U.S. EPA is reviewing proposals that would change how Phase I environmental site assessments (ESAs) are performed. The revisions were proposed by ASTM, which created the E 1527 standard incorporated by reference into U.S. EPA’s All Appropriate Inquiries (AAI) rule (40 CFR Part 312). This is the first Phase I ESA procedure makeover since 2005. According to published reports, the most significant proposed revisions are:

  • Adds the concept of “controlled recognized environmental condition” or CREC. This term will apply to known past releases of hazardous substances that have not been remediated to unrestricted residential criteria but which are subject to controls such as activity or use restrictions, restrictive covenants and institutional controls. The application of the CREC label to an issue does not include a judgment whether the controls are actually effective.
  • Requires the environmental professional (EP) to consider the risk that vapors may migrate from other sites onto the subject property. This does not include an evaluation of the risk of vapor intrusion into buildings; that still will not be considered by E 1527.
  • Exempts certain applications of fertilizers from the meaning of “release.”
  • States that the EP should review agency files in determining the presence of a recognized environmental condition. If such a review is not performed, the EP must so state and explain why.
  • Adds a new “business environmental risk” (BER) appendix that describes commonly encountered BERs at commercial properties and discusses when a person may want to add an evaluation of BERs to the Phase I ESA scope of work.
  • Makes the table of contents requirement less prescriptive so that the EP can decide the presentation order, and eases other current “verbatim” requirements.
  • The revisions include many technical changes as well, to make the standard easier to understand and more consistent with the language and requirements of the federal Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA) and the AAI rule.

The revisions seem likely to increase the costs of, and amount of time needed for, Phase I ESAs where agency file reviews and/or consideration of vapor migration risks are appropriate.

If U.S. EPA approves the changes, the new ASTM E 1527-13 will become the equivalent of complying with the AAI rule, which is necessary for land owners or operators to be eligible for one of the landowner liability protections available under federal and most states’ laws, including Michigan.