On Wednesday, November 6, ASTM International announced that it has officially approved and published the latest revision of its Phase I Environmental Site Assessment Protocol, E 1527-13, Standard Practice for Environmental Assessments: Phase I Environmental Site Assessment Process. USEPA issued both a direct final rule and a back up proposed rule on August 15, 2013, that would add a reference to the expected ASTM E 1527-13 in USEPA’s All Appropriate Inquiries (AAI) regulations at 40 CFR 312.11(c). Approximately forty comments were submitted, including adverse comments and therefore, on October 29, USEPA officially withdrew the direct final rule. USEPA expects the final rule incorporating a reference to the new version to be issued by the end of 2013. Note that E 1527-13 is not officially recognized by USEPA as sufficient to meet AAI until USEPA issues its final rule.
USEPA said conflicting things in the materials associated with the rule, for example it emphasized that approval of an additional version of the ASTM Standard would add flexibility (an additional option to E 1527-05), but it also made references to the greater “validity” of the new version of the standard. ASTM will stop training on the old version and will mark it as “superseded.” E 1527-05 will remain in the AAI Rule as acceptable, but there is a view that E 1527-13 is a clarification by ASTM of what ASTM intended in E 1527-05 all along, and, therefore, that compliance with E 1527-05 might be evaluated in the future by a court (in the inherently-after-the-fact determination characteristic of AAI and the landowner liability protections) through the lens of the more explicit language of E 1527-13.
Changes that appear in E 1527-13 include:
Recognized Environmental Condition and related terms
- Recognized environmental condition was simplified and clarified to help bring greater consistency to the identification of RECs
- Historical REC was clarified to exclude any REC. Under the E 1527-13 version, an HREC is a condition that was in the past, but is not now, a REC.
- Controlled REC definition was developed to categorize certain RECs as currently managed to a regulatory standard that does not permit unrestricted property use. This is designed to replace the use of HREC for conditions that require continued management or restrict possible uses.
- De minimis condition was clarified to make clear that RECs that require management or restrict use are still RECs.
- Release definition was added to support principled application of REC definition consistent with Superfund
- Environment definition was added to support principled application of REC definition consistent with Superfund
Consideration of vapors
- Definition of migrate/migration was added. primarily for reference to vapors
- Indoor air quality non-scope item has been clarified as limited to air quality unrelated to a Superfund release
- References to E 2600-10, Vapor Encroachment Standard Guide were added
- User responsibilities in Section 6 have been clarified to be mandatory — “should” has become “must,” for example, as to:
- Conducting searches for environmental liens and activity and use limitations, including review of recorded land title records and judicial records, where liens and AULs would only be recorded in judicial records
- Consideration of the user’s own specialized knowledge
- Gathering and consideration of commonly known or reasonably ascertainable information within the local community about the property. This vague undertaking may be the source of dispute in the future.
In addition, Section 6 clarifies what information “should” be provided to the EP, including, liens, AULs, specialized knowledge and commonly know information, and any discounted purchase price due to contamination.
In Section 8, prescriptive language has been added for regulatory files reviews
- “If the property or any of the adjoining properties is identified on one or more of the standard environmental records sources [e.g. RCRIS] . . . pertinent regulatory files and/or records associated with the listing should be reviewed . . . to obtain sufficient information . . . in determining if a REC, HREC, CREC or a de minimis condition exists at the property in connection with the listing.”
- “If, in the environmental professional’s opinion, such a review is not warranted, the environmental professional must explain within the report the justification for not conducting the regulatory file review.
- Note: Files accessible within 20 days are considered reasonably accessible.
- Also, the EP shall “consider the possible releases that might have occurred . . . in light of historical uses . . . in identifying” RECs. We have some concern that this will be misused by consultants to identify RECs solely on information related to past uses.
- Flexibility has been added regarding the language of conclusions
- Legal Appendix rewritten
- User Questionnaire updated
- Table of Contents updated
- Business Environmental Risk discussion added