The new standard provides clarification for environmental professionals and Phase I ESA users. Included within the changes are the following concepts:

1. Simplification of the definition of “recognized environmental condition”.
2. New defined term “controlled recognized environmental condition” (CREC) to address continuing obligations and limitations on use.
3. Vapor migration evaluations are mandatory under the new standard.
4. Environmental professionals must explain in greater detail their rationale for reviewing or not reviewing a regulatory file.

In summary, it is likely that the EPA’s “all appropriate inquiry standard” will change to reflect the new ASTM-E1527-13 Standard published in November. The new standard should be become law sometime in late December or early January. It is important that all environmental documents be updated to reflect this new standard and care should be taken to ensure implementation of it in your business endeavors.

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A properly conducted environmental audit is necessary for the future landowner to determine whether the property has contamination present and to demonstrate that the landowner made such a reasonable inquiry. For those entities that are considering the purchase of a historically contaminated parcel and are pursuing status as a bona fide prospective purchaser and innocent landowner status, or parties that are pursuing Brownfield grants awarded under CERCLA, they will want to comply with this change in ASTM’s standard for undertaking a Phase I audit.

By way of background, in 2002 the Brownfield Amendments to CERCLA set forth a requirement that EPA develop regulations and standard practices for conducting an all appropriate inquiry. EPA in 2005 referenced ASTM E1527-05 as setting forth the standard for conducting a Phase I Environmental Site Assessment and the EPA in 2008 updated this to incorporate ASTM E2247-08.

When the ASTM Association completed its preparation of the ASTM E1527-13, it contacted the EPA and requested a determination as to whether EPA considered ASTM’s revised standard as being compliant with the All Appropriate Inquiries Rule. EPA has made it clear that the issuance of this final rule is a determination, based on EPA’s finding that the ASTM E1527-13 standard is compliant with All Appropriate Inquiry Rules.

This final rule originally went out to public comment in August of 2013, and EPA received significant adverse comments and EPA chose to withdraw the rule on October 29, 2013. With this passage of the final rule on December 30, 2013, EPA made it clear that it will now proceed with amending the All Appropriate Inquiry Rule to reference ASTM E1527-13 and will allow for public comment on that specific issue.

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It is EPA’s belief that ASTM E1527-13 is an improvement over prior standards as it increases the level of inquiry done by future property owners making property transaction decisions. It also assists new property owners in defining any continuing obligations they may have when operating on a historically contaminated site and how to maintain any liability protection afforded by CERCLA.

ASTM E1527-13 include multiple changes to the definitions of key terms in Phase I audits, including:

(1) Recognized Environmental Condition (REC) – A REC under ASTM E1527-13 includes any release, or likely threat of a future release of a hazardous substance or petroleum products to the environment or property. De minimis conditions are generally not considered REC’s.

(2) Historical Recognized Environmental Conditions (HREC) – This new standard for a HREC contemplates that prospective purchasers will pursue additional information regarding the nature of the historical release of the property so as to make an informed decision regarding their potential future use of the property. A HREC designation is limited to past releases that have been addressed to an unrestricted residential standard and meet applicable regulatory standards. This may require a comparison between cleanup standards used at time of the remediation and cleanup standards in place at the time of Phase I audit is prepared.

(3) Controlled Recognized Environmental Conditions (CREC) – This new category is for a release that may have been cleaned to something less than unrestricted use, such as to commercial/industrial standard. Hazardous substances are allowed to remain on site and there are risk based restrictions such as institutional controls.

(4) De minimis Conditions – While an environmental consultant may consider minor conditions as de minimis, this does not include a CREC.

(5) Migrate and Migration – This includes the movement of vapors.

(6) Release – Has been revised to parallel CERCLA and excludes releases solely associated with the workplace.

The ASTM Standard also provides greater guidelines as to the significant role environmental consultants have to thoroughly review reasonably available regulatory agency files and records. The consultants should verify agency information and confirm information taken from databases. With respect to undertaking regulatory agency file and record reviews, ASTM E1527-13 provides a more standardized framework for verifying what is known about environmental conditions on the property.

