This issue of HETI Horizons presents an overview of some major themes and selected details anticipated in the 2021 update to ASTM E1527, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”.

Since its introduction in 1993, the objective of E1527 has been to evaluate a property for the known or likely presence of oil or hazardous material in the environment. Officially, adherence to E1527 would (1) assist a property owner with qualifying for landowner liability protections (LLPs) against federal assessment and remediation requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); and (2) promote increased uniformity and transparency of reports prepared by consultants, engineers, attorneys, or other professionals. In practice, property owners, lenders, and other interested parties commonly use this ASTM practice as part of their liability and financial risk management processes.

Over nearly three decades, the terminology, definitions, and specific items addressed by E1527 have all evolved. Notable prior updates include:

• The 2005 incorporation of the United States Environmental Protection Agency (USEPA) “All Appropriate Inquiries” (AAI) standard, expanded LLPs, and specific Environmental Professional (EP) qualifications; and
• The 2013 revised definition of recognized environmental condition (REC), introduction of the controlled recognized environmental condition (CREC), specification of vapor-phase migration, and multiple changes to better align E1527 with AAI.

HETI consulted articles written over the past year forecasting possible E1527 updates and communicated with a prominent member of the ASTM E50 committee, which is responsible for the update. When observing that published summary articles did not always agree on details, sometimes significantly, HETI deferred to information obtained from the ASTM E50 committee member. Information presented in this article is not exhaustive or complete.

Although still under active discussion, E1527-21 is expected to contain primarily clarifications of existing definitions and concepts – with a limited number of substantive procedural or content changes. The revisions are likely to include nuances that affect the performance of Phase I Environmental Site Assessments (ESAs), presentation of the findings, and overall  value and utility of the ESA product.

Likely Definition Changes

Consistent use of “Subject Property” should replace terms like “site” or “target” when referring to the property undergoing a Phase I ESA.

E1527-21 will include updated definitions of REC, CREC, and historical REC (HREC). The revised definitions will likely not substantively change, but consolidate/streamline the somewhat fragmented definitions and associated explanatory notes contained in E1527-13.

The updated REC definition will probably include greater specificity and may assign a specific meaning to “likely”.

Updated definitions for HREC and CREC are likely to include greater emphasis on evaluation of underlying environmental data. Existing ASTM practice requires that an EP determine if site conditions comply with current regulatory standards for unrestricted (HREC) or restricted (CREC) property use. However, an HREC or a CREC is still a REC; so evaluation requires an understanding of the conditions at the Subject Property, the specific regulatory environment, and the presence of any risk reduction measures. E1527 does not require an interpretation of regulatory finality, only evaluation of compliance with current regulatory requirements.

The 2021 update is expected to include a new appendix to provide guidance on the various recognized environmental condition definitions, along with examples and a decision tree or flow chart to facilitate consistent determinations.

Likely Changes to ESA Report Content & Viability

The updated ASTM practice will include changes to environmental regulatory database nomenclature to reflect changes that have occurred over time.

The 2021 update is likely to direct a more holistic, integrated presentation of assessment findings. In addition to review of “standard” physical setting and historical information sources, the update will probably specify that the ESA report should synthesize and document supplemental physical setting/historical information obtained from regulatory and local file reviews.

E1527-21 will expand requirements to evaluate and document historical conditions at properties adjoining and near the Subject Property. However, it likely will not be necessary to pursue the same level of diligence at surrounding properties as for the Subject Property. Instead, best practices should continue to focus on evaluation for possible threats to the Subject Property from known or likely conditions at nearby properties. This change appears directed at improving documentation and data evaluation. Use of standard historical sources (e.g., fire insurance maps, city directories, and aerial photographs) typically provides information about the Subject Property as well as surrounding properties with relatively modest additional effort.

The update will include expanded requirements to evaluate and document data gaps that could invalidate or significantly affect the ESA findings. Notably, E1527-21 likely will specify increased prominence of data gaps and require citation in the report body, summary of findings, and executive summary (if present).

The 2021 update will clarify the requirement to update an ESA performed more than 180 days prior to the acquisition of a Subject Property. The 180-day window pertains individually to each of five Phase I ESA components: interviews; visual inspections; government records review; recorded environmental lien search; and EP certification. These criteria correspond directly to the text of the AAI standard. Therefore, although the nominal release date of a Phase I ESA report may be less than the 180-day cutoff, the  collection dates of the underlying data could potentially be too old to comply with AAI viability requirements.

The pending update is expected to outline additional, possible, non-ASTM-scope items that could be pertinent to evaluation of a Subject Property. Potential expanded topics include “emerging contaminants” not yet regulated as hazardous material by CERCLA, including PFAS and increasing awareness of PCBs in building materials. Information communicated to HETI suggests that, in the interim, handling of these  topics will resemble how E1527 addresses lead-based paint and asbestos; although there may be subtle   differences, particularly for PCBs on exterior building surfaces exposed to the environment

What It All Means

The forthcoming update to E1527 appears to focus on strengthening and refining the existing standard’s framework, rather than adding new structure. The elements of E1527-21 may continue to change until its  likely release in November or December 2021 – after ASTM and EPA have reconciled language to maintain consistency with the AAI regulation. As the terminology becomes more technical and precise, an integrated understanding of E1527, its underlying framework, and the AAI regulation becomes more important.

HETI will continue to monitor the progress of the latest ASTM standard update…as well as other regulatory issues…to continue to provide our clients with state-of-the-art environmental due diligence assessment and       compliance services.

 

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