A review of EPA’s comments on its adoption of the ASTM E1527-13 standard provides some guidance as to EPA’s perspective on what constitutes a complete Phase I Environmental Site Assessment. The focus of this blog is on the differences between ASTM E1527-13 and its predecessor ASTM E1527-05.
It is EPA’s belief that ASTM E1527-13 is an improvement over prior standards as it increases the level of inquiry done by future property owners making property transaction decisions. It also assists new property owners in defining any continuing obligations they may have when operating on a historically contaminated site and how to maintain any liability protection afforded by CERCLA.
ASTM E1527-13 include multiple changes to the definitions of key terms in Phase I audits, including:
(1) Recognized Environmental Condition (REC) – A REC under ASTM E1527-13 includes any release, or likely threat of a future release of a hazardous substance or petroleum products to the environment or property. De minimis conditions are generally not considered REC’s.
(2) Historical Recognized Environmental Conditions (HREC) – This new standard for a HREC contemplates that prospective purchasers will pursue additional information regarding the nature of the historical release of the property so as to make an informed decision regarding their potential future use of the property. A HREC designation is limited to past releases that have been addressed to an unrestricted residential standard and meet applicable regulatory standards. This may require a comparison between cleanup standards used at time of the remediation and cleanup standards in place at the time of Phase I audit is prepared.
(3) Controlled Recognized Environmental Conditions (CREC) – This new category is for a release that may have been cleaned to something less than unrestricted use, such as to commercial/industrial standard. Hazardous substances are allowed to remain on site and there are risk based restrictions such as institutional controls.
(4) De minimis Conditions – While an environmental consultant may consider minor conditions as de minimis, this does not include a CREC.
(5) Migrate and Migration – This includes the movement of vapors.
(6) Release – Has been revised to parallel CERCLA and excludes releases solely associated with the workplace.
The ASTM Standard also provides greater guidelines as to the significant role environmental consultants have to thoroughly review reasonably available regulatory agency files and records. The consultants should verify agency information and confirm information taken from databases. With respect to undertaking regulatory agency file and record reviews, ASTM E1527-13 provides a more standardized framework for verifying what is known about environmental conditions on the property.
A more complex and significant change in the scope of the Phase I audit includes, an
assessment of the potential for vapor releases. By redefining the definition of migration to include the movement of vapors from hazardous substances, Phase I assessment will include an assessment of the indoor air pathway. At a minimum the ASTM E1527-13 standard suggests that a Phase I assessment of a historically contaminated site, should consider the vapor intrusion pathway, just like any other exposure pathway. Because this is the Phase I assessment it may be sufficient to conclude that given the release of hazardous substances from contaminated soil or groundwater, vapor intrusion is a potential REC. This is especially true in the case of off-site releases on to the property. Some environmental consultants may address this issue in the Phase I audit, without collecting air or subsurface samples. A more detailed discussion regarding vapor intrusion and the ASTM Standard will be discussed in the blog entry to follow.
The EPA in making its announcements of the final rule acknowledges that ASTM’s new standard constitutes a consensus of an esteemed technical committee. EPA has stated that ASTM E1527-13 having already been published it is considered a public printed standard. The EPA has suggested that this standard is well known and readily available to prospective purchasers and sellers. The EPA does not discuss the potential confusion and lack of clarity that may exist for parties that do not have ready access to ASTM standards.
The EPA intends to specifically incorporate ASTM E1527-13 and by rulemaking it will revise the All Appropriate Inquiry Rule to reflect this standard change. The EPA states that this final rule became effective immediately, per its issuance on December 30, 2013, without the usual 30-day waiting period prescribed by the Administrative Procedures Act (APA) because this rule change does not
“create any new regulatory requirements or take other action for which effective parties would need time to prepare before the rule takes effect. Rather, this action merely offers parties the option of using an additional ASTM International Standard to conduct all appropriate inquiries. Today’s rule does not require that any party use this standard. Therefore, this revision became effective on the date of publication.” (70 Fed. Reg. 79321)
Therefore, technically, one could argue that ASTM E1527-05 is still an acceptable standard for a Phase I audit for CERCLA purposes, until EPA completes its rulemaking process.