ENVIRONMENTAL SITE ASSESSMENTS: HISTORICAL BACKGROUND
Traditionally, property purchasers sought to avoid liability for pre-existing contamination under the innocent purchaser defense in CERCLA (the Superfund Act). To claim this defense, the purchaser must have conducted all appropriate inquiry into previous ownership and usage to determine if contamination might exist on the property. Thus was born the Environmental Site Assessment industry. Our ASTM Regulatory radius reports meet or exceed the requirements for due diligence since 1998 via the ASTM Standard E1527 for conducting Phase I Environmental Site Assessments (ESAs) and AAI (All Appropriate Inquiry) requirements.
In January 2002, Congress passed the Brownfields Revitalization Act. We have seen the result of this important legislation in the form of state and local programs to distribute funds for the clean-up of blighted properties (Brownfield Redevelopment). The EPA figures prominently in the management of those clean-up funds. The Act also directed the EPA to develop a definition of all appropriate inquiry within two years.
Following a long negotiated rule making process, the EPA issued its All Appropriate Inquiry rule. The AAI rule not only provides for the innocent purchaser defense, but also two new defenses geared toward encouraging more brownfields redevelopment:
the bona fide prospective purchaser defense (liability protection for a knowing purchaser of contaminated property, provided the contamination occurred prior to purchase) and
the contiguous property owner defense (liability protection from contamination migrating from offsite, provided the owner did not know of the contamination at the time of purchase)
Shortly thereafter, the ASTM finalized its version of AAI in the ASTM Method E1527-05. The method provides consultants and users with a more detailed methodology for conducting due diligence assessments, and with a blessing from the EPA, the ASTM Method E1527-05 became the national standard (Phase I ESA Scope).
Important new elements of the 2005 method were the requirement that Environmental Professionals (What makes an EP?) conduct or oversee the work; and definitions of continuing obligations (After the Phase I) for the User to maintain the protection from CERCLA liability, after completion of the Phase I ESA.
2013 REVISIONS BY ASTM
In 2013, the ASTM committee that oversees the Phase I ESA method (ASTM E1527), finalized a number of revisions to the standard methodology for performing Phase I Environmental Site Assessments (ESAs).? In fall 2013, the revised method was confirmed by the U.S. EPA as continuing to meet its All Appropriate Inquiry requirements for protection from environmental liabilities.
Many consultants have indicated that the revisions will mean more expense and time to conduct a Phase I ESA, in particular the increased emphasis on conducting agency file reviews (see below).? It is TRS's opinion that those file reviews should have been conducted anyway, and we are able also provide agency documents to accommodate the ASTM revisions. Further, TRS?s research professionals are adept at obtaining such agency file information from a variety of sources, in most cases without exceeding the initial time frame for completion.
Some of the key revisions to the method are:
1. Recognized Environmental Conditions
Recognized Environmental Condition (REC) no change in the definition.
Historical REC a condition in which a past release has occurred, and has been addressed to the regulatory agency's satisfaction; meeting unrestricted residential use, i.e. no institutional controls are in place; satisfying current regulatory criteria.
Controlled REC New term and definition: the environmental condition is subject to the implementation of required controls such as land use zoning (e.g. no future residential use or re-zoning), a maintenance cap, no use of groundwater, etc.
2. Indoor Air Quality
Indoor air quality issues that are related to releases of hazardous substances to the environment DO present potential CERCLA liability and therefore fall under the purpose of a Phase I ESA.
Previously indoor air quality issues were specifically excluded from the scope of a Phase I ESA.
The revision redefined Indoor Air Quality as Indoor air quality unrelated to releases of hazardous substances or petroleum products into the environment?.
An indoor air quality condition that could have resulted from hazardous substances in the subsurface soil or groundwater is now within the scope of the Phase I ESA. Vapor intrusion evaluation, therefore, is within the scope.
This is in keeping with developing legal emphasis on including vapor intrusion evaluation as adequate due diligence?, whether formally in the scope of a Phase I ESA, or not!
C. File Reviews
Increased emphasis on the Environmental Professional conducting agency file reviews?, that is, examining the contents of the regulatory agencys file for a site of concern, whether that is the subject property, adjoining property or other.? If a file review is NOT conducted, the EP must comment on the significance of this limitation, i.e. state why other sources of information were deemed sufficient to not conduct the file review.
TRS ASTM regulatory radius Reports have been designed to meet or exceed the nationally-accepted standard for due diligence since 1998 via the ASTM Standard E1527 for conducting Phase I Environmental Site Assessments (ESAs) and AAI (All Appropriate Inquiry) requirements. Our historical research division offers all the accepted ASTM historical sources plus some additional resources that are useful in determining the prior use of the property. Each property is different and we try to guide our clients into the correct historical research for their particular property.
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