EPA Proposes New ASTM E1527-13 as Additional Standard for "All Appropriate Inquiries"
ASTM International (ASTM) plans to release a new standard, ASTM E1527-13, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” in 2013. This standard is ASTM’s first update since issuing the ASTM E1527-05 standard in 2005. Any party who wants to claim protection from liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) may follow the regulatory requirements of the all appropriate inquiries final rule at 40 CFR Part 312, use the ASTM E1527-05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”, or use ASTM E2247-08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forest Land or World Property.”
There are three major differences between ASTM E1527-05 and ASTM E1527-13. First, ASTM E1527-13 adds a new defined term, “controlled recognized environmental condition” (CREC), for hazardous substance releases that have been partially addressed through remediation, but where some contamination remains in place under certain risk-based restrictions or conditions (e.g., engineering or institutional controls). Similarly, the definition of a historical recognized environmental condition (HREC) has been revised to limit applicability to situations where past contamination has been addressed to unrestricted residential standards. These definitions will likely increase the number of recognized environmental conditions (REC) identified in Phase I ESA reports.
Second, ASTM E1527-13 contains an express requirement to consider vapor intrusion. The standard clarifies that the definition of “migrate” includes releases that migrate in vapor in the subsurface. Because ASTM E1527-05 excludes consideration of indoor air quality concerns, vapor intrusion risks have typically been absent in Phase I ESA reports. However, under E1527-13, environmental professionals will need to assess possible indoor air quality impacts from vapor intrusion pathways if there is surface soil or groundwater contamination at or near the subject property. As a result, Phase I ESA reports will likely more frequently identify vapor intrusion issues since consultants may no longer use the “indoor air quality” exception to exclude vapor intrusion from the scope of the Phase I ESA.
Finally, the new definition of HREC requires a determination of whether a past release that would otherwise be identified as a HREC should, in fact, be designated as a REC under current standards. A release that has been fully investigated and remediated, and may be subject to a no further action letter, or has been designated as a HREC under prior assessments, may need to be designated as a current REC if more stringent regulatory criteria or thresholds are now in effect. Accordingly, Phase I ESA reports are likely to identify issues previously treated as HRECs as current RECs because federal or state regulatory requirements, such as reporting and clean-up standards, may have been updated since a prior ASTM E1527-05 report for the property was prepared.
On August 15, 2013, EPA issued a direct final rule adopting ASTM E1527-13 as a standard that parties may use to satisfy “all appropriate inquiry” obligations as part of the property transaction process. EPA proposed to adopt ASTM E1527-13 as an alternative to and not a replacement for ASTM E1527-05, meaning that parties would be able to choose the most appropriate standard to utilize for individual property transaction. For certain rural properties, parties may continue to use ASTM E2247-08 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forest Land or World Property.”
However, EPA received adverse comment on the direct final rule before September 16th. As a result, EPA plans to withdraw the direct final rule and will proceed with a simultaneously proposed version of the regulation issued on the same day. EPA will now assess comments received on the proposed version to develop a final rule.
Until such time as EPA adopts the new standard, parties to a property transaction may continue to rely on ASTME1527-05 or ASTM E2247-08, if the subject property is forest land or rural property. Additionally, parties may follow the regulatory requirements of the all appropriate inquiries final rule at 40 CFR Part 312.
A copy of the new ASTM standard can be found HERE.
To view a complete PDF of the July/August 2013 issue of the Environmental Letter, click HERE.