[CPEO-BIF] Commentary on All Appropriate Inquires rule and vapor intrusion

[Lenny Siegel <lsiegel@cpeo.org>]

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
<lsiegel@cpeo.org>
http://www.cpeo.org

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