The Updated Phase I Standard- E-1527-13-

The Updated Phase I
Standard- E-1527-13Alexander G. Shissias – The Shissias Law Firm, LLC
Key ASTM E1527 Revisions
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Revised Definitions
New Definitions
Agency File Review Clarification
Vapor Migration/Intrusion Clarification
Recommendations Clarification
New Business Environmental Risk (BER)
Appendix
Revised Legal Appendix
Perceived Problems
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“Commoditization” of Phase I
reports- “Phase I Mills”
Poor record review
Insufficient EP supervision of non-EP
staff
Professionalism
Emphasis on Vapor
ASTM’s View
Standards have an 8 year life,
automatic sunset if not reapproved
without changes or replaced
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automatically renders prior
standard “obsolete.”
n  ASTM uses a volunteer committee,
consensus based approach
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EPA/ Legal Approach
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ASTM Standard provides no legal
protection unless provision made in
CERCLA and Regs that Phase I= AAI
AAI as basis for BFPP, ILO, CLO
Why look to ASTM as final authority? --AAI
refers to “good commercial standards,”
EPA believes it is necessary to look to the
private sector
It’s always possible to follow a non phase I
approach that is equivalent, but very risky
Revised Definition-Recognized
Environmental Condition (REC)
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E 1527-05:
“the presence or likely presence of any hazardous substances or
petroleum products on a property under conditions that indicate
an existing release, a past release, or a material threat of a
release of any hazardous substances or petroleum products into
structures on the property, or into the ground, ground water, or
surface water of the property.”
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E1527-13:
“the presence or likely presence of any hazardous substances or
petroleum products in, on, or at a property: (1) due to any
release to the environment; (2) under conditions indicative of a
release to the environment; or (3) under conditions that pose a
material threat of a future release to the environment.”
Revised Definition: Historic
REC (HREC)
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a past release
addressed to the satisfaction of the applicable
regulatory authority or meeting unrestricted use
criteria established by a regulatory authority
unrestricted residential cleanups (No AULs
required)
Still complies with current unrestricted cleanup
standards
Different from prior HREC definition!
•  A site meeting closure standards at the time the site was closed but
which would not achieve closure today is automatically a REC.
New- Controlled REC (CREC)
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“a REC resulting from a past release of hazardous substances or
petroleum products that has been addressed to the satisfaction
of the applicable regulatory authority (e.g., as evidenced by the
issuance of a NFA letter or equivalent, or meeting riskbased criteria established by regulatory authority), with
hazardous substances or petroleum products allowed to remain in
place subject to the implementation of required controls
(e.g., property use restrictions, AULs, institutional controls, or
engineering controls)…”
Does not mean EP has verified adequacy or effectiveness of
controls…but someone must make call on what is a “control”
“Required Control” not defined, unlike AULs, ICs and ECs
Listed as a CREC in “findings” part of report, but as a REC in the
“conclusions” part of the report
Records Review- “Mandatory?”
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ASTM says not Mandatory.. But…
“If the target property or adjoining properties are identified
on one or more of the standard environmental records
sources, pertinent regulatory files and/or records
associated with the listing should be reviewed.
“Adjoining” includes property across a street
Summary of what info EP reviewed and how sufficient it
was in his/her professional opinion
If, in EP’s opinion, review not warranted, EP must explain in
the report justification for not reviewing the files.
Can use alternate sources
Still subject to “reasonable time and cost restraints”- 20
calendar days- see 8.1.5– This caveat was not in earlier
drafts; added late in the game
Vapor Migration
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Changed definition of “release” and
“migration” to include vapor in the
subsurface
Legal Appendix- Standard refers to Vapor
migration (on the property)
Vapor intrusion (indoor air) not within the
Scope, oddly enough
•  Standard aside- should this also be
considered as BER or Non-Scope
Consideration?
