Expert Answers to Questions on the Proposed E 1527 Revisions
On December 8, 2020, LightBox hosted a webinar, A Preview of Potential Revisions to the ASTM E 1527 Standard for Phase I ESAs, to give environmental professionals—and users of Phase I ESAs—an early heads up on potential changes. The event featured LightBox’s Alan Agadoni as moderator, along with 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.
After a provocative discussion, LightBox’s Dianne Crocker moderated a Q&A session as panelists fielded questions from our audience, which included several thousand environmental consultants and lenders from across the country. More than 100 questions were submitted during the live event, mainly on the following topics: terms/definitions, REC/HREC/CREC definitions and determinations, databases, adjoining property research, vapor intrusion, responsible charge, PFAS, shelf life, recommendations, and the COVID-19 pandemic. Below you will find our panelists’ answers to each question submitted during the live event.
[Note to readers: This Q&A document includes only questions that related directly to the proposed revisions to the standard. Questions of a more general nature will be addressed in a future post.]
Terms and Definitions
- Will the term “findings” be defined?
- Not in the current draft.
- Is the Task Group considering revisions to the definition of “practically reviewable?”
- Not in the current draft.
REC/HREC/CREC Definitions and Determinations
- Do the terms HRECs and CRECs apply only to a release on the subject property? and not to a release on adjoining properties that may affect the subject property?
- The REC, CREC, and HREC definitions are significantly featured in the draft. A new Appendix (Additional Examination of the REC Definition and Logic) has been included with a detailed breakdown and discussion of these definitions. A “Simplified REC Logic” diagram and numerous helpful examples are included. In brief, the terms REC, CREC, and HREC only apply to qualifying environmental conditions (presence, likely presence, or material threat of future releases of hazardous substances or petroleum products) in, on, or at the subject property. This includes releases from other properties affecting the subject property.
- Does the new standard consider pesticide applications at farmfield properties? Is the application of pesticides and herbicides in accordance with manufacturers’ specifications a REC, de minimis, a release?
- CERCLA exemptions for the proper use of pesticides are discussed in the Legal Appendix of the draft and the language is substantially the same as in the prior Standard Practice. Herbicides as a class of hazardous substances are not specifically mentioned in either the current or revised draft.
- Good commercial practice dictates verification of computer database searches when preparing Phase I ESA reports. What changes, if any, are being considered?
- The proposed revisions include updates to the names and sources of Federal, State and Tribal Environmental Record Resources to be reviewed. Language on the number of sources, volume of data, and process by which an EP reviews that data is not significantly changed in the draft.
Historical Research on Adjoining Properties
- What are the “Big 4” historical sources?
- Task Group members often refer to the following historical research sources as the “Big 4:” fire insurance maps, city directories, aerial photographs, and historical topographic maps.
- Does a property across the road from the subject property still count as ‘adjoining’? Does it matter how wide the road is or if there is a median?
- The definition of an adjoining property is not changing. As long as the property would be contiguous, or partially contiguous, from the subject property if not for that road, then it is considered adjoining. The definition does not address road width or medians.
- Is the Task Group proposing any changes to the vapor intrusion language as part of the Phase I ESA standard’s revision process?
- No. The ESA standard continues to require the consideration of vapor encroachment as part of the ESA. The standard will continue to refer to E2600, but use of that standard is not required in connection with the ESA.
- In general, how does the revision clarify emerging contaminants? And specifically, do the proposed revisions include language on how to address PFAS in due diligence?
- Under Section 13.1.5 Non-Scope Considerations, List of Additional Issues, the draft includes:
- “Substances not defined as hazardous substances (including some substances sometimes generally referred to as emerging contaminants) unless or until such substances are classified as a CERCLA hazardous substance.”
- This inclusion, and PFAS specifically, are also discussed briefly in Appendix X6-Summary of Common Non-Scope Issues where it is noted that some of these substances are regulated at a state level. In instances where a Phase I ESA is performed to satisfy both federal and state requirements, or as directed by a User, it is permissible to include analysis and discussion in the same manner as other types of Non-Scope Considerations.
- Shouldn’t emerging contaminants be considered a potential REC regardless of regulatory status?
