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The Inside Word on AAI and the Revised ASTM E 1527 Standard October 1, 2013 Moderator, Dianne P. Crocker Principal Analyst, EDR Insight
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The Inside Word on AAI and the Revised ASTM E 1527 Standard
October 1, 2013
Moderator, Dianne P. CrockerPrincipal Analyst, EDR Insight
When?
Latest Development
• On September 16th, the U.S. EPA closed its public comment period on the agency’s recognition of ASTM E 1527-13 as “AAI-compliant.”
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EDR Scorecard: EPA Public Comments
• A total of 37 comments were submitted (excluding duplicates and clarifications)
• In favor of EPA’s proposed action (deeming E 1527-13 as AAI-compliant)? vs. opposed?...
• In favor of EPA’s proposed action (deeming E 1527-13 as AAI-compliant)?
19 in favor 2 opposed• Of remaining 16:
• 9 expressed support for -13 (or took no position expressly on the proposed action), but objected to having both standards recognized; and
• 7 were unrelated to EPA’s proposed action.
EDR Scorecard: EPA Public Comments
Short answer:
There are a lot of moving pieces.
Today’s speakers…
What is Current Status?
President, Wasatch Environmental, Inc.
Chair of the ASTM E1527 Task Group
Chair of the ASTM E50 Committee on Environmental Assessment, Risk Management, and Corrective Action
Member of the EPA Federal Advisory Committee established to develop the proposed “All Appropriate Inquiry” (AAI) regulation
Salt Lake City, Utah801-972-8400
Julie Kilgore
Wasatch Environmental, Inc.
Bill Weissman
Attorney
Retired partner of Venable LLP, Washington DC
Represented private clients on EPA regulatory issues for more than a quarter century
Member of ASTM E50 Executive Subcommittee
Member of ASTM E1527 Task Group
Former member of ASTM Committee on Standards
Member of National Brownfields Association Advocacy Committee
Email:
What in the World Just Happened?
An Update on the Phase I Environmental Site Assessment
Standard Practice Revisions
EDR WebinarOctober 1, 2013
ASTM Standards have maximum 8-Year shelf life◦ Prior E1527 publications: 1993, 1994, 1997, 2000, 2005
Options at end of 8-Year life of ASTM Standard◦ No Action - standard will sunset upon expiration
◦ Ballot to re-approve with no change
◦ Reconvene Task Group, draft revision language, ballot revised standard
REVISIT UNIVERSAL ASTM REQUIREMENTS
Congress passes Brownfields Amendments to CERCLA in 2002
Congress instructs EPA to issue AAI rule spelling out 10 elements that EPA must include in the rule. Until AAI rule is adopted, ASTM E1527-97 & 1527-2000 become interim standard
EPA develops rule in collaboration with a Federal Advisory Committee – final rule adopted in 2005 effective Nov. 1, 2006
Compliance with AAI (or an alternative standard compliant with AAI) is precondition for CERCLA liability defenses or Brownfields grants
EPA determined that ASTM E1527-05 is compliant with AAI rule
All Appropriate Inquiry (AAI) Rule
Task group convened in early 2010
TG agreed on two primary objectives:◦ Clarify existing language◦ Strengthen the deliverable
REVISIT E1527 Task Group Objectives
The only issue in EPA’s rulemaking is whether E1527-13 is compliant with AAI (is the alternative no less stringent than AAI rule?). EPA did not propose to withdraw existing compliance finding for E1527-05.
Direct Final Rule (DFR) is a shortcut used for non-controversial rulemakings – one negative comment converts DFR into full rulemaking. EPA typically publishes DFR and proposed rule at the same time in case of submission of negative comments
Comment period closed on Sept. 16. Negative comments were submitted; therefore EPA must proceed with full rulemaking and respond to significant negative comments.
EPA may make changes to reference rule and may revise the preamble.
RULEMAKING PROCESS FOR REFERENCING ALTERNATIVE TO USING AAI RULE
EPA’s Proposed DFR and Proposed Rule
TYPICAL RULE MAKING PROCESS
E1527 Revised Timeline
10-Oct-11
Sep-13 N/A ??
