ASTM Issues New Standard for Conducting Phase I Environmental Site Assessments

Buckingham attorney David J. Hrina presents the following summary of the new ASTM standard.

The American Society for Testing and Materials (ASTM) recently issued a new standard, titled ASTM Standard E1527-13, which is meant to replace ASTM Standard E1527-05 as the industry standard used for conducting Phase I Environmental Site Assessments.

The purpose of the standard is to define good commercial and customary practices in the U.S. for conducting an environmental site assessment of a parcel of non-residential real estate with respect to the range of contaminants within the scope of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and petroleum products.  The standard is intended to permit users to satisfy one of the requirements to qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations on CERCLA liability; that is, the practice that constitutes all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial and customary practice as defined in 42 U.S.C. §9601(35)(B).

The following is a brief summary of some of the changes that can be found in the new standard:

• The new ASTM standard introduces a Controlled Recognized Environmental Condition (CREC) as a new defined term. A CREC is a past release that has been addressed to the satisfaction of the applicable regulatory authority, but is subject to some form of control, such as a property use restriction or engineering control. The classification of CREC will be helpful for identifying post-acquisition continuing obligations for property owners (i.e., site use limitations, ensuring that the control is implemented as required by the regulatory agency).

• The new ASTM standard slightly modifies the definition of a Recognized Environmental Condition (REC) and a Historic Recognized Environmental Condition (HREC).  More specifically, a REC is defined as the presence or likely presence of any hazardous substances or petroleum products in, on, or at a property:

1. due to any release to the environment;
2. under conditions indicative of a release to the environment; or
3. under conditions that pose a material threat of a future release to the environment.

De minimis conditions are not RECs. A HREC is a past release that has been addressed and meets unrestricted land use criteria, for which no controls are required.

• The new ASTM Standard states that if the subject property or adjacent properties are listed in standard record sources, pertinent regulatory files and/or records associated with the listing should be reviewed to determine if a REC, HREC, or de minimis condition exists at the subject property in connection with the listing.  If a regulatory file review is not conducted, the Environmental Professional performing the Phase I is required to explain why a regulatory file review was not conducted as part of the Phase I.

• The new ASTM Standard references vapor migration as one of the forms of movement of hazardous substances or petroleum products in the subsurface.  Consequently, the Environmental Professional is required to assess the potential for a REC at the subject property in connection with vapor migration. Further, a distinction must be made between vapor migration and vapor intrusion, as there is no requirement to assess vapor intrusion.

Remember, it is extremely important to perform an appropriate level of environmental due diligence before purchasing or leasing non-residential real property.  Performing a Phase I Environmental Site Assessment in accordance with the new ASTM standard is typically the first step in performing your due diligence.  Contact David J. Hrina for further information.