2014 CPEO Brownfields List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: Fri, 10 Jan 2014 09:33:08 -0800 (PST)
Reply: cpeo-brownfields
Subject: [CPEO-BIF] Commentary on All Appropriate Inquires rule and vapor intrusion
EPA Recognizes E1527-13 But Preamble Raises Specter of Retroactive LIability For Past Phase 1 Reports that Did Not Assess Vapor Intrusion

Larry Schnapf
Schnapf Law
December 31st, 2013

On December 30th, the federal Environmental Protection Agency (EPA) published a final rule in the Federal Register (78 FR 79319) recognizing the new ASTM E1527-13 phase 1 standard practice as an approved method for complying with the All Appropriate Inquires (AAI) rule. As explained below, while the preamble to the final rule is an improvement to the text that accompanied the August rulemaking since it attempts to address some of the concerns raised in the adverse comments, this action amounts to Band-Aid where surgery was needed to repair the ill-conceived rulemaking exercise.

Despite receiving adverse comments to the botched August rulemaking, EPA declined to delete the reference to the now obsolete E1527-05 from the AAI rule. Instead, agency included language in the explanatory text (the "preamble") encouraging property owners and consultants to use ASTM E1527-13. In responding to some of the adverse comments it received, EPA may have opened the door to retroactive liability to consultants and their clients for previously completed phase 1 reports that did not evaluate the vapor intrusion pathway.


In the response document that is in the regulatory docket, EPA said that "Some users of the ASTM E1527-05 standard and some who submitted comments in response to EPA's August 15, 2013, proposed rule raised concerns that potential vapor releases on, at, in or to a property are often not considered or may be overlooked by many practitioners when conducting all appropriate inquiries. EPA wishes to be clear that, in its view, vapor migration has always been a relevant potential source of release or threatened release that, depending on site-specific conditions, may warrant identification when conducting all appropriate inquiries.…"


For the entire blog, see
http://www.environmental-law.net/2013/12/epa-recognizes-e1527-13-but- preamble-raises-specter-of-retroactive-liability-for-past-phase-1- reports-that-did-not-assess-vapor-intrusion/#


Lenny Siegel
Executive Director, Center for Public Environmental Oversight
a project of the Pacific Studies Center
278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918

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