Phase I Environmental Site Assessment Standard Practice 2013 Changes
Article Update: On November 6, 2013, the much-anticipated Standard Practice E1527-13 for Phase I Environmental Site Assessments was issued by ASTM. Earlier this year, Liberty’s Principal, David S. Coyne, QEP, a Member of the ASTM E.50 Subcommittee responsible for the drafting of the Standard, issued a review (below) of the changes that are implemented in the new 2013 Standard Practice. The new Standard addresses certain topics which have been the subject of debate since the issuance of the prior Standard Practice in 2005. These topics include new definitions for what constitutes a recognized environmental condition (REC), a new emphasis on the evaluation of vapor intrusion risks, and an increase in review and reporting responsibilities for the environmental professionals preparing the assessments.
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Significant changes are on the way later in 2013 for the industry standard document that governs the performance of Phase I Environmental Site Assessments. Liberty’s early reviews of the upcoming changes to ASTM Standard Practice E1527 reveal new definitions of what constitutes an environmental condition, new emphasis on vapor intrusion risks, and an increase in review and reporting responsibilities for the environmental professionals preparing the assessments. In this article Liberty Environmental Principal, David S. Coyne, QEP, will take you through the modifications to one of the environmental industry’s most important Standards of Practice and discuss the ways that these changes will affect the performance of environmental assessments in 2013 and beyond.
An Introduction: The 2005 Standard and All Appropriate Inquiry (AAI)
The current ASTM Standard Practice for ESAs that was released in 2005 (E1527-05) marked the most significant change in the ESA process since the standard was first published by ASTM in 1993. The 2005 version incorporated the all appropriate inquiry (AAI) definitions that were established by the USEPA following the landmark 2002 Small Business Liability Relief and Revitalization Act (also known as the Brownfields Amendments Act to CERCLA). By incorporating these definitions, which had been set forth earlier that year as USEPA’s All Appropriate Inquiry Final Rule (40 CFR Part 312), the completion of a Phase I ESA meeting the ASTM Standard Practice could provide the protections for innocent landowners and bona-fide prospective purchasers of brownfields that are afforded under CERCLA. By linking itself to a federal rule in this fashion, the ASTM Standard Practice, attained a rare status – a valuable private due diligence tool, but with regulatory clout.
In the years since its development, Standard Practice E1527 has become one of ASTM’s most popular and widely-applied documents, with acceptance as a standard of practice across a range of users including lenders, real estate attorneys, land developers, public sector agencies, and real estate investment trusts. An array of ancillary products and services such as private database search providers, historical data servers, training courses, books, websites, and specialized firms have grown around its broad utilization to these fields in the past 20 years.
But in the 8 years since the 2005 version was issued, there has been continuing debate concerning the Standard’s application of AAI. Professionals in the environmental community have also wrestled with issues such as what truly constitutes an environmental concern given the evolution of risk-based remedial strategies over the past 10 years, and whether (or how) critical exposure pathways such as vapor intrusion should be evaluated within the scope of an ESA. The 2013 changes seek to address most of the more hotly debated questions.
The New, Simplified Definition of an REC
The identification of recognized environmental conditions (RECs) is one of the main objectives of the ESA process; it identifies conditions which may warrant further investigation or pose a concern to future use or occupancy of a particular property. Until now, the specific definition of an REC has remained largely unchanged since the original draft of the Standard in 1993.
The new definition of an REC, in the 2013 Standard, is much shorter (a mere 60 words as compared to its original 113) and removes much of the duplicate language that unnecessarily lengthened the old definition. It’s generally a simplification and clarification of the original wording, and seeks to more broadly state the scope, as well as the limitations, of what can be considered an REC. The new version also removes an entire exclusionary definition for de minimis conditions, which has more appropriately been moved to the Definitions section of the Standard.
Clarification of the Historical REC
A special category of REC known as a historical REC, or ‘HREC’, was first defined in the 2005 Standard, and was generally set forth as a condition which would have been considered of concern in the past, but which may or may not be considered an REC currently. The definition went on to state that the final decision for determining whether or not the issue represents an REC rested on the Environmental Professional performing the ESA, and would be influenced by the current impact of the HREC on the subject property. This included the consideration that if a prior release had occurred on the site but had been remediated to the approval of the responsible regulatory agency, it could be considered an HREC. This definition adequately suited many site conditions but left out a common remedial strategy performed under the risk-based corrective action provisions of many state agencies over the past 15 to 20 years, where impacts can be left in place under site-specific remedial attainment strategies.
