EPA Approves New ASTM Standard for Phase I ESAs: What’s Next for Environmental Professionals?
On December 30, 2013, EPA issued a final rule approving the use of ASTM Standard E1527-13, Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, to satisfy CERCLA’s all appropriate inquiries rule (“AAI Rule”). See 78 Fed. Reg. 79,319. Although EPA approved the new ASTM standard, it has not yet required environmental professionals to use the new standard to satisfy the AAI Rule. As a result, currently, Phase I ESAs conducted pursuant to either the old ASTM standard (ASTM E1527-05) or the new standard (ASTM E1527-13) may be used to satisfy CERCLA’s AAI Rule. However, in promulgating the rule approving ASTM E1527-13, EPA indicated that it intends to issue a new rule that will no longer approve use of the old ASTM standard to satisfy the AAI Rule.
This article briefly examines what the EPA’s new rule and anticipated future rule mean for environmental professionals who perform Phase I ESAs.
What does EPA’s new rule mean for professionals who perform Phase I ESAs?
- New of “migrate” and “migration” that expressly include vapor migration;
- Use of the term “Controlled Recognized Environmental Condition,” which is defined as “past releases that have been addressed but allow contamination to remain in place subject to the implementation of required controls;”
- Revised definitions of Recognized Environmental Condition (“REC”) and Historical Recognized Environmental Condition (“HREC”); and
- New requirements for review of regulatory agency files and other records if the subject property or adjacent properties are identified in government
records
Second, for now, environmental professionals can continue to perform Phase I ESAs using the prior ASTM standard—the standard they have been using since 2005—to satisfy the AAI Rule.
Third, environmental professionals should identify which ASTM standard will be (or was) used for Phase I ESAs in every: (1) scope of work; (2) bid; (3) quote; (4) contract; and (4) Phase I report.
Fourth, in the near term, professionals may want to offer clients the option of a Phase I ESA based on either the old or the new ASTM standard. If doing so, professionals should explain the differences in the two standards to allow clients to make informed decisions with respect to the appropriate ASTM standard for their project.
What does EPA’s future rule mean for professionals who perform Phase I ESAs?
Professionals should begin to implement the training, policy and procedural changes necessary to conduct future Phase I ESAs in accordance with the new ASTM standard. Ultimately, the new ASTM standard will likely become: (1) the industry standard for Phase I ESAs; and (2) the only standard that will satisfy CERCLA’s AAI Rule.
Why can’t professionals continue business as usual, performing Phase I ESAs under the old ASTM standard?
Until EPA adopts a new rule that determines that the old ASTM standard is inadequate, Phase I ESAs conducted pursuant to the old ASTM standard will satisfy CERCLA’s AAI Rule. As noted above, however, EPA has already indicated that it intends to issue a rule that will make the old ASTM standard inadequate to satisfy the AAI Rule.
In addition, while clients often request Phase I ESAs to take advantage of the AAI Rule, the overarching goal of a Phase I ESA is to identify and apprise clients of existing environmental conditions. If Phase I ESAs performed under the old ASTM standard are seen as inadequate, for example by failing to require professionals to consider vapor intrusion exposure pathways or to review publicly available databases, Phase I ESAs conducted pursuant to the old ASTM standard may fail to fully apprise clients of existing environmental conditions.
These unidentified environmental conditions could have a significant impact on the value or potential uses of the subject property. Vapor intrusion has become a key focus of environmental regulatory agencies. As a result, the failure to identify such conditions in a Phase I ESA could lead to lawsuits against environmental professionals premised on the professional’s failure to perform the Phase I ESA according to new industry standards, i.e. the new ASTM for Phase I ESAs.
What steps should environmental professionals take now?
Ultimately, because EPA has already indicated that, in the near future, the old ASTM standard will no longer be sufficient to satisfy the AAI Rule, environmental
professionals will have to migrate to performing Phase I ESAs under the new standard, ASTM E1527-13. There are several steps environmental professionals can take now in response to EPA’s new rule approving ASTM E1527-13 to prepare to begin using the new standard.
First, you should review a copy of ASTM E1527-13 and work to understand the key differences between the old ASTM standard and the new
standard. Grand River Law is already familiar with the differences between the new and old ASTM standards. We can help you understand the new
requirements in ASTM E1527-13 and work with you to develop the policies, procedures and practices necessary to ensure compliance with ASTM E1527-13.
Second, you should make any necessary changes to your: (1) scope of work; (2) bids; (3) price quotes; (4) contract documents; and (5) Phase I reports to identify the ASTM standard to be used in performing your Phase I investigations. Grand River Law has drafted and negotiated a number of different contracts for environmental engineering firms and routinely advises firms with respect to professional service agreements. Grand River Law can assist you with conducting
a comprehensive review of all of your contract and pre-contract documents to ensure proper disclosure of the ASTM standard being used.
Third, you should begin implementing the training, policies and procedures necessary to conduct Phase I ESAs pursuant to ASTEM E1527-13. EPA has already indicated that, in the near future, this will be the standard for all Phase I investigations. And, in any event, ASTM E1527-13 will soon be the industry standard for Phase I ESAs. So, there is no reason to delay. Take action now and get ahead of the curve. Why put yourself in the position of trying to develop and implement these changes after EPA declares that the old ASTM standard no longer satisfies the AAI Rule?
If you have any questions about ASTM E1527-13, please call Al Bower at (616) 710-0211 or send him an e-mail at: abower@grandriverlaw.com.
Albert M. Bower
Grand River Law
337 Dogwood Ave NE
Ada, MI 49301
Ph: (616) 710-0211
E-mail: abower@grandriverlaw.com