Posted: January 1st, 2014 | Author: Bob | Filed under: Uncategorized | Comments Off on Major differences between ASTM 1527-05 and 1527-13
The changes from the 2005 to 2013 ASTM standards do not significantly alter the Phase I ESA report or process, but there are a few key changes you should be aware of.
You may also want to ensure that your policy and contract documents reference the “most current” ASTM E1527 standard or update them to specifically reference the E1527-13 standard to ensure that you are receiving the most current standard and best quality report.
The most significant changes include:
The E1527-13 standard imposes a stronger imperative for conducting regulatory file reviews. The environmental professional reserves the right to forego such a review, but must explicitly explain in the report why a review is not warranted.
E1527-13 places greater emphasis on assessing impacts to the subject property from vapor migration. This is done through several changes in the standard: 1) clarifying that the definition of a release does include contamination in the soil vapor phase, not just in soil or groundwater; 2) adding a definition of “migration” that includes vapor (as well as soil and groundwater); and 3) clarifying that vapor migration/intrusion does not fall under the category of an Indoor Air Quality concern (which is out of the ASTM 1527 scope of work).
Several definitions have been clarified and simplified, and a new definition has been added of a “Controlled Recognized Environmental Condition” or “CREC.” You will now see CREC as an additional section being discussed in the executive findings and conclusions.
The simplest explanation of the difference between a Historical Recognized Environmental Condition or “HREC” and “CREC” is as follows:
HREC = A closed release that has been cleaned up to unrestricted use criteria (i.e. you could put a residence on the property)
CREC = A closed release that has been cleaned up but not to unrestricted use criteria, such as to “commercial/industrial standards” (i.e. you could not put a residence on the property)
Posted: January 1st, 2014 | Author: Bob | Filed under: Uncategorized | Comments Off on ASTM E1527-13 approved by the Environmental Protection Agency (EPA)
ASTM E1527-13 has been officially approved by the Environmental Protection Agency (EPA). The updated standard practice for the Phase I Environmental Site Assessment process will be effective as of Monday December 30.
The EPA previously announced ASTM E1527-13’s compliance with all industry regulations, but the new standard was not officially recognized as meeting All Appropriate Inquiry (AAI) requirements until today’s final ruling. The ASTM E1527-13 standard that was adopted today is unchanged from the document published in November, but now includes a preliminary statement that addresses public comments, and emphasizes EPA’s position on implementing the new standard.
Although the previous version of the standard (ASTM E1527-05) will technically continue to meet AAI, ASTM E1527-13 replaces its predecessor as the industry best practice for Phase I ESAs, and the EPA advises parties seeking to claim protection from liability under CERCLA to follow the updated ASTM E1527-13 format.
The new standard introduced a number of key changes including revised definitions for Recognized Environmental Conditions (RECs) and Historic Recognized Environmental Conditions (HREC), a new definition (Controlled Recognized Environmental Condition) as well as stronger recommendations for conducting file reviews and assessing vapor migration risk.
Posted: November 11th, 2013 | Author: Bob | Filed under: Phase I ESA | Comments Off on New ASTM Standard for Environmental Site Assessment ASTM E 1527-13
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
Posted: May 29th, 2013 | Author: Bob | Filed under: Protected Species | Comments Off on Indiana Bat USFWS Summer Survey Guidlines
The Indiana bat (Myotis sodalis) is protected under the Endangered Species Act (ESA) of 1973, as amended. The new survey protocol provided by the U. S. Fish and Wildlife Service recommends guidance on survey methodology and reporting requirements. The protocol is designed to determine whether Indiana bats are present or likely absent at a given site during summer. The approach is phased and includes coordination with the UISFWS, habitat assessments, and acoustic, mist-net, radio-tracking, and emergence surveys.
Future changes to the guidance are anticipated for 2014 and should be available the USFWS Indiana bat survey guidance website.
Posted: April 29th, 2013 | Author: Bob | Filed under: Uncategorized | Comments Off on Draft Indiana Bat Summer Survey Guidance Available
The USFWS has made their latest draft of the Indiana Bat Summer Survey Guidance available on their Indiana bat survey guidance website.
