Response to Comments on Proposed Amendment to the 

Standards and Practices for All Appropriate Inquiries

December 2013

Office of Brownfields and Land Revitalization

Office of Solid Waste and Emergency Response
Response to Comments on Proposed Amendment to the 

Standards and Practices for All Appropriate Inquiries

1. Introduction

On August 15, 2013, EPA published a direct final rule to amend the All 

Appropriate Inquiries Rule to reference ASTM International’s updated standard 

practice for the performance of Phase I environmental site assessments, E1527-13 

“Standard Practice for Environmental Site Assessments: Phase I Environmental 

Site Assessment Process” and make clear that it may be used to satisfy the 

requirements for conducting all appropriate inquiries under CERCLA. A 

companion proposed rule, also published on August 15, 2013, invited comment on 

the direct final rule and stated that if EPA received negative comment on the 

proposal to reference the ASTM E1527-13 standard, the Agency would withdraw 

the direct final rule. EPA received adverse comments on the direct final rule and 

published a notice of withdrawal of the direct final rule in the Federal Register on 

October 29, 2013 (78 FR 64403). With today’s action, EPA is addressing the 

comments received in response to the August 15, 2013, proposed rule and 

finalizing the amendment to the Appropriate Inquiries Rule referencing the ASTM 

E1527-13 standard practice.
2. Response to Comments

The remainder of this document provides responses to issues raised by 

commenters on the proposed rulemaking. 

2.1 EPA Should Amend the All Appropriate Inquiries 

Rule to Reference ASTM E1527-13 as Compliant with 

the All Appropriate Inquiries Rule

Summary: Many commenters stated their support for EPA’s proposal to amend 

the All Appropriate Inquiries Rule at 40 CFR part 312 to reference ASTM 

International’s E1527-13 “Standard Practice for Environmental Site Assessments: 

Phase I Environmental Site Assessment Process” and make clear that it may be

used to comply with the All Appropriate Inquiries Rule. Most of these 

commenters voiced their support of the revisions included in the updated ASTM 

standard and stated that their organizations and clients would implement the use of 

the ASTM E1527-13 standard immediately. A few commenters pointed out that 

their current contracts with existing clients require that the most current version of 

ASTM E1527 phase I environmental site assessment standard be used when 

conducting all appropriate inquiries investigations.

Response: EPA agrees with these commenters. EPA believes that ASTM E1527-

13 improves upon the previous standard and reflects the evolving best practices 
and level of rigor that will afford prospective property owners necessary and 

essential information when making property transaction decisions and meeting 

continuing obligations under the CERCLA liability protections. In particular, the 

new ASTM E1527-13 standard enhances the previous standard with regard to the 

delineation of historical releases or recognized environmental conditions at a 

property and makes important revisions to the standard practice to clarify that all 

appropriate inquires and phase I environmental site assessments must include, 

within the scope of the investigation, an assessment of the real or potential 

occurrence of vapor migration and vapor releases on, at, in or to the subject 

property. EPA views these enhancements and clarifications to the ASTM standard 

as valuable improvements and strongly encourages prospective purchasers of real 

property to use the updated ASTM E1527-13 standard when conducting all 

appropriate inquiries.

2.2 The ASTM E1527-05 standard is sufficient and the 

new standard (ASTM E1527-13) is unnecessary. 

Summary: Several commenters stated that the revisions included in the updated 

ASTM International standard are not necessary and that EPA should only reference 

the ASTM E1527-05 standard in the All Appropriate Inquiries Rule. A few of 

these commenters stated that if EPA references both the E1527-05 and E1527-13

standards, there will be uncertainty regarding the degree of due diligence that is 

necessary to satisfy all appropriate inquiries.
Response: EPA is simply amending the All Appropriate Inquiries Rule to 

reference the new ASTM International standard and make clear that persons 

conducting all appropriate inquiries may use the procedures included in this 

standard to comply with the All Appropriate Inquiries Rule. Nevertheless, EPA 

disagrees with the commenters. The newly issued ASTM E1527-13 standard 

includes revisions to the previous ASTM 1527-05 standard that EPA views as 

improvements. These revisions reflect the evolving best practices and level of rigor 

that will afford prospective property owners necessary and essential information 

when making property transaction decisions. In particular, the new ASTM E1527-

13 standard enhances the previous standard with regard to the delineation of 

historical releases or recognized environmental conditions at a property and makes 

important revisions to the standard practice to clarify that all appropriate inquires 

and phase I environmental site assessments must include, within the scope of the 

investigation, an assessment of the real or potential occurrence of vapor migration 

and vapor releases on, at, in or to the subject property. 

