On October 6, 2014, the EPA announced an amendment to AAI rule 40 CFR Part 312, updating the standards and practices for conducting all appropriate inquiries under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to remove the reference to ASTM International’s E1527-05 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The rule will now include standard ASTM E1527-13. This 2013 standard is the currently recognized industry consensus-based standard to conduct all appropriate inquiries as provided under CERCLA. The old standard is now designated a “historical standard” by ASTM International.
Relevant Differences Between the Old Standard and the New
A number of clients continue to ask about how the transition to the new ASTM E1527 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process is progressing. Before we address this question, let’s first review the changes or “clarifications” that the updated standard delivered. Other than some editorial changes geared towards simplifying or clarifying the E1527-05 standard’s intent and process, the primary areas of change included the following:
- The addition of the definition of a Controlled Recognized Environmental Condition (CREC),
- The inclusion of the vapor pathway as consideration in the determination of recognized environmental conditions (RECs), and
- The requirements of conducting a regulatory agency file review if a property or any of the adjoining properties are identified on any of the standard environmental record sources.
CREC: A CREC is defined as “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 (for example, as evidenced by the issuance of a no further action 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.”
Under the previous standard, such a condition would have been called out as a REC with additional discussion addressing what continuing obligations (e.g., activity or use limitations) are in place and whether additional investigation was warranted based on the client’s intended use. Under the updated standard, we now use the term CREC to define these situations and must include a description of identified CRECs in the findings and address it as a REC in the conclusions of the Phase I Environmental Site Assessment report.
Vapor Pathway: In addressing the vapor pathway, the new standard now defines migration as “the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface.” Though the previous standard was silent on vapor as a specific pathway of concern, most experienced Environmental Professionals (EPs) were likely still considering the vapor pathway when determining RECs, as the USEPA has been recognizing vapor as a pathway for migration from a release since at least 2002. Under the new standard however, the EP must consider vapor migration along with the potential for groundwater migration when identifying RECs to a property. It is important to note that Indoor Air Quality evaluation remains a non-scope item under the new standard if it is unrelated to releases of hazardous substances or petroleum products into the environment. As a further point of clarification, a previous release of a volatile compound to soil and/or groundwater at the property or adjoining properties would need to be identified above de minimis levels before vapor migration at the property would need to be considered.
What if there is a potential vapor migration issue at my site?
If vapor migration is determined to be a potential concern, then typically one of three courses of action are recommended.
- The simplest is to use critical distance criteria and a screening methodology like that presented in the ASTM E2600-10 Standard Guide for Vapor Encroachment Screening. Such analyses could add a few more days to the assessment completion schedule and would typically increase the fees by several hundred dollars when included with a Phase I ESA. It is important to recognize that this is a preliminary screening tool, so many times a more in-depth modeling effort is recommended.
- Using a tool like the Johnson and Ettinger (1991) Model for Subsurface Vapor Intrusion into Buildings can provide a more detailed analysis, but does require onsite data and site-specific characteristics to drive the results.
- The third option is of course physical sampling, or conducting a Phase II ESA to test for the presence of contaminated soil, groundwater and/or vapor at a site.
Regulatory Agency File Review
As for the increased emphasis on regulatory agency file review, the new standard simply suggests that an EP should review the pertinent information and regulatory records associated with the listed sites to obtain “sufficient” information to assist in the determination of RECs to the property. The new standard further states that should the EP determine that a regulatory file review is not needed; they must document their justification for that determination within the report. Again, in practice, most well experienced EPs would seek out information from regulatory agencies when reasonably available and circumstances indicate additional information is needed to determine if a REC is present. The new standard stresses this point and requires the EP document the reasons when a file review was not completed.
Those potentially affected by this change are those who perform all appropriate inquiries, including public and private entities in real estate, insurance, banking/real estate credit, environmental consulting services, state, local and tribal government and the federal government.
The effective date of the final action will be delayed for one year (effective date is October 6, 2015) to provide parties with adequate opportunity to complete investigations that may be ongoing and to become familiar with the updated industry standard.
For more information or assistance with your Environmental and Health & Safety regulatory compliance needs, contact Ralph Carito at Total Environmental & safety, LLC (Total) at rcarito@TotalEnviron.com or 908-442-8599.