A Revised ASTM Standard Practice for Phase I Environmental Site Assessments

By: W. Jerrold Samford, P.G., F.GBA                  

 

ASTM has revised the “Phase 1” standard practice, E1527. The revised standard should now be cited by consultants as E1527-21. While it has been submitted to EPA for review, EPA has not issued a statement concurring that the revision meets the minimum performance requirements of the AAI process and consequently is not technically suitable for use in asserting the various “due diligence” defenses to CERCLA liability. EPA representatives were intimately involved in the revision process, and it is very unlikely that EPA will not concur. We don’t expect to see their official concurrence until sometime in the middle of 2022 at the earliest. Nothing in the revised standard reduces the level of effort, or eliminates elements of the process, compared to the previous version; consequently, a consultant complying with the requirements of the revised standard will have complied with the previous version as well. There should be no reason to avoid citing the revised standard even in the absence of formal concurrence by EPA. Additionally, because the federal “All Appropriate Inquiry” rule is a performance-based test, rather than a prescriptive procedure, EPAs concurrence states that using the ASTM standard is one method, but not the only method, of complying with AAI.

Changes made to the standard practice fall into the category of clarifications rather than substantive changes. ASTM has included examples of recognized environmental conditions (RECs, HRECs, and CRECs) that are designed to reduce perceived ambiguity in the definitions. The consultant is now also specifically required to provide not only his/her opinion of the impact of a particular situation, but also explain the logic behind the determination.

The standard has always contained the requirement that “The report shall describe all services performed in sufficient detail to permit another party to reconstruct the work performed. (Sec. 12.4).” The revision has taken this concept and embedded it within other sections of the standard, providing emphasis to the requirement. For example, Sec. 12.3 emphasizes that “A site plan showing the approximate location of features, activities, uses, and conditions …shall also be included.” This requirement, while previously unstated in the standard, was always implied by the Sec. 12.4 requirement, but too often omitted by consultants. Because there is now an explicit statement, we would expect to see better compliance.

Sections throughout the standard have been updated and clarified. For example, the list of government records has been updated to reflect the various changes in environmental databases that are available to be reviewed and changes in the names of the databases. Most of the consultants use commercial database search firms for their research. Those firms have always updated their lists as the lists evolve; consequently, this change has no real material impact on what is actually done.

Lists of historic resources have been explained in more detail while retaining the underlying requirement that research sufficient to determine the history of the Site to 1940 or first developed use is the fundamental requirement of the process.

Sec. 4.6 clarifies the viability time-frame for the Phase 1 report. Historically, the standard noted that a report completed within 180 days prior to the close of the transaction was presumed viable. EPA has previously indicated that the 180-day time period was to be measured from the completion of the critical components of the study, not from the date the report was issued. The logic behind that is clear. The revised standard now states clearly the procedure for determining the viability of a report.

Mr. Samford serves on the Environmental Business Committee and as the Chair of the Council of Fellows. He may be reached at jerry.samford@troutman.com