Thoughts on Upcoming Revisions to ASTM 1527

The environmental consulting community has recently been engaged in extensive discussions regarding the upcoming revisions to ASTM 1527, the industry-standard practice for Phase I Environmental Site Assessments. Blogs, newsletters, e-mail alerts, webinars and discussion boards have been filled with various opinions and viewpoints on the proposed changes, which are currently under review by the EPA to ensure consistency with AAI. There has been a lot of unnecessary anguish, some misinterpretation, much confusion and certainly occasional praise for the proposed changes. Rather than go into detail regarding each of the proposed revisions, as they have been widely discussed elsewhere, the following are my viewpoints and professional opinions on a few of the issues of concern that have been raised on those forums:

Concern: The revisions are unnecessary and are intended to increase business for ESA Producers (i.e., the environmental consulting community).

ASTM requires that all standards be periodically revisited; if there is no action to reapprove or revise, a standard will “sunset” after 8 years. If not reapproved or revised, E 1527-05 would become obsolete in November 2013. In January 2010 the E 1527 Task Group, which is comprised of a group of more than 140 Producers and Users/General Interested parties (comprising approximately 2/3 and 1/3 of the group, respectively) to consider four options for revising the standard: 1) Do nothing—let the standard sunset; 2) Re-ballot the standard “as is” with no changes; 3) Make changes to the standard that do not conflict with the AAI rule; 4) Make changes to the standard that conflict with, or require changes to the AAI rule. In the latter case EPA would have to consider the changes and a formal rulemaking process would be required, including proposed and final rules with appropriate public comment periods. The Task Group decided on Option 3 and proceeded to engage in a collaborative process of revisions with multiple focus groups. The proposed changes have been balloted by the 1000+ Committee E50 members and all negative ballots have been addressed in accordance with ASTM requirements.

Concern: The proposed new definitions of REC, HREC and CREC are confusing and unnecessary, and will only complicate the results of ESAs.

One of the common complaints about the current definition of REC (which has been present since the original E1527 in 1993) and HREC definition (added in 2000) was that they were being inconsistently applied by EPs and did not adequately address the situation of a REC which had been “resolved” in some fashion to the satisfaction of regulators. LUST sites which had undergone extensive remediation and were considered closed by regulators were being called RECs by some, HRECs by others and de minimis conditions by still others. The intent was to simplify the REC definition, clarify the HREC definition and introduce a new term, the Controlled REC (CREC) to address RECs that that have been addressed to the satisfaction of the applicable regulatory authority. A CREC could be a site with a no further action letter or equivalent, or meeting risk-based criteria established by regulatory authority, with hazardous substances or petroleum products allowed to remain in place subject to the implementation of required controls. In addition, “de minimis,” which was not a standalone defined term but part of the REC term, was broken out, and the terms “release” and “migrate/migration” were added, since these words are part of the REC/HREC/CREC definitions. Each of these changes was intended to help EPs consistently apply each term and to make each term exclusive of the others. It is hoped that by using a logical, decision-based process, EPs will be more uniform in their determinations. Of course this will still require EPs to exercise professional judgment, which comes with appropriate training and experience.

Concern: The proposed standard requires implementation of a vapor intrusion evaluation, which in turn means the E2600 Guide for Vapor Encroachment Screening must be implemented as part of an ESA.

E1527 was never intended to exclude the evaluation of vapors in the subsurface during the ESA process. Unfortunately the IAQ “exclusion” as a “non-scope consideration” was misinterpreted by many as an exclusion on any IAQ issue. In fact, the IAQ “exclusion” was always limited to “indoor air pollution” from industrial operations, cleaning and maintenance chemicals, off-gassing from furniture, insulation, or wood products, etc. The migration of hazardous substances in any form, including vapors from soil or groundwater, has always been considered a “release” covered by CERCLA and to be included in the ASTM REC definition. While concerns associated with VI (e.g., potential closed case reopeners) are growing, it is not a “new” evaluation requirement. The proposed revised standard clarifies this issue and specifically states that “nothing in this practice should be construed to require application of the E2600 standard guide to achieve compliance with all appropriate inquiries.” The IAQ non-scope listing is clarified to indicate the “exclusion” is for IAQ unrelated to releases of hazardous substances or petroleum products into the environment. The proposed new appendix dealing with “Non-scope” or “Business Risk” issues also discusses this to assist EPs and Users. While this issue will certainly require good professional judgment and more research and evaluation than many EPs have been doing, the revisions do not require implementation of additional scopes of work.

Concern: The new standard requires that regulatory agency files be reviewed, thereby increasing costs to Users and/or making Producers “eat” costs in the competitive ESA marketplace.

There has always been a dilemma in conducting agency file reviews during ESAs: some Producers, working in states where files are readily available at no cost, routinely include file reviews in the base ESA fee; others, in states where files are only available by conducting personal reviews of paper files in an agency headquarters office, often with 3-4 weeks’ notice required and no guarantee that the files will be of any benefit, routinely exclude file reviews even in instances where they may provide vital information. The proposed language does specifically state that if the property or any of the adjoining properties is identified on one or more of the standard environmental record sources (i.e. regulatory databases), pertinent regulatory agency files and/or records associated with the listing should be reviewed. The purpose of the regulatory agency file review is to obtain sufficient information to assist the EP in determining if REC/HREC/CREC or a de minimis condition exists. However the proposed language states that if, in the EP’s opinion, such a review is not warranted, the EP must explain within the report the justification for not conducting the regulatory file review. For example if adjacent properties are identified on the RCRA database as SQGs but no indications of releases are indicated on other databases or site observations, the EP may explain (in the report) that a RCRA listing is not of itself an indication of a release and based on the apparent types of activities conducted by that generator, a file review is not warranted. However, if the subject property or an adjacent property is listed on a LUST database, and insufficient information is available for the EP to support a REC/HREC/CREC determination, a file review should be conducted. The proposed language also provides options for reviewing records at the subject property, interviews, etc., to address this issue, so if the subject property maintains copies of the pertinent LUST investigation and remediation reports and NFA letter, the EP does not need to conduct a file review at the regulatory agency. The language is sufficiently flexible that neither Users nor Producers should have major heartburn. The ESA proposal and contract documents should clearly state the file review assumptions so that there are no misunderstandings between the Producer and User.

There are other proposed changes to E1527, but they are relatively minor and, thus far, not as controversial. I personally believe the proposed changes are good and will benefit both Users and Producers. For those of you looking forward to the end of the E1527 discussions, keep in mind that the PCA Standard Guide E2018-08 will sunset in 2016 if not renewed! That process is just beginning.