New ASTM 1527-21 Standard Practice for Phase I Environmental Site Assessments (ESAs)

On November 1, 2021, the ASTM International Committee on Environmental Assessment, Risk Management and Corrective Action (ASTM Committee-50) approved a new standard for conducting Phase I ESAs. The ASTM E1527-21 (Standard) was approved by ASTM International; however, it has not yet been approved by the EPA, and the ASTM E1527-13 standard continues to be recognized by the EPA as AAI (All Appropriate Inquiry) compliant.

Changes to this Standard will affect the information contained in ESAs, which are vital reports in determining the environmental risk of a site. In this article, our St.Germain Environmental Assessment and Remediation Team highlights the key changes below.

• • Revised Recognized Environmental Condition (REC) definition – The Standard modified the REC definition by including “likely” only in context of the second phase of the REC definition. A REC is now defined as:
    (1) the presence of any hazardous substances or petroleum products (HSPP) in, on, or at a subject property due to a release to the environment: (2) the likely presence of HSPP in, on or at the subject property due to a release or likely release to the environment; or (3) the presence of HSPP in, on or at the subject property under conditions that pose a material threat of a future release to the environment.
    To assist Environmental Professionals (EPs) in identifying RECs, the Standard contains a REC definition breakdown, which intends to clarify the three phases of the REC definition.
    To further assist EPs, the Standard defines “likely” as “that which is neither certain nor proved, but can be expected or believed based on logic and experience of the EP, available evidence, or both, as stated in the report to support the opinion given therein.”
  • Revised Controlled REC (CREC) definition – A CREC is defined in the Standard as “a recognized environmental condition affecting the subject property that has been addressed to the satisfaction of the applicable regulatory authority or authorities with hazardous substances or petroleum products allowed to remain in place subject to implementation of controls (for example, activity and use limitations or other property use limitations).”
    To assist EPs in identifying a CREC within the multi-step process, the Standard provides a discussion regarding the rationale for CREC identification.
    A past release may no longer qualify as a CREC if conditions have changed with regard to regulatory criteria, subject property use, or migration pathway.
  • Revised Historical REC (HREC) definition – The Standard defines a HREC as “a previous release of hazardous substances or petroleum products affecting the subject property that has been addressed to the satisfaction of the applicable regulatory authority or authorities and meeting unrestricted use criteria established by the applicable regulatory authority or authorities, without subjecting the subject property to any controls (for example activity and use limitations, or other property use limitations).”
    The Standard requires EPs to evaluate the past environmental assessment data associated with the closure to confirm that the assessment meets current standards for unrestricted use.
  • Guidance REC vs. CREC vs. HREC – Because the ASTM Committee-50 recognized that there have often been major differences of opinion between consultants on whether a condition constitutes a REC, a CREC, or a HREC, the Standard includes a flow chart and examples for making determinations whether a condition constitutes a REC, CREC, or a HREC. While this will not remove all uncertainty in making decisions about RECs, it intends to create more consistency among EPs in making such determinations.
  • Required Use of Standard Historical Sources – The standard requires a minimum of four standard historical sources (Historical Aerial Photographs, Historical City Directories, Historical Fire Insurance Maps, and Historical Topographic Maps) to be reviewed for the subject property. If one or more of these sources cannot be reviewed, there must be a statement why the source could not be reviewed.
  • Use of Additional Standard Historical Sources – The Standard emphasizes that providing as much specific information about the use of the subject property is important. The ASTM Committee-50 learned that many former dry-cleaning facilities were located in a retail use area, which is not typically considered to be a source of HSPP. Therefore, even if the general use of the subject property is classified as retail, the Standard requires that additional Standard Historical Sources be reviewed if they are likely to identify a more specific use and are reasonably ascertainable.
  • Historical Uses of Adjoining Properties –The Standard requires the past uses of adjoining properties be identified and evaluated for the likelihood that past uses have led to RECs in connection with the subject property. The four standard historical sources reviewed for the subject property must also be reviewed for the adjoining properties. When any one of these sources are not reviewed, the EP must indicate why these sources were not reviewed.
  • Continued Viability – In order for the Phase I ESA to be viable up to one year, five specific components (interviews, recorded environmental cleanup lien search, review of governmental records, site reconnaissance, and Environmental Professional Declaration) must be completed no more than 180 days prior to acquisition. The Standard clarifies that it is not the date of the report that constitutes the 180 day or 1-year time period, but rather the date that the first component was performed.
  • Inclusion of Maps and Photographs – Although it seems that these items would be a routine part of a Phase I ESA, the ASTM E1527-13 Standard does not explicitly state that such items be included. Interestingly, the ASTM Committee-50 noted that it was not unusual for Phase I ESAs to not include such items. The Standard makes it clear that photographs and a subject property map illustrating the boundaries of the subject property are required for all Phase I ESA reports. The photographs should include major site features and locations or features on the subject property that are considered RECs, and/or also de minimis conditions.
  • Emerging Contaminants – The new standard provides guidance that EPs are not required to include emerging contaminants such as per-and polyfluoroalkyl substances (PFAS) in the scope of work for the Standard; however, PFAS may be added as a “non-scope consideration” if requested. In addition, inclusion of PFAS can be particularly important for Phase I ESAs conducted in states that have already adopted regulatory standards for such substances.
  • Significant Data Gap – Due to past confusion as to what makes a data gap(s) “significant,” the Standard now includes a definition of what constitutes a “significant data gap,” defining it as “a data gap that affects the ability of the environmental professional to identify a recognized environmental condition.” An example of a significant data gap could include a building that is located on a subject property which is inaccessible during the site reconnaissance, and based upon the EP’s experience, such a building is one that involves activities that can lead to RECs. In addition, the Standard requires a discussion of how significant data gaps affected the EP’s ability to make conclusions regarding RECs.

Want to learn more?

If you have questions regarding the ASTM E1527-21 Standard or Phase I Environmental Assessments in general, please call us at (207) 591-7000.