I request EPA follow the process it previously used by withdrawing the direct final rule and issuing a new proposed rule recognizing that that E1527-21 may be used to satisfy AAI and removing the reference to E1527-13 for commercial real estate transactions after the effective date of the amended rule.

EPA Response:

   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.

EPA-HQ-OLEM-2021-0946-0017 (Duplicate of EPA-HQ-OLEM-2021-0946-0009)
Comment submitted by The New York City Brownfields Partnership
The New York City Brownfield Partnership (the Partnership) is submitting this comment to EPA's proposed rule (87 FR 14224-14227, March 14, 2022) and direct final rule amending 40 CFR Section 312.11 (87 FR 14174- 14177, March 14, 2022) proposing to and amending its All Appropriate Inquiries Rule (AAI) to reference the ASTM El527- 21 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" (El527-21) and allowing it use to satisfy the requirements of AAI. 1 The Partnership is a NYS incorporated nonprofit organization whose members include environmental consulting firms, environmental lawyers, environmental remediation contracting organizations, brownfield redevelopment organizations, and community-based organizations in New York City. Its mission includes advancing public awareness and understanding of benefits, opportunities, and best practices of brownfield redevelopment, promoting excellence in brownfield redevelopment by honoring successful brownfield projects as well as fostering collaborative relationships among brownfield developers, property owners, government agencies, and community groups. The Partnership recommends that the proposed rule and direct final rule remove the reference to the superseded ASTM E 1527-13 standard and explicitly disallow the continued use of El 527-13 to satisfy AAI. Allowing ASTM E 1527- 13 to remain as an acceptable alternative for complying with AAI will create chaos and confusion in the marketplace. El527-21 represents what the industry now considers to be "good commercial and customary practice". One of the important clarifications ofE1527-21 is the clarification on the scope of historical research that should be conducted for a phase 1. Comprehensive historical research is critical for brownfield development so that developers understand their potential risks. Allowing El527-13 to continue to satisfy AAI may lead to reports that provide inadequate historical research that E1527-2 l says no longer complies with current good commercial and customary practice. 1 The New York City Brownfield Partnership respectfully requests that the comment previously submitted to EPA on March 22, 2022 be deleted from the record and replaced in its entirety by the instant comment. Another important feature of E 1527-21 is the clarification about Controlled Recognized Environmental Conditions (CREC). Retaining E1527-13 will cause sites to be erroneously identified as having Recognized Environmental Conditions (REC) instead of CRECs which will cause many brownfield sites to be unduly stigmatized since many developers and lenders are wary of sites with RECs. Moreover, allowing two standards with differing requirements to satisfy AAI will cause property owners to become confused over how to comply with AAI and could unnecessarily inject further uncertainty about liability concerns over brownfield sites, which already have a host of challenges. When EPA recognized E1527-13, the agency removed the reference to the superseded El527-05 (see 79 FR 60087- 60090, October 6, 2014). Accordingly, the Partnership respectfully requests EPA follow the process it previously used by withdrawing the direct final rule and issuing a new proposed rule recognizing that that El527-21 may be used to satisfy AAI and removing the reference to El527-13 for commercial real estate transactions after the effective date of the amended rule.

EPA Response:

   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.

EPA-HQ-OLEM-2021-0946-0018 (Duplicate of EPA-HQ-OLEM-2021-0946-0010)
Comment submitted by The Brownfield Coalition of the Northeast

The Brownfield Coalition of the Northeast (BCONE) is submitting this comment to EPA's proposed rule (87 FR 14224-14227, March 14, 2022) and direct final rule amending 40 CFR Section 312.11 (87 FR 14174- 14177, March 14, 2022) proposing to and amending its All Appropriate Inquiries Rule (AAI) to reference the ASTM E1527-21 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" (El527-21) and allowing it use to satisfy the requirements of AAI. I BCONE is a NYS incorporated nonprofit organization whose members include environmental consulting firms, environmental lawyers, environmental remediation contracting organizations, brownfield redevelopment organizations, and community-based organizations in New York City. Its mission includes advancing public awareness and understanding of benefits, opportunities, and best practices of brownfield redevelopment, promoting excellence in brownfield redevelopment by honoring successful brownfield projects as well as fostering collaborative relationships among brownfield developers, property owners, government agencies, and community groups. BCONE recommends that the proposed rule and direct final rule remove the reference to the superseded ASTM E 1527-13 standard and explicitly disallow the continued use of E 1527-13 to satisfy AAI. Allowing ASTM E1527-13 to remain as an acceptable alternative for complying with AAI will create chaos and confusion in the marketplace. El527-21 represents what the industry now considers to be "good commercial and customary practice". One of the important clarifications of E 1527-21 is the clarification on the scope of historical research that should be conducted for a phase 1. Comprehensive historical research is critical for brownfield development so that developers understand their potential risks. Allowing El527-13 to continue to satisfy AAI may lead to reports that provide inadequate historical research that El527-21 says no longer complies with current good commercial and customary practice. Another important feature of E 1527-21 is the clarification about Controlled Recognized Environmental Conditions (CREC). Retaining EI 527-13 will cause sites to be erroneously identified as having 1 BCONE respectfully requests that the comment previously submitted to EPA on March 22, 2022 be deleted from the record and replaced in its entirety by the instant comment. Recognized Environmental Conditions (REC) instead of CRECs which will cause many brownfield sites to be unduly stigmatized since many developers and lenders are wary of sites with RECs. Moreover, allowing two standards with differing requirements to satisfy AAI will cause property owners to become confused over how to comply with AAI and could unnecessarily inject further uncertainty about liability concerns over brownfield sites, which already have a host of challenges. When EPA recognized E1527-13, the agency removed the reference to the superseded E1527-05 (see 79 FR 60087- 60090, October 6, 2014 ). Accordingly, the Partnership respectfully requests EPA follow the process it previously used by withdrawing the direct final rule and issuing a new proposed rule recognizing that that El527-21 may be used to satisfy AAI and removing the reference to El527-13 for commercial real estate transactions after the effective date of the amended rule.

EPA Response:

   In response to concerns raised by commenters regarding the potential confusion associated with the Agency's recognition of a historical standard no longer recognized by ASTM International as current, or no longer reflecting its current consensus-based, or customary business standard, the Agency will remove its reference to the ASTM E1526-13 Standard Practice for Environmental Site Assessments.  To provide parties with an adequate opportunity to complete AAI investigations that may be on-going and to allow all parties sufficient notice to become familiar with the updated industry standard (ASTM E1527-21), the Agency is providing for a sunset period for the removal of its recognition of the historic standard (ASTM E1527-13) as compliant with All Appropriate Inquiries.  The sunset period for removal of the reference to the ASTM E1527-13 Standard Practice for Environmental Site Assessments is one year from publication of this final rule.  A Phase 1 Environmental Site Assessment completed before that date using ASTM E1527-13 will be recognized as compliant with the All Appropriate Inquiries Rule.