Posted: November 30th, 2012 | Author: Bob | Filed under: Phase I ESA | Comments Off on Environmental Site Assessment Standard due for Release
The ASTM E1527 task group has been working through about a dozen negative votes to the most recent ballot and many, many more editorial comments related to an updated standard for Phase 1 Environmental Site Assessment. The task group leadership has made amazing progress to bring the standard very close to completion. The new ASTM E1527-13 standard should stay on track for Spring 2013 publication.
Posted: May 11th, 2012 | Author: Bob | Filed under: Wetlands | Comments Off on Updated 2012 National Wetland Plant List is available
The U.S. Army Corps of Engineers (USACE) in partnership with other federal agencies announced today the release of the updated National Wetland Plant List (NWPL). This national list of wetland plants by species and their wetland ratings provides general botanical information about wetland plants and is used extensively by federal and state agencies, the scientific and academic communities, and the private sector in wetland delineations and the planning and monitoring of wetland mitigation and restoration sites. The list is available at http://wetland_plants.usace.army.mil
Posted: January 10th, 2011 | Author: Bob | Filed under: Wetlands | Comments Off on USACE Developing National Wetland Plant List, Seeks Public Comments
A notice from the U.S. Army Corps of Engineers (USACE) appeared on 6 January 2011 in theFederal Register (76 FR 777) (pdf) announcing the establishment of a National Wetland Plant List (NWPL). In summary,
“The National Wetland Plant List (NWPL) is used to delineate wetlands for purposes of theClean Water Act and the Wetland Conservation Provisions of the Food Security Act. Other applications of the list include wetland restoration, establishment, and enhancement projects. To update the NWPL, the U.S. Army Corps of Engineers (Corps), as part of an interagency effort with the U.S. Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service (FWS) and the U.S. Department of Agriculture, Natural Resources Conservation Service (NRCS), is announcing the availability of the draft National Wetland Plant List (NWPL) and its web address to solicit public comments. The public will now be provided the opportunity to comment and vote on the wetland indicator status ratings of the plants, species nomenclature changes and the revisions to the definition of indicator status ratings contained in the NWPL.”
I’ve added links in order to annotate the summary text. I might have waited until World Wetlands Day (2 February) to post this, but there is a limited period for the public to make comments that ends on 7 March 2011, and everyone with interest should have as much time as possible to submit their comments. See the official USACE NWPL site to make your comment submissions. If you see a security warning, click through it to get to the actual informational site.
The background on the NWPL effort that is provided in the Federal Register notice is fascinating, and even more information is available at the official site. It’s great to have that much historical background entered into the federal record in such a concise form, and kudos to the program contributors for preparing what is essentially a report on the history of this effort. As an interagency collaborative program, this effort is almost as old as I am! To wit:
“The effort to develop a comprehensive wetland plant list began with the FWS in 1976 and paralleled the development of their wetland classification system for the National Wetland Inventory (NWI), which culminated in Classification of Wetlands and Deepwater Habitats of the United States [pdf] in 1979. A brief footnote in that publication mentions that the FWS intended to produce “a list of hydrophytes and other plants occurring in wetlands of the United States” for use in conjunction with the NWI. At about the same time the NRCS, then known as the Soil Conservation Service (SCS), initiated an effort to prepare a preliminary list of hydric soils, again for use with the NWI. Through a series of subsequent drafts, the FWS effort eventually led to the production of the National List of Plant Species That Occur in Wetlands: 1988 National Summary [pdf] (List 88)—and associated regional lists.
“The FWS initially derived the lists by searching some 300 national and regional floras and other scientific publications. This effort produced the Annotated National Wetland Plant Species Database, which documented the taxonomy, nomenclature, distribution, and ecology of wetland flora in the U.S. In 1987, the SCS (through a contract with the Biota of North America Program [BONAP]) updated the taxonomy and nomenclature that culminated in List 88. During the initial development of the database, a wetland rating system was created based on habitat descriptions derived from the various regional floras, botanical manuals, and other scientific works.
