New ASTM Standard for Phase I Environmental Site Assessments Includes Substantive Changes
On November 6, 2013, ASTM International (ASTM) published a new Standard Practice for Phase I Environmental Site Assessments, known as ASTM E1527-13.1 The new ASTM standard includes a number of substantive revisions to the existing E1527-05 standard that will affect how Phase I ESAs are conducted and how Recognized Environmental Conditions (RECs) are described.
Notably, E1527-13 is expected to be recognized by the U.S. Environmental Protection Agency (EPA) as satisfying its All Appropriate Inquiry (AAI) rule by the end of this year. Key differences between the existing E1527-05 standard and the E 1527-13 standard include: (1) the change in the definition of Historical Recognized Environmental Conditions (HRECs); (2) the new concept of Controlled Recognized Environmental Conditions (CRECs); (3) potentially expanded regulatory file reviews; (4) the need to address the vapor migration pathway; and (5) the need to include the user-required information. Affected parties may continue to perform Phase I ESAs pursuant to the E1527-05 standard, but should become familiar with the revisions contained in E1527-13 as soon as possible.
The purpose of the ASTM E1527 standard is to define good commercial and customary practice for conducting a Phase I Environmental Site Assessment, with the goal of identifying RECs at the subject property.2 A REC is defined in E1527-13 as "the presence or likely presence of any hazardous substances or petroleum products in, on or at a property (1) due to release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment."3
ASTM initially published the E1527 standard in 1993. It issued subsequent revisions in 1997 and, most recently, in 2005. Under the ASTM E1527 standard, a Phase I ESA of a property typically involves a review of regulatory records pertaining to the site and surrounding properties, field reconnaissance and interviews with individuals who may have knowledge about the site, including past and present owners, operators and occupants, as well as certain state and/or local government officials.4 A Phase I ESA does not represent an exhaustive environmental investigation of the site.5 Nevertheless, since 2005, EPA has accepted the procedures set forth in E1527-05 as constituting "all appropriate inquiries" (AAI) for purposes of satisfying one of the threshold requirements for establishing one or more of the landowner liability protections (LLPs) provided in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).6 In a Direct Final Rule7 that was subsequently withdrawn,8 EPA signaled its view that the procedures set forth in E1527-13 will also satisfy AAI. EPA is in the process of addressing comments filed on the Direct Final Rule and anticipates finalizing the rulemaking by the end of this year.
Specific Revisions Contained in ASTM E1527-13
E1527-13 contains multiple revisions and updates that will affect how Phase I ESAs are conducted and how RECs are identified and reported. Notable revisions include the following:
Definition of Recognized Environmental Conditions
The REC definition has been clarified and streamlined in E1527-13 to mean "the presence or likely presence of any hazardous substances or petroleum products in, on or at a property: (1) due to any release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of future release to the environment."9 De minimis conditions are not recognized environmental conditions.10
First, the revised definition focuses more directly on "releases to the environment" than the presence of hazardous substances, and in light of the revised definitions of "release" and "environment,"11 now more closely aligns with the AAI regulations, which are expressly intended to identify "conditions indicative of releases and threatened releases of hazardous substances on, at, in, or to the subject property."12
In light of these clarifications, practitioners should be reviewing their standard forms to be sure that lenders and others are not listing the "presence" or "existence" of hazardous substances or releases into the indoor environment (which does not meet the definition of "environment") as conditions that potentially trigger liability under CERCLA.
"Historical" and "Controlled" Recognized Environmental Conditions
ASTM has significantly changed the meaning of Historical Recognized Environmental Conditions under E 1527-13. Previously, HRECs were defined as environmental conditions "which in the past would have been considered a recognized environmental condition, but which may or may not be considered a recognized environmental condition currently."13 This vague and broad definition caused substantial confusion, such as whether past releases that had been remediated to a risk-based corrective action standard — where that standard would no longer be considered sufficient today, either because of changes in applicable regulatory standards or failure to consider certain exposure pathways — would qualify as an HREC, and whether the acceptability of the cleanup was dependent upon the implementation and maintenance of institutional or engineering controls.
