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

1. The Inside Word on AAI and the
Revised ASTM E 1527 Standard
October 1, 2013
Moderator, Dianne P. Crocker
Principal Analyst, EDR Insight

2. When?

4. 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. 5

6. 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?...

7. • 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

8. Short answer:
There are a lot of moving pieces.
Today’s speakers…
What is Current Status?

9.  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

10.  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

11. An Update on the
Phase I Environmental Site Assessment
Standard Practice Revisions
EDR Webinar
October 1, 2013

12.  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

13.  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

14.  Task group convened in early 2010
 TG agreed on two primary objectives:
◦ Clarify existing language
◦ Strengthen the deliverable

15.  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.

17. 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 //////////

18.  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

19.  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

20.  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.

21.  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

22.  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.

23.  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

24.  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.

25.  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

26.  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

27.  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

28. 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

29.  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

30.  Julie Kilgore
◦ jk@wasatch-environmental.com
 Bill Weissman
◦ wweissman@cox.net

31. Q&A