On November 1, 2021, ASTM International approved an updated version of ASTM E1527, the standard governing Phase I environmental site assessments (ESAs). This standard is updated every 8 years and the new version, ASTM E1527-21, will replace the current standard, ASTM E1527-13. The version of ASTM E1527-21 published on November 1, 2021 is currently under review by the Environmental Protection Agency (EPA), following which the EPA will adopt a rule formally recognizing the new standard as compliant with the All Appropriate Inquiries (AAI) rule. This is expected to occur within the first quarter of 2022. The following is a summary of some of the key changes in ASTM E1527-21.
Definitions of REC, CREC, and HREC
One of the first changes to jump out in ASTM E1527-21 is an update to the definitions of Recognized Environmental Condition (REC), Controlled REC (CREC), and Historical REC (HREC). Any frequent (or even infrequent) reader of Phase I ESAs will know that the identification of RECs is arguably the most important piece of a Phase I. While the definitions for these terms have been revised, the edits are mainly for clarity and do not substantially alter the current meaning. The definition of a REC was revised as follows:
The term recognized environmental conditions means (1) the presence or likely presence of anyhazardous substances or petroleum products in, on, or at a the subject property: (1) due to anyrelease to the environment; (2) under conditions indicative of a the likely presence of hazardous substances or petroleum products in, on, or at the subject property due to a release or likely release to the environment; or (3) the presence of hazardous substances or petroleum products in, on, or at the subject property under conditions that pose a material threat of a future release to the environment.
The definitions of CREC and HREC have been revised to provide additional clarity on the distinction between these two findings. Essentially, a CREC is found when contamination on a property has been addressed to the satisfaction of the regulatory agency, but some hazardous substances remain in place and, as a result, the property is subject to use limitations or other land use controls. An HREC, by contrast, is found when contamination on a property has been addressed to the satisfaction of the regulatory agency and no use or other restrictions remain on the property. To the extent a user finds these distinctions confusing, a new appendix, Appendix X4, is provided with ASTM E1527-21 that contains a further breakdown of the definitions, including a flow chart, as well as helpful examples of each type of REC.
One of the more impactful changes to ASTM E1527 revolves around the required review of historical sources. Under the current standard, the environmental consultant only need review as many historical sources as are necessary to meet the standard’s objective of identifying whether past uses could have led to a REC. In the updated standard, the section governing review of prior uses on the subject property specifically enumerates four standard historical resources that must be reviewed if, based on the judgment of the environmental consultant, they are reasonably ascertainable, likely to be useful, and applicable to the subject property: (1) aerial photographs, (2) fire insurance maps, (3) local street directories, and (4) historical topographic maps. ASTM E1527-21 also requires review of these four standard historical resources for properties adjoining the subject property if they have been researched for the subject property, provide coverage of one or more adjoining properties, and are likely to be useful. While review of these standard historical resources, and others, is already included in many Phase I ESAs, the inclusion of a list of required resources will serve as a helpful framework going forward and will result in a more consistent level of detail among Phase I ESAs.
ASTM E1527-21 further clarifies and extends the user obligation to obtain and search title records to identify any land use or activity restrictions or environmental liens on the subject property. As noted, these searches are the responsibility of the user, rather than the environmental consultant, and are typically done through third-party vendors. ASTM E1527-21 also specifies that the search should include land title records for documents recorded back to 1980, the year CERCLA was enacted.
The updated standard contains several references to “emerging contaminants,” which were not previously referenced in ASTM E1527-13. We note that “emerging contaminants” include per- and polyfluoroalkyl substances (PFAS), which some states have begun to regulate, but which are not yet federally regulated hazardous substances under CERCLA. In fact, in ASTM E1527-21’s discussion of “substances not defined as hazardous substances” (found in Appendix X6) PFAS is specifically listed as an example of a “substance about which human understanding is evolving.” ASTM E1527-21 lists substances not defined as hazardous substances (including emerging contaminants) as a “non-scope consideration,” or an environmental concern that a Phase I user may wish to consider for business purposes, along with items like asbestos and lead. The standard clarifies that until a contaminant is listed as a hazardous substance under CERCLA, it is not within the scope of the standard and, as such, is not required to be discussed in a Phase I.
Shelf Life of a Phase I
Under the previous ASTM standard, a Phase I ESA was valid for 180 days from the date of completion. While the 180-day continuing viability period has not changed, the updated standard clarifies when that clock starts and specifically states that the date of the report should not be used when evaluating compliance with the 180-day or 1-year AAI requirements. ASTM E1527-21 requires the report to include the dates on which four of the main AAI components were conducted – interviews with owners, operators, and occupants; review of government records; visual inspections; and declaration by the environmental professional. The updated standard goes on to clarify that, in order to qualify for one of the threshold criteria for protection from CERCLA liability, the five main AAI components (the four listed above plus searches for recorded environmental cleanup liens, which is a user-responsibility) must be conducted or updated within 180 days of and prior to the date of acquisition of the subject property, and all other components of AAI must be conducted within one year prior to the date of acquisition of the subject property. In other words, rather than the report going stale 180 days after issuance, it is viable for 180 days following the earliest date of any of the five main AAI components.
ASTM E1527-21 contains other changes as well, including but not limited to revisions to the interview process, a requirement that significant data gaps be identified in the findings section of the report, as well providing some additional clarity on what constitutes a significant data gap. Overall, the changes in ASTM E1527-21 are helpful, clarifying changes that should create more consistency among Phase I ESAs across the board. We recommend consulting with an environmental professional on how these changes may impact your project.