“This round of revisions is different from previous efforts in that it is more focused on refinements and clarifications, but there could be a lot more to them than you think. The spirit of our webinar was to bring those who haven’t been involved in the Task Group discussions up to speed on what ASTM is considering and what we might see next year.” Alan Agadoni, General Manager, LightBox
On December 8, 2020, EDR LightBox hosted a webinar, A Preview of Potential Revisions to the ASTM E 1527 Standard for Phase I ESAs, moderated by EDR LightBox’s Alan Agadoni. The webinar was the first of many planned events to update the industry as the ASTM Task Group nears consensus on a number of revisions prior to publishing the E 1527-21 version of the standard next year. The purpose of the event was to give environmental professionals—and users of Phase I ESAs—an early heads up on potential changes. Panelists included active Task Group members: Bill Tryon, Chief Strategy Officer at Partner Engineering & Science, Inc., and Dana Wagner, Director of Environmental Due Diligence at Terracon Consultants, Inc.
Asked about their awareness of the ASTM Task Group’s process for revising the E 1527-13 Phase I ESA standard, the majority of attendees (54%) were “not at all dialed into the process” and another 37% were somewhat aware and could name a few areas of revision. For these 91% of attendees, Tryon and Wagner shared their in-the-trenches views on the issues being discussed and debated during countless conference calls with other Task Group members.
Below are brief summaries of five key areas of discussion during our live event:
- REC definition, HRECs, and examples
Task Group discussions have centered around making changes to the REC definition to improve the consistency of conclusions, as well as adding an expanded discussion and examples to the appendix to illustrate how the provisions would typically be applied.
“Reasonable environmental professionals can differ about whether a particular set of findings represents a REC, CREC, HREC, or de minimis condition. The task group has created a somewhat redundant definition which they hope will lead to more consistent interpretation of Findings. Normally I am opposed to redundancy, but in this case, the revisions seem to provide a useful framework to help guide environmental professionals.” Bill Tryon
- Shelf life of a Phase I ESA report
The Task Group is considering language that clarifies the 180-day shelf life of a report. The Task Group found that there was confusion on the part of producers and users as to what date starts the Continuing Viability clock ticking and that the actual ESA report date is almost never that date.
“The Task Group is proposing clearer language and a requirement that the date of completion of each of the qualifying components be explicitly called out in the report.” Dana Wagner
- The “Big 4” historical sources and adjoining properties
Proposed revisions to historical research that is conducted as part of the Phase I include an expanded discussion of the research of adjoining properties with increased emphasis on the review of four specific historical sources: fire insurance maps, city directories, aerial photographs, and historical topographic maps. In discussions, the task group has referred to these as the “Big 4.” The standard leaves decisions on the extent of historical research necessary to meet the objectives of the standard up to the judgment of a qualified environmental professional.
Under proposed revisions, research of each of the “Big 4” historical resources would be required, although the EP can choose to exclude the review of these resources when they are not expected to be useful. As in the existing standard, the review of additional Standard Historical Resources would still be required when the Phase I ESA objectives cannot be satisfied by review of the “Big 4.” Similarly, any of the “Big 4” historical resources reviewed for the subject property would be reviewed to evaluate the historical use of adjoining properties. The Task Group has found that more instruction was needed when it comes to the importance of identifying actual historical uses of the subject property and adjoining properties. Not doing so can omit highly relevant information to determine if evidence of RECs are present (e.g., for the Historical Review section of the ESA report, a practitioner merely notes a “commercial building” on an adjoining property from an aerial photograph but failing to identify it was a strip mall with a past-dry cleaning facility which would have been evident based upon city directory review). “It will remain the EPs discretion as to how far they need to go with historical sources to make a REC determination,” Wagner noted.