EPA is taking under consideration the concerns raised by commenters who 

assert that parties will be confused about the level of due diligence required 

because EPA in the All Appropriate Inquiries Rule will continue to reference the 

ASTM E1527-05 standard, as well as reference the ASTM E1527-13 standard. As 

an initial matter, the baseline standard for conducting all appropriate inquiries 

remains the standards and practices set forth at 40 CFR Part 312. EPA’s action in 

this rule simply recognizes that the new ASTM standard may be used to comply 

with Part 312. EPA notes in this regard that, unlike in certain other regulatory 

circumstances, these ASTM standards do not comprise a federal regulation or 

standard, nor are they incorporated by reference into the federal regulation. 

Section 101(35) of CERCLA authorizes the EPA to promulgate regulations to 
establish standards and practices for conducting all appropriate inquiries, and it 

does not require that EPA use any industry-developed standard. EPA has 

consistently taken the position that the standard for compliance with all appropriate 

inquiries is Part 312 itself, rather than any private or industry-developed standard. 

For instance, in responding to an EPA Office of Inspector General report on 

compliance with all appropriate inquiries in the context of brownfields assessment 

grants, the Office of General Counsel (OGC) explained, “Although the AAI rule 

provides that certain ASTM standards ‘may be used to comply with’ federal AAI 

requirements, 40 CFR 312.11, OGC believes this wording makes clear that the 

standard for compliance remains the AAI rule itself.” Memorandum from John 

Michaud, Deputy Associate General Counsel, to Mathy Stanislaus, Assistant 

Administrator, at 2 (March 3, 2011) (emphasis added), available at 

http://www.epa.gov/oig/reports/2011/11-P-0107_Agency_Response.pdf. In 2008, 

when EPA issued a rule recognizing the ASTM E2247-08 “Standard Practice for 

Environmental Site Assessment Process for Forestland or Rural Property,” EPA 

similarly understood its action as establishing an additional method of compliance 

with Part 312 that would “provide additional flexibility” to practitioners. EPA 

explained that those using ASTM E2247-08 “will be considered to be in 

compliance with the requirements for all appropriate inquiries” without altering the 

ability of others to use either ASTM 1527-05 or the AAI rule itself. 73 FR 78718 

(December 23, 2008). Finally, in 2005, when EPA first issued the AAI rule and 

recognized the ASTM 1527-05 standard, EPA stated “The Agency determined that 

this voluntary consensus standard is consistent with today’s final rule and is 

compliant with the statutory criteria for all appropriate inquiries.” 70 FR 66081 

(November 1, 2005). EPA also stated its intent to allow for the use of new 

“applicable and compliant voluntary consensus standards” (emphasis on the 

plural), while avoiding “disruption to parties using voluntary consensus standards 
that are found to be fully compliant with the federal regulations.” Id. Thus, in 

Agency statements from 2005, 2008, and 2011 the Agency took the same position 

that it maintains today, which is also reflected in the text of 40 CFR 312.11: parties 

may use industry standards to comply with Part 312, but the standard for 

compliance is the AAI rule itself. 

Today’s regulatory action is therefore more limited in nature than is 

presumed by these comments: EPA has reviewed the ASTM E1527-13 standard, 

determined that it complies with the AAI rule, and is issuing this rule to amend the 

references section of Part 312 to make clear that the ASTM E1527-13 standard 

may be used. However, given that ASTM International recently replaced the 

E1527-05 standard with its E1527-13 standard for the conduct of Phase I 

Environmental Site Assessments and now labels the ASTM E1527-05 Standard a 

historical standard and establishes that the revised standard is the only standard 

reflecting the current consensus of the responsible ASTM International technical 

committee, EPA is considering removing the reference to the E1527-05 standard in 

the All Appropriate Inquiries Rule. EPA intends to publish a proposed rulemaking 

in the near future that will request comment on a proposal to amend the All 

Appropriate Inquiries Rule to remove the current reference to the historical 

standard (ASTM E1527-05).

