ASTM Changes in 1527-13
Presented By Dan Richardson
BB&T Roundtable
Nashville, Tennessee
July 2013
What is an ASTM Standard
• ASTM: the American Society for Testing and
Materials
– an international standards organization that develops and
publishes voluntary consensus technical standards for a
wide range of materials, products, systems, and services.
• It’s a Process
– Developed by creating a consensus among the
stakeholders.
Is It Law?
• Law
– Statutes
– Rules
• Why do we care?
– It attempts to interpret what is commercial feasible
resulting in a commercial standard
– In this case “All Appropriate Inquiry”
– Balance between the EPA rules and ASTM standard.
– In a negligence action, ASTM 1527-13 can be used to
establish a standard of care.
What are the Changes in 1527-13
1. New definition of Recognized Environmental Condition
(RECs).
2. New emphasis on Vapor Intrusion risks.
3. Increase in review and reporting requirements for
Environmental Professionals.
New definition of Recognized
Environmental Condition
A. Simplified Definition of Recognized Environmental Condition
(REC).
B. Clarification of the definition of Historic Recognized
Environmental Condition (HREC).
C. New kind of REC – Controlled Recognized Environmental
Condition (CREC).
Simplified definition of a REC
• Previous definition of a REC: “the presence or likely presence of any
hazardous substances or petroleum products on a property under
conditions that indicate an existing release, a past release, or a material
threat of a release of any hazardous substances or petroleum products
into structures on the property, or into the ground, ground water or
surface water of the property. The term includes hazardous substances or
petroleum products even under conditions in compliance with laws.”
• Proposed definition of a REC: “the presence or likely presence of any
hazardous substances or petroleum products I, on, or at a property: (1)
due to any release to the environment; (2) under conditions indicative f a
release to the environment; or (3) under conditions that pose a material
threat of a future release to the environment.”
Clarified HREC Definition
• Previous definition of an HREC: “an environmental condition which
in the past would have been considered a REC, but which may or may not
be considered a REC currently.”
• Proposed definition of an HREC: “a past release of any hazardous
substances or petroleum products that has occurred in connection with
the property and has been addressed to the satisfaction of the applicable
regulatory authority, without subjecting the property to any required
controls (e.g., property use restrictions, AULs, IC’s, or EC’s). Before calling
the past release an HREC, the EP must determine whether the past release
is a REC at the time the Phase I ESA is conducted(e.g., if there has been a
change in the regulatory criteria).If the EP considers this past release to be
a REC at the time the Phase I ESA is conducted, the condition shall be
included in the conclusions section of the report as a REC.”
A New Kind of REC
• Proposed definition of a CREC: a REC resulting from a past release of
hazardous substances or petroleum products that has been addressed to
the satisfaction of the applicable regulatory authority (e.g., as evidenced
by the issuance of a NFA letter or equivalent, or meeting risk-based
criteria established by regulatory authority), with hazardous substances or
petroleum products allowed to remain in place subject to the
implementation of required controls (e.g., property use restrictions, AULs,
institutional controls, or engineering controls)…a CREC shall be listed in
the Findings Section of the Phase I ESA report, and as a REC in the
Conclusions Section of the…report.”
No Changes to De Minimis
Condition
• The De Minimis Condition in the REC definition is not
proposed to be changed in the new standard.
– Condition does not represent a threat to human health or
the environment; and
– Would not be subject to enforcement action if brought to
the attention of a regulatory agency.
• De Minimis condition is not a REC.
Where does the information go in
the Phase I?
• List in Findings
– Known or suspected RECs
– CRECS
– HRECs
– De Minimis conditions
• List in Conclusions
– Known or suspected RECs
– CRECs
New Emphasis on Vapor Intrusion
risks
• Vapor intrusion is now recognized as a migration pathway for
contamination.
• Definition of migrate/migration amended to include vapor:
– “the movement of hazardous substances or petroleum products in any
form, including for example, solid, liquid at the surface or subsurface,
and vapor in the subsurface.”
• Also added to the definition of “activity and use limitation.”
– Defined as: “legal or physical restrictions or limitations on the use
of, or access to, a site or facility: (1) to reduce or eliminate potential
exposure to hazardous substances or petroleum products in the soil,
soil vapor, groundwater or surface water on the property…”
• ASTM E2600-10 is referenced in section 2.1 of ASTM E1527
Standard.
Increased review and reporting
requirements for Environmental
Professionals
• Recognizes that jurisdictions vary with respect to the
accessibility of records.
• Professional judgment is still key.
• So, What’s New? (new section 8.2.2 added on Regulatory
Agency File and Records Review)
Increased review and reporting
requirements for Environmental
Professionals
a.
b.
c.
d.
If the subject property , or any adjoining property is identified in
governmental records search, pertinent regulatory files and records
associated with the listing should be reviewed – at the discretion of
the environmental professional
If in the EP’s opinion such a file review is not warranted, the EP must
provide justification in the Phase I report.
EPs may review files and records from alternative sources (e.g., onsite records, user provided records, local government agency
records, etc).
Summary of information obtained from the file review shall be
included in the Phase I report and the EP must include an opinion on
the sufficiency of the information Obtained
Increased review and reporting
requirements for Environmental
Professionals
• Under the new 1527-13 standard
– The EP must document and comment on significance of
limitations, if the file review is not conducted.
– EP can review files and
records from an alternative source.
• From an Lawyers perspective, good file review is critical
– If you don’t do it or cant’ do it, document your efforts in
the assessment report
– Remember, the Client is depending on you. This is where
knowing the system and the people in it can be
advantageous to your company and ultimately your client!
Increased review and reporting
requirements for Environmental
Professionals
• Under Records Searches 1527-13 recognizes that
Environmental Liens and AULs are normally recorded in the
land title records.
• However, Environmental Liens and AULs imposed by Judicial
Authorities may be recorded or filed in the judicial records.
• Therefore these records should be searched as well.
• NOTE: Chain of Title reports may or may not disclose
environmental liens.
File Review for Industrial and
Manufacturing Properties
• If property use is/has been industrial or manufacturing, then
“additional standard historical sources shall be reviewed if
they are likely to identify a more specific use and are
reasonably ascertainable, subject to the constraints of data
failure.”
• Standard historical sources include: aerials, fire insurance
maps, property tax files, recorded land title records, USGS
topo maps, street directories, building department records,
zoning/land use records, and “other historical sources” such
as newspaper archives, internet sites, etc.
User Responsibilities
• Generally the user provides known environmental lien and
AUL information
– However, EP can still conduct a search for institutional
controls and engineering controls in government records
search.
– And, if the user does not communicate to the EP the
information usually required, the EP should significance of
this shortcoming similar to other data gaps
• The User’s responsibility is emphasized and possibly
enhanced. Must disclose commonly known information and
discrepancies with purchase price and full market value.
Status of ASTM 1527-13
• Ballot closed October 17, 2012.
• At October 24, 2012 Task Group meeting in Atlanta, all the
negatives resolved except for those against the
HREC/CREC/Regulatory File Review revisions – 9 negatives.
• Negatives ruled non-persuasive in follow-on ballot that closed
January 9, 2013.
• Final standard submitted to EPA for formal approval (to issue a
ruling that the standard is AAI-compliant).
• ASTM will likely publish the standard (as E1527-13) in Fall of
2013.