U.S. EPA Closes Public Comment Period on Amending AAI Rule

Support for Stripping ASTM E 1527-05 from AAI Rule

A number of environmental consultants recently asked us about the status of the U.S. EPA’s efforts to remove the reference to the old ASTM E 1527-05 Phase I environmental site assessment standard from the All Appropriate Inquiries rule. Here’s the latest:
On June 17th  2014, the U.S. EPA published a proposal to strip the -05 reference from the federal All Appropriate Inquiries rule (40 CFR Part 312) under CERCLA. Readers may remember that back on December 30, 2013, the EPA formally recognized the current ASTM E1527-13 Phase I ESA Standard as AAI-compliant, but still allowed those conducting ESAs the option to rely on the historic ASTM E 1527-05 standard.

Public Comment Period Closes

During the requisite 30-day public comment period following the June proposal, only five comments were submitted, far fewer than the 37 unique comments that came in during last September’s comment period in response to EPA’s move to recognize -13. Of those five comments submitted in the June-July period, four were in favor of EPA’s proposal. The only negative was from an environmental professional opposed mainly to the new vapor language: “The principal feature of the new E1527-013 standard is the introduction of the consideration of potential vapor intrusion conditions.” As you’ll see below, the other commenters beg to differ with this viewpoint.

Below are four key take-aways from the public comments that bear repeating here:

1.    Vapor intrusion and vapor migration are not the same thing.

“Since publication of the E1527-13 standard, there have been a number of misstatements in the public media, as well as in comments submitted to EPA, about what some believe to be significant changes in the E1527 due diligence process resulting from adoption of the 2013 standard. One such misstatement claims that the 2013 standard adds a new requirement for assessment of potential vapor intrusion conditions. Vapor intrusion assessment has not been part of E1527-05 and is not part of E1527-13 assessment. The persons who express this mistaken view may have conflated the terms ‘vapor intrusion’ and ‘vapor migration.’ These are quite different concepts, and only the latter, [vapor migration,] has any relevance to E1527 site assessments. …The express clarification of the definition of “release” in the 2013 standard to include vapor migration was not a new requirement, but a response to inconsistent interpretations of the 2005 standard among environmental professionals.” [William Weissman, attorney and member of the ASTM task group that developed the ASTM E1527-13 and E1527-05 standards]

2.    There is only one current standard practice.

“From the perspective of a member of the ASTM Task Group, there is one ASTM E 1527 standard – the 2013 iteration – that the committee agreed upon through its consensus development process… Beyond the potential for an unleveled playing field, the potential failure to implement universally the new iteration of the standard risks losing the benefits of that standard with very little reward.” [David Quigley, attorney, Akin Gump Strauss Hauer & Feld LLP and member of the E 1527 Task Group]

“While USWAG did not object to the retention of the E 1527-05 reference in the AAI Rule during the comment period on the addition of a reference to E 1527-13…USWAG agrees that amending the AAI Rule to reference only the most current of the ASTM E1527 standards will reduce any lingering confusion regarding the requirements of the AAI Rule. USWAG further agrees with EPA that removing the reference to E1527-05 from the AAI Rule will ‘promote the use of the standard currently recognized by ASTM International as the consensus-based, good customary business standard’ (i.e., E1527-13).” [James Roewer, Executive Director, Utility Solid Waste Activities Group]

3.    Vapor migration in the Phase I ESA process is not new.

“The aim of the 2013 revisions was to clarify ambiguous language in the 2005 standard that may have confused some users into believing that a vapor pathway by itself could never constitute a recognized environmental condition. There were other ambiguities in the 2005 standard that led some users of the standard into believing that certain data gathering shortcuts were acceptable… Now that ASTM has clarified in the 2013 standard what was intended in the 2005 standard, users who persist in viewing the 2005 standard as a pathway to a low cost incomplete site assessment face the risk that a post-2013 assessment based on the ambiguities in the 2005 standard may find themselves disqualified from CERCLA liability protection in any future CERCLA litigation.” [Weissman]

“…the new version clarifies the definition of ‘migrate/migration’ to specifically include vapor migration. Releases of contaminants that migrate via vapor pathways in the subsurface or in soils are confirmed to be recognized environmental conditions. This clarification was necessary to reduce inconsistencies in how consultants assessed vapor concerns in the past and to provide more consistent assessments for users.” [Quigley]

“[T]he new ASTM E1527-13 standard enhances the previous standard with regard to the delineation of historical releases or recognized environmental conditions at a property and makes important revisions to the standard practice to clarify that AAI and Phase I ESAs must include, within the scope of the investigation, an assessment of the real or potential occurrence of vapor mitigation and vapor releases on, at, in or to the subject property.” [EPA’s Response to Comments, December 2013.]

4.    The industry has already transitioned over.

“Since EPA announced its intention to propose the pending amendment more than seven months ago (see 78 Fed. Reg. at 79322), a six-month lag time should be sufficient. The ASTM task group’s experience is that most users of the E 1527 standard have already transitioned to the 2013 standard. Except if preexisting contractual obligations require use of the 2005 standard, the only reason anyone would want more time to continue using the 2005 standard is to perpetuate as long as possible the site assessment short-cuts that were never intended in 2005 and would not likely be compliant with the AAI rule.” [Weissman]

“Due to market demand, many consultants have already begun conducting assessments and preparing reports under the updated E1527-13 standard. There is no valid argument to delay the removal of the E1527-05 standard any longer, and a phase-in period of 6 months or less would be more appropriate and more reflective of the state of the industry.” [Quigley]

“I think this one year transition is unfortunate and unnecessary. We’ve already had seven months, so this will just add to additional confusion in the marketplace.” [attorney David Gillay during EDR Insight’s June vapor migration webinar]

What’s Next?

Given the lack of any significant push back from the market, it is highly likely that EPA’s proposed rule will be finalized with no changes, which means:

– EPA will “promote the use of the standard currently recognized by ASTM as the consensus-based, good customary business standard” to “reduce any confusion associated with the regulatory reference to a historical standard that is no longer recognized by its own promulgating organization…”

– The federal AAI rule will no longer reference the ASTM E 1527-05 standard. It remains to be seen if the courts will decide that -05 is not compliant because the U.S. EPA removed the reference. This is why many attorneys are already advising clients to use the updated -13 standard. Also, EPA will require brownfield grantees to use E 1527-13 if parties are using the agency’s grant funds to pay for assessments.

As noted by attorney William Weissman, the market is on notice that the clarifications in the 2013 standard represent “good commercial and customary practice” for any Phase I ESAs intended to be compliant with the AAI rule. Attorneys and conservative financial institutions are already advising purchasers seeking to qualify for CERCLA liability protection follow E 1527-13 now, especially in light of EPA’s public notices (December final rule and June proposal) stating a preference for the updated standard. The majority of Phase I ESA providers have already embraced the new standard to avoid any potential liability should their reports be put under the harsh light of scrutiny down the road.