Phase I Dilemma—Evaluating Historic Use of Pesticides and Herbicides as a Recognized Environmental Condition
The DC metro region formerly served as highly productive farmland, and much of the city’s surrounding area remains agricultural. Even properties that have never been commercially developed (e.g., agricultural or vegetated lands) may have historical contamination of soil, surface water and groundwater from applications of pesticides and herbicides. Residual levels of these chemicals cause unintended negative environmental impacts, including soil and groundwater contamination. Given their stable chemical structure, these chemicals can remain in the environment for hundreds of years, and some of their break-down products are linked to a wide array of detrimental health and environmental impacts.
While environmental and health impacts of pesticides and herbicides are well-documented, environmental consultants do not always recognize the historic use of these chemicals on a property as a potential recognized environmental condition (REC). RECs are identified based on an accepted set of industry standards described in ASTM E1527-05 Standard Practice for Phase I Environmental Site Assessments, which defines a REC as the presence or likely presence of contamination by hazardous substances or petroleum products on a property into the ground, groundwater or surface water of a property. Pesticides are discussed in the Legal Appendix XI.188.8.131.52, which provides the basis of the generally utilized “exception” from REC definition of pesticides “applied in accordance with labeling requirements” or “typical routine application.” Application of pesticides to “row crops” (wheat corn, etc.) do not result in the application of chemicals that would be considered a REC. But orchard applications often do, based on types and frequency of application (especially arsenic-based pesticides.
Due to gaps in historical data, it is difficult to determine if/when pesticides were used on agricultural properties, which chemicals were used and potential residual levels of contamination in soil and groundwater. Phase I assessments may recommend further investigation to answer these questions, but subsurface investigations require additional time, funds and potentially damage to subject properties. Based on a lack of strict regulations mandating the identification of harmful chemicals as RECs, environmental consultants do not always identify the historical use of pesticides and herbicides on a property, nor recommend follow-up subsurface investigations in relation to its historical uses.
The New ASTM Phase I ESA standard (1527-13), likely available in late 2013, is not anticipated to contain new language dictating how to evaluate historical uses of pesticides and herbicides on properties. Regardless of the standard, it is crucial that environmental consultants consider the potential impacts of these chemicals during Phase I ESAs and alert clients to the long-term implications.
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