The Final Chapter: EPA Issues Final AAI Rule Amendment (Finally)

Sunday, January 12, 2014

While many of you were spending time with friends and family, recovering from an undoubtedly excessive amount of holiday goodies, and getting ready to toast to the new year, the U.S. Environmental Protection Agency (EPA) found the time to publish a final rule amendment regarding the status of the new ASTM International standard for Phase I Environmental Site Assessments (ESAs).  On December 30, 2013, the EPA formally issued an amendment to the All Appropriate Inquiries (AAI) rule under CERCLA, recognizing the new standard (identified as ASTM E1527-13) as an acceptable means of meeting the AAI rule, which gives end users certain liability protections.  As of the issuance of this article, both the 2005 standard (ASTM E1527-05) and the new standard are technically acceptable means of meeting the AAI rule, although the EPA amendment specifies that the 2013 standard is to be considered a best practice.  Although no specific date was given, EPA also indicated that an additional amendment to the rule was forthcoming to propose the elimination of references to the 2005 standard, although no deadlines were given.  So what does this mean?  How will this affect the end users moving forward?  Will consultants’ prices go up?

Previous PSARA articles have highlighted the differences between the 2005 and 2013 standards.  The major changes include new and amended definitions of recognized environmental conditions (RECs), including a new, specially designated Controlled REC (CREC).  More explicit and robust regulatory file review requirements are also a new part of the standard, as is more specific consideration of vapor migration and intrusion.

End users should be more comfortable and sleep easier under this new rule.  Vapor intrusion and migration have been a topic of great discussion and debate over the past few years, and environmental professionals have long known that the new standard would involve some sort of an evaluation of vapor.  This new rule requires consultants to evaluate the completeness of vapor migration pathways, both from potential onsite and offsite sources.  Additionally, the more stringent requirements for file reviews and more descriptive nature of RECs should provide for clearer, more inclusive reports and better evaluations of potential concerns on a property.

For most good consultants, cost aspects should not change as the majority of these changes were an implied part of the old rule as well, but now have been better defined.  As each site is different, based on size, structures, land use, neighborhood, and adjacent and nearby facilities, an initial evaluation of these factors should allow environmental professionals to price Phase I ESAs written in accordance with the new standard appropriately, at costs not to exceed that of those written in compliance with the old rule.

PSARA has planned and prepared accordingly to adapt to this new standard and is prepared to transition to the new rule seamlessly.  For more information, please contact Michael O’Connell.