                         Response to Comments Document
      Amendment to Standards and Practices for All Appropriate Inquiries
Docket: http://www.regulations.gov/#!documentDetail;D=EPA-HQ-SFUND-2014-0474-0001
Total Comments: 5 
On June 17, 2014, EPA published a proposed rule (79 FR 34480) to amend the All Appropriate Inquiries Rule to remove the reference to ASTM E1527-05 Phase I Environmental Site Assessment Standard.   EPA received five comments in response to the proposed rule.  This document includes the comments received and EPA's responses to the comments.  The original public comments can be viewed at the URL address provided above and searching using the associated tracking number provided below.  The docket number for the June 17, 2014 proposed rule and the subsequent final rule is EPA-HQ-SFUND-2014-0474.
Comment 1
Tracking No. 1jy-8d5d-hdk9
Author: Steve Anderson
Sirs: 
I am opposed to the proposed amendment to remove ASTM E1527-05 from the "All Appropriate Inquiries Rule."
As is well known to those in the environmental consulting industry, apart from some changes to the nomenclature (themselves of arguable practicality), the principal feature of the new E1527-013 standard is the introduction of the consideration of potential vapor intrusion conditions. 
The fundamental question we must ask ourselves with regard to the proposed amendment is, do the new adjustments to the ASTM standard for site assessments serve the original mission purpose of site assessments, i.e., do they help identify hazardous waste sites for clean-up under CERCLA and/or do they provide the necessary level of inquiry for an individual to avoid liability under the innocent landowner defense? I would submit that, surprisingly, they do not provide any additional level of necessary inquiry for either of those goals, beyond what ASTM E1527-05 already provided.
The changes of the -013 standard fail to serve the needs that prompted the creation of AAI because, in general, the city, county, and state regulatory agencies that provide oversight to hazardous waste clean-up sites do not require the clean-up of vapors alone. (Yes, one can cite instances involving the need to reduce methane, radon or carbon monoxide levels at the behest of some authority, but these types of vapors are not, to my knowledge, targeted as a CERCLA liability issue and, also to my knowledge, have never been required for consideration by ASTM under any prior E1527 standard). 
In the eyes of a regulatory agency, soil vapors are best remediated by addressing the on-site source of the vapors, i.e., the soil or groundwater contamination itself. If the source of intruding vapors is entirely from off-site sources, then, as with the contamination itself, once demonstrated, that becomes the basis for an argument by a landowner that they should not be held as a potentially responsible party. And since no regulatory agency at present compels the clean-up of vapors if the source contamination itself is not present, the investigation for vapor intrusion is irrelevant to the issue of establishing the innocent landowner defense.
While the intrusion of the vapors of various chemicals-of-concern may of interest to a building owner who wishes to avoid the so-called "sick building syndrome" or avoid complaints or potential health-based lawsuits from tenants, it has nothing to do with assigning or avoiding CERCLA liability. In short, `more' inquiry does not necessarily translate into `more appropriate' inquiry.
Finally, we presume that, earlier, the EPA considered carefully what really did constitute "all appropriate" inquiry and that ASTM-05 met that need. It is more fitting that the ASTM organization tailor its standard to what the EPA deems an appropriate level of inquiry rather than the reverse, where the EPA would find itself continually chasing ASTM as it continues to tweak its standard every few years. 
So, since nothing essential was removed from the earlier standard to create ASTM-013, it is agreeable that the EPA issue, if they so choose, a statement that the -013 standard meets AAI, but since the new standard also adds nothing of consequence regarding CERCLA issues, I would counter propose and urge that the EPA continue to allow the -05 standard also to meet AAI requirements -- and to say so in so many words. This will allow some level of consumer choice between those who desire the added level of inquiry included in the -013 standard, and those who desire a somewhat simpler (and likely less expensive) report, while still, for each, maintaining AAI compliance. 

EPA Response:
EPA disagrees with the commenter and points out that the scope of the AAI Rule and the ASTM E1527-05 standard always included the requirement to identify conditions indicative of releases or threatened releases of hazardous substances, or -- in the case of the ASTM standard -- "recognized environmental conditions (RECs)," including indications of vapor migration or vapor releases.  With the updates included in the 2013 version of the ASTM E1527 standard, ASTM clarified this in a the definition of migrate/migration to specifically include vapor migration and therefore remove any confusion regarding the need to identify all RECs, or all conditions indicative of releases or threatened releases of hazardous substances, when conducting an AAI investigation.  The commenter's discussion of whether a regulatory agency may require a cleanup at a property for vapors alone is not relevant.  The purpose of conducting an AAI investigation is to identify conditions indicative of releases or threatened releases of hazardous substances.  This includes identifying conditions indicative of releases stemming from vapor migration as well as identifying indications of releases to or from groundwater soils, air, and indications of releases of hazardous substances of any other nature.  