“In the early 1980s, the four primary Federal agencies involved in wetland delineation (Corps, EPA, FWS, and NRCS) realized the potential utility of the plant and soil lists for wetland delineation purposes in conjunction with wetland delineation manuals that were under development at that time. All wetland delineation manuals produced at the Federal level during the 1980s referenced these plant lists in defining hydrophytic vegetation.
“The four agencies agreed to participate cooperatively on Regional Interagency Review Panels. A National Panel of wetland ecologists was assembled to review and further revise the various plant lists and the wetland rating system established by the FWS. This rating system, based on the frequency that a particular plant occurs within wetlands versus uplands, eventually led to the five indicator categories listed in List 88 (i.e., obligate wetland, facultative wetland, facultative, facultative upland, and obligate upland).
“The FWS realized that subsequent editions of their List 88 would be inevitable and an appeal procedure was established for submitting proposed changes to the list (e.g. additions, deletions, and changes in indicator statuses). Since the original publication of List 88, many changes to the taxonomy and nomenclature of wetland plants have been proposed and accepted. Following the original publication of List 88, the FWS adopted a revised taxonomic standard, Synonymized Checklist of the Vascular Flora of the United States, Canada, and Greenland (Kartesz 1994), as a basis for the names included within the proposed list, National List of Vascular Plant Species that Occur in Wetlands [pdf] (List 96).
“The National Panel and the FWS considered it necessary to respond to requests for changes to List 88 and to the numerous revisions in both taxonomy and nomenclature by proposing List 96 and its derivative regional lists. The FWS published proposed changes to List 88 in the Federal Register (62 FR 2680) on January 17, 1997 [note that the original mistakenly refers to the “CFR” or Code of Federal Regulations], in compliance with a 1996 Memorandum of Agreement between the Corps, EPA, FWS, and NRCS. The National Panel received comments and, in conjunction with the Regional Panels, reviewed and considered all comments in developing the final draft of List 96. For a variety of reasons, List 96 was never finalized, and List 88 remains the only approved list of wetland plant indicator statuses.
“In 2005, the FWS developed plans to update and adopt List 96 as List 05. This new List was to include all of the changes in scientific names and wetland indicator statuses that were needed because of taxonomic and nomenclatural changes; however, this update never occurred. In December 2006, the administration of the list was transferred from the FWS to the Corps through a Memorandum of Agreement [pdf], which renamed the list as the National Wetland Plant List. The list continues to be an interagency product maintained by the Corps, FWS, EPA, and NRCS. The National Panel consists of representatives from each of the four participating agencies who direct the continued development of the NWPL. They guide the work by updating the taxonomy and nomenclature along with wetland indicator statuses of wetland plants nationwide. The number of plants listed has changed since List 88; growing from 6,728 species to 7,662 in List 96, with the majority of the increase resulting from taxonomic and nomenclatural changes, including the addition of many infraspecific taxa (i.e., varieties and subspecies). By 2010, further advances in systematic science involving wetland plants resulted in an additional 1,600 infraspecific entries. Because of taxonomic and nomenclatural changes since 1988, the number of infraspecific taxa has increased to 2,200; substantially more than the original 12 in List 88 and 600 in List 96. Because this seemed to be an impractically high number of entries, the National Panel of the NWPL decided to revert back to the species-level taxonomy, and to not include any infraspecific taxa. Thus, the current review of the 8,558 species does not separately treat these infraspecific taxa with their own distinct wetland ratings and includes all the infraspecific taxa at the species-level.”
Again, I have annotated the information provided in the Federal Register notice with links here. Much additional information on background, issues and procedures is available in the Federal Register notice and at the official NWPL site. Beyond this initial update, the future of the NWPL looks highly promising:
“Protocols were developed to ensure that updates to the NWPL will occur biennially or as necessary and that they will follow scientifically acceptable procedures. The updating process will provide guidelines established by the National Panel for testing wetland indicator status ratings for future recommended changes and additions to the NWPL. The process will be supported by an interactive Web site where all procedures and supportive information will be posted. Information on this searchable Web site will include the names of all National and Regional Panel members, prior ecological information obtained by the FWS or Kartesz (BONAP) for each species, any comments previously made by others that was retained in the FWS database on the NWPL, and links to botanical literature and plant ecology information to support assignment of wetland indicator statuses of all species under consideration.
