(author: Jeffrey Magdon)

Introduction

On November 1, 2021, the American Society for Testing and Materials (ASTM) revised the standard for conducting Phase I Environmental Site Assessments (ESAs). The purpose of an ASTM Phase I ESA is to identify the confirmed presence, the probable presence or a material threat of the presence of hazardous substances or petroleum products on a property, also known as a Recognized Environmental Condition (REC).

The new standard, known as E1527-21 – Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, made several changes to the previous ASTM Phase I Standard Practice (E1527-13) . Some of the most significant changes in E1527-21 include:

  • Clarified definitions of Recognized Environmental Conditions (REC), Historical REC (HREC) and Controlled REC (CREC)
  • Clarified report viability (aka Report Shelf Life)
  • Updated requirements for performing title searches to identify environmental liens and activity use limitations (AULs)
  • Clarification of requirements for historical reviews of adjacent properties
  • Added emerging contaminants, such as polyfluoroalkyl substances (PFAS) as an out-of-scope consideration
  • Include a REC vs HREC vs CREC logic diagram in appendix

ASTM has submitted the E1527-21 standard to the US Environmental Protection Agency (EPA) for agency review to verify compliance with federal All Appropriate Inquires (AAI) regulations. Currently, the US EPA only recognizes E1527-13 as AAI compliant. Until the U.S. EPA completes its review, environmental consultants have several options for implementing the new E1527-21 standard, including:

  1. Continue to use ASTM E1527-13 until the EPA approves ASTM E1527-21 for compliance with AAI
  2. Use and cite ASTM E1527-21 now, but be aware that it is currently not recognized by the USEPA as meeting the AAI rule
  3. Cite ASTM E1527-13 and indicate that the Phase I report also incorporates ASTM E1527-21

JS Held has prepared this document to provide a summary of the most significant revisions to ASTM E1527-21. The following sections describe the revisions that may be of most impact/interest to those involved in commercial real estate transactions, such as lending institutions, REITs and investment trusts, and lawyers. specialized in real estate transactions.

Recognized environmental condition

The definition of a Recognized Environmental Condition (REC) definition has been clarified in E1527-21:

A CER is defined as (1) the presence of hazardous substances or petroleum products in, on, or at the subject property due to release to the environment; (2) the probable 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 constitute a material threat of future release to the environment. A de minimis condition is not a recognized environmental condition.

This is a modification of the REC definition in E1527-13, which defined a REC as the presence or likely presence of any hazardous substance or petroleum products in, on, or on a property due to the above conditions.

REC controlled and REC history

Minor editorial changes have been made to the definitions of a CREC and HREC. However, the most important addition in E1527-21 is the inclusion of processes/steps to help the environmental professional conclude that a finding is in fact a CREC or HREC, or whether it should be identified as a REC. E1527-21. ASTM also included a REC vs HREC vs CREC logic diagram appended to the standard.

Environmental Site Assessment Viability (or Report Retention Period), Presumed Viability, and Report Updates

An ESA Phase I report is viable when completed within 180 days of the real estate transaction. The dates on which the following parts of the ESA are carried out must be indicated in the ESA report:

  • Interviews with owners, operators and occupants
  • Federal, Tribal, State, and Local Government Record Reviews
  • Visual inspections of subject property and adjacent properties
  • The declaration of the environmental professional in charge of the evaluation or update

An ESA Phase I report can be updated, and the report can remain viable, provided the following components are completed/updated within 180 days of the date of the real estate acquisition or transaction:

  • Interviews with owners, operators and occupants
  • Searches for saved environmental cleaning privileges (a user responsibility)
  • Federal, Tribal, State, and Local Government Record Reviews
  • Visual inspections of subject property and adjacent properties
  • The declaration of the environmental professional in charge of the evaluation or update

Overall, the change from E1527-13 relates to the requirement to include dates when certain aspects of the SEA report are conducted in the Phase I SEA report.

Title searches to identify environmental privileges and activity use limitations (AUL)

The former ASTM Phase I E1527-13 standard included the recommended processes for researching the existence of environmental privileges and AULs. These recommended processes have been updated and clarified in E1527-21.

The most significant revision to the review of title search reports that generally identify environmental liens and AULs is the requirement to review land title records for documents recorded between 1980 and present. If they are not revised until 1980, a justification must be provided in the ESA report. The inclusion of the year 1980 is also a change from E1527-13.

Historical research requirements

The ASTM Phase I standard identifies standard historical resources like aerial photographs, fire insurance maps, local street directories, topographic maps, building department records, interviews, property tax records, zoning/land use records and other historical sources. The term “other historical resources” means one or more resources that are credible to a reasonable person and that identify the past uses of the properties. This may include, but is not limited to, various maps, news articles, books on the history of the area being researched, images, land title records, and any other resources that may provide information on land uses. past land.

The aforementioned standard historical resources are not new additions to E1527-21; however, the historical search requirements in E1527-21 have been clarified in that uses of adjacent properties that are obvious must be identified in the SEA report to assess the likelihood that past uses of adjacent properties have led to REC on the property in question. . If any of the standard historic resources are not reviewed for adjacent properties, but have been reviewed for the subject property, the environmental professional should indicate in the SEA report why such a review is not required. was not done.

Out-of-Scope Considerations

There may be environmental issues or conditions at a property that do not present potential CERCLA liability, but that the parties may wish to assess, that fall outside the scope of E1527-21. Examples of typical non-scope issues were included in E1527-13 and continue to be included in E1527-21.

E1527-21 included substances not defined as hazardous substances under CERCLA 42 USC § 9601(14), including certain substances sometimes generally referred to as “emerging contaminants”. These substances can include: (1) certain substances that occur naturally or through biological digestion (eg, methane) and (2) substances on which human understanding is evolving (eg, per- and polyfluoroalkyl substances, also called “PFAS”). These contaminants and any other emerging contaminants not identified as a hazardous substance by CERCLA are not included in the scope of E1527-21 but are listed as out-of-scope considerations.

Although emerging contaminants are out-of-scope considerations in E1527-21, the potential presence of emerging contaminants may require consideration under applicable state laws. In these cases, it is permissible to include an analysis and/or discussion of these substances in the same way as any other out-of-scope consideration. If and/or when these emerging contaminants are defined as a hazardous substance under CERCLA, these substances will need to be evaluated under E1527-21.

Conclusion

This document has identified, described, and briefly discussed only the most notable and/or impactful revisions to the previous ASTM Phase I Environmental Site Assessment standard, namely various definitions, changes to expected information to be included in assessments, etc. . Professionals interested in a full detail of the updated standards should refer to the authoritative document ASTM E1527-21 available on the official ASTM International website.

Thanks

We would like to thank Jeffrey Magdon for his knowledge and expertise which greatly aided this research.

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