U.S. EPA Responds to Public Comments on June AAI Proposal

94% of EPs now offer E 1527-13, transition virtually compete



Yesterday the U.S. Environmental Protection Agency posted its response to the June/July public comment period on the agency’s proposal to amend the All Appropriate Inquiries rule to strip out the reference to the old ASTM E 1527-05 Phase I ESA standard. Only five comments were submitted and highlights of the agency’s responses to them are as follows:

— On the sole negative comment (from an environmental professional opposed mainly to the “introduction of the consideration of potential vapor intrusion conditions”), EPA stressed that vapor is not a new consideration:

“EPA disagrees with the commenter and points out that the scope of the AAI Rule and the ASTM E1527-05 standard always included the requirement to identify conditions indicative of releases or threatened releases of hazardous substances, or — in the case of the ASTM standard — “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 clarified this in the definition of migrate/migration to specifically include vapor migration and therefore remove any confusion regarding the need to identify all RECs, or all conditions indicative of releases or threatened releases of hazardous substances, when conducting an AAI investigation…”   

“The purpose of conducting an AAI investigation is to identify conditions indicative of releases or threatened releases of hazardous substances.  This includes identifying conditions indicative of releases stemming from vapor migration as well as identifying indications of releases to or from groundwater soils, air, and indications of releases of hazardous substances of any other nature.”

–In response to a comment requesting language stating that use of -05 prior to the effective date complies with AAI, the agency responded that it had already addressed this issue:

“In the preamble to the final rule, EPA includes a statement indicating that this final rule amending the AAI rule to remove the reference to ASTM E1527-05 standard does not impact parties who acquired properties between November 1, 2005 and the effective date of the final rule and used the 2005 version of the ASTM E1527 standard to comply with the All Appropriate Inquiries Rule, as it was in effect at the time the property was acquired.”

–In response to two commenters who support a shorter transition period than one year:

“Although EPA agrees with the commenters’ statements that most environmental professionals are likely already using the updated E1527-13 standard, the Agency believes it is prudent to provide for the one year delay in the effective date.  The All Appropriate Inquiries Rule requires that AAI investigations be conducted within one year prior to the date of acquisition of the subject property (see 40 CFR 312.20(a)).  In addition, the AAI Rule requires that certain aspects of the AAI investigation be conducted or updated within 180 days prior to the date of acquisition of the subject property (40 CFR 312.20(b)).  Given these requirements, EPA determined that delaying the effective date for the final rule by only six months may be burdensome for some parties.  Therefore, EPA is delaying the effective date for final rule, until one year after the rule is published in the Federal Register.  This will allow sufficienttime for AAI investigations initiated or on-going at the time of publication of the final rule to be completed or updated prior to the effective date.”

What’s Next?

Patricia Overmeyer, Land Revitalization Coordinator in EPA’s Office of Brownfields and Land Revitalization told EDR Insight today that “The final rule amending the AAI standards to remove the reference to the ASTM E 1527-05 is expected to be published in the Federal Register within the next few weeks.”EPAComment

Based on the results of the EDR Insight Scopes of Work Benchmark Survey of environmental professionals that just closed yesterday:

– a solid 94 percent of respondents provide an ASTM E 1527-13 compliant scope of work, indicating that industry adoption is virtually complete.

– only 41 percent even offer the -05 scope. As noted by one respondent:

“ASTM E 1527-05 is no longer recommended by EPA. We switched our clients immediately to E 1527-13 and never had anyone specifically request the -05.”

These results are not surprising considering that most attorneys are advising clients seeking CERCLA liability protection to use the current -13 standard, and the majority of lenders (64%) are using the E 1527-13 standard in their underwriting practices for commercial loans.

By taking this action to remove the reference to E 1527-05 from the AAI rule, EPA’s stated intent is “to promote the use of the current industry standard and reduce confusion associated with the regulatory reference to a standard no longer recognized as current by ASTM International and no longer marketed by the standards development organization as reflecting its current consensus-based standard.”


For EDR Insight’s August 2014 Summary of Public Comments

The public docket number for the June 17, 2014 proposed rule and the subsequent final rule is EPA-HQ-SFUND-2014-0474.

For the full copy of EPA’s response to public comments summarized in this brief.

EPA’s December final rule recognizing -13 as AAI-compliant.