USEPA is currently working to address public comments before issuing a direct final rule approving the new ASTM standard (ASTM E1527-21) for Phase I Environmental Site Assessments (ESAs). The current E1527-13 standard will remain an approved method for conducting the all appropriate inquiry (AAI) component for potential liability protections under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Changes from ASTM E1527-13
ASTM has emphasized that the focus of the 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 include:
- The shelf life of a Phase I ESA is 180 days from the date the first critical task is performed.
- The definitions of Recognized Environmental Condition (REC), Controlled REC (CREC), and Historical REC (HREC) have all been edited slightly for clarity.
- Additional review is required for past and current uses of adjoining properties.
- Aerial photographs, fire insurance maps, local street directories, and historical topographic maps must be reviewed and discussed in the report.
- Significant data gaps are defined independently from data gaps, and the new standard includes additional documentation requirements for significant data gaps.
- The user of the Phase I ESA must perform the environmental lien and activity use limitation searches; these searches are not to be performed by the environmental professional unless specifically contracted for in their engagement with the user.
- A site plan and photographs are now required, rather than optional.
Emerging contaminants are a common area of concern, as a number of these have arisen in the years since the 2013 ASTM standard was published. In particular, many industry professionals are curious about how per- and polyfluoroalkyl substances (PFAS) will be addressed in the updated standard. ASTM has stated that, because PFAS are not yet listed as a 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, on August 26, 2022, USEPA issued a proposal to designate two per- and polyfluoroalkyl substances (PFAS) as hazardous substances under CERCLA: perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), and their salts and structural isomers. The rule is expected to be finalized by the summer of 2023 and will most likely pave the way for the listing of additional PFAS as hazardous substances. Once they become regulated, they will fall under the E1527 tool as a hazardous substance, and the potential for PFOA and PFOS release should be considered a possible REC.
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.
USEPA has not indicated when the final rule will be issued for ASTM E1527-21. EHS Support is working to update our existing Phase I ESA template to align with the new ASTM standard.
For more information, contact Compliance Specialist Kai Kasprick.