ASTM published the new Phase I ESA standard, E 1527-13, on Wednesday, November 6th while EDR’s Due Diligence at Dawn workshop was taking place in Chicago. Since then, questions from environmental professionals have been streaming in to ask about the clarifications to the Phase I practice under E 1527-13, EPA’s amendment to the AAI rule, and the timing of the transition. Below, in this first Q&A brief on the new standard, are some of the most common questions that have come in so far.
Question: Apparently on October 29, 2013, the U.S. EPA withdrew its approval of the new ASTM standard in a Federal Register notice. Where does that leave the industry as far as the -13 standard?
Answer: The U.S. Environmental Protection Agency is amending the AAI rule (40 CFR Part 312) to recognize E 1527-13 as acceptable for the purposes of CERCLA liability protection. The October notice was just procedural, and did not signify that the agency was backing away from recognizing E 1527-13 standard as AAI-compliant. Back in August, EPA published a direct final rule recognizing E 1527-13 as AAI-compliant and opened up the public comment period. Federal agencies may only issue a direct final rule if no adverse comments are submitted. If none were received, EPA’s rule would have taken effect on November 13. As soon as one adverse comment was submitted, the agency had to abandon that route (as it did in the Oct. 29 notice) and instead switch to using the more traditional rulemaking process (proposed rule, comment period, final rule with preamble responding to comments). The first two steps of that process are complete, and EPA is now in the approval process of its direct final rule to amend the AAI rule and recognize E 1527-13. [Julie Kilgore, chair of the ASTM Phase I Task Group addressed this issue in more detail during our October 1st webinar.]
Question: My clients are still not clear about the distinction between vapor migration and vapor intrusion. And where specifically in E 1527-13 does it change how vapor risk is addressed in the Phase I ESA?
Answer: When volatile chemicals in buried wastes or contaminated groundwater emit vapors, these vapors may migrate through subsurface soils and into indoor air spaces of overlying buildings, resulting in vapor intrusion. The new ASTM E 1527-13 standard reflects new language bringing the standard in line with CERCLA, which does not differentiate among the form of contamination (soil, liquid, vapor).
There are three areas of revision pertaining to vapor risk in the -13 standard:
1. 3.2.2 adds the word vapor to the definition of “activity and use limitations” the purpose of which is “to reduce or eliminate potential exposure to hazardous substances or petroleum products in the soil, soil vapor, groundwater and/or surface water on the property…”
2. 3.2.56 adds a new definition of migrate/migration to refer “to the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface.”
3. 126.96.36.199 (and X5.8) clarifies that “indoor air quality” is a non-scope consideration only if it is unrelated to releases of hazardous substances or petroleum products.
The new standard also references the E 2600 Guide for Vapor Encroachment Screening Standard. Under the new language, vapor migration must be considered no differently in the Phase I ESA process than contaminated groundwater migration. According to Anthony Buonicore, a speaker at our fall DDD workshops, “If the Phase I ESA indicates that vapor is on or likely to encroach upon the property, then the EP typically will use the state VI guidance to assess whether or not the vapor encroachment represents a REC. The client may then opt to have indoor air testing conducted to determine if migration has resulted in vapor intrusion.”
Going back to the original question, there is an important distinction between the terms “vapor intrusion” and “vapor migration.” It is not within the scope of a Phase I ESA to evaluate the potential for vapor to be present inside a building as the result of a release (vapor intrusion), but it is within the scope to identify the presence or likely presence of hazardous substances or petroleum products on the property due to a release, based on an understanding of the various pathways and how contamination is likely to migrate on to the property. This important issue was also addressed during yesterday’s monthly call of the Environmental Bankers Association’s Risk Management Committee. During the call, Christopher Roe, attorney at Fox Rothschild LLP gave a presentation on vapor risk and noted:
“E 1527-13 does not require vapor intrusion evaluations, which rely on information beyond what you get in a Phase I. Vapor encroachment, though, is another issue. It’s about whether a hazardous substance may be present in the form of vapor migration, and nothing in the underlying law (i.e., CERCLA or the AAI rule) allows for carving hazardous substances or petroleum products in vapor form out of the REC term in the Phase I standard.” Stated another way, if an environmental professional disclaims all consideration of vapors in the Phase I ESA report, “then it is not an AAI-compliant report.”
Question: ASTM E 1527-13 was published, but EPA hasn’t yet approved it for use as AAI-compliant Phase I ESA. So what should we be using in the interim? Is ASTM E 1527-13 effective now? Or not until EPA comes out with its final rule to amend AAI and recognize -13 as AAI-compliant?
Answer: As Julie Kilgore stated in an email to the Task Group this week, “there is no need for immediate transition, but also no particular need to hold off implementation.” EPA’s proposed rule already signals to the industry that the agency determined that E 1527-13 meets the requirements of AAI. Julie also shared a recent correspondence from Patricia Overmeyer, the Land Revitalization Coordinator in EPA’s brownfields office and the point person for the AAI rule on the topic. Overmeyer’s response is included here with permission:
“I anticipate that we will publish a final rule referencing the E1527-13 standard and stating that it can be used to comply with AAI by the end of the calendar year. In the meantime, I am encouraging folks to go ahead and use the new standard (E1527-13). If you comply with E1527-13, you essentially are compliant with E1527-05 (only with a bit more rigor). If clients are nervous, I suggest that in the “conclusions” section, state: “We have performed a Phase I Environmental Site Assessment in conformance with the scope and limitations of ASTM Practice E1527-13 and E1527-05 of …”
Question: What if I already had a Phase I ESA project underway when -13 was published?
Answer: There is no need to change the scope of work mid-stream. It is acceptable to finish old projects and implement the new standard moving forward as the industry transitions over the current standard of care.
Question: Who has adopted the -13 standard at this point?
Answer: There are environmental consulting firms that immediately issued client alerts or updated their web sites as soon as E 1527-13 was published to announce that they switched over to the current standard. Likewise, a number of lending institutions with risk managers that have been watching the revision process closely were poised to start using -13 as soon as it took effect. Many had already updated their scopes of work and reviewed with approved consultants on how Phase Is would now address vapor risk, agency file reviews and CREC-HREC determinations. Other institutions are waiting until EPA’s final rule is published to make a decision. At the federal agency level, AEI reported in a client alert yesterday that Freddie Mac is requiring E1527-13 since their Guide requires use of the most current standard, SBA is allowing a grace period where reports meeting either E 1527-05 or E 1527-13 will be accepted until EPA announces its formal recognition of E1527-13, and Fannie Mae will require the use of the most current standard, now 1527-13, on any reports ordered on or after February 1, 2014.
Questions about E 1527-13 or the AAI rule? Send them to us and we may feature them in a future Q&A!