In response to this need for further clarification, the new Standard Practice states that an HREC can only be a condition that has been addressed to the satisfaction of a regulatory authority and that meets the unrestricted use (i.e. most stringent) regulatory cleanup criteria. This condition also cannot be subject or dependent on any engineering or institutional controls or use limitations.
A New Type of REC: The Conditional REC
The concept of a prior release that had been cleaned up to the satisfaction of a regulatory agency had been introduced in earlier versions of the Standard, but the definition for HRECs in the 2013 Standard is limited to those cleanups which achieved unrestricted use with no continuing controls or use limitations on a property to maintain a remedial attainment.
However, the logical consequence of this stricter definition leaves open a category of site conditions which do rely on risk-based criteria, specifically any successful risk-based cleanup effort that relied on a control or use limitation, such as is increasingly common under voluntary cleanup programs. This new category of RECs has been identified and defined as a controlled recognized environmental condition (CREC). It acknowledges the thousands of remedial strategies performed in recent decades under state risk-based cleanup programs such as Pennsylvania’s successful Land Recycling (or Act 2) Program. This allows for the Environmental Professional to identify and describe a cleanup that allowed impacts to remain in place subject to a cap, for example, or a property use restriction. One important and critical element of the definition of this new category is that it does not imply that the Environmental Professional has fully evaluated or independently confirmed the adequacy, the effectiveness, or the implementation of the prior risk-based remedy. This is an important point to consider, since it relieves the ESA preparer of a great deal of third-party study.
However, in the development of the new CREC definition, the EP will still be responsible for identifying and understanding the nature and the extent of the remedial action taken to address the prior release, to the extent possible based on their review of the regulatory or user-provided information that constitutes part of the data collection requirements of the ESA.
The Vapor Intrusion Evaluation
During the development of many of the state-specific, risk-based remedial programs in the 1990s and early 2000s, the identification and removal of the vapor migration exposure pathway into buildings was identified as a key element to any successful remedial strategy. It can be argued that the concept of evaluating vapor migration has long been included in the scope of an ESA through the definition of an REC that includes releases “into structures on the property or into the ground”; however, listing of indoor air quality among the non-scope considerations within the Standard led many professionals away from making judgments about vapor intrusion risks at a particular site.
Recognizing the critical importance of vapor intrusion evaluations as part of risk-based remedial strategies in the early 2000s, ASTM developed its Standard Practice E2600: Guide For Vapor Encroachment Screening in 2008. The E2600 process is designed as a voluntary supplement to the E1527 process, but specifically notes that it is not intended to change the scope of the ESA process. What, then is the objective of E2600? Specifically, the process is designed to identify a vapor intrusion condition (VIC), which is generally defined as an indoor contaminant caused by the release of vapor from contaminated soil or groundwater, either on or in close proximity to the property, which poses a health risk to the site’s occupants.
While this appears in many ways to be a vapor-based version of an REC, it paradoxically excludes itself from the scope of the ESA, and that separation has led to a certain degree of confusion as to whether, and how, an Environmental Professional is to incorporate vapor risks into its identification of RECs. While the terminology and the separation of Standards may have been confusing, in practice this issue is not often too difficult to identify – where a significant risk of soil impacts are present on the subject property or at an adjacent property, a vapor risk may also be present. Where a significant risk of an on-site impacted groundwater plume may be present from an on-site source or from an adjacent property, a vapor intrusion risk may also be present and can also be evaluated, in most cases, by a capable Environmental Professional familiar with subsurface investigation and site remediation, and the sciences behind these practices.
