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.