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ASTM ups the Ante with E1527-21

The Phase I Environmental Site Assessment (ESA) is changing, again. While the changes are not as drastic as the last update in 2013, there are a few things that clients seeking certain liability protection under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the 2002 Brownfield Amendments, should note. We will discuss a few of the more significant considerations below.

Background

Phase I ESAs have been around for decades. The American Society for Testing and Materials (ASTM) Standard Practice for Environmental Site Assessments – first promulgated in 2003 – has generally been updated every eight years, with the most recent version being the ASTM E1527-13. This standard is set to sunset on December 31, 2021. In anticipation of this looming date, the ASTM Committee on Environmental Assessment, Risk Management and Corrective Action (E-50 Committee ) approved a new standard on November 1, 2021, now known as ASTM E1527-21.

Every time the ASTM E1527 Standard is updated, it brings forth changes that are designed by the E-50 Committee to achieve greater consistency and quality in Phase I ESAs. The ASTM E-50 is comprised of experts with a range of experience, including lawyers, financial advisors, corporate environmental directors, and consultants, and these individuals work together to form a consensus on how to manage the challenges that have arisen in the intervening years between updates.

A glimpse of the key changes in the latest standard are highlighted below.

What’s Changed?

ASTM

 

TOPICS

ASTM E 1527-13

ASTM E 1527-21

Environmental Professional (EP) as Planner, Supervisor, and Interpreter

The Phase I ESA must be conducted by an EP or under the supervision of an EP. The person performing Interviews and site reconnaissance (if not the EP) must have sufficient training and experience necessary to conduct this work, and have the ability to identify issues that are or may be RECs. The EP reviews and interprets information on which the report is based.

The new standard emphasizes that the EP must be involved in planning interviews and site reconnaissance, and the person performing the interviews and site reconnaissance also needs to possess sufficient education (in addition to training and experience), and more specifically clarifies what constitutes the ability to identify issues that are or may be recognized environmental conditions (RECs). The new standard clarifies that the EP interprets the data collected to form the basis for findings, opinions, and conclusions in the report.

Features, Activities, Uses, and Conditions of Subject Property

The EP (or designee) must look for uses and conditions to the extent visually and/or physically observed during the site visit, and the uses and conditions must be included in interviews with owners, operators, and occupants.

The new standard adds “features and activities” to the site visit and interviews, and does not include a provision that the report only describe uses and conditions that are visually and/or physically observed onsite or identified during interviews. The new standard requires the features, uses, activities, and conditions be specifically described as to their presence or absence.

Retail Properties – Additional Source Review for Retail Properties

If the Subject Property is industrial or manufacturing in use, additional sources such as property tax records or building department records, should be reviewed, providing that they are readily available and relevant to the assessment.

If the property use is industrial, manufacturing, or retail in use, the review of additional resources is needed, if such sources are readily available and deemed relevant by the EP.

Physical Setting Review

The only standard physical setting source required to be obtained is the USGS 7.5-Minute Topographic Map. Other sources may be obtained at the discretion of the EP.

The topographic map is required to be included in the report, with required features. Requires inclusion of physical setting resources as part of agency file review.

Subject Property – Historical Sources Review

A clear and concise baseline regarding the minimum historical sources review needed to produce accurate findings and conclusion is not provided.

The new standard establishes a baseline to the amount of historical research required to complete a Phase I ESA. A review of at least historical aerials photographs, topographic maps, fire insurance maps (i.e., Sanborn Maps®), and city directories, also known as the “Big 4” historical sources is required for the Subject Property.

Adjoining Properties – Historical Sources Review

A review of the “Big 4” sources is not explicitly required. EPs can choose to only evaluate some resources without specifically documenting the rationale.

A review of the “Big 4” historical sources is required. If one or more of the sources cannot be reviewed, a statement describing the reason behind the lack of review must be provided.

REC, CREC, HREC, and de minimis Definitions

Definitions provide guidance; however, they allow for interpretation.

Clearer definitions as well as guidance documents are provided in the new standard. The definitions are less subject to interpretation and tools such as flow charts are provided to aid in producing accurate findings and conclusions. The new definitions are provided in Appendix X4.

Data Gaps

A definition for data gap is provided; however, it is subject to interpretation and does not effectively quantify its potential significance.

The new standard clarifies what situations constitute a “significant data gap.” While a data gap is defined as “a lack or inability to obtain information required by this practice despite good faith efforts by the environmental professional to gather such information”, a significant data gap is defined as "a data gap that affects the ability of the environmental professional to identify a recognized environmental condition."

Maps and Photographs

Inclusion of a site plan and photographs is not explicitly stated to be required in the Phase I ESA report.

Photographs of major site features, Subject Property features and locations that represent RECs, and de minimis conditions are required as part of the Phase I ESA repot. Additionally, a Subject Property map that depicts the Subject Property boundaries is now required.

Non-Scope Considerations

The new ASTM E1527-21 standard also includes new “non-scope considerations.” Asbestos-containing materials not related to releases into the environment, and PCB-containing building materials such as caulk, paint, and light ballasts, have been added.

Of interest to many users of Phase I ESAs is the new non-scope consideration regarding substances not defined as hazardous substances under CERCLA. Because the ASTM Phase I ESA standards are intended to meet the regulatory requirements for All Appropriate Inquiry (AAI, more on that below), the ASTM E 1527 Phase I ESA standards have historically only considered “hazardous substances” under CERCLA and petroleum products that have specifically excluded from CERCLA as materials that can be considered in the determination of a REC. This did not change in the new standard. Instead, the E1527-21 standard included Emerging Contaminants as a new non-scope consideration, more clearly explained in Appendix X6 of the standard, which broadly brings attention to chemicals such as per- and polyfluoroalkyl substances (PFAS). The new standard identifies these substances as being a potential voluntary investigation at the discretion of the user. Although many states have promulgated PFAS regulations, only if the USEPA determines that individual PFAS are hazardous substances under CERCLA would those compounds would become covered by the E1527-21 standard.

What this means for Phase I ESA Clients

It’s important to note that the new E1527-21 standards has not been formally approved by the USEPA as meeting the requirements of AAI. As such, in order for a Phase I ESA to be considered one of the tools in asserting a bona fide potential purchaser, innocent landowner, or contiguous property owner defense, the Phase I ESA must specifically reference and conform to the requirements of the previous standard, E1527-13.

USEPA approval is likely several months out, leaving users of Phase I ESAs in a bit of a quandary as to which standard to request from their consultant. A few options exist:

  • Continue to request Phase I ESAs that meet the E1527-13 Standard; or
  • Request your consultant prepare a Phase I ESA that references both standards, and conforms the newer standard, as it is the more comprehensive and the stricter standard.

Working with your environmental consultant or legal counsel can help navigate which approach is best, as they will have insight into how the Phase I ESA will be used and which strategy will provide the best legal protection.

Look for future articles about how the standard is being implemented across our industry and on USEPA’s progress in approving the new standard.

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