“Once the NWPL is initially updated, this Web site will be expanded to include upland plants and facilitate regular updates as additional information is submitted and nomenclature changes. These changes will be generated through a modification of the web-based process outlined above. Regular updates based on nomenclature changes will be developed on a biennial basis. Anyone may petition for a change in indicator status for any taxon by submitting appropriate ecological data, literature review, testing description, and geographic data. This will include frequency and abundance data for the taxon in wetlands and uplands in a broad range of the wetland supplement region or subregion for which the change is proposed. Such data will be reviewed and evaluated by the appropriate Regional Panel, and any changes they recommend will go through a vetting process similar to the initial NWPL update. The Web site will contain the most recent, currently valid indicator statuses.”
If you have expertise and/or interest in wetland flora, make sure to review the available information and submit your comments by the current deadline on 7 March 2011!
Posted: October 22nd, 2010 | Author: Bob | Filed under: Wetlands | Comments Off on Court Enjoins Army Corps of Engineers From Extending Regulatory Jurisdiction Over Former Wetlands
On September 28, 2010, the Southern District of Florida awarded summary judgment to New Hope Power Company in its suit seeking to enjoin the U.S. Army Corps of Engineers (ACOE) from applying rules pertaining to its regulatory jurisdiction over certain former wetlands, which had been issued through agency memoranda. The court held that the agency had failed to properly promulgate the rules through the notice-and-comment rulemaking procedures required under the Administrative Procedure Act (APA). The decision has wide import, as it directly affects approximately 700,000 acres within the Everglades Agricultural Area (EAA), and other hydrologically managed lands nationwide for which non-agricultural uses may be proposed. SPR represented New Hope Power Company in the suit.
New Hope owns and operates a renewable energy facility in the EAA, an area of the Florida Everglades that was formerly wetlands but has been hydrologically managed through pumps and drainage systems since the mid-20th century to allow for agriculture. New Hope’s facility, constructed on former sugarcane fields, generates electric power through the burning of non-usable portions of sugarcane as well as wood waste. New Hope recently obtained state and local permits to construct a monofill on neighboring land, currently farmed for sugarcane, where it could place ash from the waste-burning operations, and thereby avoid trucking the ash to a distant landfill.
Existing ACOE regulations under the Clean Water Act provide that a permit is needed to conduct certain activities within wetlands. However, exempt from the definition of wetlands are lands that do not support wetlands vegetation under normal circumstances. The ACOE had in past rulemaking documents explained that “normal circumstances” was not to be read to include properties that had been transformed into dry land. Also exempt from regulations are “prior converted croplands,” lands formerly wetlands but converted to agricultural use. Rulemaking documents previously issued by the ACOE provided that a prior converted cropland could only lose such designation if wetland vegetation returned. In 1993, the ACOE had determined that the land on which New Hope’s power facility is built was prior converted cropland. In addition, the ACOE’s Wetlands Delineation Manual provides that in order to be a regulated wetland, land must exhibit both wetlands hydrology and vegetation, unless one of three types of “atypical situations” apply: (1) an unauthorized activity resulting in the loss of one of these characteristics; (2) man-made creation of a wetland; or (3) natural events.
However, in 2009, the ACOE issued internal memoranda interpreting “normal circumstances” in hydrologically managed lands to mean “pumps off,” and stating that prior converted croplands lost such designation upon a change to non-agricultural use. Based on these memoranda, the ACOE informed New Hope that it would likely need a permit to construct the proposed monofill. New Hope filed a lawsuit challenging the memoranda as legislative rules that the ACOE had failed to promulgate in accordance with the APA. The court agreed, holding that the memoranda extended the ACOE’s regulatory jurisdiction beyond that provided for in existing regulations, and diverged from the Wetlands Manual in deeming lands hydrologically managed with ACOE authorization an “atypical situation” to which the general delineation rules did not apply. The court therefore enjoined the ACOE from applying these new rules.
