E 1527-13 Slated for November Publication, Amendment to AAI Rule to Follow

Tuesday I moderated EDR’s webinar, The Inside Word on AAI and the Revised ASTM E 1527 Standard with Julie Kilgore and Bill Weissman, two of the people closest to the ASTM E 1527 revision process. Julie is the well-known chair of the ASTM E 1527 TaskGroup, and President of Wasatch Environmental, and Bill is a member of ASTM E50 ExecutiveSubcommittee and retired partner of Venable LLP (Washington, DC) where he represented private clients on EPA regulatory issues for more than a quarter century. Reflective of the high industry interest in the status of the new Phase I ESA standard, about 1,700 registered, surpassing our tongue-in-cheek goal of attracting 1527 folks). Below are five key take-aways from our event as the industry sits poised to transition over to a new standard practice:

1. The majority of public comments favor EPA reference to E 1527-13

On August 15th, the U.S. EPA recognized ASTM E 1527-13 as compliant with the federal All Appropriate Inquiries rule for the purposes of allowing a purchaser to qualify for CERCLA liability protection. During a 30-day comment period that ended on Sept. 16th, 37 comments were submitted (excluding a few duplicates and clarifications). The majority of comments were supportive ones submitted by environmental professionals and risk managers at financial institutions. Tuesday’s speakers said that only two commenters objected outright to EPA’s proposed action to reference E 1527-13. (For a tally of the comments, see the EDR Scorecard analysis I blogged about previously.)

There were a number of other comments submitted that were unrelated to the issue that EPA was seeking comment on, namely: Do stakeholders agree with EPA’s recognition of E 1527-13 as AAI-compliant? It is worth noting that a handful opposed the definition of environmental professional, which was not even put out for public comment:

“Those who asked EPA to address the definition of EP were really asking for a change to the AAI rule. It was not at all germane to what EPA had proposed, and the chances of EPA taking that one are as close to zero as anything right now.” (Bill Weissman)

2. EPA’s response to comments
Because adverse comments were submitted during the comment period, the ball is now in EPA’s court to respond to the public comments and issue a final rule on its amendment to the AAI rule recognizing the new ASTM standard. This is a very similar process to the one EPA went through in writing the 2005 AAI rule (proposed rule, public comment period, then final rule with responses to comments). If no comments were received, it would have been issued as a direct final rule.

Despite articles, blogs and online posts suggesting otherwise, EPA’s withdrawal of the direct final rule does not mean that “EPA has stepped away from its support of 1527 and the proposed revisions. Because adverse comments were received, the agency had to shift process and move into a more traditional rulemaking in order to respond to public comments.” (Julie Kilgore)

3. Areas of Revision in E 1527-13
Julie gave very thorough details on what specifically was changing in the new standard, noting that the ASTM Task Group’s overarching objective “was that we were seeking to clarify and strengthen the deliverable.” Key areas of revision (and confusion) are related to agency file review language, vapor intrusion/migration and CREC-HREC-REC definitions. Of these, the majority of questions that came in during the webinar had to do with the application of the new REC categories so that is where there is still industry confusion.

“Other than a few new definitions, my take on the new ASTM Standard is that the role of the EP is going to be held more accountable for judgments he/she makes, justifying the use of historical documents – Records Research – and review of Agency Files…all depending on how salient and necessary they are in providing the EP with what he/she feels is sufficient in rendering an opinion.” ~webinar attendee Mike Poulos, an EP in Chicago

4. What Happens to E 1527-05?

As happens anytime a new ASTM standard comes out, it supersedes the prior version. Under ASTM bylaws, after E 1527-13 is published, the E 1527-05 standard is basically retired (but still available from the ASTM website as a historical standard), and E 1527-13 becomes the most recent, active standard. A few comments submitted to EPA addressed concerns that the continuation of E 1527-05 as still being consistent with AAI will promote continued use of E 1527-05 using the misinterpretation that it is a ‘low-cost optional alternative’ to the requirements in E 1527-13. Julie and Bill spent a few minutes talking about the transition to the new standard:

“What we typically see in the technical arena is that industry will shift to the new standard…The technical community, by and large, does not typically position itself to provide low cost services by intentionally offering outdated standards. More typically it’s an awareness and education issue. People become aware that the new standard is available and transition over.” (Julie Kilgore)

Bill cautioned EPs from continuing to rely on -05 after -13 comes out, noting that EPA published in the docket a comparison of the changes showing where clarifications have been added to the practice.

“It’s very important that EPs understand that there’s been an update to the standard and everyone’s been put on notice as to what the new requirements are. Now that the clarifications have been put in place under -13, if EPs choose not to follow them and continue to rely on ambiguities that have now been clarified, it may get you into trouble if an owner needs to make a claim that he/she is entitled to CERCLA liability protection. While you could’ve made an argument in the past that there were ambiguities under -05, you don’t have that option in the future.” (Bill Weissman)

5. What to expect in coming months
The Task Group is moving forward with the final steps toward publication of E 1527-13, expected in early November shortly after the Jacksonville meeting.
EPA intends to move forward with its final rule referencing E 1527-13 as compliant with the AAI rule, likely by the end of the year. There will be a revised preamble with responses to comments that will likely address the issue of the dual reference to -05 and -13.

“EPA may clarify that -05 will no longer be the active ASTM standard moving forward. They might favor E 1527-13. They might not. The only legal function of that reference is to determine if the practice is compliant with AAI.” Bill Weissman

For More Info:

Want more details on the above? or a very thorough summary of the revised language in the areas of AFRs, vapor migration/intrusion and CREC-HREC-REC? Listen to Julie and Bill here in the replay.
Need to see the red-line revisions to E 1527-05? EPA posted a read-only version in the public docket.
Attend this month’s ASTM Phase I ESA Task Group meeting in Jacksonville

Attend EDR’s Due Diligence at Dawn workshops in these cities:
Chicago: Wednesday, November 6
Detroit: Thursday, November 7
Long Island: Tuesday, November 12
Orlando: Tuesday, December 10
Atlanta: Wednesday, December 11
Charlotte: Thursday, December 12
Boston: Date to be announced

More details and registration for our DDDs are coming soon.

EDR is committed to keeping you up to speed as E 1527-13 and the AAI rule amendment move closer to publication in the coming months.

Our special thanks to Julie Kilgore and Bill Weissman for lending their insight and expertise to our event this week!