“Changes in this section should go a long way toward improving the consistency of reports. A review of the historical resources received for the subject property can provide critical information regarding the use of adjoining properties and the surrounding area, and an increased emphasis on evaluation of those resources for adjoining properties can help to identify have recognized environmental conditions impacting the subject property. There was an early impression that the revisions could require significant additional research. The task group has clarified that this wasn’t their intent and revisions are in progress to eliminate confusion.” Bill Tryon
- AULs/property use limitations
After this round of revisions, the search for Activity and Use Limitations (AULs) will stay clearly in the category of the User’s responsibilities, rather than the EP’s. However, there will likely be more clarifying language on the sources and depth of the review.
“The Task Group found that preparers needed more and better guidance on what sources to use for checking Liens and AULs and the proposed language hopefully accomplishes that.” Dana Wagner
- PFAS/emerging contaminants
States differ on regulating PFAS as a contaminant, and the federal government has not yet designated PFAS as a Hazardous Substance as defined in E 1527-13. Given the attention that federal and state regulators are giving PFAS, it was important for the Task Group to address recent changes in a way that allows the practice to adjust to the possibility that PFAS will eventually be designated as a hazardous substance under CERCLA. The Task Group recognized the need for flexibility regarding emerging contaminants like PFAS and proposes to incorporate language which accounts for potential post-standard finalization changes to the hazardous substance status of PFAS.
What you should be doing now
The standard is moving through the final balloting process and likely to be published in late 2021. So what should EPs and users be doing now?
“I suggest EPs who cannot directly participate in the committee attend our webinars and keep an eye on our website where we will be posting regular updates on the status of the revisions. The great news is that the Task Group will be including more examples and better training support material in the document than ever before to help Users and Producers with a smooth transition.” Alan Agadoni, LightBox
“Make sure that all due diligence staff is aware of the upcoming update to the Standard. As with this webinar, we are planning staff briefings regarding expected changes. We are also set to implement any necessary process and documentary changes and will certainly be ready once adoption of the final Standard occurs as expected later in 2021. I recommend producers and users do the same.” Dana Wagner, Terracon Consultants, Inc.
“Since changes have not been finalized, it could be premature to make drastic changes in anticipation of updates to the standard, but this is an ideal time to refamiliarize yourself with the existing standard, revisit the scope of work you perform, and think through your evaluation of RECs, CRECs, etc. to be able to provide a clear path forward once revisions have been finalized. For users, this is also an ideal time to consider your own use of the Phase I standard. As a compliance tool to satisfy EPA requirements for all appropriate inquiries, a standard Phase I assessment will not always provide the level of assurance that would allow property owners to more fully understand and manage environmental risks.” Bill Tryon, Partner Engineering & Science, Inc.
For more information
The December webinar was just the first of many things EDR LightBox has in the works to help ensure our clients are prepared when the new standard is published:
- Many attendees asked for another webinar that takes a deeper look into the changes. We will be hosting another webinar in early 2021 to dig deeper into the revisions as consensus is reached on the outstanding areas of contention.
- We are grateful that ASTM Task Group chair Julie Kilgore and the U.S. EPA’s Patricia Overmeyer have agreed to team up for a webinar this spring when the revisions are closer to final.
This series of webinars will help EPs and users of Phase I ESAs prepare for E 1527-21 so that they can begin the process of educating staff and making any changes to their internal processes and report templates, as necessary. Dates for both will be announced in early 2021.
More than 100 questions were submitted during the December 8th webinar on how the Task Group was handling PFAS, shelf life, recommendations, REC definitions, adjoining property research, responsible charge, databases, vapor intrusion, and the COVID-19 pandemic. Look for our upcoming Q&A document addressing each question coming soon.
Bookmark the EDR LightBox ASTM Resource Center page to stay up to data on EDR LightBox’s efforts to educate the industry on this important revision process, information about upcoming webinars, blogs, and other informational resources.
Special thanks to Alan Agadoni, Bill Tryon, and Dana Wagner for sharing their valuable insights during our early December webinar!
Director of Environmental Due Diligence
Terracon Consultants, Inc.
Chief Strategy Officer
Partner Engineering & Science, Inc.