Should Consultants Use ASTM E1527-13 Prior to EPA Recognition?

On November 6th, ASTM announced that it has published its E1527-13 Phase 1 Standard for Environmental Site Assessments. Upon publication of a new ASTM standard, the prior version becomes obsolete. In a normal transition, environmental consultants would transition to using the new E1527 version like they did with the E1527-94, E1527-97 and E1527-00.

However, this is not a normal transition. E1527-05 is recognized in EPA’s All Appropriate Inquiries (AAI) rule as an alternative method for demonstrating compliance with AAI. Indeed, the very reason many property owners order E1527 reports is to be able to qualify for one of the CERCLA landowner liability protections which all require performance of AAI prior to acquisition of their property. However, while EPA has proposed to recognize E1527-13 as satisfying AAI, the agency has not yet issued its final rule and does not expect to do so until the end of the year or beginning of the 2014.  And depending on how EPA handles the adverse comments it received, it is possible EPA may be sued which could further delay recognition of E1527-13.

So what is a consultant to do for transactions requiring a phase 1 prior to EPA  formally recognizing E1527-13? On the one hand, by publishing E1527-13, ASTM is essentially saying that the new version now represents good commercial practice. Thus, a consultant failing to use the most current version of E1527 could expose a consultant to professional negligence claim if, for example, the consultants fails to identify a REC because it did not do a file review or fails to evaluate the soil gas pathway. This would seem to tip the decision towards using E1527-13.

However, E1527-13 is not yet recognized as an acceptable method of satisfying AAI. Thus, if the purpose of the phase 1 is to comply with AAI, a consultant stating that its phase 1 complies with AAI could be subject to breach of contract or claims of misrepresentation since only E1527-05 is currently recognized in the AAI rule.

Thus, during this interim period, consultants should carefully review the language they use in their reports about the report complying with AAI. Environmental consultants should discuss the “gap period” with their clients to make sure they understand the risks in using E1527-13 before EPA formally recognized the standard as consistent with AAI. Some clients may want to continue to use E1527-05 to ensure satisfying AAI.  If the client wants to use E1527-13, consultants  may want to amend their standard language to discuss that E1527-13 is not yet formally recognized in the AAI rule until such time as EPA issues its final rule. For other clients such as some types of lenders, AAI might not be the primary reason for ordering the phase 1 and thus the “gap period” may not be important.

For those consultants who already routinely perform agency file reviews as part of their standard scope of work and consider the soil gas pathway in determining the presence of a REC, there will be little practical difference between E1527-13 and E1527-05. For these consultants, they can continue simply continue to refer to E1527-05 in their report while incorporating  the new CREC definitions where applicable. Another option might be to refer to both versions of ASTM E1527 during this gap period.

In any event, it is important to discuss the “gap period” with your client and document these discussions to protect against future claims for malpractice, breach of contract or misrepresentation.