A more complex and significant change in the scope of the Phase I audit includes, an

assessment of the potential for vapor releases. By redefining the definition of migration to include the movement of vapors from hazardous substances, Phase I assessment will include an assessment of the indoor air pathway. At a minimum the ASTM E1527-13 standard suggests that a Phase I assessment of a historically contaminated site, should consider the vapor intrusion pathway, just like any other exposure pathway. Because this is the Phase I assessment it may be sufficient to conclude that given the release of hazardous substances from contaminated soil or groundwater, vapor intrusion is a potential REC. This is especially true in the case of off-site releases on to the property. Some environmental consultants may address this issue in the Phase I audit, without collecting air or subsurface samples. A more detailed discussion regarding vapor intrusion and the ASTM Standard will be discussed in the blog entry to follow.

The EPA in making its announcements of the final rule acknowledges that ASTM’s new standard constitutes a consensus of an esteemed technical committee. EPA has stated that ASTM E1527-13 having already been published it is considered a public printed standard. The EPA has suggested that this standard is well known and readily available to prospective purchasers and sellers. The EPA does not discuss the potential confusion and lack of clarity that may exist for parties that do not have ready access to ASTM standards.

The EPA intends to specifically incorporate ASTM E1527-13 and by rulemaking it will revise the All Appropriate Inquiry Rule to reflect this standard change. The EPA states that this final rule became effective immediately, per its issuance on December 30, 2013, without the usual 30-day waiting period prescribed by the Administrative Procedures Act (APA) because this rule change does not

“create any new regulatory requirements or take other action for which effective parties would need time to prepare before the rule takes effect. Rather, this action merely offers parties the option of using an additional ASTM International Standard to conduct all appropriate inquiries. Today’s rule does not require that any party use this standard. Therefore, this revision became effective on the date of publication.” (70 Fed. Reg. 79321)

Therefore, technically, one could argue that ASTM E1527-05 is still an acceptable standard for a Phase I audit for CERCLA purposes, until EPA completes its rulemaking process.

The post A Closer Look at ASTM E1527-13 ( Part II ) appeared first on Dawda PLC.

In May 2012, a six bill package was signed into law by Governor Snyder to amend the procedures for the cleanup of contamination caused by leaking USTs. This bill package amends Michigan’s Part 213 (Leaking UST Program). The amendments provide greater flexibility in developing a remediation plan and implementing cleanup upon identification of a leaking UST. The amendment directs leaking USTs to be remediated in a manner consistent with American Society for Testing Materials (“ASTM”) Standard Guide for Risk Based Corrective Action as applied to Petroleum Release Site (“RBCA”).

Within 180 days (it previously was 90 days) of confirming the release, the owner shall submit an initial assessment report. It is the responsibility of the owner or operator to confirm that the consultant is qualified. Previously, the MDEQ maintained an approved list of consultants.

There is an ongoing debate among consultants over what effect these changes to Part 213 will have on closure. Previously, consultants could proceed to closure when free product was present less than 1/8 of an inch. The amendments focus on free phase product which includes Non Aqueous Phase Liquids (“NAPL”). This includes migrating NAPL, Mobile NAPL, and Residual NAPL.

The DEQ will be charged with only auditing final site assessment and closure reports rather than reviewing every aspect of a corrective action. If the DEQ decides to audit a report, notice shall be given by the DEQ within 90 days. The DEQ has up to 180 days to complete its audit after receipt of the closure report. The DEQ has been afforded a 270 day time window for review of reports it received in the 6 months before the bill took effect. The DEQ only has one opportunity to audit a report. In the event the DEQ fails to audit, report, or fails to prepare a written response, it will be deemed approved. In the event the DEQ has denied the report, the owner and operator will be provided an opportunity to revise and resubmit the report for approval.

These amendments also correct the confusion over liability protection. Persons that become owners and operators of a site with a UST after June 5, 1995, and have conducted a Baseline Environmental Assessment (“BEA”) would receive liability protection that includes the UST. Other provisions associated with owner and operator liability in the amendment are designed to match the liability provisions within the Part 213 UST Program with the liability provisions in Part 201.

To the extent a person wants to change land use, resource use, or depart from restrictions set forth in the closure report, they will need to undertake the necessary additional corrective action to allow for such use changes.

The amendments also clarified the right to bring an administrative appeal. In the event that there is a dispute between a UST owner and operator and the MDEQ, the owner and operator can proceed to an administrative hearing to resolve such disputes or challenge the MDEQ’s decision before the Response Activity Review Panel originally set up pursuant to Part 201.

The MDEQ intends to provide a training program on these changes to its LUST program. As information becomes available, we will update this blog accordingly.

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