Posted: October 5th, 2010 | Author: Bob | Filed under: Phase I ESA | Comments Off on Proposed Changes to ASTM Phase II Due Diligence Standard Would Dramatically Increase the Time and Cost for Completing Environmental Due Diligence
This artical reprinted from Holland & Knight Partner, Amy Edwards. Click to orignal.
ASTM continues to move forward with planned changes to the standard for conducting Phase II Environmental Site Assessments (ESAs) (ASTM E 1903). If approved, these changes would impose drastic new obligations on Users (i.e., the parties commissioning the reports) and likely increase the time and cost for completing environmental due diligence investigations. Parties involved in commercial real estate and M&A transactions need to be aware of, and involved in, these ongoing discussions.
The ASTM Standard Guide on the Phase II Environmental Site Assessment Process was first published in 1997 and reapproved in 2002. The current changes have been underway for a couple of years and are proceeding under the auspices of the ASTM E50.02 Task Group. The Task Group has stated that it hopes to make the Phase II process more transparent and consistent with scientifically sound methods, with the goal of making the process more “objective, representative, reproducible, and defensible” (Section 1.1). While all of this sounds good in theory, it will require dramatic changes in the way in which Phase II ESAs are conducted in order to achieve these lofty goals. The proposed changes will require the Phase II Assessor and the User to examine issues that go well beyond CERCLA liability, including looking for the mere presence (not releases) of substances (not just hazardous substances or petroleum products) on the property. The scope of the Phase II ESA will be directly related to the User’s objectives and may require refinement as the investigation progresses. More than one round of sampling may be required to achieve the User’s objectives. The Phase II process would also become much more prescriptive (in particular, see Sections 5, 6 and 7) than it is at the present time if the proposed changes are adopted.
Nature of the Proposed Changes
The proposed changes to ASTM E1903 would require, among other things, that the User and/or the Phase II Assessor do the following:
- confer before initiating the investigation to determine the “question” to be answered (Section 6.4.1 and Section 7.1); the Standard identifies six potential objectives (Section 1.2) that can be addressed in the assessment:
- to assess whether there has been a release of hazardous substances within the meaning of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), for purposes including the landowner liability protections under CERCLA
- to provide information relevant to identifying, defining and implementing “continuing obligations” for maintaining CERCLA landowner liability protections
- to develop threshold knowledge of the presence of substances on properties defined as brownfields sites as required for qualifying for brownfields remediation grants
- to provide information relevant to identifying property conditions associated with target analytes that may pose a risk to persons on the property
- to provide information relevant to evaluating and allocating business environmental risk in transactional and contractual contexts, and related due diligence
- to provide information to support disclosure of liabilities and contingent liabilities in financial statements and securities reporting
- prepare a written Statement of Objectives (Sections 5.1.1 and 6.4.1), including a statement of the question to be answered and the hypothesis to be confirmed or refuted by the investigation; the statement must be part of the scope of work, contract or similar instrument
- prepare a written scope of work, identifying the methods and tasks to achieve the User’s objectives (Section 5.1.4 and Section 7)
- identify any predetermined limits on the scope of work because of schedule, cost or budget considerations (Section 5.1.2); in other words, if the User is not willing to spend more than $12,000 on the Phase II ESA, and/or needs the results within 45 days, that limitation must be shared with the Phase II Assessor before the work begins, and must be described in the final report
- develop a conceptual model (Sections 6.4.3 and 7.4); the conceptual model must consider each area where target analytes are present or likely present, in light of the environmental behavior, fate and transport characteristics of those target analytes; the Phase II Assessor must determine how the target analytes are likely to have first entered the environment and infer the locations most likely to be impacted by the target analytes (Section 6.4.3)
- develop a written sampling plan after developing the conceptual model (Sections 6.4.4 and 7.5)
- conduct the sampling (Sections 6.4.5 and 7.6)
- include a Quality Assurance/Quality Control Plan (Section 7.5.7)
- validate the conceptual model by evaluating the sampling results to determine whether the available information is consistent with the conceptual model (Sections 6.4.6 and 7.7)
- in the event of deviations (i.e., the results are not consistent or do not support the assumptions of the conceptual model), revise the conceptual model and sampling plan to meet the objectives of the assessment (Sections 6.4.6 and 7.6)
- interpret the sampling results in light of the conceptual model and the objectives of the assessment in order to develop conclusions, either answering the question or stating why the question cannot be answered (Sections 6.4.7 and 8.1)
- prepare a written report (Sections 6.4.8 and 9.2)
If all of the requirements of the Standard have been followed, the Phase II Assessor is required to put the following statement in the final report:
“We have performed a Phase II environmental site assessment at the property at [address] in conformance with the scope and limitations of ASTM E1903-xx and for the following objectives: [list “statement of objectives” developed pursuant to Section 5.1.]”
