Today, August 15, 2013, USEPA published notice of its “direct final action” to amend its All Appropriate Inquiries regulation to incorporate a reference to ASTM E 1527-13, a revision to ASTM International’s Standard Practice for Environmental Assessments: Phase I Environmental Site Assessment Process. The notice, as well as summary by EPA of its analysis of the changes,Summary of Updates and Revisions to ASTM E1527 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, can be found at www.regulations.gov, docket number EPA-HQ-SFUND-2013-0513. The addition of the reference to the E 1527-13 version of the protocol would be the only change to the AAI Rule. The change will be effective November 13, 2013 unless USEPA receives adverse public comment by September 16, 2013. Interestingly, as currently written, the revised rule would allow use of E 1527-05 as well as E 1527-13 to satisfy AAI.
Some observations. In my view, the biggest improvement in the revised standard, which is not actually available to review in conjunction with USEPA’s proposed rule change except by in person inspection, is the simplification and clarification of the key term “recognized environmental conditions.” The confusing language of this definition in E 1527-05 contributed to wide discrepancies among environmental professionals about what is and is not a REC. Because my experience is that the identification of a REC in a Phase I report has both legal and practical implications in transactions, I led a focus group within the broader ASTM Task Group that boiled REC down to its essential elements. We then clearly stated those elements in the revised definition. In addition, certain terms, such as “release” and “environment” were added to the standard. These definitions, with their references to CERCLA, should help remind users that the standard is written to meet AAI under CERCLA. The creation of the new term “controlled recognized environmental conditions” seems to have been driven by a desire by many to provide a label to certain RECs that have been addressed to some degree in the past, but not fully resolved. To me, AAI requires only the identification of RECs. CRECs and “historic recognized environmental conditions (“HRECs”), are unnecessary terms and may be potentially confusing.
“Migrate/migration” was added as a definition presumably as a means to make reference to vapors. In addition, references to the Vapor Encroachment Standard Guide ( E 2600-10) were added. The terms migrate and migration are seldom used in the standard, and the Vapor Encroachment Standard Guide is not part of AAI and is inconsistent with E 1527, for example, as to relevant search distances. For more on Phase Is and vapors, see our earlier blog posting.
Section 6 adds some additional specificity to the requirements imposed on “users,” the parties that hire consultants to perform Phase Is. Section 8.2.2 adds new regulatory agency file review requirements, especially for adjoining properties, and I believe these requirements may add unnecessary time and expense to the process of conducting a Phase I for many sites.
Stay tuned as E 1527-13 moves closer to final issuance and adoption.