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EPA Adopts New Astm Standard For Phase 1 Environmental Site Assessments – Environment – United States


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EPA Adopts New Astm Standard For Phase 1 Environmental Site Assessments

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On March 14, 2022, EPA adopted the new ASTM
Standard Practice E1527-21 for conducting Phase I Environmental
Site Assessments (ESAs), allowing for its use to satisfy “all
appropriate inquiries” (AAI) for landowner liability
protections under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA). This revision will take
effect on May 13, 2022, unless EPA receives adverse comment.

While the prior version of the standard (E1527-13) may still be
used to satisfy AAI at this time, it is expected that EPA will
ultimately phase out E1527-13 altogether. Parties seeking liability
protection should plan to transition to the new standard. Some of
the key changes and their implications are highlighted below.

  • Emerging contaminants, including PFAS: The
    approach to emerging contaminants (contaminants which have been
    identified, but are not formally regulated) has been a source of
    confusion under E1527-13. Standard Practice E1527-21 addresses that
    confusion by clarifying that environmental professionals are not
    required to consider emerging contaminants, such as per- and
    polyfluoroalkyl substances (PFAS), when conducting a Phase I ESA
    unless or until the emerging contaminant is regulated as a
    hazardous substance under CERCLA. Although inclusion prior to
    regulation is not mandatory, the new standard also provides that
    emerging contaminants may be included in the assessment as a
    “Non-Scope Consideration” at the request of the party
    seeking liability protection under the Phase I ESA. EPA is
    currently developing a proposed rule that would designate certain
    PFAS chemicals – specifically PFOA and PFOS – as hazardous
    substances under CERCLA. Therefore, a party seeking liability
    protection should specifically request inclusion of these emerging
    contaminants as a non-scope item within the Phase I ESA at this
    time.
  • Shelf life of Phase I ESA components: Standard
    Practice E1527-13 requires that certain components of a Phase I ESA
    be completed within 180 days prior to acquiring an interest in the
    subject property. A common misperception has been that this 180-day
    period commences as of the date of the Phase I ESA report. The
    correct interpretation under E1527-13 is that the 180-day period
    runs from the date of completing each of these individual
    components. Although the 180-day period has not changed, the new
    standard requires the identification of the completion dates for
    each of these individual components.
  • Historical research requirements: The new
    standard expands the historical records review requirements beyond
    those in E1527-13. Under E1527-13, the environmental professional
    is only required to review as many historical sources as needed to
    determine whether past uses could have led to a Recognized
    Environmental Condition (REC) in connection with the subject
    property. E1527-21 mandates evaluation of specific sources
    unless an exception applies and the environmental professional
    explains the omission. Further, if these specific sources are
    reviewed for the subject property, the new standard requires their
    review for adjoining properties.

These expanded historical research
requirements are expected to improve consistency in Phase I ESA
reports among consultants and may cause increases in costs and
completion times for Phase I ESAs, especially for properties with a
significant number of adjoining properties.

  • Revised definitions: The new standard includes
    revised definitions of Recognized Environmental Condition (REC),
    Historical Recognized Environmental Condition (HREC), and
    Controlled Recognized Environmental Condition (CREC) to promote
    greater consistency and clarity among Phase I ESAs, although the
    revisions do not substantively change the meanings of these key
    terms. The standard also includes an appendix which contains
    further guidance to help environmental professionals accurately
    classify property conditions as a REC, HREC, or CREC.

To qualify for liability protection, a prospective owner or
operator of property must minimally satisfy AAI, commonly pursued
by the performance of a Phase I ESA. Based on EPA’s adoption of
Standard Practice E1527-21, a Phase I ESA that complies with this
new standard will satisfy AAI. As is the case currently, compliance
with the applicable ASTM Standard Practice is critical for avoiding
cleanup liability for the prospective owner or operator.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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