EPA disagrees with the commenter's assertion that "the new standard also adds nothing of consequence regarding CERCLA issues... ."  EPA and other commenters view the modifications made to the ASTM E1527 Phase I Environmental Assessment Standard as improvements, and in some cases, substantial clarifications that may have consequences regarding CERCLA issues.  For example the updated definition of "historical recognized condition (HREC)" and the added definition of "controlled recognized environmental conditions (CREC)" adds further clarification with regard to the nature of past releases at a property, how they were addressed, and whether waste was left in place at the property.  This information could be essential for a prospective property owner in assessing his or her potential CERCLA liability with regard to any past contamination, as well as informing potential future uses of the property. 


Comment 2
Tracking No. 1jy-8d9r-3uhk
Author: Larry Schnapf
I support the removal of the reference to E1527-05 ("05"). The existence of two ASTM standards has caused confusion in the marketplace and undermines the necessary improvements that were included in E1527-13. AAI is supposed to reflect evolving concepts of good customary practice and 05 no longer represents good practice. 
It would be helpful, though, for EPA to include language in the final preamble that the removal of the reference to 05 should not be construed and does not in any way mean that parties who relied on phase 1 reports compliant with 05 that were prepared prior to the effective date of the rule removing "05" from AAI did not comply with AAI at the time of the report.
EPA Response:
      EPA thanks the commenter for the stated support of the proposed rule.   In the preamble to the final rule, EPA includes a statement indicating that this final rule amending the AAI rule to remove the reference to ASTM E1527-05 standard does not impact parties who acquired properties between November 1, 2005 and the effective date of the final rule and used the 2005 version of the ASTM E1527 standard to comply with the All Appropriate Inquiries Rule, as it was in effect at the time the property was acquired. 

Comment 3 (See attachment for original comment)
Tracking No. 1jy-8d9s-d39o
Author: Utility Solid Waste Activities Group (USWAG)
The Utility Solid Waste Activities Group ("USWAG") submits these comments to the United States Environmental Protection Agency ("EPA" or the "Agency") in support of the Agency's proposal to amend the standards and practices for the All Appropriate Inquiries ("AAI") Rule set forth at 40 C.F.R. Part 312. See 79 Fed. Reg. 34480 (June 17, 2014). 
USWAG is an association of over one hundred and ten energy industry operating companies and associations, including the Edison Electric Institute ("EEI"), the American Gas Association ("AGA"), the American Public Power Association ("APPA"), and the National Rural Electric Cooperative Association ("NRECA"). USWAG member companies own and operate hundreds of facilities throughout the country, some of which are or may in the future be the subject of remedial action to address environmental contamination. The landowner liability protections offered under CERCLA are therefore of great importance to USWAG members, as are the standards used to demonstrate eligibility for those protections.

Last September, USWAG submitted comments expressing support for the addition to EPA's AAI Rule of a reference to ASTM International's E1527-13 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" ("E1527-13"), the update of the ASTM E1527-05 standard bearing the same name (referred to herein as "E1527-05"). See Sept. 16, 2013 comments of USWAG to EPA Docket ID No. EPA-HQ-SFUND-2013-0513; see also 78 Fed. Reg. 49690 (Aug. 15, 2013). USWAG agreed with EPA's assessment that E1527-13 is compliant with the requirements of the AAI Rule, and represents a clarification of the previous standard. Since promulgation of the final rule providing that persons conducting AAI may use ASTM E1527-13 to comply with the AAI Rule (78 Fed. Reg. 79319 (Dec. 30, 2013)), this updated standard has proven valuable to persons conducting AAI because E1527-13  -  while similar in spirit and substance to E1527-05  -  offers guidance on certain requirements that were left vague or ambiguous in the older version of the standard.
With today's comments, USWAG supports the Agency's proposal to further amend the AAI Rule by withdrawing from 40 C.F.R. § 312.11(c) the reference to ASTM International's E1527-05 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" ("E1527-05"). While USWAG did not object to the retention of the E1527-05 reference in the AAI Rule during the comment period on the addition of a reference to E1527-13 (an issue which was not, in fact, open for comment at that time), USWAG agrees that amending the AAI Rule to reference only the most current of the ASTM E1527 standards will reduce any lingering confusion regarding the requirements of the AAI Rule. USWAG further agrees with EPA that removing the reference to E1527-05 from the AAI Rule will "promote the use of the standard currently recognized by ASTM International as the consensus-based, good customary business standard" (i.e., E1527-13).