Of particular concern are situations in developed areas where utility conduits joining many properties pose a potential for vapor intrusion throughout an dense apartment complex or city block, for example, through the interconnected lattice of subsurface structures such as sewer pipes, utility conduits, water supply lines, and other utilities. In almost any urban setting there is a potential for vapor migration of any number of potential contaminants and non-contaminants (e.g. sewer gases, etc.) into buildings, which may not lie directly adjacent to the site. Preferential flowpaths can create a complex network of vapor flow regimes that would otherwise be impossible to evaluate under a normal ESA scope. In those circumstances, the EP may be bound to identify vapor migration as a concern, even if a known source of vapor is located several properties away.
Contrastingly, the EP is not likely to be held responsible for a potential migration corridor that they had no way to suspect or even evaluate. In fact, the upcoming Standard 2013 states clearly that nothing in the Standard should be construed to require application of the E2600 Standard to achieve compliance with all appropriate inquiries. This particular issue is likely to be the main source of debate among EPs during the application of the new E1527 Standard.
The Regulatory Review
While the ESA data collection process remains generally intact and unchanged from the prior standard, there is one particular area where the procedures have been clarified and, in many interpretations, expanded, over the 2005 Standard: the regulatory records review process. The new 2013 Standard requires that reviews of pertinent federal, state, or local regulatory records be performed if the subject property or any adjoining properties are identified on the regulatory database review. If the EP determines that no such review is warranted for any listed property that falls into this category, the professional must provide a detailed rationale for omitting the regulatory review.
In recent years, the implementation of right-to-know legislation in many states has changed records access procedures for state agencies and local municipalities. The local records access procedures appear to have been affected the most, so that an informal phone call with a particular official such as a zoning officer or fire marshall is often no longer possible. A formal written request for file access is now required by many municipalities, and many EPs are finding that the wait for access to local files often jeopardizes the planned due date of the ESA report. While this has become increasingly common, it nonetheless remains the responsibility of the EP to inform their client of the new records review procedures and build any time delays into the project schedule.
The User’s Responsibilities
The 2005 Standard Practice introduced the concept of User Responsibilities, noting that the User of the ESA, in his or her position as a prospective purchaser, occupant, owner or lender or other site representative, may have unique information or perspective on property information that the EP does not have, and which may be relevant to the ESA report. This was termed specialized knowledge in the 2005 Standard, which added the User Questionnaire to the data collection process in order to identify and record any such relevant information.
The new 2013 Standard will include a greatly expanded section pertaining to the responsibilities of the User in the ESA process. While the User Questionnaire remains a part of Standard with only minor wording changes for 2013, the User now shares responsibility with the EP in identifying the presence of environmental liens or activity and use limitations (AULs) affecting the subject property, since the User (in their position as the property owner, prospective purchaser or lender) may identify these through their own due diligence activities outside of the ESA process. New language in the 2013 Standard emphasizes the significant role and responsibility borne by the User in providing the information discussed in the user Questionnaire, and in general brings the User responsibilities in the ESA process more closely in line with the EPA’s All Appropriate Inquiry requirements.
Conclusion: Implementation of ASTM E1527-13
In general, the upcoming 2013 in not seen as a radical departure from prior standards governing the practice of environmental site assessments, but further refines and clarifies many of the elements of the ESA process to more closely align it with the regulatory framework underlying its CERCLA origins. For most private users of ESAs such as lenders or developers, the ESA process will continue to represent a valuable due diligence tool for evaluating the environmental condition of properties. Much debate has centered on the increased level of effort mandated by the new Standard and its resultant effects on pricing, however as in years past, market conditions will ultimately govern the pricing of ESA as a valuable planning tool.
The new Standard has been finalized by ASTM and is now awaiting EPA approval of the changes that pertain to its implementation of the federal AAI Rule. It is anticipated that this process will take 1-2 months, but is not likely to result in any additional revisions to the Standard. ASTM’s current timeline for issuing E1527-13 is late summer to early fall 2013.
Liberty is ready to implement the 2013 Standard to its ESA products and services immediately upon its release later this year. Should you have any questions regarding the upcoming 2013 Standard Practice for ESAs, or wish to discuss the application of the new Standard to your own planning needs with any of our environmental due diligence experts, please do not hesitate to call us at our Reading headquarters office at 610-375-9301, or at our regional offices in Philadelphia (267-207-3564) or Lancaster (717-517-5000). Comments or questions to the author can also be directed to Dave Coyne at dcoyne@libertyenviro.com.