Vapor Migration
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References that vapor migration in the subsurface is
described in Guide E2600
If you use different approach, it must be capable of being
reproduced later
Main advantage of E2600 is that it has default search
distances
You can have sites where sole REC is vapor
If property has NFA and VM not considered- It becomes a
REC
Prevailing model is hyper-conservative and yields false
positives
EPA Federal Register
Preamble
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EPA preamble jeopardizes AAI compliance of E1527-05 reports that did not
consider VI
“all appropriate inquires and phase I environmental site assessments must
include, within the scope of the investigation, an assessment of the real or
potential occurrence of vapor migration and vapor releases on, at, in or to
the subject property.”
“EPA notes that both [AAI and E1527-05] already call for the identification
of potential vapor releases or vapor migration at a property, to the extent
they are indicative of a release or threatened release of hazardous
substances.”
“…EPA wishes to be clear that, in its view, vapor migration has always
been a relevant potential source of release or threatened release that,
depending on site-specific conditions, may warrant identification when
conducting all appropriate inquiries.…”
“Neither the All Appropriate Inquiries Rule nor the ASTM E 1527-05
standard excludes the identification of vapor releases as a possible type of
release.”
Recommendations- Clarified
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EP only required to identify RECs, CRECs, HRECs
and DMCs (“Findings).
EP expresses opinion of impact of conditions on
Property
•  opinion regarding additional appropriate investigation to
detect the presence of hazardous substances or
petroleum products only “unusual circumstance” when
greater certainty is required
•  Not required to provide recommendation for phase 2
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Identify Data Gaps and their significance
“Recommendations” not under standard, user
should consider whether additional services
relating to due care are required
Other Clarifications
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Questionnaire is a user duty. If user does not provide
information, EP must determine significance (e.g.
significant data gap?)
Cites Ashley II- District Court said while phase I had some
inconsistencies from the ASTM standard they were not
significant. Ashley was not expected to find those
inconsistencies, it acted reasonably, “it hired an expert and
relied on that expert to perform its job properly.” Emphasis
is on the EP getting it right!
If environmental liens or AULs are only recorded or filed in
judicial records, the judicial records must be searched.
User should retain title professional.
De Minimis condition- formal definition created
Nonscope, BER and Due
Care Considerations
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Soil Vapor sampling
Indoor air
Consideration of “due care” in
brownfields sites where there is a
delay between acquisition and
development- Consider Voggenthaler,
724 F.3d 1050 (9th Cir. 2013)
Asbestos, lead paint, radon,
wetlands, permit violations
Developments in Industry
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One large commercial lender now requires phase
II assessments for large transactions
A large commercial lender now requires all phase
I reports to be prepared solely by the EP
Certain state NFA letters now of limited use as
state programs allow buyer to disregard
groundwater- but vapor remains an issue
Some NFAs did not consider vapor at all
EP Practice- liability limitations, in-house counsel,
in-house “mandatory RECs,” geographic
considerations
Old Problems, New Problems
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Did not solve records review problem
•  20 day “availability” loophole remains
CREC of limited use in states without default cleanup
standards
New HREC definition
Approach to Vapor
What is a “control” for a CREC- Legal issue
Arguments about what is a HREC, CREC or REC
Update of standard did not require “supervision” of NonEP by EP to be the equivalent of “supervision” under
state P.E. or P.G. Board
VM in reg preamble jeopardizes validity of old phase I
ESAs
Example 1
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Shopping center remediated- source
eliminated, contaminated soil removed
•  MNA approved but…..
Quarterly GW sampling required….
Could be considered a REC or a CREC but that
distinction turns on whether or not MNA
selection was based on risk assessment and
whether GW sampling considered a “required
control.” (definition not co-terminus with AUL
definition in 3.2.2)
Example 2
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Shopping center cleaned up 10 years ago
using risk based cleanup, NFA letter issued
Vapor Pathway not considered at the time
Contamination still exists, vapor pathway
not considered, NFA letters always allow
re-opener
REC (HREC under old standard)
Example 3
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Office complex cleaned up to industrial /
commercial soil and groundwater standards, not
residential
NFA issued
No restrictions stated in NFA
REC or CREC?
Example 3.1- What if NFA presupposes
continuation of current land use?
Example 3.2- What happens if property is zoned
commercial/industrial?
Need Help?
Alexander G. Shissias
The Shissias Law Firm, LLC
1422 Laurel Street
Columbia, S.C. 29201
803-540-3090
[email protected]