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The Inside Word on AAI and the Revised ASTM E 1527 Standard
 

The Inside Word on AAI and the Revised ASTM E 1527 Standard

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Do you have more questions than answers about the industry’s transition over to a new ASTM Phase I ESA protocol? You’re not alone. ...

Do you have more questions than answers about the industry’s transition over to a new ASTM Phase I ESA protocol? You’re not alone.

On August 15, 2013, the U.S. Environmental Protection Agency published a Direct Final Rule which proposes to reference the E 1527-13 standard as compliant with the agency’s All Appropriate Inquiries rule (40 CFR Part 312). The agency’s 30-day public comment period just closed and the ASTM standard moves one step closer to publication.

Right now the #1 question in the industry is: When will ASTM E 1527-13 take effect?

At this webinar, two of the experts closest to the ASTM process will share the latest status of the AAI rule amendment and publication of the new Phase I ESA standard.

There are a number of moving pieces in play right now. Tune into this event to learn the latest on the ASTM front, the hot-button issues raised during the public comment period, what happens to E 1527-05 and more. It is an important time for the industry as it prepares to put a new standard into effect and this event will help keep environmental professionals abreast of the process as it unfolds.

Speakers:

Julie Kilgore, President, Wasatch Environmental, Inc., Chair of ASTM E50 Committee on Environmental Assessment, Risk Management and Corrective Action and Chair of the E1527 Task Group

William Weissman, attorney, member of ASTM E50 Executive Subcommittee, retired partner of Venable LLP, Washington, DC

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  • Do you have more questions than answers about the industry’s transition over to a new ASTM Phase I ESA protocol? You’re not alone. 
  • Right now the #1 question in the industry is: When will ASTM E 1527-13 take effect?
  • On August 15, 2013, the U.S. Environmental Protection Agency published a Direct Final Rule which proposes to reference the E  1527-13 standard as compliant with the agency’s All Appropriate Inquiries rule (40 CFR Part 312). The agency’s 30-day public comment period just closed and the ASTM standard moves one step closer to publication.  
  • 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.]
  • Thus far, the docket shows that 41 comments were submitted (technically 39, excluding a few duplicates) and yesterday afternoon I dug deep into them. Similar to a project we did in 2004 when a team of us here sifted through the more than 400 comments that came in on the first proposed AAI rule and published the AAI Scorecard.This time around, there far fewer comments. In total, 41 came in-2 duplicates-2 clarificationsOf the 37 remaining, I classified each comment in terms of the commenter’s general position on EPA’s AAI rule amendment to recognize E 157-13 as compliant. Was the author generally in favor, generally opposed or neutral? Final score:19 were generally in favor and 11 opposed. Of the remaining 7, two made minor references to background materials and five opposed the EP definition..which was not even put out for public comment. Was “the ASTM E1527-13 standard as compliant with the AAI rule?” so of the 30 that commented on the stated purpose, 63% were in favor
  • Thus far, the docket shows that 41 comments were submitted (technically 39, excluding a few duplicates) and yesterday afternoon I dug deep into them. Similar to a project we did in 2004 when a team of us here sifted through the more than 400 comments that came in on the first proposed AAI rule and published the AAI Scorecard.This time around, there far fewer comments. In total, 41 came in-2 duplicates-2 clarificationsOf the 37 remaining, I classified each comment in terms of the commenter’s general position on EPA’s AAI rule amendment to recognize E 157-13 as compliant. Was the author generally in favor, generally opposed or neutral? Final score:19 were generally in favor and 11 opposed. Of the remaining 7, two made minor references to background materials and five opposed the EP definition..which was not even put out for public comment. Was “the ASTM E1527-13 standard as compliant with the AAI rule?” so of the 30 that commented on the stated purpose, 63% were in favor
  • 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.So we called in the experts who thankfully said yes to speaking here today. They are…
  •  William Weissman, attorney, member of ASTM E50 Executive Subcommittee, retired partner of Venable LLP, Washington, DCThere are a number of moving pieces in play right now. Tune into this event to learn the latest on the ASTM front, the hot-button issues raised during the public comment period, what happens to E 1527-05 and more. It is an important time for the industry as it prepares to put a new standard into effect and this event will help keep environmental professionals abreast of the process as it unfolds.

The Inside Word on AAI and the Revised ASTM E 1527 Standard The Inside Word on AAI and the Revised ASTM E 1527 Standard Presentation Transcript

  • The Inside Word on AAI and the Revised ASTM E 1527 Standard October 1, 2013 Moderator, Dianne P. Crocker Principal 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.”
  • 5
  • 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, Utah 801-972-8400 jk@wasatch-environmental.com
  •  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: wweissman@cox.net
  • An Update on the Phase I Environmental Site Assessment Standard Practice Revisions EDR Webinar October 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
  •  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
  •  Task group convened in early 2010  TG agreed on two primary objectives: ◦ Clarify existing language ◦ Strengthen the deliverable
  •  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.
  • 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 //////////
  •  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
  •  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.
  •  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
  •  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.
  •  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
  •  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
  •  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
  •  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
  • 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
  •  Julie Kilgore ◦ jk@wasatch-environmental.com  Bill Weissman ◦ wweissman@cox.net
  • Q&A