Further, many other commenters point out that the market will quickly 

transition to use the updated and most recent version of the ASTM International

standard. EPA anticipates that those conducting or relying on the ASTM

International standard for the conduct of All Appropriate Inquiries will generally 

adjust to using the updated standard, particularly in light of the fact that ASTM

International will label the ASTM E1527-05 Standard a historical standard and 

establish that the revised standard, the E1527-13 standard, is the only standard 
reflecting the current consensus of the responsible ASTM International technical 

committee.

2.3 EPA Should Only Reference the ASTM E1527-13 

Standard and Remove the Reference to the ASTM 

E1527-05 Standard

Summary: Some commenters asserted that EPA should only reference the 

updated ASTM International standard and remove the reference to the ASTM 

E1527-05 standard in the All Appropriate Inquiries Rule. Commenters stated that 

referencing both versions of the ASTM standard will create confusion. A few 

commenters stated that if EPA continues to reference both versions of the standard, 

prospective purchasers of commercial property will not embrace the transition to 

the new revised standard. At least one commenter argued that certain 

enhancements included in the revised ASTM standard E1527-13 (e.g., more 

rigorous file reviews) will increase the cost of conducting an AAI investigation, if 

the new standard is used. Therefore, the commenter asserts, if EPA continues to 

allow the use of the ASTM E1527-05 standard, practitioners will not use the 

revised standard. The commenter argues that EPA therefore should remove the 

reference to the E1527-05 standard to ensure that parties only can use the E1527-

13 standard.

Response: EPA disagrees with the premise of these comments for the same 

reasons given in section 2.2 above in response to those commenters who requested 

that EPA not recognize the ASTM E1527-13 standard at all. EPA’s prior 

determination to reference the ASTM E1527-05 standard was based upon the 

Agency’s finding that conducting a phase I environmental site assessment using 

the ASTM E1527-05 standard satisfies the requirements for conducting all 

appropriate inquiries under CERCLA. Further, EPA’s intent in referencing the 
ASTM E1527 standards is to allow for the use of applicable and compliant 

voluntary consensus standards to facilitate implementation of the All Appropriate 

Inquiries Rule and avoid disruption to parties using voluntary consensus standards 

that the Agency finds to be compliant with the federal regulation. See 70 FR 

66081 (November 1, 2005). By referencing voluntary consensus standards as 

compliant, the Agency is not requiring that parties use these standards. Parties can 

comply with the standards and practices included in the Appropriate Inquiries Rule

at 40 CFR 312 without using either of the currently referenced ASTM standards. 

Therefore, EPA did not consider differences in implementation costs between the 

two ASTM standards to be a relevant or legitimate reason for EPA to reference one 

standard over the other.

Although EPA is not removing the reference to the ASTM E1527-05 

standard in the All Appropriate Inquiries Rule, EPA agrees with the commenters’ 

statements indicating that the revised ASTM standard includes valuable 

enhancements and improvements over the 2005 version of the standard. In the 

preamble to EPA’s final rule, EPA states that it recommends that parties use the 

newer version of the standard. The newly issued standard includes revisions to the 

previous standard that EPA views as improvements as discussed above and in the 

preamble. EPA has further explained in the preamble that the Agency may, in its 

discretion, review the standards and practices for all appropriate inquiries at 40 

CFR Part 312, and as it determines appropriate, revise those standards and 

practices. However, such a review and revision process is well beyond the scope 

of today’s action. Although outside the scope of today’s action, the Agency intends

to publish a proposed rule in the near future and take public comment on removing

the current reference in the AAI Rule to the ASTM E1527-05 standard. The 

revised ASTM E1527-13 standard is now available from ASTM International and 
ASTM International explained that the ASTM E1527-13 standard is the only 

standard that reflects the consensus of its technical committee. Therefore, EPA will 

publish a proposed rule to remove the current reference in the Appropriate 

Inquiries Rule Rule to the historic standard. Such action will remove any 

confusion promted by the regulatory reference to a standard that does not 

correspond to ASTM International’s consensus practice. The Agency determined 

that this would be best done through a separate rulemaking process in order to give 

the public an opportunity to review and comment on that proposed action.

