For the first time since 2005, the ASTM E1527 standard has been revised: the 30-day public comment period closed on September 16, 2013; ASTM E1527-13 was approved in November; and the Environmental Protection Agency (EPA) has stated that the standard complies with the agency’s All Appropriate Inquiry (AAI) rule. So what now?
Now that ASTM E1527-13 is approved, the EPA must proceed with full rule-making and is currently in the process of converting the proposed rule to final rule. That leaves us with the following:
Summary of key revisions made to ASTM E1527-13
If you have attended webinars or read blogs (i.e. “Update on the new Phase I Environmental Standard ASTM E1527-13“), articles (such as very comprehensive article written by my colleague Kathryn Peacock titled “The Changing Landscape of Phase I ESAs“), or anything else that has recently been posted online in relation to ASTM E1527, you may already be aware of the major revisions to ASTM definitions that include changes to the definition of a recognized environmental condition (REC), historical recognized environmental conditions (HRECs), as well as the new controlled recognized environmental condition (CREC); and stronger recommendations for assessing vapor mitigation and conducting regulatory file reviews. Minor revisions are proposed to user responsibilities, industrial processes and appendices.
Clarification on Agency File Reviews
The new standard does not contain a mandate to obtain regulatory agency file reviews, but attention should be paid to the language changed. The most important component is providing justification if an environmental professional does not conduct agency reviews or provide additional information. For example, if sufficient information is available elsewhere, that is an acceptable rationale for not performing the file review at the agency. But failure to provide justification to conduct agency file reviews is now considered non-compliant with the AAI rule.
Vapor Intrusion is NOT part of ASTM E1527-13! Vapor migration is not the same as vapor intrusion. The language has not changed. You can learn more about the ASTM E2600-08 standard for dealing with vapor intrusion in the article “The New Vapor Intrusion Standard“. The only change in ASTM E1527-13 is the addition of the definition of migration.
AAI makes no distinction except between a REC or not a REC. CRECs are sub-sets to RECs, but HRECs are not considered a sub-set of a REC. HRECs apply to properties that met unrestricted land use standards at the time of remediation. CRECs apply to properties where a past release has been addressed but where some impacts remain subject to implementation of formal or informal control. De minimis was previously built into the REC definition, but de minimis conditions now have a stand alone definition. All conditions are required to be discussed in the findings and conclusions sections of the deliverable.
Nothing new was essentially created, but rather terminology was clarified in order to allow all involved parties (including the environmental professional, lender, broker, attorney, etc.) to have common terminology to reference and categorize each finding.
EPA Considerations and Market for ASTM E1527-05 vs. E1527-13
EPA explains the changes from E1527-05 to E1527-13 to be a ‘clarification’, and I highly recommend that E1527-05 is not to be used as a “low cost” option for conducting Environmental Site Assessments. Although ASTM E1527-05 has not been ruled invalid, a Phase I Environmental Site Assessment that is inconsistent with the revisions (or ‘clarifications’) of the ASTM E1527-13 standard may no longer meet all the requirements of AAI (ie failure to provide justification for not doing file reviews as discussed). As such, this may be problematic if a claim is made against the property, as liability protection may not be applicable.
Existing projects that are being conducted according to E1527-05 can continue, and don’t need to be re-done to the E1527-13 standard. Similarly, if you performed a Phase I ESA utilizing E1527-05 prior to the changes and it was found to be compliant, it will remain compliant under AAI.
It is important to understand that E1527-13 is not a replacement but a clarification. There is no mandate to use either; however, you must meet AAI objectives.