Once this standard is approved by ASTM and adopted by the United States Environmental Protection Agency (USEPA), it will become the new industry standard to show compliance with All Appropriate Inquiry (AAI).
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An inadequate Phase I ESA could negate the defenses to contamination and subject owners to substantial liability.As you are likely aware, the current Phase I Environmental Site Assessment (ESA) ASTM E1527-21 standard is anticipated to be replaced with an updated version in November 2021. It is important that an environmental attorney review the Phase I as part of a commercial transaction to assure that the report contains a sufficient analysis of all new required elements. The ASTM E 1527-13 standards are much clearer however, compliance could require additional time and cost. The 2005 version of the standards did not require such an extensive review. If the EP chooses to omit the file review, then they must explain rationale in the ESA.
#ASTM STANDARDS PHASE I PROFESSIONAL#
The new standards require the environmental professional to review agency files when there is a standard record source database listing for the property or adjoining land. This was never made clear in the AAI rules and could become a legal concern for past Environmental Site Assessments (“ESA”). EPA’s comments to the Final Rules issued on December 30, 2013, indicate that EPA has always interpreted releases within the scope of the AAI rule to include migration, including vapor intrusion. Thus, the standards may identify sources of migration of vapors, which could become a REC, but the standards do not require an actual evaluation. The new standards contain a new term, “Migration,” intended to include migration of vapors onto the property at issue however, it is not an evaluation of the potential vapor intrusion. If the criteria has changed since the report, then it may no longer be an HREC and could be a REC or even a CREC. The new standards clarify that HRECs apply only to prior releases which have been remediated to CURRENT unrestricted residential criteria. Historic recognized environmental conditions (“HRECs”) are previous conditions that existed on the site that were remediated and received regulatory acknowledgement. The environmental professional is required to document why a condition is de minimis.
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A de minimis condition is also not a CREC. The previous version was confusing as to whether some de miminis conditions would constitute a REC. The new ASTM definition of REC clarifies that a de minimis condition is not a REC by removing extraneous verbiage and by creating a definition of de minimis. A CREC does not necessarily mean that the institutional control is effective. The following are key changes:Ī new definition of “controlled recognized environmental conditions” (“CRECs) for prior releases which are not remediated to unrestricted residential criteria, but may have land use restrictions or other institutional controls. An environmental professional conducting an ASTM Environmental Site Assessment makes an effort to identify so-called “recognized environmental conditions (“RECs).” If a REC is found and reported, then a user may be required to make additional inquiry in order to comply with the Federal AAI rule. The revisions include very important changes to bedrock requirements of the standards. EPA will issue a new rule that will omit reference to version 1527-05 since ASTM has superseded that standard with 1527-13.ĪSTM released the updated E 1527-13 in November 2013. The Final Rule recommends and strongly encourages that version 1527-13 be used by environmental professionals and prospective purchasers as EPA recognizes the revised standard provides substantial improvement to the previous version by providing greater clarity for prospective purchasers with regard to potential contamination at a property. These commenters argued that by recognizing two different standards EPA would cause substantial confusion among the regulated community. Most of the objections related to EPA’s proposal to recognize both the 2005 version as well as the 2013 version. The rule was published initially in August 2013, but EPA withdrew the rules after receiving adverse comments.
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Previously EPA recognized the earlier version, ASTM E 1527-05, as satisfying the AAI requirements. Compliance with AAI is a threshold requirement to claim the federal brownfield innocent purchaser, prospective purchaser and contiguous landowner defenses. On December 30, 2013, EPA issued its Final Rule which recognized that complying with the latest version of the ASTM Phase I Environmental Site Assessment Standards (E 1527-13) complies with the EPA all appropriate inquiries (“AAI”) rules.