phase i environmental site assessment standard practice...
TRANSCRIPT
Phase I Environmental Site Assessment Standard Practice Update
West VirginiaBrownfields Conference
September 2013
President, Wasatch Environmental, Inc.
Chair of the ASTM E1527 Task Group
Chair of the ASTM E50 Committee on Environmental Assessment, Risk Management, and Corrective Action
Member of the EPA Federal Advisory Committee established to develop the proposed “All Appropriate Inquiry” (AAI) regulation
Salt Lake City, Utah801-972-8400
ASTM Standards have 8-Year shelf life◦ Prior E1527 publications: 1993, 1994, 1997, 2000, 2005
Action Options◦ No Action standard will sunset upon expiration
◦ Ballot to re-approve with no change
◦ Reconvene Task Group, draft revision language, ballot revisions
Task group convened in early 2010
TG agreed on two primary objectives:◦ Clarify existing language◦ Strengthen the deliverable
Over 150 task group members with broad stakeholder representation:◦ SBA◦ HUD◦ Lenders◦ Utilities◦ Insurance◦ Facilities◦ State/Local agencies◦ Attorneys◦ Environmental professionals
Not all focus groups resulted in proposed changes
Not all proposed changes survived ballot
More closely aligned with the EPA’s All Appropriate Inquiries (AAI) “objective”
de minimis extracted as a stand-alone definition
Some instructional language added to historical and site visit sections
A Recognized Environmental Condition includes the presence of a release
“de minimis” added to allow the Environmental Professional to immediately dismiss a minor spill
“de minimis” used by some to describe contamination left in place and accepted by an agency
E1527 Task Group (and EPA) concluded that the same term should not be used to describe both situations
Historical Recognized Environmental Condition definition originally developed pre-2002 ◦ before the Bona Fide Prospective Purchaser landowner liability
protection/continuing obligations requirements)
Conditionally-closed sites currently handled four different ways
Consistency needed
Redefined Historical Recognized Environmental Condition◦ Past releases addressed to unrestricted residential use◦ Must consider current regulatory framework (rules change)◦ HRECs are not RECs
Created new Controlled Recognized Environmental Condition term◦ Past releases addressed to non-residential standard, subject to some
type of control◦ CRECs are RECs and must be included in the conclusions section of the
report
de minimis” CAN be used to describe an HREC
de minimis” CAN NOT be used to describe a CREC
Phase-I ESA ProcessPresence or likely presence of HS/PP
in, on or at the Property
Is the HS/PP under conditions indicative
of a release?
No
Is there a material threat of a release?
YesDoes the release present a
threat to human health or the environment (would it be the
subject of enforcement action)?
No
Yes
Addressed to most stringent cleanup criteria
(residential) with no restrictions
(no AULs)
Yes
No
REC
Not a Rec
YesHREC
NoCREC
Yes Has release been addressed?
De minimis
No
Some argued additional records review already required under current standard
Some argued additional records beyond a database report are not required under current standard
Clients thought it was already being done
Consistency needed
New language:◦ Should be conducted for property and adjoining properties◦ If not conducted, explain why◦ Alternate sources ok
The purpose of the “User Responsibilities” not previously explained◦ Grounded in “Factors the Courts will Consider” CERCLA amendments◦ Re-iterated in the 2002 amendments to CERCLA◦ 2002 amendments extended these responsibilities to include brownfield grantees
Loan officers/realtors/brokers/etc., not typically seeking CERCLA liability protections or brownfields grant
Some EPs asking the wrong people to the complete the “User” questionnaire
Clarification needed
E1527 has been silent on vapor
EPA recommended the task group not ignore the vapor pathway
2013 revision acknowledges the vapor pathway in “migration” definition
Proposed language acknowledges soil vapor in “Activity and Use Limitations” definition
Added discussion in Legal Appendix regarding vapor intrusion as it relates to CERCLA
Clarifies “Indoor Air” non-scope
Clarified “indoor air” exclusion◦ Added “unrelated to releases of hazardous substances or petroleum
products into the environment
Revamped non-binding appendices◦ Revised Legal Appendix
◦ Revised Report Table of Contents and Format
◦ Developed a “Business Environmental Risk” Appendix to provide references and resource guidance
Task group split about 50/50
Ultimately agreed that:◦ Recommendations are not required by the standard.
◦ User should consider whether recommendations are desired.
◦ Recommendations are an additional service
Anticipate ASTM/EPA process and publication completed sometime in 2013
Can re-ballot existing E1527-05 as-is if necessary
