ASTM Updates on the Horizon

With the eight-year horizon nearing regarding updates to ASTM E152-13, the ASTM E50.02 Subcommittee has been drafting a new standard, expected to be finalized in the fall of 2021. While no concrete information has been released, the new standard will likely introduce a handful of changes.

Environmental Professional Requirements

E1527-13 (7.5.1) states, "The environmental site assessment must be performed by the environmental professional or conducted under the supervision or responsible charge of the environmental professional." However, the term "responsible charge" was not defined in the past. Updates to this term propose that the responsible charge must:

• Be an environmental professional (EP);
• Be competent in training and experience to conduct an ESA at a property of the type and history of the Subject Property;
• Have authority over and take responsibility for the work;
• Be in control of any other individuals performing the work; or
• Be familiar with other individuals' capabilities performing the job, train those individuals, or assure they are adequately trained.

The EP's duties are further defined that if a non-EP conducts the site reconnaissance, the EP must remain responsible and provide a rationale for using a non-EP to complete the site reconnaissance.

Revisions to HREC and CREC Definitions

Past language in the definitions of both HRECs (historical recognized environmental conditions) and CRECs (controlled recognized environmental conditions) have often been considered vague and unclear. The update is expected to contain language that raises the bar without changing the game. New specifications regarding guidance for HREC and controlled recognized environmental conditions will be clarified to help the EP clearly understand and define site findings. HRECs are expected to require the identification of any new pathway that might have emerged over time, while CRECs will require a statement clarifying that current onsite conditions satisfy the proper regulatory closure standard(s).

Adjoining Property Research and Description

Previously, E1527-13 did not provide specific research requirements for adjoining properties - only for the information that was identified through the process of researching the Subject Property itself. The proposed new language will require research for the adjoining properties to follow the same guidelines as the Subject Property research, including:

• Use of back to 1940 or first development;
• Review of the same historical resources used for Subject Property; and
• Use of the same interval and data failure requirements.

This primarily affects city directory searches, as aerial imagery, topographic maps, and fire insurance maps typically already cover the surrounding areas, whereas city directories may have gaps for adjoining properties. City directory requests will have to be modified to include adjacent and cross streets and any other streets that would consist of the adjoining properties. Additionally, after a review of city directories, EPs will state the general classification for a significant span of city directory listings containing many public listings (i.e. residential, office tenants, etc.) instead of detailing each specific listing.

PFAS as a Non-Scope Consideration

As the Phase I ESA was created to cover CERCLA liability primarily, the presence of other environmental concerns, such as asbestos, mold, lead-based paint, and wetlands, have been added as "non-scope considerations" to the practice over time. Now, the newest contaminant on the environmental horizon includes polyfluoroalkyl substances (PFAS), a group of man-made chemicals that have been manufactured in a variety of industries around the globe. PFAS compounds are usually resistant to microbial degradation and oxidation, typical processes that occur during wastewater treatment. These compounds have made environmental headlines regarding risks, future treatment solutions, and their recent addition to the United State Environmental Protection Agency (USEPA) Toxic Release Inventory (TRI) as of January 1, 2020. Under the proposed updates, PFAS compounds are anticipated to be referenced as a non-scope consideration, as they too are not currently defined as a "hazardous substance" under CERCLA.

While these proposed updates are far from a drastic change, they are a sign of the evolving nature of environmental due diligence. They should provide a more thorough basis for evaluating properties and associated risks.