Q&A with the Experts on AAI and Release of ASTM E 1527-13
On October 1st, EDR Insight hosted a webinar, titled The Inside Word on AAI and the ASTM E 1527-13 Standard. We were fortunate to have two of the experts closest to the ASTM process share with our 1,700 attendees the latest status of the U.S. EPA’s amendment to the All Appropriate Inquiries rule and publication of the new ASTM Phase I ESA standard.
Teaming up for the event were:
Julie Kilgore, the well-known chair of the ASTM E 1527 Task Group, and President of Wasatch Environmental, and
Attorney Bill Weissman, member of ASTM E50 Executive Subcommittee and retired partner of Venable LLP (Washington, DC) where he represented private clients on EPA regulatory issues for more than a quarter century.
Due to the high volume of questions submitted during the live event, we were unable to address all of them in the available time frame. The questions we did not answer during the webinar are organized below by general topic, followed by answers provided post-event by Julie and Bill:
Question: Since E 1527-05 was released, how frequently has the defense to CERCLA liability been successful mainly because of demonstration of compliance with AAI prior to purchase?
Answer: We don’t have any statistics about reliance on compliance with AAI as a basis for asserting a CERCLA defense. Few reported cases involving claims of a CERCLA defenses have been successful, but in most of the cases, the denial of the defense has been due to failure to demonstrate satisfaction with one or more of the continuing obligations application after purchase of the property.
Question: Under the existing federal brownfields law (CERCLA Section 128(b)), Congress expressly provided a federal enforcement bar under CERCLA Sec. 106(a) or 107(a) to all landowners/developers who have enrolled their brownfield site into the State Response Program and who are successfully completing (or have completed) the state prescribed remedial action. Has ASTM Committee considered adding a section referencing this important federal enforcement bar? If not, is this on the table for next time?
Answer: There is no discussion of the CERCLA enforcement bar in E1527-13 but such a discussion has been included in the Legal Appendix to ASTM E2790-11 Standard Guide for Identifying and Complying with Continuing Obligations §X1.3.5. If users of E1527-13 believe that such a discussion should be added in the next revision of E1527, the task group could consider such a request at the time of the next renewal.
On AAI vs. ASTM E 1527-05 vs. E 1527-13
Question: Please clarify–the AAI rule has not and will not change. AAI and ASTM E1527-05 are NOT the same and TWO standards were referenced in AAI. AAI is different from ASTM E1527-05 which is different from ASTM E1527-13. Why is it a problem to reference all THREE from EPA?
Answer: Multiple standards can satisfy the criteria of the AAI rule because EPA’s determination is based on a finding that each standard is at least as stringent as the AAI rule. However, as a practical matter, references to an “outdated,” or superseded standard, may confuse users into believing that the multiple standards are equally meritorious when that is not so. The ASTM task group that developed the E1527-13 standard believes that the 2013 version is better than the 2005 version because it clarifies ambiguous and confusing language in the 2005 standard that some environmental professionals have misunderstood in the past. Some are concerned that if EPA does not clarify that the 2013 supersedes the 2005 version, some will view the 2005 version as a “lower cost” approach to AAI under the mistaken interpretation that it allows EPs to continue ignoring issues or procedures that are clarified in the 2013 version.
Question: What happens if you are in the middle of conducting an E 1527-05 Phase I ESA, and then ASTM publishes E 1527-13?
Answer: It is up to the environmental professional and the client as a matter of implementing the contract between them. Nothing prevents proceeding under the 2005 standard so long as the implementation is consistent with the AAI rule. The clarifications in the new standard should guide environmental professionals in construing the 2005 version if they have begun their assessment using E1527-05.
Question: Why are you calling the 2005 version Phase I a “low-cost” alternative when the 2013 standard compliant Phase Is should not “cost” much more if you were doing it properly under the 2005 standard?
Answer: We do not believe the 2005 standard is a “low cost” alternative to the 2013 standard. We believe there are no material cost differences between the two standards. When we spoke of a“low cost” alternative, we were referring to references made by others who are concerned that a minority of environmental professionals have misconstrued some ambiguous provisions in the 2005 standard as discretionary steps that they could omit without providing an explanation in the environmental professional’s report. Based on these interpretations, this minority group of environmental professionals was offering a lower cost but inadequate/incomplete AAI assessment.
Question: The copy of the new standard that is in EPA’s docket is labeled as “1527-12.” Is this the same as the E 1527-13 standard as proposed by ASTM? If not, where can we get a copy of the final language (before publication)?
