I get emails from consultants every day asking if the ASTM E 1527-13 Phase I Environmental Site Assessment standard is in effect yet. It’s not. Not yet—but it did just move one step closer to release. Three days ago, the U.S.Environmental Protection Agency’s public comment period closed on the agency’s August 15th decision to amend the All Appropriate Inquiries rule (40 CFR Part 312) to reference E1527-13 and “allow for its use to satisfy the requirements for conducting AAI under CERCLA.” EPA’s August notice was issued as a “direct final rule,” which simply means that had there not been any adverse comments submitted, the rule would have become effective on November 13, 2013. The first comment that came in was adverse so all bets were off at that time. Now the ball is in EPA’s court to address all public comments in a subsequent final rule that reflects the agency’s final decision on amending the AAI rule.
The Public Speaks Out
A total of 41 comments were submitted (technically 39, excluding a few duplicates) and yesterday afternoon I dug deep into them. I had a flashback to nine years ago when a small team of hardworking analysts and I undertook a project to tally the public comments on EPA’s proposed AAI rule, analyze the key issues raised and publish our findings as the “AAI Scorecard.” There were 10 times as many comments back then (more than 400) so it was a mammoth and labor-intensive project and at the time, the most heated issue on the proposed AAI rule was the definition of environmental professional, followed closely by concerns about higher Phase I ESA costs.
As we did back in 2004 with AAI Scorecard, I classified the 39 comments in terms of the commenter’s general position on this question: Was the commenter (or industry organization) generally in favor of EPA’s decision to recognize ASTM E 1527-13 as AAI-compliant? or generally opposed? or neutral? Two were neutral clarifications, not taking a position on the proposed action.
Of the remaining 37, 19 comments were from environmental consultants, banks or industry organizations supportive of EPA’s decision. Only two objected to EPA recognizing ASTM E 1527-13. Another nine didn’t object to EPA recognizing -13, but did object to having both the -05 and -13 standards recognized. The remaining seven were unrelated to EPA’s proposed action; five of which opposed the EP definition (amounting to what one guy told me on the phone this morning was just resuscitating “battles that were fought and lost years ago.”) The professional qualifications of Phase I ESA professionals was contentious with the 2004 FACA committee—and, for this handful of commenters, it still is. However, EPA’s August notice stated that the agency’s only action was “recognition of the ASTM E1527-13 standard as compliant with the final rule and, therefore it is only this action on which the Agency is seeking comment.” The EP definition in E 1527-13 is identical to the one in E 1527-05 which is identical to the final AAI rule so these comments were unrelated to the stated focus of the comment period.
These public comments give us a sense of what EPA is dealing with: support for E 1527-13 and a commitment to use it and commenters who feel that the agency’s decision to give the market flexibility in deciding which protocol to use could lead to “confusion.” [See the accompanying tag cloud, thanks to my colleague Joe Pitkin, which displays the 100 most common words appearing in the 38 public comments, after stripping off the pleasantries and focusing solely on the opinion components.]
Mark Your Calendars: October 1st
There are a number of moving pieces in play right now so predicting when the AAI rule’s amendment will be final or when ASTM might publish E 1527-13 is difficult.Those familiar with the ASTM standard-writing process are aware that E1527-05 will sunset on December 31 unless the Task Group ballots to extend it. The industry is preparing to put a new standard into effect. Many Phase I ESA firms—large and small—are actively posting valuable content on their web sites and in client alerts summarizing the key areas of change and endorsing E 1527-13 in advance of its publication to ensure a smooth transition over to the updated process.
EDR is committed to keeping our clients aware of the latest and greatest developments, and just announced today that we are hosting a webinar in two weeks (on Tuesday, October 1st) when Julie Kilgore, Chair of ASTME50 Committee on Environmental Assessment, Risk Management and CorrectiveAction and Chair of the E1527 Task Group will team up with attorney and member of ASTM E50 Executive Subcommittee, Bill Weissman to keep us all abreast of the process as it unfolds. We hope you can join us for the latest and greatest intell.
Let me know what questions to ask. How long will EPA’s process take? When will E 1527-13 be published? Will it be effective immediately? Any others?