USWAG believes that it is important to reiterate the fact that, if promulgated as a final rule, the proposed action will in no way require any party to use the ASTM E1527-13 standard to comply with the AAI Rule; the standard will be merely one option available to parties wishing to demonstrate that they have satisfied the AAI Rule and are eligible for CERCLA landowner liability protection. As EPA pointed out in the preamble to its August 2013 Direct Final Rule to add to the AAI Rule a reference to E1527-13, "[a]ny party conducting all appropriate inquiries to comply with the CERCLA's bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections may continue to follow the provisions of the All Appropriate Inquiries Final Rule at 40 C.F.R. Part 312 ...." 78 Fed. Reg. at 49692.
USWAG appreciates the opportunity to comment on this rulemaking. If you have questions regarding these comments, please contact Allison Foley at Venable LLP (202-344-4416).
EPA Response:
EPA thanks the commenter for the stated support of the proposed rule.

Comment 4 
Tracking No. 1jy-8d9s-d39o
Author: David H. Quigley, Akin Gump
To Whom It May Concern: 
I am an attorney and a member of the ASTM E50 Committee on Environmental Assessment, Risk Management, and Corrective Action, E1527 Task Group, that developed the E1527-13 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. I submit these comments of support for EPA's amendment of the standards and practices for conducting all appropriate inquiries ("AAI") under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") to remove the reference to ASTM International's E1527-05 standard practice. 
Removal of the Reference Avoids Confusion 
EPA already "recommends that parties use the newer version of the standard" and the removal of the reference to the older standard will avoid confusion. From the perspective of a member of the ASTM Task Group there is one E1527 standard  -  the 2013 iteration  -  that the committee agreed upon through its consensus development process.
The intent of many serving on the E1527 Task Group was that E1527-13 would supersede E1527-05 as the operating industry standard and that the EPA would reflect this by amending the rule to "retire" the older standard. Otherwise, the risk remains that prior standards receive the same prominence as the current one, leaving environmental professionals to "pick and choose" and, as a result, be subject to second-guessing as to the validity of their choice. Beyond the potential for an unleveled playing field, the potential failure to implement universally the new iteration of the standard risks losing the benefits of that standard with very little reward. Even with the removal of the old standard, EPA is proposing to allow for a one-year implementation period from the final rule's publication date. This implementation period should more than address any concerns regarding in-process assessments and consultants needing time to bring their business up to speed. In fact, due to market demand, many consultants have already begun conducting assessments and preparing reports under the updated E1527-13 standard. There is no valid argument to delay the removal of the E1527-05 standard any longer, and a phase-in period of 6 months or less would be more appropriate and more reflective of the state of the industry. 
Benefits of the New Iteration Justify Removal of Reference to the Old 
I agree with EPA that the new standard "improves upon the previous version and reflects the evolving best practices and level of rigor...." 
      [T]he new ASTM E1527-13 standard enhances the previous standard with regard to the delineation of historical releases or recognized environmental conditions at a property and makes important revisions to the standard practice to clarify that all appropriate inquiries and phase I environmental site assessments must include, within the scope of the investigation, an assessment of the real or potential occurrence of vapor migration and vapor releases on, at, in or to the subject property.
Specifically, the new standard corrects inconsistencies in the industry that members of the committee experienced over the years. 
First, the new version clarifies the definition of "migrate/migration" to specifically include vapor migration. Releases of contaminants that migrate via vapor pathways in the subsurface or in soils are confirmed to be recognized environmental conditions. This clarification was necessary to reduce inconsistencies in how consultants assessed vapor concerns in the past and to provide more consistent assessments for users. The inclusion of vapor migration in the assessment process ensures that users have the added assurance of identifying this potential source of environmental impact to a property. 
Second, the new version provides a standardized framework for "file reviews" to verify agency information obtained from key databases. The standard provides environmental consultants the flexibility to determine whether to obtain regulatory agency file records, and simply requires that, if they do not, they document why this review was not conducted. Note that this particular revision was included after the Task Group confirmed that many consulting firms nationwide were already following the substantive procedure. There may be good reason why a file review is unnecessary, and the revised standard merely requires that the consultant include that rationale in the report. Concerns have been raised regarding the timing and potential costs associated with the file reviews, but these constraints existed prior to the most recent revision. Phase I firms looking to offer the "lowest bids," led to the past inconsistencies in thoroughness, etc. and this revision aims to reduce the discrepancies and somewhat "level the playing field" for the firms that were already complying with the file review requirements in order to fulfill the AAI requirements. 
