EPA Approves the New Phase I Standard

by Spilman Thomas & Battle, PLLC
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Many in the construction industry are familiar with Phase I testing as the first step in identifying environmental risk to any site. Since 2005, the industry standard for a Phase I has been the ASTM E 1527-05. Recently, however, the ASTM Standard for Phase I Environmental Assessment underwent some important modifications including (i) new Recognized Environmental Condition (REC), Historical Recognized Environmental Condition (HREC) and Controlled Recognized Environmental Condition (CREC) definitions, (ii) a new emphasis on assessing vapor migration, and (iii) procedures for conducting regulatory file reviews. This newer, modified version of the Phase I is known as the ASTM E 1527-13. On December 30, 2013 the United States Environmental Protection Agency (EPA) approved the ASTM E 1527-13 as meeting AAI requirements.

Since receiving EPA approval in December, the new ASTM E 1527-13 has replaced the previous version (ASTM E 1527-05) as the industry best practice for Phase I Environmental Site Assessment. As a result, the EPA has advised that anyone seeking to claim protection from liability under CERCLA should use the new ASTM E 1527-13 and therefore, although the changes do not significantly alter the Phase I standard, it is important to understand what provisions were modified. The following is a brief overview of the modifications to the Phase I standard:

i.    Definitions: REC, HREC and CREC

The definition of a Recognized Environmental Condition has been modified to clarify and to simplify the old definition. REC is now defined as “the presence or likely presence of any hazardous substances or petroleum products in, on or at a property: (1) due to release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment. De minimis conditions are not recognized as environmental conditions.”

Likewise, the definition of a Historical Recognized Environmental Condition has been clarified and simplified under the ASTM E1527-13 to read: “a past release of any hazardous substances or petroleum products that has occurred in connection with the property and has been addressed to the satisfaction of the applicable regulatory authority or meeting unrestricted use criteria established by a regulatory authority, without subjecting the property to any required controls (for example, property use restrictions, activity and use limitations, institutional controls, or engineering controls).”

In addition to these modifications, a new term, Controlled Recognized Environmental Condition, has been introduced. The definition of a CREC is “a recognized environmental condition resulting from a past release of hazardous substances or petroleum products that has been addressed to the satisfaction of the applicable regulatory authority (for example, as evidenced by the issuance of a no further action letter 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 (for example, property use restrictions, activity and use limitations, institutional controls, or engineering controls).” The CREC concept addresses those contaminated sites with “regulatory closure” where contamination likely remains, but it is “controlled” through institutional or engineering controls (e.g., use restriction or surface venting systems). Typically, these sites will not require additional assessment, but future owners may have certain obligations relating to safety during development, preventing spread of contamination and site design.

ii.    Vapor Mitigation

Under the ASTM 1527-13 Standard, there is a greater emphasis on assessing vapor mitigation by clarifying the definition of a “release” to specifically include contamination through vapor encroachment and not just soil or groundwater contamination. The new standard also adds a definition of migration that includes vapor and clarifies that vapor migration/intrusion does not fall under the category of an Indoor Air Quality concern.

iii.    Regulatory File Reviews

The ASTM 1527-13 obligates an environmental professional to conduct a stronger and more thorough review of regulatory files for not only the subject property, but also any adjacent properties listed in standard record sources. The purpose of this review is to determine if a REC, HREC or de minimis condition exists at the subject property in connection with the adjacent property listed. While the new standard allows the environmental professional to waive this type of review, it still requires the professional to explicitly state in the report why the review was not necessary.
    
Although some additional time and costs may be incurred due to the additional regulatory review required and vapor testing, anyone seeking a Phase I after December 30, 2013 should understand the difference between the two standards and should be sure to request the ASTM E 1527-13. -

Many in the construction industry are familiar with Phase I testing as the first step in identifying environmental risk to any site. Since 2005, the industry standard for a Phase I has been the ASTM E 1527-05. Recently, however, the ASTM Standard for Phase I Environmental Assessment underwent some important modifications including (i) new Recognized Environmental Condition (REC), Historical Recognized Environmental Condition (HREC) and Controlled Recognized Environmental Condition (CREC) definitions, (ii) a new emphasis on assessing vapor migration, and (iii) procedures for conducting regulatory file reviews. This newer, modified version of the Phase I is known as the ASTM E 1527-13. On December 30, 2013 the United States Environmental Protection Agency (EPA) approved the ASTM E 1527-13 as meeting AAI requirements.

Since receiving EPA approval in December, the new ASTM E 1527-13 has replaced the previous version (ASTM E 1527-05) as the industry best practice for Phase I Environmental Site Assessment. As a result, the EPA has advised that anyone seeking to claim protection from liability under CERCLA should use the new ASTM E 1527-13 and therefore, although the changes do not significantly alter the Phase I standard, it is important to understand what provisions were modified. The following is a brief overview of the modifications to the Phase I standard:

i.    Definitions: REC, HREC and CREC

The definition of a Recognized Environmental Condition has been modified to clarify and to simplify the old definition. REC is now defined as “the presence or likely presence of any hazardous substances or petroleum products in, on or at a property: (1) due to release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment. De minimis conditions are not recognized as environmental conditions.”

Likewise, the definition of a Historical Recognized Environmental Condition has been clarified and simplified under the ASTM E1527-13 to read: “a past release of any hazardous substances or petroleum products that has occurred in connection with the property and has been addressed to the satisfaction of the applicable regulatory authority or meeting unrestricted use criteria established by a regulatory authority, without subjecting the property to any required controls (for example, property use restrictions, activity and use limitations, institutional controls, or engineering controls).”

In addition to these modifications, a new term, Controlled Recognized Environmental Condition, has been introduced. The definition of a CREC is “a recognized environmental condition resulting from a past release of hazardous substances or petroleum products that has been addressed to the satisfaction of the applicable regulatory authority (for example, as evidenced by the issuance of a no further action letter 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 (for example, property use restrictions, activity and use limitations, institutional controls, or engineering controls).” The CREC concept addresses those contaminated sites with “regulatory closure” where contamination likely remains, but it is “controlled” through institutional or engineering controls (e.g., use restriction or surface venting systems). Typically, these sites will not require additional assessment, but future owners may have certain obligations relating to safety during development, preventing spread of contamination and site design.

ii.    Vapor Mitigation

Under the ASTM 1527-13 Standard, there is a greater emphasis on assessing vapor mitigation by clarifying the definition of a “release” to specifically include contamination through vapor encroachment and not just soil or groundwater contamination. The new standard also adds a definition of migration that includes vapor and clarifies that vapor migration/intrusion does not fall under the category of an Indoor Air Quality concern.

iii.    Regulatory File Reviews

The ASTM 1527-13 obligates an environmental professional to conduct a stronger and more thorough review of regulatory files for not only the subject property, but also any adjacent properties listed in standard record sources. The purpose of this review is to determine if a REC, HREC or de minimis condition exists at the subject property in connection with the adjacent property listed. While the new standard allows the environmental professional to waive this type of review, it still requires the professional to explicitly state in the report why the review was not necessary.
    
Although some additional time and costs may be incurred due to the additional regulatory review required and vapor testing, anyone seeking a Phase I after December 30, 2013 should understand the difference between the two standards and should be sure to request the ASTM E 1527-13. - See more at: http://www.spilmanlaw.com/Resources/Attorney-Authored-Articles/Construction/EPA-Approves-the-New-Phase-I-Standard#sthash.IxlJNzIz.dpuf

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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