Many commenters stated that the organizations and companies that they 

represent will quickly transition to the new ASTM E1527-13 standard when 

conducting phase I environmental site assessments. These commenters also

asserted that the market will transition smoothly to the new standard without delay. 

Commenters stated that on-going contracts for the performance of Phase I 

environmental assessment services often include clauses requiring the use of the 

most recent, or latest, industry standard available. EPA intends to monitor the 

uptake of the new ASTM E1527-13 across the commercial and industrial real 

estate sector to see if these expectations are borne out.

Finally, to the extent parties are conducting all appropriate inquiries to avail 

themselves of a CERCLA liability protection, EPA has found that courts look to 

many case-specific factors in determining the sufficiency of a site investigation. 

Courts have rejected CERCLA defenses where the parties’ alleged ignorance of 

contamination at a site amounted to “willful or negligent blindness.” See, e.g.,

United States v. Monsanto, 858 F.2d 160, 169 (4th Cir. 1988); Adobe Lumber, Inc. 

v. Hellman, 658 F. Supp. 2d 1188, 1206-07 (E.D. Cal. 2009). Courts generally 

require case-specific factual evidence in order to make determinations regarding 

what may be reasonable to expect a party to know regarding conditions at a site. 
See Western Props. Serv. Corp. v. Shell Oil Co., 358 F.3d 678, 688 (9th Cir. 2004) 

(“Even if [the party] had not known of the acid sludge pits, the statutory 

requirement that it . . . ‘carr[y] out all appropriate inquiries’ would prevent it from 

claiming it had no reason to know of the cow-eating pits.”); accord United States 

v. Serafini, 706 F. Supp. 346, 353 (M.D. Pa. 1988) (“After analyzing the evidence 

in the light of [the CERCLA Section 101(35)] factors, the court is unable to find 

that the defendants’ inaction was inappropriate under the facts of this case.”) 

(emphasis added). 

Even in cases where environmental investigations were performed, courts 

look to the quality of the investigation and the reasonableness of the conclusions 

reached as a result of that investigation. At least one court has rejected an innocent 

landowner defense where the party’s environmental consultant, in conducting the 

site assessment, neglected to review public records and did not recommend further 

sampling after contamination was found. See 500 Associates v. Vermont American 

Corp., 768 F. Supp.2d 914, 921 (W.D. Ky. 2011) (noting the party’s “unreasonable 

reliance upon a cursory environmental audit” and that the party “unwisely chose to 

rely on its auditor and do nothing further to investigate”).1

EPA believes that site-specific circumstances and conditions will continue to 

inform the courts’ review of the strength and satisfactoriness of parties’ conduct of 

all appropriate inquiries, under both the ASTM standard and the all appropriate 

inquiries rule. Indeed, many aspects of the AAI rule require the exercise of 

professional judgment with respect to site-specific circumstances. See, e.g., 40 

CFR §§ 312,21(c) (calls for an opinion on whether conditions are indicative of 

 

1

The foregoing case law discussion is not intended to reflect EPA’s agreement or disagreement with the holdings 

of these cases, and they do not necessarily reflect the policy or legal views of the Agency. EPA is mindful that these 

cases generally involved circumstances that arose prior to the 2002 Brownfields Amendments and the issuance of 

the AAI regulations. This discussion is intended to highlight the general approach that courts have taken in 

applying the “reason to know” standard in CERCLA. 
releases), 312.24(b) (calls for professional judgment on how far back to search 

historical records), 312.26(d) (calls for professional judgment in determining the 

geographic scope of search distance for government records), 312.27(c)(3) (calls 

for comments on the significance of inability to conduct visual inspection), 

312.28(b) (takes into account relevant and applicable specialized knowledge and 

expertise), 312.30(c) (calls for evaluation of information taken together as a 

whole), and 312.31(b) (calls for opinion on whether additional investigation is 

appropriate). Because “the burden of potential CERCLA liability ultimately falls 

upon the property owner or operator” (70 FR at 66082), EPA believes that parties 

conducting AAI for this purpose have a strong incentive to ensure that the 

investigation is done thoroughly and properly.