What Will These Changes Mean in Practice?
For the User, it will no longer be sufficient to simply request that a Phase II ESA be conducted. The User will need to confer with the Phase II Assessor to explain what it hopes to accomplish in the investigation and should share with the Assessor all of the existing environmental information in its possession. Here is an example:
The subject property previously had an auto repair facility on it and there were a number of suspect sources (dry cleaners, gas stations, heating oil tanks, etc.) in the immediate vicinity of the site.
- What does the User want to know, and which of the six identified objectives is relevant?
- Does the User simply want to confirm whether the auto repair facility has had any releases for purposes of establishing a defense to CERCLA liability? For purposes of allocating business environmental risk in the context of a planned transaction? For purposes of reporting contingent liabilities to the Securities and Exchange Commission?
- Does the User want to confirm whether the nearby dry cleaners, gas stations and heating oil tanks have impacted the property? Does the User need to know this with a reasonable degree of certainty, because it plans to redevelop the property, or does it simply want a present/not present determination?
- Are there any limitations that it intends to impose on the Phase II Assessor because of scheduling or cost reasons? Who gets to determine when “enough” investigation has been conducted?
For the Phase II Assessor, he or she must confer with the User to determine the question to be answered and the User’s objectives for the investigation. The Assessor will need to consider what to do if the User fails to cooperate in identifying the question to be answered or in formulating the objectives or in identifying any limitations on the scope because of schedule, cost or budget considerations. It is certainly not uncommon at the present time for the User to fail to provide information required under the ASTM Phase I ESA Standard (E 1527), whether it is title information, environmental liens, activity and use limitations, litigation, or purchase price. The following are some considerations:
- Why should we expect Users to be more cooperative in identifying the objectives of the Phase II assessment?
- What should the Phase II Assessor do if the User is unwilling to disclose its objective(s) for the assessment?
- How can the assessor prepare a conceptual model and written sampling plan if the User is unwilling to identify the question to be answered? Failure to follow the prescriptive requirements in the Phase II Standard may also result in increased liability for the Assessor.
- What will be the consequence for failing to include each of the mandatory tasks identified under Section 6 of the proposed Standard?
- What if the Assessor fails to include one of the areas where target analytes might be present? Or fails to investigate an area that has been identified as a data gap?
The proposed changes would give the Phase II Assessor little discretion in these areas. See, e.g., Sections 6.4.3 and 7.3. The proposed changes to the Phase II Standard also demand that the Assessor’s sampling results be “accurate and reproducible.” What happens if another Assessor is unable to reproduce the Phase II Assessor’s results?
The revised Phase II ESA standard is currently being balloted at the ASTM subcommittee level. An E50 main committee ballot will be required before the proposed changes can be finalized. Users are underrepresented on the E50.02 Task Group and need to make their views known on these important due diligence matters. If you are not already involved in the ASTM standard setting process, now is the time to get involved in the proposed changes to the ASTM Phase II ESA Standard.