ASTM published the first standard for Phase I Environmental Site Assessments (ESAs) in 1993. Then came revisions in 1994, 1997, 2000, 2005, and 2013. ASTM’s dedicated Phase I ESA Task Group consists of more than 200 property due diligence consultants, commercial real estate lenders, attorneys, data providers, and others and is in the final stages of updating the 2013 version of the standard, expected to be published in 2021.
It is important for practicing environmental professionals (EPs), as well as investors and lenders who rely on the ASTM standard practice, to keep up with the revisions and clarifications and the rationale behind them. They need this critical information to prepare for adoption of the new Standard Practice for Phase I ESAs.
LightBox is grateful to have Elizabeth Krol, PG, EP, and active ASTM Task Group participant, answer questions about what we can expect to see in the seventh version of the ASTM E1527 Phase I ESA standard. She also fills us in on how the Task Group is addressing the latest concerns about PFAS and what other things consultants should be aware of in advance of E1527-21. Krol leads the ASTM E1527 technical work group dedicated to strengthening historic sources in the Phase I ESA standard practice. (Note that nothing will be final in the updated standard until it is finalized by the ASTM Task Group, and promulgated as AAI-compliant by the U.S. EPA in 2021.)
What are the main areas of review of the proposed revisions?
One primary objective of the proposed revision is to “clean up” the current E1527-13 standard by addressing some “housekeeping issues.” These include:
- Clarification of various definitions
- Improving the Physical Setting section (to add site-specific sources when identified)
- State and Federal Database Review (i.e., cleaning up database names, but leaving search distances unchanged)
- Adding language that reports shall include photographs from inspection (to reflect that documentation of field observations is a critical component of strengthening the standard)
- Adding consideration of polychlorinated biphenyls (PCBs) in Building Materials that are part of the building structure (although they are “non-scope considerations, PCBs should be discussed with clients who are considering renovation/demolition)
- Clarification of Site vs. Subject Property vs. Property (the work group came to consensus that Subject Property is the appropriate way to reference the target property of the assessment)
What are the substantive issues in review?
Substantive issues include the addition or clarification of notable definitions:
- Significant Data Gap – the EP must comment on the relevance or significance of the data gap
- Historic Recognized Environmental Condition (HREC)- any new pathways must be identified
- Controlled Recognized Environmental Condition (CREC) – do the current onsite conditions satisfy the current regulatory risk-based closure standard?
- Activity and Use Limitations (AULs)Environmental Liens in Title Records- a User Responsibility that EPs often take responsibility for on behalf of their clients; the “shelf life” of these title records should be reviewed and clarified
Is the task group considering changes to the current site visit and interview requirements?
Site visit and interviews have been a key area of focus for the working group during this current round of revisions. At a minimum, site visits and interviews must be performed by an assessor who is under the guidance of an EP (although many would prefer that only an EPA-defined EP conduct these activities). In future Phase I ESA reports performed under the proposed updated standard, it may be expected that each report include who conducted the site visit and interviews (i.e., an EP vs. an environmental assessor guided by the EP) with an explanation of the training and experience of the onsite assessor (e.g., a specialized knowledge of industrial or agricultural properties). Observations and negative observations must be documented with photos and described in the body of the report. Another important definition is to remind the user that the Phase I ESA report represents a Point in Time review of observations, historical records, and database review, all of which have a brief six-month shelf life. In addition, the revisions include recognition of the increasing use of aircraft or drones. They may present opportunities to evaluate rural and/or large tracts of undeveloped land, but also present security/privacy issues, safety concerns, and pilot licensure requirements.
What is new pertaining to the standard’s language on Historical Research?
This key focus group was tasked with the goal of strengthening historic sources, widely considered to be an area of weakness in the current standard. Vapor encroachment case studies of retail properties with former “one-hour cleaning” tenants demonstrate why thorough historic research is critical to understanding the potential risks associated with these operations. The big four of Historic Sources (aerial photographs, fire insurance maps, city directories, and topographic maps) should be reviewed during the Phase I ESA. A detailed explanation as to why these sources were not pertinent should be included, and/or why additional sources were utilized, especially for geographic variations. Key objectives of the historic source review process include: understanding the property’s developed use back to 1940 (including agricultural/fill for subject property and adjoining properties, which many EPs evaluate presently), identifying that past occupant(s) or structure alone may not be enough to stitch together the property history to paint the whole picture, and recognizing that historic sources can include a person, place, or entity with knowledge of the history of the subject and adjoining properties. All historic sources must work in concert to understand the former use and occupants of the subject property. The EP is encouraged to utilize multiple sources to corroborate the site history. This focus group has endeavored to establish what is good and customary commercial practice and encourages EPs to document their sources, ensuring that they are reproducible by the user during their review of the Phase I ESA report.
Is there any language specific to the recent per- and poly-fluoroalkyl substances (PFAS) concerns?
Yes, there was robust discussion amongst the participants of the task group, and PFAS is among other emerging contaminants currently considered in the proposed revisions to ASTM E1527 in section 13.1.15, as follows:
“18.104.22.168 Substances not defined as hazardous substances (see Section 3.2.39), (including some substances sometimes generally referred to as emerging contaminants).”
In the appendix, X5.10, there is also a related mention of PFAS:
(iii) hazardous substances about which human understanding is evolving (e.g. Per- and Polyfluoroalkyl Substances, also known as “PFAS”). These and any other “emerging contaminants,” where they are not identified as a hazardous substance by CERCLA, as interpreted by EPA regulations and the courts, are not included in the scope of this standard.
Under Section 7321 of the National Defense Authorization Act (NDAA),172 per- and polyfluoroalkyl substances were added to the list of chemicals covered by the Toxics Release Inventory (TRI) under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) for fiscal year 2020. The U.S. EPA also continues to evaluate PFAS and other emerging contaminants as part of its Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) list. If and when such emerging contaminants are defined as “hazardous substances” under CERCLA, as interpreted by U.S. EPA and the courts, such substances must be evaluated within the scope of this standard. This will be an important development in coming years, so it will be prudent for EPs to keep up with relevant regulatory updates at the Federal level as well as in their own states of operation.
Currently the Task Group is opening the second member ballot to address negative comments from the first round. The next goal is to submit the final version to the U.S. EPA in January 2021 for final approval and publication by December 2021.
The changes mentioned above are an important starting step, though by no means final, in the path towards producing the next version of the ASTM E1527 standard. This year’s ballot will provide additional clarity on final additions and changes. ASTM guidance documents evolve based upon industry best practices and benefit immensely from the investment by actively engaged members of our community who are contributing to this process. We’re grateful to everyone who takes the time to get involved in the process.
About Elizabeth Krol
Elizabeth Krol is nationally recognized as a Professional Geologist (PG) and Environmental Professional (EP) specializing in providing environmental and property due diligence services to real estate investors, financiers and attorneys. In addition to her work with the ASTM 1527 technical work group, she is the Co-Editor of the EBA Journal, a twice-annual technical publication of the Environmental Bankers Association, which is dedicated to supporting risk management professionals in lending on commercial real estate transactions nationwide. Elizabeth is a two-time mentor in the PRISM Developing Leaders Mentorship program. She served as the Delegate representing CREW Boston to the nearly 12,000-member global CREW Network, is a member of the CREW Boston Legacy Council, and is a Foundation Circle contributor to the CREW Boston Educational Foundation. Among her numerous awards are the: PRISM 2019 Industry Influencer award, the Esprit de Coeur award by CREW Boston in 2019, the Woman of Influence award by Real Estate Forum in 2018 and their Consultant/Advisor award in 2019.