By: Amy Trautman, Scientist
The current ASTM standard (ASTM E1527-13) for Phase I Environmental Site Assessments (ESAs) was implemented in 2013. ASTM updates the standard every eight years; therefore, the 2021 revision is on the horizon. The revision process is extensive and includes input from numerous task groups and stakeholders. EHS Support has been following the proposed updates to prepare for the rollout of the new standard. While the revisions have yet to be finalized, some of the possible changes that may impact the due diligence and M&A process are outlined below:
Revision Focus: Refine and Clarify
ASTM has emphasized that the focus of the 2021 revision is to refine and clarify the key terms and processes in the E1527 standard. The goal is to continue standardizing the Phase I process, so that environmental professionals (EPs) approach each requirement in a similar way, and to improve the consistency and defensibility of Phase I reports. Some specific changes may include:
- Clarify definitions, such as “significant data gap” and “likely presence of contamination.”
- Provide guidance for classifying recognized environmental conditions (RECs), controlled recognized environmental conditions (CRECs), historical recognized environmental conditions (HRECs), and de minimis The updated standard will likely include a decision tree and real-world examples.
- Refine historical research requirements, such as research on adjoining properties and reliability of historical resources.
- Add specificity around required report contents, such as site plans and photographs.
Similar to clarifying the definitions, ASTM has proposed increased consistency in E1527 standard terminology. This includes consistent use of the term “subject property” as opposed to other common substitutes, such as the term “target property.”
The current standard requires that the EP make conclusions about the presence or potential presence of environmental impacts on the subject property. However, the standard is vague when it comes to the EP explaining how they reached their conclusion(s). The revised standard aims to require a step-by-step explanation around each conclusion, so that another EP or the report user can clearly understand the author’s logic and/or reproduce the author’s findings.
Frequently Asked Questions
- How will emerging contaminants be addressed in the 2021 standard?
Emerging contaminants are a common area of concern, as a number of these have arisen in the years since the 2013 standard was published. In particular, many industry professionals are curious about how per- and polyfluoroalkyl substances (PFAS) will be addressed in the 2021 standard. ASTM has stated that, because PFAS are not yet listed as a Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) hazardous substance, the new standard will not require evaluation of PFAS contamination. Instead, emerging contaminants will be addressed within the standard as a non-scope consideration. However, industry professionals should note that PFAS are likely to soon be regulated under CERCLA. Once they become regulated, they will fall under the E1527 tool as a hazardous substance. CERCLA hazardous substance regulations are enforced by the courts, and a substance that is not currently regulated but becomes regulated in the future will still fall under CERCLA cleanup requirements. In other words, a conservative approach that addresses potential contamination due to emerging contaminants is a safer bet for liability purposes.
- Do we anticipate any COVID-specific changes to the revised standard?
Many EPs took creative approaches to satisfy the ASTM standard during COVID. One common point of stress was the site visit requirement, which became a challenge due to regional lockdowns and travel restrictions. However, ASTM does not anticipate any COVID-specific changes to the revised standard. Instead, ASTM notes that any changes or deviations to the standard requirements should simply be stated within the report. For example, if drones were used to conduct a portion of the site visit, the author should provide a statement to that effect within the report text.
Emphasis: Litigation and Continuing Obligations
ASTM has gathered input from a variety of EPs and industry players to develop the 2021 revisions. The objective of standardizing the Phase I process and clarifying the requirements is also to prevent litigation around Phase I ESAs. As such, EPs need to be thorough and gather all the correct information during the due diligence process, and the 2021 revisions will help to ensure they are covering all the bases. It should also be noted that litigation issues often arise around continuing obligations. After liability protection is obtained, there are often continuing obligations for the contaminated property. Doing the proper due diligence will help property owners prepare for and stay in compliance with continuing obligations.
The final revisions are expected to be approved and rolled out by the end of 2021. Once the new standard has been finalized, you will be able to purchase a copy on the ASTM website.