Phase I of EPA's ESA Standard Process Finalized

The following post is provided by our guest author, Graham Crockford from TRC Environmental Corporation. Graham can be reached at gcrockford@trcsolutions.com.

On November 6, 2013, the final version of ASTM E1527-13: Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process was released with an effective date of November 6, 2013. On December 30, 2013, the U.S. Environmental Protection Agency (EPA) published a final rule adopting ASTM E1527-13 as a standard satisfying All Appropriate Inquiry (AAI) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Meeting the AAI requirements is essential so that an owner or operator can qualify for the bona fide prospective purchaser, innocent landowner or contiguous property owner’s defenses to CERCLA strict liability.

Differences between the 2005 and 2013 ASTM standards includes clarification of terminology and affirmation of existing due diligence practices, the timing and cost of the due diligence assessments can be impacted. Some specifics:

Definitions

• The definition for Recognized Environmental Conditions (RECs) has been simplified.
• The definition for Historic Recognized Environmental Conditions (HREC) has been revised to include specific conditions, including:
  • A past release of a hazardous substance or petroleum products that occurred in connection of the target property and has been addressed to the satisfaction of the applicable regulatory agency or;
  • Meets unrestricted residential use criteria, without subjecting the property to any required controls (property use restrictions, institutional/engineering controls).
• New definition for “Controlled” REC (CREC):
  • “a REC resulting from a past release of hazardous substances or petroleum products that has been addressed to the satisfaction of the applicable regulatory authority, with hazardous substances or petroleum products allowed to remain in place subject to the implementation of required controls. a CREC shall be listed in the Findings Section of the Phase I ESA report, and as a REC in the Conclusions Section of the…report.”

Vapor Intrusion – Previously the Indoor Air Quality (IAQ) exclusion had been used as a rationale not to consider vapor migration/intrusion in a Phase I investigation. However, the IAQ exclusion has been clarified. The new standard indicates that the IAQ exclusion applies to issues that are unrelated to releases of hazardous substance or petroleum products into the environment. This implies that an issue with IAQ related to a release of a hazardous substance or petroleum products would be within the scope of the Phase I ESA.

Soil Vapor has been added as a type of contamination by definition within the updated standard.

• Migrate/Migration – “refers to the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface.”
• AUL – “activity and use limitations – legal or physical restrictions or limitations on the use of, or access to, a site or facility: (1) to reduce or eliminate potential exposure to hazardous substances or petroleum products in the soil, soil vapor, groundwater, and/or surface water on the property…”

Agency File Reviews – New section added – If the target property or any adjoining property is identified in the environmental database search, pertinent regulatory files and or records associated with the listing should be reviewed. If the Environmental Professional (EP) feels that that a file review is not needed, the EP must provide justification in the Phase I report. The EP may review records from alternative sources such as: user-provided information; on-site records; and interviews with regulatory officials. Information obtained in the file review shall be summarized within the Phase I report and the EP must provide an option of the adequacy of the information obtained.

Revisions to User Responsibilities

• Environmental liens and AULs are typically included in recorded land title records unless rules/regulations specify otherwise. In jurisdictions where rules/regulations require environmental liens and AUL to be recorded someplace difference than the recorded land title (i.e. judicial records) those records must be searched.
• Information that is commonly known about that property which could be relevant to making a REC determination by the EP must be taken into account by the user and communicated to the EP.

If the user does not supply information as required under the User Responsibilities section of the standard, the EP may need to consider and treat this as a data gap.