A Revised ASTM Standard for Due Diligence to Be Issued
A task force assigned to review the ASTM standard for Phase I environmental assessments has completed its review of the current standard. It has sent its recommendations to U.S. EPA who is expected to accept the recommendations.
Any revisions to the ASTM standard for Phase I has big implications. Phase I reports are a requirement of the "All Appropriate Inquiries" process to establish CERCLA liability defenses. Most property transactions involve a Phase I assessment.
As reported on the Schnapf LLC blog, the revised standard will likely include the following changes:
- definition of REC was tweaked to make it more understandable to environmental consultants;
- A new term “Controlled REC” (CREC) was added which is intended to complement the HREC term. The latter applies to prior RECs that have been remediated to unrestricted cleanup levels while CREC applies to risk-based cleanups that have ongoing institutional or engineering controls;
- creates a presumption that the environmental professional should perform a file review of agency records in determining the presence of a REC. If the environmental professional decides a file review is not required, it must explain why a file review was not performed;
- the revised legal appendix clarifies scope of the CERCLA indoor air exclusion from definition of release and also discusses other CERCLA exclusions;
- the revised legal appendix clarifies the role of that vapor intrusion in phase 1 reports (it is just like any other exposure pathway- (groundwater, air, soil). In most cases, there will be an underlying REC (contaminated groundwater or soil) that will already be a REC. However, there may be instances where there is an off-site source where there is potential for vapors to have laterally migrated through the soil gas to the subject property. In such an scenario, the potential for Vapor intrusion could be a REC. However, determining if the pathway is completed will usually beyond scope of the phase 1unless otherwise specified by the client;
- a new Business Environmental Risk (BER) appendix describes the BERs that are commonly encountered for commercial properties and discusses factors that may be considered in determining if a client wants to include BERs in the scope of the phase 1.
A couple comments on these potential changes:
- REC Definition- It will be interesting to see how the definition of REC is modified. In my experience, there is a wide range of interpretations applied by environmental consultants. Some will opine that any property that had industrial operations should be identified as a REC. Others say there needs to be some information suggesting a release or at least the potential for a release to have occurred to be identified as a REC.
- Vapor Intrusion- Adding specificity that vapor intrusion issues should be identified as a REC will add to the complexity of analyzing Phase I reports. With the clarification discussed, it may lead to the vapor intrusion pathway being identified as a REC in more Phase I reports. This has big implications for due diligence because the vapor intrusion pathway is often the most difficult to assess in a subsequent Phase II. It doesn't help that U.S. EPA still hasn't finalized its vapor intrusion guidance and relies upon 2002 OWSER vapor intrusion guidance still labeled draft.
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