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Update on Usage of Phase I ESAs

The new ASTM International method 1527-13 for Phase I ESAs has being used concurrently with the older ASTM method 1527-05 since its adoption in December 2013 by the U.S. Environmental Protection Agency (EPA). Since the adoption of the new rule, both the older ASTM method 1527-05 have been considered to satisfy the All Appropriate Inquiries (AAI) requirement for protection under CERCLA. Clarification of which ASTM method is appropriate has been updated by the U.S. EPA. As of October 6, 2014, the EPA issued the final rule stating that as of October 6, 2015, ASTM method 1527-13 will be the only acceptable method for conducting a Phase I ESA. It may be the best practice to start using ASTM 1527-13 in order to familiarize yourself with the newer standard by the October 6, 2015 implementation date. A refresher on the key changes in the new ASTM method can be found below.

Although most of the ASTM method has remained the same, three major changes have been implemented. The three major changes include:

  • RECs, HRECs, and CRECs;
  • Vapor Migration/Intrusion;
  • Regulatory File Review.

As stated in the new ASTM 1527-13, a recognized environmental condition (REC) is now simplified to mean "the presence or likely presence of any hazardous substances or petroleum products in, on, or at a property: 1) due to any 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." An historical REC or HREC was previously identified as a REC which no longer existed. In the new ASTM method 1527-13, HRECs must be evaluated by the environmental professional to compare the HREC with new or recently changed regulatory criteria to determine if the HREC is now a REC. A controlled REC or CREC is now listed as a condition at a site that may have had an historical release but has now met required regulatory approval as having adequately addressed the release and specific controls are now in place such as use limitations, deed restrictions or engineering controls.

One of the major changes in the new ASTM method 1527-13 is how vapor migration/intrusion is addressed. The new ASTM method clarifies that CERCLA/AAI does not differentiate between soil vapor, groundwater or soil. New language addressing vapor migration has been added stating that migration "refers to the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface." In effect, vapor migration will now have to be treated no differently than contaminated groundwater migration in the Phase I ESA.

The requirements for regulatory file reviews have also changed in this iteration of the ASTM 1527. In many cases, regulatory files pertinent to the site or adjoining the target property should be reviewed. Regulatory file review can often take up to weeks and even months to complete. It is now at the environmental professional's discretion as to whether a file should be reviewed or if a review of alternate sources such as user-provided records, local agencies, or interviews with regulatory officials would be deemed sufficient in lieu of other government records. If a file review is not warranted, the environmental professional must provide justification in the Phase I ESA report. If the information obtained from a file review is completed, an opinion from the environmental professional stating the sufficiency of available information is required.

These new additions to the ASTM 1527-13 have helped clarify, and in many ways, help streamline the Phase I ESA process. Other minor changes such as identifying the user of the Phase I ESA as responsible for conducting an environmental lien search while leaving the option for the environmental professional to conduct the lien search has been included in the update.