During our second webinar on the proposed revisions to the ASTM E1527 Phase I ESA standard, we were fortunate to have Task Group members AEI’s Mike Wolf and long-time ASTM instructor Paul Zovic continue the discussion of proposed revisions to the standard. After a provocative discussion led by LightBox’s Alan Agadoni, 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. Due to the high volume of questions raised by attendees, we were unable to address all of them all during the live event. Below you will find panelists’ responses to the remaining questions submitted during the webinar.
For the portions of the E1527 standard that are revised and incorporated into the E2247 forestland standard, would the changes apply to E2247 immediately, or after, the E2247 standard is next updated?
The ASTM Forestland Task Group currently has a work item open to revise E2247-16: Phase I Environmental Site Assessment Process for Forestland or Rural Property to incorporate the revision currently being made to E1527 so that the two standards will be harmonized, and the future revision schedule for E2247 will also match E1527.For more information and future meeting information, https://www.astm.org/Standards/E2247.htm
Is the Task Group considering any changes to the vapor intrusion screening protocol? Will there be expanded guidance on VECs, or clarifications on whether a risk of vapor intrusion is a REC?
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 order to meet All Appropriate Inquiry.
Are any new definitions being added to the standard?
There are revisions, clarifications, and updates proposed for some existing definitions. There are also a small number of proposed additions for terms needed to update or clarify the standard practice such as “property use limitations,” “significant data gap” and “subject property.”
Is there any clarification as to who the “user” is?
No, “user” is still defined as “the party seeking to use the E1527 practice to complete an environmental site assessment of the subject property,” and “may include, without limitation, a potential purchaser of the subject property, a potential tenant of the subject property, an owner of the subject property, a lender, or a property manager. A user seeking to qualify for an LLP to CERCLA liability, or a user that is an EPA Brownfield Assessment and Characterization grantee, has specific responsibilities for completing a successful application of this practice outlined in Section 6.”
Are there any changes to definitions of what is included as a hazardous substance or petroleum product?
There are no proposed changes to the definitions of a hazardous substance or petroleum product.
Will there be any further clarification of “likely” presence of contamination in REC determinations? The term “likely” is somewhat arbitrary.
The proposed REC definition includes a clarification that “likely is that which is neither certain nor proved, but which can be expected or believed by a reasonable observer based on the logic and/or experience of the environmental professional, and/or available evidence, as stated in the report to support the opinions given therein.”
The terms “adjoining” and “nearby” have been used a few times during the presentation. Is it up to the EP to define “nearby”?
Adjoining is still defined as “any real property or properties the border of which is contiguous or partially contiguous with that of the subject property, or that would be contiguous or partially contiguous with that of the subject property but for a street, road, or other public thoroughfare separating them.”
There is no proposed definition of “nearby,” but, as in E1527-13, the term is used frequently in various places throughout the standard practice. The proposed revisions include additional references and discussion on the scope of research of “adjoining properties” and the “surrounding area.”
Are you envisioning a new checklist to document our observations for the site reconnaissance section or a corresponding appendix?
EPs will have to make their own determinations on matters such as checklists, but the proposed revisions for the site reconnaissance section are minor.
Is there any mention in the new standard regarding the use of drones for doing site reconnaissance?
There are no proposed revisions that address drone use during a site visit.
What are the five items with a 180-day shelf life?
(i) interviews with owners, operators, and occupants;
(ii) searches for recorded environmental cleanup liens (a user responsibility);
(iii) reviews of federal, tribal, state, and local government records;
(iv) visual inspections of the subject property and of adjoining properties; and
(v) the declaration by the environmental professional responsible for the assessment or update.
Any proposed changes to shelf life?
There are no proposed changes to shelf life in this round of revisions.
I am concerned for my clients about the 180-day shelf life. Often these Phase I ESA reports are reviewed, revised, etc. such that the earliest date could be two months from the date of the site visit.
First, keep in mind that the 180-day shelf life is specific to ESAs being prepared for users who want to qualify for one of the threshold criteria for satisfying the LLPs to CERCLA liability. For users who are conducting ESAs for business risk purposes, they may choose a different shelf life; however, exceeding the 180-day criterion would not enable them to qualify for that CERCA liability protection.
You are correct that delays in site visits or other components could comprise a significant portion of the 180-day threshold. However, this is specifically derived from the federal AAI rule, and was not an ASTM Task Group decision. Note that there is discussion of this issue in the summary to the AAI rule. During the ASTM Task Group discussions, the U.S. EPA made it clear that the 180-day period shall commence from the completion of any of these components, whichever is first.
What, if any, will the changes be for PFAS? Will this be an in-scope item?
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 of emerging contaminants/PFAS in the same manner as other types of Non-Scope Considerations.
Will there be clarification on stormwater violations and when those may qualify as a REC?
The proposed revisions do not specifically address stormwater violations, but Appendix X6 provides some additional discussion regarding proposed non-scope conditions, including regulatory compliance matters such as stormwater violations.
Any there any expected changes to the recommended report outline?
There are minor edits to language in the suggested report format in Appendix 5, but no broad changes are expected to the recommended report outline. For the first time, the proposed revisions also include a requirement for a site plan and photographs in the report.
Timing for Publication of the Final ASTM E1527-21 Standard, 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.
Is there a ballpark time frame for when the revised standard will be published (3-months; 6-months)? Once the standard is published, does it go into immediate effect or will there be a grace period for continuing to use the -13 version?
“From an ASTM perspective, once a new standard is published, that becomes the current standard, but E1527 is a little different because ASTM then submits a request to the U.S. EPA asking that the agency reference the updated E1527-XX standard as being compliant with the federal AAI regulation. That process takes time, maybe six months or so. Then generally, the U.S. EPA has allowed a phase-in period that allows use of either standard, leading up to a time that only the new standard will be recognized. So what I have seen in the past two revisions is that: (1) an EP continues to reference just the AAI-approved standard until there is public notice by the U.S. EPA that the new one is approved, or (2) the EP references that the report conforms with both the AAI-approved standard and the current standard. That approach works because there is nothing in the new version that takes anything away from the old one, and that approach tells the user that the new and improved standard has also been incorporated.” [answer provided by Julie Kilgore, ASTM E 1527 Task Group chair in a recent LightBox Q&A blog]
For More Information
The webinar, titled A Deep Dive into Proposed E1527 Revisions, was the second in our series of events to help ensure our clients are prepared when the new standard is published. Listen to the replay here.
For more information on our webinars and other valuable information related to the revisions, visit our 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.
Our next webinar, titled Are We There Yet? A High Level Update on Revisions to E1527-13, is Thursday, June 3rd with ASTM Task Group chair Julie Kilgore and the U.S. EPA’s Patricia Overmeyer.
Note to Readers
LightBox is grateful for the contributions of time and expertise by panelists and active Task Group members: AEI’s Michael Wolf and long-time ASTM trainer Paul Zovic.
Note that this Q&A document includes only webinar attendees’ questions that are directly related to the proposed revisions to the standard. Questions of a more general nature will be addressed in a future post.