- RECS are limited to releases of a defined list of CERCLA hazardous substances and petroleum products. Substances that are considered hazardous by other regulations or authorities are generally handled as Non-Scope Considerations.
- Sometimes clients request we leave out recommendations about the need for a Phase II. Is this potentially going to be required now?
- There is no change. Under Section 12.10-Additional Services, recommendations are not required by the standard. EPs should discuss with the User whether they want the EP to include recommendations in the ESA report.
- Should a Phase I ESA report include a recommendation for a Phase II ESA/testing?
- Section 12.9-Additional Investigation continues to suggest the EP should provide an opinion regarding the need for additional investigation when conditions require greater clarity, but there remains no requirement to provide any recommendations for further assessment.
Phase I ESA Shelf Life
- What potential changes to shelf life are being considered?
- The Task Group is considering language that clarifies the 180-day shelf life of a report in response to confusion on the part of producers and users as to what date starts the Continuing Viability clock ticking. In addition, the Task Group is proposing clearer language and a requirement that the date of update for the following five components be explicitly called out in the report: interviews, liens (user responsibility), agency database records, site reconnaissance, and the EP declaration in the report
- If shelf life is set to expire for one aspect of the report, and the report is updated in accordance with the standard, does that in effect update the entire report and all shelf-life dates?
- No. The draft revisions will peg the shelf life of the report based on the earliest of the five components per above.
- Has there been any thought as to how pandemics may affect the ability of the inspector to fully inspect properties in a safe manner? Or an inability to conduct research if government offices need to close and don’t offer online resources?
- No specific provisions have been addressed in proposed revisions. Limiting conditions and deviations that result from access restrictions should be carefully documented in reports along with any resulting significant data gap.
Timing for Publication of the Final ASTM E1527-21 Standard and Access to Draft Revisions
- How can I see the draft/proposed update language?
- All Task Group members have access to the proposed changes. To join the Task Group, visit https://www.astm.org/MEMBERSHIP/index.html
- Once approved, will a red-lined version of the revisions be issued?
- After approval, ASTM typically makes a redline version of revisions available in addition to the finalized revision.
- Were any revisions to the qualifications of the environmental professional considered?
- The definition of Environmental Professional has not changed in the draft of proposed revisions.
- How will the revised E 1527 standard harmonize with the federal AAI rule?
- ASTM works closely with the U.S. EPA to ensure that the standard satisfies the requirements of the federal All Appropriate Inquiries rule. Historically, EPA has explicitly acknowledged that the E 1527-05 and 1527-13 versions satisfied the requirements of AAI. Before the publication of any proposed revisions, EPA’s comments will be solicited as a final step in securing a similar acknowledgment of proposed revisions before a new version of E 1527 is finalized.
- Why aren’t photos required by the E 1527 standard since everyone seems to include them anyway?
- Section 12.3-Contents of Report includes proposed requirements for including photographs in the Phase I ESA.
- Will there be more clarification as to what makes a data gap “significant”? Can you give examples of what might constitute a “significant data gap?”
- The draft language for 12.5.1 Significant Data Gaps includes clarifications on what is a significant data gap and how it should be addressed in a report.
- Is there going to be any clarity or revision to the term Business Environmental Risk (BER)?
- Under the proposed revisions, the definition of BER is slightly revised to affirm that BERs are not related to those environmental issues required to be investigated by the Standard.
For More Information
The December webinar was just the first of many things LightBox has in the works to help ensure our clients are prepared when the new standard is published.
- Our March 11th webinar with AEI’s Mike Wolf and ASTM instructor Paul Zovic continued the discussion of proposed revisions to the standard, including clarifying language in many areas. The recording will be posted on our website shortly.
- 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 in late spring when the revisions are closer to final.
- Bookmark the LightBox ASTM Resource Center. This page will house information on LightBox’s efforts to educate the industry on this important revision process, information about upcoming webinars, blogs, and other informational resources.
This series of webinars will help EPs and users of Phase I ESAs prepare to transition to the new version of E 1527 so that they can begin educating staff and making any changes to their internal processes and report templates, as necessary.
Special thanks to Alan Agadoni, Bill Tryon and Dana Wagner for sharing their valuable insights during our early December webinar!