ASTM 1527-05 was the first ASTM standard recognized by U.S. EPA as meeting the requirements of the "All Important Inquiries Rule." (AAI) AAI sets forth the standards and practices necessary for fulfilling the requirements to obtain liability protection (i.e. bona fide purchaser defense) under CERCLA section 101(35)(B). Most Phase I proposals reference 1527-05.
ASTM standards have a five year shelf life and a three year grace period. After the eight year period, the standard can sunset or be renewed. In preparation for the eight year period coming to an end on 1527-05, an updated version of the standard has been developed- ASTM 1527-13. On August 15, 2013, U.S. EPA officially recognized the updated version of the ASTM standard for conducting Phase I environmental assessments as satisfying AAI.
What are the Major Differences Under the New ASTM Standard?
It is interesting to note that the new ASTM is not being billed as really changing anything, rather it just clarifies requirements that were already part of the old standard (ASTM 1527-05). However, in my experience at least two "clarifications" will either change or modify practice among many environmental consultants. Those two areas include:
- Vapor intrusion; and
- Agency file reviews
Vapor Intrusion
Some have debated whether consideration of vapor intrusion issues was part of ASTM 1527-05. Many attorneys view the definition of "release" to include vapor of contaminants. However, some consultants took the view that ASTM 1527-05 classified "indoor air quality" issues as non-scope items.
In my practice, I have reviewed many Phase I reports and discussed findings with a wide variety of consultants. Many of the consultants took different views with regard to assessing vapor intrusion.
The new ASTM 1527-13 standard makes very clear that vapor intrusion issues are to be considered as part of Phase I environmental assessments. First, the definition of "migrate/migration" was amended to specifically reference vapor.
"the movement of hazardous substances or petroleum products in any form, including for example, solid, liquid at the surface or subsurface, and vapor in the subsurface.”
The new standard also specifically states that non-scope indoor air quality issues are "unrelated to releases of hazardous substances or petroleum products into the environment."
Finally, ASTM E2600-10, the Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions, is specifically referenced in the new standard. It is not a requirement for a consultant to use E2600-10, rather the standard is recognized as an acceptable means of evaluating the potential for vapor intrusion.
There seems to be debate among consultants as to whether they will utilize E2600-10. Some believe it is too onerous. Regardless, consultants are going to have to evaluate the potential for vapor intrusion as part of Phase I assessments and include a discussion in their report. This does not mean vapor intrusion sampling is required, just that the consultant needs to consider whether site conditions dictate identifying vapor intrusion as a potential "Recognized Environmental Condition" or REC in the findings section of the Phase I report.
Agency File Reviews
The new standard adds a section on agency file reviews which basically states:
- If the property or adjacent property is identified in governmental records search, the relevant records in the agency files should be reviewed…at the discretion of the environmental consultant;
- If the consultant doesn’t think the file review is warranted, then it must include its opinion in the final Phase I report;
- A consultant can review information from other sources (e.g. on-site records, user provided records, local government agency records, etc.)
- A summary of the information reviewed should be included in the report as well as an opinion as to the sufficiency of those records.
It is not always the case that regulatory files are reviewed. Inclusion of this new guidance on file reviews will make it more common practice that such reviews take place.
However, agency records are not always readily accessible. Often there is a lot of time pressure on completing the Phase I report. However, if that pressure forces the consultant to include a statement that records were not reviewed and the review was warranted, that could create a huge issue with the Phase I report.
Conclusion
U.S. EPA still recognizes 1527-05 as consistent with the AAI rule. However, if the new standard is deemed as simply a clarification, it begs the question as to why any proposal for a Phase I assessment would reference 1527-05 going forward and not 1527-13.
After recognition of 1527-13 by U.S. EPA this month, vapor intrusion issues will become even a bigger part of due diligence going forward. In addition, consultants will face increasing pressure to balance finalizing reports to meet client deadlines, with the need for comprehensive reviews of available records.