Answer: The version in the EPA docket is E1527-13. The E1527-12 label stems from the timing of the final ASTM ballot approving the standard which occurred at the end of 2012. The numerical suffix “-13” is based on the date of official ASTM publication, which we anticipate will likely occur in November 2013. There will be no substantive changes to this version, but there may be corrections of typographical or citation errors.
Question: So if the new standard is available in November, but the EPA’s rule comes after, when is the actual effective date of the new standard; when ASTM publishes it or when the EPA publishes it?
Answer: The effective date of the new standard is determined by the date of ASTM’s publication. Since the EPA reference is nothing more than a finding that E1527-13 is compliant with the AAI rule, and the Direct Final Rule was a preliminary finding to that effect , once that finding is published in the Federal Register, Phase I ESA’s using E1527-13 will be deemed compliant with the AAI rule whether they occurred before or after publication of the EPA reference.
Question: If 1527-05 is still compliant with AAI, how then would 1527-13 affect AAI compliance since AAI has not changed?
Answer: Both E1527-13 and a properly interpreted E1527-05 are compliant with the AAI rule. Both exceed the regulatory baseline that the AAI rule establishes.
Question: Where can I get a copy of the comparison of E1527-05 and E1527-13?
Answer: A copy is available in EPA’s public docket.
Question: Can you briefly state 10 elements of the E 1527-05.
Answer: The ten criteria that EPA was required by Congress to include in the AAI rule are summarized in the Legal Appendix of E1527-05 §X184.108.40.206 and E1527-13 §§X1.5.2-X220.127.116.11.
Question: Why not combine ASTM and AAI? Why are there two rules for the same issue?
Answer: AAI is a legally binding regulation that establishes a compliance floor for those performing an environmental site assessment prior to acquisition of a property with a possible goal of qualifying for a CERCLA liability defense in the event of future CERCLA litigation, or a Brownfield grant. The ASTM standards are not rules, but are private consensus standards developed by a wide range of stakeholders with the aim of satisfying the minimum criteria of the AAI rule. In other words, AAI is the regulation, and the ASTM standard provides more detailed guidance on how to achieve compliance with that regulation. The ASTM standard to use at a particular property is a voluntary choice by the regulated community. Earlier versions of the ASTM E1527 standard had achieved widespread market acceptance and Congress and EPA had identified the 1997 and 2000 ASTM E1527standards as interim standards sanctioned by law. Following enactment of the 2002 Brownfields Amendments, many industry representatives expressed a preference for continued use of the ASTM E1527 standard (subject to updating to reflect the additional criteria required by the statute). In sum, the AAI rule exists because EPA has complied with a statutory directive. ASTM E1527-13 exists to satisfy market demand.
Question: What are the other standards that are recognized as AAI compliant?
Answer: In addition to the 2013 and 2005 versions of E1527, EPA has also referenced as compliant with the AAI rule ASTM E2247-08 Standard Practice for Environmental Site Assessments: Phase I Site Assessment Process for Forestland or Rural Property.
Agency File Reviews
Question: Could you further clarify reasonable time/cost for file reviews?
Answer: The reasonable time/cost definition has not changed. The current and previous E1527 versions define reasonable time as 20 calendar days from the date of request, and cost of retrieving and duplicating.
Question: If no file review due to timing is a significant data gap, and the ESA is finalized with a recommendation to do the file review, is AAI complied with (can the User buy the property at that point)?
Answer: The lack of a file review that results in a significant data gap that affects the ability of the EP to form opinions about RECs should be treated as any other significant data gap. The EP needs to follow the procedures set forth in standard and the AAI regulation specifically outlined for significant data gaps. If those procedures are followed, the technical components of AAI may be satisfied. The existence of a data gap is not a legal barrier to purchasing the property. The real question then becomes whether a buyer of property is prepared to satisfy any continuing obligations once the buyer purchases the property. A significant data gap during the course of the AAI does not relieve a buyer of post-acquisition continuing obligations.
Vapor intrusion-Vapor migration
Question: So don’t say “potential” for vapor intrusion – stay away from that? But keep it to “potential” for vapor migration?
Answer: For the purposes of a meeting the requirements of E1527, that is correct.
Question: Older closed cases may not have considered vapor migration issues. Would a closed case that recognized a contaminant plume but did not consider vapor migration potential still be an HREC or does the EP need to apply new evaluations to determine whether it may be a REC?