In the end, the new standard offers incremental improvements over the old, with sufficient time to implement them and with no significant drawbacks, such that it no longer makes sense to continue to reference the old standard. As EPA concluded, E1527-13 and E1527-05 are "essentially congruent," with the new version offering "clarifications and additional guidance." The new standard provides better, more consistent, information for its users, while maintaining the old standard offers only confusion. I strongly support EPA's amendment of the standards and practices for conducting AAI to remove the reference to the E1527-05 standard practice.
If EPA desires any additional information or has any questions, please contact me at dquigley@akingump.com or (202) 887-4339. 
EPA Response:
EPA thanks the commenter for the stated support of the proposed rule.  Although EPA agrees with the commenters' statements that most environmental professionals are likely already using the updated E1527-13 standard, the Agency believes it is prudent to provide for the one year delay in the effective date.  The All Appropriate Inquiries Rule requires that AAI investigations be conducted within one year prior to the date of acquisition of the subject property (see 40 CFR 312.20(a)).  In addition, the AAI Rule requires that certain aspects of the AAI investigation be conducted or updated within 180 days prior to the date of acquisition of the subject property (40 CFR 312.20(b)).  Given these requirements, EPA determined that delaying the effective date for the final rule by only six months may be burdensome for some parties.  Therefore, EPA is delaying the effective date for final rule, until one year after the rule is published in the Federal Register.  This will allow sufficient time for AAI investigations initiated or on-going at the time of publication of the final rule to be completed or updated prior to the effective date.

Comment 5 
Tracking No. 1jy-8d9v-4pyl
Author: William R. Weissman 
I am a member of the ASTM task group that developed the ASTM E1527-13 and E1527-05 standards and am submitting these comments in my individual capacity in support of EPA's proposal to remove the reference to the 2005 standard in 40 C.F.R. §312.11. 79 Fed. Reg. 34480 (June 17, 2014). I have to acknowledge that I was initially skeptical about the need or value of deleting the reference to the 2005 standard because in my view there is very little difference between the two versions of the E1527 standard. In my view, compliance with both standards is compliant with EPA's All Appropriate Inquiries ("AAI") rule. 40 C.F.R. Part 312. However, after reading EPA's well-crafted preamble to the pending proposed rule, I have concluded that the public will benefit from the clarifications EPA has provided and therefore I am supporting promulgation of the rule as proposed. 
The reason that final adoption of the proposed rule is welcome is that a small minority of environmental professionals who conduct Phase I environmental site assessments using the E1527-05 standard have misread that standard to justify some unintended shortcuts to the site assessment process. Since publication of the E1527-13 standard, there have been a number of misstatements in the public media as well as in comments submitted to EPA about what some believe to be significant changes in the E1527 due diligence process resulting from adoption of the 2013 standard. One such misstatement claims that the 2013 standard adds a new requirement for assessment of potential vapor intrusion conditions. I am advised that EPA has received at least one comment that makes this claim. Those who express this view are mistaken. Vapor intrusion assessment has not been part of E1527-05 and is not part of E1527-13 assessment. 
The persons who express this mistaken view may have conflated the terms "vapor intrusion" and "vapor migration." These are quite different concepts, and only the latter has any relevance to E1527 site assessments. The term "vapor" appears in the 2013 standard as an example in the definition of migrate and migration  -  i.e., "`migrate' and `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." ASTM E1527-13 §3.2.56. "Vapor intrusion," however, is a term specifically associated with "the migration of chemical vapors from contaminated soil and groundwater into buildings." EPA, Brownfields Technology Primer: Vapor Intrusion Considerations for Redevelopment, p.1, EPA 542-R-08-001 (2008) (emphasis added). The E1527-13 standard, like the E1527-05 standard, does not call for evaluation of the likelihood that vapors have migrated into buildings. 
