NEWS FLASH: EPA Promulgates Amendment to AAI Rule

EPA Seeks to Reduce Confusion in AAI Rule Referencing Historic E 1527-05 Standard

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This morning, the U.S. EPA promulgated a final rule to amend the AAI rule under CERCLA to remove the reference to the old ASTM E 1527–05 standard. In November 2013, ASTM International designated this standard a ‘‘historical standard’’ and replaced it with the updated ASTM E1527–13 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.’’ EPA’s stated purpose for today’s action is to:

“…reduce any confusion associated with the regulatory reference to a historical standard that is no longer recognized by its originating organization as meeting its standards for good customary business practice.”

Timeline of Major Milestones

November 2005 – EPA promulgates first federal All Appropriate Inquiries rule under CERCLA recognizing the E 1527-05 standard as AAI-compliant.
December 2008 – EPA approves use of ASTM Phase I Environmental Site Assessment Process for Forest Land and Rural Property E2247-08 for the purposes of meeting AAI under CERCLA.
November 2013 – ASTM publishes an updated ASTM E 1527-13 standard, which is currently recognized as the industry consensus-based standard to conduct AAI under CERCLA.
December 2013 – U.S. EPA promulgates a final rule indicating that parties who acquire potentially contaminated properties and brownfields grantees using EPA brownfield grant funding to conduct site characterizations and assessments may use the ASTM E1527–13 standard practice when conducting AAI.
June 2014 – EPA opens public comment period to remove ASTM E 1527-05 reference from the AAI rule.
September 2014 – EPA responds to minimal public comments on its proposed rule.
Today – EPA promulgates final rule removing -05 reference, stating that: “Any party who wants to meet the provisions under CERCLA to conduct all appropriate inquiries may follow the standards and procedures set forth in the AAI Rule at 40 CFR part 312 or use the new ASTM E1527–13 standard, as provided in the AAI Rule.”

Key Points from Today’s Action

On VAPOR MIGRATION RISK: EPA’s final rule also emphasizes that “the scope of the AAI Rule and the ASTM E1527–05 standard always included the requirement to identify all indications of releases and threatened releases of hazardous substances, or ‘‘recognized environmental conditions (RECs),’’ including indications of vapor migration or vapor releases. With the updates included in the 2013 version of the ASTM E1527 standard, ASTM modified the definition of migration to specifically include vapor migration and remove any confusion regarding the need to identify all RECs, or all indications of releases or threatened releases of hazardous substances, when conducting an AAI investigation.”

On TIMING: The effective date for this final rule, which removes the reference to the ASTM E1527–05 standard, will be October 6, 2015 allowing one year for for AAI investigations initiated or ongoing at the time of publication of today’s rule to be completed or updated prior to the effective date.

On OTHER METHODS: EPA expressly states that today’s action “does not prevent parties from continuing to use other standards, methods, or customary business practices for conducting all appropriate inquiries, so long as they comply with the standards and practices set forth in the AAI Rule. Instead, today’s proposed action removes the reference to a standard that ASTM International no longer recognizes as current since it no longer represents the most recent consensus-based standard.”

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FOR MORE INFORMATION

Link to today’s final rule, U.S. EPA, 40 CFR Part 312, EPA–HQ–SFUND–2014–0474; FRL–9917–28–OSWER, Amendment to Standards and Practices for All Appropriate Inquiries, October 6, 2014

Public docket for today’s action, including public comments EPA-HQ-SFUND-2014-0474.

EDR Insight’s summary of EPA’s response to public comments