USEPA Expected to Withdraw Direct Final Rule Approving Use of Phase I ESA Standard ASTM E 1527-13 for AAI After Receiving Adverse Comments

Due to adverse comments received prior to the September 16, 2013 comment deadline, USEPA is expected to soon withdraw its August 15, 2013 direct final rule approving use of new ASTM Standard E 1527-13, “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process” to satisfy the All Appropriate Inquiry (AAI) requirements.  In the absence of the direct final rule, which was slated to take effect on November 13, 2013, USEPA’s approval of ASTM E1527-13 will be addressed through an identical proposed rule that was published in the Federal Register on the same day as the direct final rule.  According to the Agency’s explanation of the direct final rulemaking action, USEPA does not plan to institute a second comment period and is expected to address all public comments received in a subsequent final rule.

As we previously reported, ASTM E 1527-13 contains several new recommendations from the prior standard (ASTM Standard E 1527-05).  The recommendations arose out of a three-year revision process, after which ASTM requested that USEPA update its reference from the 2005 edition to the 2013 edition.  USEPA received more than 40 comments in response to its planned approval of ASTM E 1527-13, several of which were from attorneys and consultants opposing the Agency’s continued endorsement of ASTM E 1527-05 to satisfy AAI requirements.  As with the direct final rule, however, the proposed rulemaking still includes the option to use the existing ASTM E 1527-05 to satisfy AAI requirements. 

Commenters opposing the Agency’s continued endorsement of ASTM E 1527-05 to satisfy AAI requirements ignore the benefit and flexibility offered by the continued validity of ASTM E 1527-05, which may serve as a less costly alternative that would be appropriate in certain circumstances.  Moreover, supplanting the prior standard could create uncertainty regarding the Phase I process prior to adoption of the ASTM E 1527-13.  USEPA will need to weigh these issues against the perceived disadvantages of having two approved ASTM standards as it proceeds with its proposed rulemaking.