Users of the E1527-13 standard need to keep in mind that the purpose of a Phase I site assessment is to determine whether there exists a "recognized environmental condition" on a parcel of property  -  that is, determining "the presence or likely presence of any hazardous substances or petroleum products in, on, or at a property: (1) due to release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment." ASTM E1527-13 §3.2.78. This determination is comparable to the objective of EPA's AAI rule. See 40 C.F.R. §312.20(e) ("The standards and practices set forth in this part for All Appropriate Inquiries are intended to result in the identification of conditions indicative of releases and threatened releases of hazardous substances on, at, in, or to the subject property."). The Phase I site assessment focuses on whether there is a condition in, on or at the subject property stemming from a release of hazardous substances or petroleum products that would indicate a possible CERCLA liability condition regardless of the exposure pathway of the release. Subsurface vapor migration stemming from a release of hazardous substances is no different from the standpoint of a Phase I assessment than migration of groundwater contamination. As EPA previously stated: "Neither the All Appropriate Inquiries Rule nor the ASTM E 1527 - 05 standard excludes the identification of vapor releases as a possible type of release." 78 Fed. Reg. 79319, 79322 (Dec. 30, 2013). The express clarification of the definition of "release" in the 2013 standard to include vapor migration was not a new requirement but a response to inconsistent interpretations of the 2005 standard among environmental professionals. 
The aim of the 2013 revisions was to clarify ambiguous language in the 2005 standard that may have confused some users into believing that a vapor pathway by itself could never constitute a recognized environmental condition. There were other ambiguities in the 2005 standard that led some users of the standard into believing that certain data gathering shortcuts were acceptable. Once the ASTM task group responsible for developing the E1527 standard learned of these misunderstandings, the task group commenced the ASTM consensus development process to gather industry feedback regarding "good commercial and customary practice" (i.e., what were most consultants actually doing) to update the 2005 standard to clarify these unintended ambiguities. 
EPA's final rule referencing the 2013 standard clearly recognized that the 2013 standard does not add significant new obligations to the environmental site assessment process but merely clarifies and explains what was intended in the 2005 standard. See 78 Fed. Reg. at 79321-22; EPA, Summary of Updates and Revisions to ASTM E1527 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process  -  How E1527-13 Differs from E1527-05 (Docket EPA - HQ - SFUND - 2013 - 0513). Now that ASTM has clarified in the 2013 standard what was intended in the 2005 standard, users who persist in viewing the 2005 standard as a pathway to a low cost incomplete site assessment face the risk that a post-2013 assessment based on the ambiguities in the 2005 standard may find themselves disqualified from CERCLA liability protection in any future CERCLA litigation. EPA's December 30, 2013 rule referencing E1527-13, together with the current proposal to remove the reference to the 2005 standard, constitute fair notice that going forward the clarifications in the 2013 standard represent "good commercial and customary practice" for any future environmental site assessment intended to be compliant with the AAI rule. 
Finally, EPA has invited public comment on a delayed effective date of one year for implementation of the withdrawal of the reference to the 2005 standard. Since EPA announced its intention to propose the pending amendment more than seven months ago (see 78 Fed. Reg. at 79322), a six month lag time should be sufficient. The ASTM task group's experience is that most users of the E1527 standard have already transitioned to the 2013 standard. Except if preexisting contractual obligations require use of the 2005 standard, the only reason anyone would want more time to continue using the 2005 standard is to perpetuate as long as possible the site assessment short-cuts that were never intended in 2005 and would not likely be compliant with the AAI rule. If an environmental professional is under a binding contract executed prior to June 17, 2014 (the date of the proposed rule) for performing a site assessment using the 2005 standard, they should be given the opportunity to request a waiver of the effective date of the final rule from EPA to allow performance in accordance with the terms of the contract and consistent with the clarifications in the 2013 standard. I believe EPA will see few if any such waiver requests. 
Thank you for your consideration of these comments. 
EPA Response:
EPA thanks the commenter for the stated support of the proposed rule.  Although EPA agrees with the commenters' statements that most environmental professionals are likely already using the updated E1527-13 standard, the Agency believes it is prudent to provide for the one year delay in the effective date.  The All Appropriate Inquiries Rule requires that AAI investigations be conducted within one year prior to the date of acquisition of the subject property (see 40 CFR 312.20(a)).  In addition, the AAI Rule requires that certain aspects of the AAI investigation be conducted or updated within 180 days prior to the date of acquisition of the subject property (40 CFR 312.20(b)).  Given these requirements, EPA determined that delaying the effective date for the final rule by only six months may be burdensome for some parties.  Therefore, EPA is delaying the effective date for the final rule, until one year after the rule is published in the Federal Register.  This will allow sufficient time for AAI investigations initiated or on-going at the time of publication of the final rule to be completed or updated prior to the effective date.

