For the past year or so, I have grown to appreciate the work of ASTM International to update environmental assessment standards and the time and effort that the volunteers and staff dedicate to this monumental effort. Last month, the ASTM International’s Environmental Assessment, Risk Management and Corrective Action Committee (E50) revised its standard practice for Phase I Environmental Site Assessments (E1527). The ASTM E1527 Standard defines what constitutes “good commercial and customary practice for conducting an environmental site assessment of a parcel of commercial real estate in the U.S. with respect to the range of contaminants within the scope of the Comprehensive Environmental Response, Compensation & Liability (CERCLA) Act (42 U.S.C. 9601) and petroleum products.” Since 2013, the standard for Phase I Environmental Site Assessments (ESAs) that banks, developers, prospective purchasers, and industry have been using is ASTM E1527-13. The new standard, known as E1527-21, makes significant modifications to the previous E1527-13 standard that has been used by environmental professionals (EPs) for the past eight years in performing Phase I ESAs of real property as part of the EPA All Appropriate Inquiry (AAI) process.
ASTM’s process of updating its standards is very important because it allows EPs to identify gaps that consistently pop up over and over that may need to be clarified. Updating standards also allows for incorporating federal rulemaking changes (like the 2018 BUILD Act) and incorporating “emerging contaminants” considerations [e.g., Perfluorooctanesulfonic acid (PFOA)]. The 2021 update involves some substantive changes, which have the main goal of ensuring more consistent and accurate Phase I ESAs in our industry.
Key Terminology and Definition Revisions
In addition to clarifying that the term subject property should be used when referencing the site, the terms “Recognized Environmental Condition” (REC); “Controlled Recognized Environmental Condition” (CREC); and “Historical Recognized Environmental Condition” (HREC) have been strengthened to reduce misclassifications of known or likely hazardous material and petroleum product releases affecting the subject property. Section 4.1 has been added to a new appendix (Appendix X4) to include notes that break down the reworded definition of “Recognized Environmental Condition” and provides guidance on the REC/HREC/CREC decision process, a flow chart, and representative examples of each. In my opinion, Appendix X4 is probably the most helpful update to the E1527-21 Standard.
During E50 committee meetings, significant discussion centered around the new term “Property Use Limitation” (PUL) and its relationship to the term “Activity and Use Limitation” (AUL), particularly how it relates to ASTM E2091-17 Standard Guide for Use of Activity and Use Limitations, Including Institutional and Engineering Controls. Now the definition of a CREC is:
“a recognized environmental condition affecting the subject property that has been addressed to the satisfaction of the applicable regulatory authority or authorities with hazardous substances or petroleum products allowed to remain in place subject to implementation of required controls (for example, activity and use limitations or other property use limitations).”
Not to oversimplify the discussion, but the best example of a PUL would be a self-directed cleanup without direct regulatory agency involvement where residual contamination concentrations meet established “restricted use” levels and where no institutional or engineering controls have been placed on that area. In this case, the release of the hazardous substance at the subject property will now be considered a CREC. Yes, it can be complicated and having a team of qualified environmental professionals is critically important to connecting risk-based cleanup decisions to implied or agency-approved institutional/engineering controls.
In addition to the definition of PUL now being included, the definition of Significant Data Gap is now included and defined as “a data gap that affects the ability of the environmental professional to identify a recognized environmental condition.”
Report Structure and Deliverable
While you may have always assumed photographs and site maps are a required part of any Phase I ESA, the existing 2013 ASTM standard does not actually require these elements. However, the revised standard now requires these items for any Phase I ESA deliverable.
The historical records review section has been restructured and updated to reflect good commercial and customary practice. Very notably, interviews are now included as a part of the historical records review – rather than its own stand-alone section. Also, new parameters have been established for the use and requirement of certain standard historical sources. Now the standard will require that aerials, topographic maps, city directories, and fire insurance maps all be reviewed, and if they cannot be reviewed, then a statement must be included in the report explaining why review of the documents was not possible. These historical records review revisions help to clarify subject and adjoining property identification, use, and research objectives.
Finally, more detailed site reconnaissance requirements have been added to reinforce existing good commercial and customary practice. I don’t think a Google Maps™ Street View drive-by from a laptop that is 350 miles away would be considered good commercial and customary practice anymore (if ever).
The Gap: ASTM E1527-21 and EPA AAI Rulemaking
You may be wondering now, when do I implement this new standard? It took about six months in 2014 for EPA to promulgate a final rule updating its all appropriate inquiry (“AAI”) regulations to include the 2013 update of ASTM E1527 Standard. EPA has been involved in the E1527-21 update, so I expect the AAI process to follow a similar timeline to the last update in 2013. Therefore, this leaves about a six-month gap between ASTM E1527-21 being finalized and EPA modifying the AAI rule to incorporate E1527-21. For this six-month gap, there are three options that environmental professionals are considering at this time:
- Continue using E1527-13 until EPA adopts E1527-21;
- Implement E1527-21 because nothing in “-21” is less stringent than “-13”; or
- Continue to reference E1527-13 as compliant with EPA AAI, and add a phrase that the assessment also incorporates the procedures set forth in E1527-21.
2022 and Beyond
As you can see, the 2021 update to the ASTM E1527 Phase I ESA Standard is fairly robust; and PPM is keeping close watch on the EPA’s update to the All Appropriate Inquiry rule in the coming months. To learn more, call 1-800-945-4834 or contact us here.
Contributed by:
Jere “Trey” Hess, P.E.
Director, Brownfields & Economic Development
(601) 953-2564