U.S. EPA has published in the Federal Register its action that removes the old Phase I standard (1527-05) from the "All Appropriate Inquiries" Rule (AAI). Until this action, AAI recognized both the old standard and the new standard- ASTM 1527-13.
The major differences between the old and new ASTM Phase I standard include:
- Key legal definitions associated with contamination
- Enhanced requirements for agency file reviews
- As discussed below, new language highlighting the need to assess the potential for vapor intrusion
EPA delayed the effective date of the rule until October 6, 2015 to allow the continued use of 1527-05 until that date. Going forward, any Phase I report issued after the effective date of the rule which is based on ASTM 1527-05 will no longer be deemed sufficient for meeting establishing the Bona Fide Purchaser Defense to CERCLA (BFPD). The BFPD provides new owners and tenants of property a defense to liability under CERCLA if it completes due diligence in accordance with EPA’s AAI Rule.
EPA action was not a surprise. Perhaps the most interesting aspect of EPA action is the comment in the preamble related to vapor intrusion:
"The scope of the AAI Rule and the ASTM E1527–05 standard always included the
requirement to identify all indications of releases and threatened releases of hazardous substances, or ‘‘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 modified the definition of migration to specifically include vapor migration and remove any confusion regarding the need to identify all RECs, or all indications of releases or threatened releases of hazardous substances, when conducting an AAI investigation." (emphasis added)
While EPA may believe it has always been known the vapor intrusion needed to be assessed, that certainly was not the case among consultants. Many prepared Phase I reports that did not mention in anyway vapor intrusion. I have read such reports in the past.
This issue is whether this type of statement from EPA provides grounds for professional negligence claims against environmental consultants who did not perform a vapor intrusion evaluation under an old Phase I which followed ASTM 1527-05.
The most likely scenario would be someone who purchased a building and learned later that a vapor intrusion/migration issue existed on the property. They obtained a Phase I environmental assessment prior to purchase, however, the Phase I did not review the potential for vapor intrusion.
As discussed in a prior post, a recent survey indicates that barely half of the Phase I reports being performed using the new ASTM 1527-13 standard analyze for vapor intrusion.