2.4 ASTM International’s Process for Reviewing and 

Updating Previously Issued Standards

Summary: A few commenters raised issues related to ASTM International’s 

process for reviewing and updating its previously issued standards. Commenters 

raised issues related to the transparency of the process and the membership of the 

task groups participating in the standards development process. One commenter 

stated that he was a member of the ASTM task force responsible for updated the 

E1527 phase I environmental site assessment standard and characterized task 

group discussions as “controversial.” The commenter stated that because the task 

group discussions included some controversy between task group members, EPA 

should not characterize the resultant changes to the E1527 phase I environmental 

site assessment as clarifications and not significant.

Response: EPA is not requiring that the public use ASTM International’s revised 

standard to comply with the All Appropriate Inquiries Rule. Instead, EPA is 

simply amending the rule to reference the revised standard and make clear that 
persons may use it to comply with the standards and procedures set forth in the 

rule. Nevertheless, EPA disagrees with the commenters. EPA staff participating in 

ASTM International’s standards development process found the process of 

reviewing and updating standards to be very open. During the development of 

standards and guides, input and comments are accepted from any member 

interested in the standard, regardless of the party’s voting status. ASTM 

International develops all standards via a consensus-based process. It also is EPA 

staff experience that ASTM International carefully monitors committee 

membership for balance among stakeholder groups. Due to this balance, task 

group discussions related to some proposed changes to any particular provision of 

a standard may center upon controversies or differences in opinions between 

members. 

2.5 Specific Regulatory Provisions under the All 

Appropriate Inquiries Rule (e.g., the definition of 

environmental professional)

Summary: Some commenters submitted comments related to the specific 

provisions of the All Appropriate Inquiries Rule. In particular, several parties 

submitted comments requesting that EPA change the definition of “environmental 

professional” included in the rule at section 312.10.

Response: EPA did not propose any changes to the All Appropriate Inquiries 

Rule’s standards and practices and did not request comment on the content of the 

All Appropriate Inquiries Rule. Therefore, the comments that were directed 

toward settled aspects of the All Appropriate Inquiries Rule are outside the scope 

of this rulemaking and do not call for a response. Today’s action only amends the 
All Appropriate Inquiries Rule to reference the ASTM E1527-13 standard practice 

for the conduct of phase I environmental site assessments.

2.6 Specific Provisions of ASTM International’s E1527-13 

Standard

Summary: Several commenters commented on specific revisions included in the 

ASTM E1527-13 standard. A few commenters stated that the revised standard is 

fundamentally flawed because the task group assigned to review and update the 

standard “seems to have been dominated by consultants bent on driving the lowcost, high-volume ‘phase I’ mills out of business”. Other commenters indicated 

that compliance with the ASTM E1527-13 standard would result in higher costs 

than the costs associated with conducting a phase I environmental site assessment 

using the ASTM E1527-05 standard due to the revised standard’s increased rigor 

with regard to the environmental data file review provisions. 

Response: EPA only proposed to reference the ASTM E1527-13 standard in the 

All Appropriate Inquiries Rule and therefore make clear that parties may use the 

standard to comply with the rule. Although commenters raised issues with or 

expressed their dislike with certain provisions of the ASTM E1527-13 standard, 

none of the commenters provided arguments or evidence indicating that the use of 

the ASTM E1527-13 would result in a party not being in compliance with the All 

Appropriate Inquiries Rule. Moreover, the Agency is not requiring parties to use 

the ASTM E1527-13 standard to comply with the All Appropriate Inquiries Rule.