Dec 4 2010 Feb 3 2011 Apr 2011 Aug 2011 Feb 2012 Sept 2012 Late 2012 Feb 2013 Apr 2013 Dec 2013
Complete FG 1-4
Complete FG 5-8
Complete Remaining FG
First SC Ballot
Second SC Ballot
MC Ballot
Second MC Ballot (if needed)
EPA Direct Final Rule
If no comments-Final //////////
If Sig Comments, address and finalize //////////
Result of Public Comment
40 comments submitted
Most commenters supported the proposed E1527-13
Some expressed concern about EPA’s continued acceptance of E1527-05
Other comments were submitted but unrelated to the issue for which EPA was seeking comment
No comments questioned the compliance of the revised standard with AAI, although a couple of comments objected to EPA recognizing a private consensus standard as an alternative to compliance with the AAI rule
Lots of erroneous statements in the public media describing “new requirements” in E1527-13
Most Common Examples: Significantly higher compliance costs due to agency file review Vapor intrusion Misunderstanding HREC and CREC definitions
Dispelling Myths
Agency File Reviews
NO mandate to obtain regulatory agency file records
If the property or any of the adjoining properties is identified on one or more of the standard environmental record sources . . . pertinent regulatory files and/or records associated with the listing should be reviewed …to obtain sufficient information . . . in determining if a REC, HREC, CREC, or a de minimis condition exists at the property in connection with the listing.
If, in the environmental professional’s opinion, such a review is not warranted, the environmental professional must explain within the report the justification for not conducting the regulatory file review.
Agency File Reviews
Many EP firms/User policies already following this procedure. What was often missing in a Phase I report was EP’s rationale for why a review was not conducted.
Several reasons why these agency file records might not need to be reviewed. Examples might include:◦ EP might consider certain factors to justify why a neighboring
property was not a risk to the subject site ◦ Needed records not available within reasonable time or cost
constraints◦ Information available from another source
All these reasons may be valid and available within the framework of the proposed E1527-13
Agency File Reviews - ASTM Task Group Background
A major challenge regarding records review is the timing for factoring in the cost for these reviews.
◦ Some firms offered agency file reviews as an additional service at an additional cost.
◦ This is not an additional cost to conducting AAI. This is a mechanism some consultants use to manage the bidding process when, prior to being engaged to conduct a Phase I ESA, there is often no way of knowing what agency files may need to be reviewed.
◦ This is a contracting issue, not an AAI issue, and not one that can be resolved by EPA or ASTM.
Agency File Reviews – ASTM Task Group Background
Some argued there was no need for additional guidance - any file reviews should be conducted at the discretion of the EP
◦ This argument was strongly supported by some, while others pointed out the conflict between a technical standard that relies on “professional judgment” and a marketplace that demands “low bid”
◦ Some used ambiguities in E1527-05 to avoid conducting research altogether, even though the objectives of AAI had not been met.
◦ Failure to provide explanation for not conducting file review may not be compliant with AAI rule – Compare with data gap provision of AAI rule
Vapor Intrusion An evaluation of Vapor Intrusion is not part of E1527
◦ E1527-05: . . . physical setting sources [beyond topographic maps] shall be sought when conditions have been identified in which hazardous substances or petroleum products are likely to migrate to the property or from or within the property into the groundwater or soil . . .
◦ E1527-13: “migration” refers to the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface. See Note 4.
◦ NOTE 4—Vapor migration in the subsurface is described in Guide E2600; however, nothing in this practice should be construed to require application of the Guide E2600 standard to achieve compliance with all appropriate inquiries.
Clarifies status of properties that have undergone site remediation
◦ HREC applies to property that met unrestricted land use standards at time of remediation and standard for unrestricted use has not changed – not a REC
◦ CREC is new definition but arguably does not represent a change in what constituted a REC under E1527-05 or AAI
◦ CREC applies to property where a past release has been addressed but where some contamination remains subject to implementation of some type of formal or informal control
◦ Identification of CREC is important for satisfying post-acquisition continuing obligations of property owner. See ASTM E2790-11
HREC/CREC Definitions
EPA’s comparison of E1527-05 and E1527-13 describes changes as primarily in the nature of clarification
Those who interpret E1527-05 as a low cost optional alternative to the requirements in E1527-13 are taking a risk that future Phase I ESAs inconsistent with the clarifications in E1527-13 may be found not to be compliant with AAI
Potential loss of CERCLA defenses
Considerations
What Does Happen to the E1527-05 once E1527-13 is published?
The proposed ASTM E1527-13 successfully came through ASTM’s process for the approval and publication of revisions to ASTM standards
Proposed ASTM E1527-13 reflects the current consensus of the responsible ASTM technical committee
ASTM E1527-13 would supersede the most recent edition of the standard (ASTM E1527-05). Copies remain available from the ASTM website as a historical standard
What Does Happen in the Marketplace
once E1527-13 is published?
In a perfect world:
Deals in the works under the 1527-05 continue to move forward without interruption and new projects could move forward using the new standard
The technical community does not typically position itself to provide low cost services by intentionally offering out-dated services
Education and awareness are key
The public comments indicate strong support for EPA referencing the proposed E1527-13
E1527-13 must be active prior to EPA’s publication of final reference rule
Anticipate EPA process will continue and could extend into 2014
E1527-13 likely to be available in November
EPA final rule expected a couple of months later
Publication Timing
Q&A