Answer: Once the 2013 is published, remember that a closed site that acknowledges the presence of a contaminant plume is going to be a REC, but it might satisfy the criteria for a CREC. The HREC will only apply if the conditions on the subject property have been addressed to meet unrestricted residential use. So, the answer depends. The EP needs to look to at the data.
Question: Can you clarify again. Did you say that 1527-13 Does NOT require that vapor encroachment be addressed in a Phase I using E2600-10 guidance?
Answer: Correct. The E2600-10 is cited as a tool to assist the EP in evaluating the potential for vapor migration, but it is not a requirement to utilize E2600 for that evaluation.
Question: Does a site have to receive regulatory closure to be considered a CREC, or does a site in late stages of remediation (i.e. groundwater monitoring under natural attenuation) qualify?
Answer: If the release has not yet reached that point of “acceptable” or “allowable” risk-based concentrations, then the CREC definition would not yet apply because natural attenuation has not yet reached that level accepted by the regulatory authority. There are many other situations where a release may be in the “late stages of remediation” where a bit more work still needs to be done. It would be very risky to classify that as a CREC because whether it’s active remediation or natural attenuation, you’re not quite there yet. The CREC is intended to capture those releases that have met regulatory criteria, though the closure might be conditioned on on-going monitoring to demonstrate that criteria continue to be met.
Question: Regarding a HRECvs.CREC. Scenario: A drycleaner has been remediated with an NFA letter issued with a completed cleanup. This would be an HREC. However, there is now a mandate of an institutional control on the former drycleaner, being no PERC operations allowed onsite. Is this a form of CREC, being controlled albeit ‘institutional’ but still an HREC?
Answer: If the remediation meets unrestricted residential use – you could put a daycare in that tenant space (without the need for engineering controls), then this would meet the HREC definition. If, however, constituents of concern have been allowed to remain in place, and the institutional control has been placed on the property that does not allow the future use of PERC so as to not exacerbate the condition, here the mandate of an institutional control would make this situation a CREC. Remember, HREC and CREC are opposites – HREC is not a REC, CREC is a REC – you cannot have both at the same time.
Question: On HREC topic, if an NFA was received but you know standards for COCs have changed, do you need to review remedial reports to determine that still not a REC? if not reviewed, is it a REC? is it a data gap?
Answer: Regarding Questions #1, Yes, and that is a requirement under the current E1527-05 HREC definition. Regarding Question #2/3, if the information is not available and is not reviewed, then yes, that would be a data gap. Whether the EP decides to call that a REC or not may be a judgment call (maybe the release/data is quite old but the EP assumes natural attenuation has likely occurred), but it will either be a REC reported in the Conclusions of the Report or an explanation of the data gap in the Report .
Question: Re HREC/CREC: would a “control” on the property be also defined if a site obtained closure (as an industrial use), however there is a caveat in the closure letter that if the property will be redeveloped as residential, additional investigation/cleanup may be required?
Answer: Yes, this is probably the most classic case of a CREC because the closure contains a restriction. The property owner is not free to redevelop the property for residential use without further regulatory action.
Question: Regarding CREC, define “release has been addressed”. What if you simply enclose area with a fence as an engineering control? Is that addressing the release?
Answer: It could be, if this control addresses the release to the satisfaction of the regulatory authority. But perhaps not, if this was an interim measure and additional work still needs to be conducted.
Question: Researching whether or not an HREC meets current agency requirements could be a time-consuming additional task. How do you see EPs completing this task?
Answer: By reviewing the confirmation sampling data, something EPs should be doing under the current E1527-05.
Question: Concerning HRECvs.CREC, if a property received a No Further Action closure letter from the appropriate State agency that says contamination has been remediated below state actionable levels, but not eliminated, is this considered a HREC or a CREC?
Answer: It depends. If the property can be redeveloped for residential use without further regulatory approval and the regulatory standards for unrestricted land use have not changed, this would qualify as an HREC (not a REC). Are the state actionable levels the same at industrial as well as residential sites? If the No Further Action letter is based on regulatory satisfaction with industrial site conditions, it would be a CREC.
Question: Under HREC, what if the standard has changed, but the site still meets the current requirement? Is this still an HREC?
Question: RE: HREC–how does this term/definition deal with new Vapor rules in many states (eg: Illinois)? For example, if a site had an unrestricted NFR from early 2000s but did not deal with vapor as a potential pathway, can we still categorize this issue as a HREC (today’s NFR process would require consultant to deal with vapor as potential pathway)?