To address this uncertainty, under E1527-13, HRECs are now defined much more narrowly as "a past release of any hazardous substances or petroleum products that has occurred in connection with the property and has been addressed to the satisfaction of the applicable regulatory authority or meeting unrestricted residential use criteria established by a regulatory authority, without subjecting the property to any required controls," such as property use restrictions or activity and use limitations (AULs, which include both institutional controls and engineering controls).14 During the internal debates over negative ballots on the HREC and CREC definitions, the ASTM E 50 Chair stated that an HREC was intended to apply to sites cleaned up to an unrestricted residential use standard, and that the CREC definition was intended to apply to sites cleaned up to a risk-based corrective action standard, whether the "required controls" had actually been implemented or not.
This revised HREC definition attempts to clarify that any historical release that has been remediated to risk-based corrective action standards, using any type of property use restrictions (such as a cleanup based upon future commercial use only) or other types of institutional and engineering controls (whether implemented or not) does not constitute an HREC. Instead, such conditions are included in the newly-created category of Controlled Recognized Environmental Conditions (CRECs), which are characterized as past releases that have been satisfactorily remediated to applicable risk-based criteria but where contaminants are allowed to remain in place subject to the implementation of "required" controls.15 The term CREC does not mean that the required controls have actually been implemented or are working as intended. In other words, "controlled" does not actually mean that the REC is "under control" or "being controlled" — just that it should be. In fact, E1527-03 explains in Note 3 that "A condition identified as a controlled recognized environmental condition does not imply that the environmental professional has evaluated or confirmed the adequacy, implementation or continued effectiveness of the required control that has been, or is intended to be, implemented."16 CRECs must be listed in the findings section of the report as a REC and in the conclusions section.
We believe that the new HREC and CREC definitions will simply cause more confusion than before. For example, imagine the following: An urban brownfields site is remediated by excavating petroleum-contaminated soil to a depth of 40 feet below ground surface. Some residual contamination remains in the soil beneath the parking garage of the new building. Contaminated groundwater is treated for a while with carbon filters, but treatment is not required post-construction. An engineering control is installed as a prudent construction measure, not as a "required control." The site will be used as an office building in the future. The local environmental agency issues the site a No Further Action letter. In the past, this situation would have been described as an HREC. Would it still qualify as such today?
E1527-13 contains a new definition of "migrate/migration," which 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."17 Currently, potential vapor migration, which is not explicitly addressed in E1527-05, is not consistently assessed as part of Phase I ESAs. By including this explicit reference to migration in E1527-13, the standard clarifies that the potential for vapor migration should be addressed as part of a Phase I ESA and should be considered a REC when identified. Further, the recognition of vapor migration as a possible REC may require incorporation of new types of controls and restrictions to address this contamination pathway.18
Regulatory Records Reviews
E1527-13 contains an updated section on Regulatory Agency File and Records Review, which clarifies that an environmental professional should review regulatory agency files when potential sources are identified within the applicable ASTM search distances, or provide a detailed explanation why it believes that such as review is not warranted. Alternatively, the environmental professional may review files and records from other sources (e.g., user-provided records or interviews with regulatory officials and knowledgeable individuals), and include this information in the Phase I ESA instead, if the environmental professional believes this information is sufficient for identifying RECs. As a result, environmental professionals should expect to improve the rigor of their regulatory reviews, and users may experience an increase in Phase I costs.
Under the existing ASTM standard, users seeking to conduct a Phase I ESA at a property are responsible for disclosing information about the property, including that which is commonly known or reasonably ascertainable.19 This responsibility can usually be satisfied by completing a standard user questionnaire.20 The new ASTM standard leaves these responsibilities in place, but makes many of them mandatory.
For example, in order to satisfy AAI, a user must conduct a search for the existence of environmental liens or AULs that are filed or recorded against the property.21 The user must take into account its specialized knowledge or experience and should communicate this information to the environmental professional.22 The user must take into account any commonly known or reasonably ascertainable information about the property and should disclose this information to the environmental professional for incorporation into the Phase I ESA report.23 The user must consider the degree of obviousness of the presence or likely presence of releases on the property.24 If the user fails to provide this information, the environmental professional should consider the significance of the absence of this information.25 With this heightened focus on information that the user must provide, it is incumbent upon the user to complete the user questionnaire and to provide the environmental professional with a title report showing restrictions of record on title (not a chain of title report) in order to satisfy AAI.
EPA Adoption of ASTM E1527-13
In anticipation of the publication of the new standard, EPA issued a direct final rule in August 2013, in which it stated that "parties purchasing potentially contaminated properties may use the E1527-13 standard practice to comply with all appropriate inquiries requirements" of CERCLA.26 However, opining that "there are no legally significant differences between regulatory requirements under the two ASTM E1527 standards," EPA declined to remove reference to E1527-05 from the AAI regulations. Thus, under EPA's direct final rule, a Phase I ESA conducted under either standard would be sufficient to satisfy AAI. EPA received multiple adverse comments, primarily because of the potential confusion in the marketplace if either the -05 version or the -13 version of E1527 could be used to satisfy AAI. EPA subsequently withdrew the direct final rule.27
EPA is currently reviewing the comments filed on the rule and is expected to issue a final rule by the end of this year. In the meantime, environmental professionals can continue to use E1527-05 for Phase I ESAs, but are encouraged to familiarize themselves with the revisions and updates contained in E1527-13. Regardless of which standard is used, the Phase I report should clearly identify which standard was utilized in conducting the assessment.
1ASTM E1527-13 is available at http://www.astm.org/Standards/E1527.htm.
2See ASTM E1527-13 §1.1 and 1.1.1.
3ASTM E1527-13 §3.2.78. This definition is a clarification of the definition that was contained in E1527-05.
4See ASTM E1527-13 §7.2.
5See ASTM E1527-13 §4.5.2.
6See 42 C.F.R. §312.11. CERCLA's LLPs include: (1) the innocent landowner defense, see 42 U.S.C. §§9601(35), 9607(b)(3); (2) the bona fide prospective purchaser liability protection, see 42 U.S.C. §§9601(40), 9607(r); and (3) the contiguous property owner liability protection, see 42 U.S.C. §9607(q). For more information regarding CERCLA's LLPs, see Amy L. Edwards, The Landowner Liability Protections ("LLPs") Under the Brownfields Amendments of 2002, originally presented at the ALI-ABA Environmental Law Conference held in Washington, D.C. on February 2-3, 2012, and subsequently updated to reflect recent developments.
778 Fed. Reg. 49,690 (Aug. 15, 2013).
878 Fed. Reg. 64,403 (Oct. 29, 2013).
9ASTM E1527-13 §1.1.1 and 3.2.78.
11These definitions have been revised expressly to reflect comparable definitions in CERCLA. See ASTM E1527-13 §3.2.82 (defining "release"), ASTM E1527-13 §3.2.29 (defining "environment").
1242 C.F.R. §312.20(e).
13ASTM E1527-05 §3.2.39.
14ASTM E1527-13 §3.2.42.
15See ASTM E1527-13 §3.2.18.
16See ASTM E1527-13 §3.2.18 (emphasis added).
17ASTM E1527-13 §3.2.56.
18For example, "vapors" are specifically referenced in the revised definition of Activity and Use Limitations (AULs). See ASTM E1527-13 §3.2.2.
19See ASTM E1527-05 §6.
20See ASTM E1527-05, App. X3.
21See ASTM E1527-13 §6.2.
22See ASTM E1527-13 §6.3.
23See ASTM E1527-13 §6.6.
24See ASMT E1527-13 §6.7.
25See ASTM E1527-13 §6.1.
26See Amendment to Standards and Practices for All Appropriate Inquiries, 78 Fed. Reg. 49690, 49691 (Aug. 15, 2013). See also Amendment to Standards and Practices for All Appropriate Inquiries, 78 Fed. Reg. 49714 (Aug. 15, 2013).
27See Amendment to Standards and Practices for All Appropriate Inquiries, 78 Fed. Reg. 64403 (Oct. 29, 2013).