Answer: Maybe. It would depend on the concentrations identified in the confirmation sampling.
Question: Doesn’t using the term “CREC” open the consultant up to liability if it truly isn’t “controlled”? Will the consultants play it safe and just use “REC” just to cover themselves
Answer: The definition of CREC refers to a property being subject to controls, it’s not an evaluation of the effectiveness or appropriateness of the controls. The CREC is a subset of a REC, so it’s an acknowledgment that hazardous substances or petroleum products are present or likely present. A lot of times it’s relatively easy for the EP to know what the control is. A gas station release site closed to risk-based levels and the site is still a gas station – CREC. A developer is purchasing the property and intends to tear down the gas station and build houses – REC. An NPL site with residual lead and arsenic and one of the parcels is now a McDonalds with asphalt parking – CREC. But maybe the conditions of closure aren’t that obvious or easy to determine within the time and constraints of a Phase I. Perhaps the EP calls the likely residual impacts a REC until additional documentation is reviewed. Perhaps the EP calls this same situation out as a CREC subject to appropriate implementation and on-going integrity of the controls. Either way, it’s a REC or a subset of a REC. The client is put on notice that something is likely to be present that they need to pay attention to. Finally, the terms of the contract between the EP and the client may be a consideration. If the contract requires more information about the control – information that could be needed to comply with continuing obligations once the property has been acquired – failure to perform the contract as required can raise future liability issues. This would not be an E1527 or AAI issue, but a contract issue that is fact specific.
Question: Could you provide examples of HREC and CREC?
HREC: An underground storage tank is removed from the ground, soil and groundwater contamination is encountered, impacted soil is removed, groundwater is monitoring over a period of time, and concentrations decrease to meet federal MCLs. HREC.
CREC: An underground storage tank is removed from the ground, soil and groundwater contamination is encountered, impacted soil that are accessible are removed, residual soil and groundwater impacts remain but meet risk-based criteria for industrial property use. The regulatory agency issues a NFA letter that is effective as long as the property remains industrial. If property use changes, additional investigation and/or remediation will be required. CREC.
HREC: A large smelter operation was located in town and near-surface soils in the area were impacted with lead and arsenic. Removal action occurred throughout the area that consisted of removing the top 18 to 24 inches of soil and replacing with clean fill. Confirmation sampling on several properties demonstrated that no lead and arsenic concentrations above unrestricted residential use were present beneath the soil that was removed. HREC
CREC: Same smelter operation, same lead and arsenic impacts, same removal action removing the top 18 to 24 inches of soil and replacing with clean fill. Confirmation sampling on several other properties demonstrated that elevated lead and arsenic concentrations above unrestricted residential use were present beneath the soil that was removed. The elevated concentrations are allowed to remain in place so long as minimum of an 18-inch cap is placed and maintained over the impacted soil. CREC.
In all cases, the EP must review the data associated with the conditions of the closure in order to make the determination.
Question: If a contaminated industrial site has been cleaned up to commercial standards but not residential standards (without the involvement of a regulatory agency) and residual contamination remains in place, would this be considered a CREC or REC?
Answer: This is probably a CREC because the cleanup does not meet unrestricted use criteria at the time of the Phase I site assessment. When you condition your inquiry with the statement “without the involvement of a regulatory agency,” who established the cleanup standards? The unrestricted use criteria established by a regulatory authority need not have been specific to the subject property but may have been established through rule or policy and applicable generally to properties in the jurisdiction.
Other Questions on the ASTM E 1527-13 Standard
Question: Are there any changes regarding chain of title research in the 1527-13 standard?
Answer: No. Chain of title is one of the standard historical sources and there has been no change to the historical research.
Question: Have the reasonable ascertainable and practically reviewable definitions been changed in the 1527-13?
Question: Would FOIA request requirement by State be considered to be reasonably ascertainable?
Answer: It only takes a moment to make the request. “Reasonably ascertainable” refers to the response time.
Question: Do the Section 8.2.2 revisions place additional emphasis on the EP’s obligation to verify the database report information?
Answer: No, not to verify the database report information, but it does provide guidance about obtaining additional information if the subject property or adjoining property appears on one of the standard federal/state/tribal databases.
NOTE TO READERS:
EDR wishes to thank Julie and Bill for contributing their time and expertise to a well-received and timely presentation!