One Year's Experience With The ASTM E 1527-00 Phase I Standard: Part II

Environmental Site Assessment Report

Issue Date: 10/2001

This is the continuation of last months ESA Report feature story on the areas of confusion in the ASTM E 1527-00 Phase I standard. It is based upon comments made and questions asked over the last twelve months since the standards publication to Anthony J. Buonicore, Chair of the ASTM Task Group responsible for development of the revised standard. Part II of II For the purposes of this two-part feature story, the areas of confusion in the ASTM E 1527-00 Phase I standard have been categorized into the following four major activities associated with the Phase I: (1) preparation; (2) execution; (3) assessment; and (4) report. The first two activities, preparation and execution, were presented in the September issue of the ESA Report. This months feature story will address the confusion associated with the remaining two activities: the assessment of environmental conditions and report preparation. Assessment
Recognized Environmental Condition (REC)

There has been considerable confusion over what constitutes a REC, particularly when de minimis conditions and historical RECs are involved. Fundamentally, if the presence, or likely presence, of hazardous substances or petroleum products are now or have been associated with the property under conditions that indicate an existing release, a past release or the material threat of a release into the structures on the property or the soil, groundwater or surface water on the property, this constitutes a REC, unless the condition is de minimis. For a condition to be de minimis, it must not present a material risk of harm to public health or the environment, and it must be such that it would not be subject to enforcement action if brought to the attention of the responsible regulatory authorities. The confusion has most often been associated with environmental conditions on properties that have been cleaned up. Clearly, such conditions must be viewed as historical RECs, but the question is whether they are RECs today since they constitute past releases on the property. The intent of the Task Group to deal with these conditions was for the Phase I professional to evaluate the condition against the two de minimis criteria. If both criteria can be met, then the E 1527-00 standard says the environmental condition is de minimis and is not a REC. It should, of course, be included as a historical REC in the Findings section of the Phase I report, but does not have to be listed as a REC in the Conclusions section. The professionals justification as to why the condition is de minimis should also be included in the Opinions section of the Phase I report. Properties that have been cleaned up using risk-based criteria (Risk-Based Corrective Action or RBCA) with no further action required by regulatory officials, except perhaps a deed restriction or some other property activity or use limitation, would inherently meet the de minimis criteria. Hence, E 1527-00 would not require that such responsible environmental conditions be listed as

RECs in the Conclusions section of the Phase I report. However, they must still be included in the Phase I report (in the Findings section) as they may have an adverse impact on the valuation of the property (since property activity and use would likely be limited). Furthermore, any prospective buyer would likely be keenly interested in knowing about this situation.
Material Threat

With respect to REC determinations, there has been confusion over what constitutes a material threat of a release. Section 3.3.23 in E 1527-00 defines such a threat as a physically or observable threat which is likely to lead to a release that, in the opinion of the environmental professional, is threatening and might result in impact to public health or the environment. The Task Groups intent with this definition was to clarify that the mere existence of an environmental condition on the property is not sufficient to make it a REC. There must also be evidence of a release at some time, or imminent danger of a release. For example, a hazardous waste drum on the property, or the fact that the facility generates hazardous waste (RCRA generator), would not automatically constitute a REC, assuming there is no evidence of a release. However, if, for example, the drum has obviously been struck by a forklift truck and is in bad physical shape with clear signs of rust and corrosion, then this would be a situation presenting a material threat of a release, and consequently, constitute a REC.
Significant Assumptions

The term significant assumptions is used in Appendix X2. The Task Groups intent was that this term would refer to assumptions that can have an impact on the conclusions drawn by the environmental professional. For example, if an environmental professional determines that a nearby LUST site represents a REC because it is upgradient from the target property based upon surface topography and it is assumed that groundwater follows surface topography, this would be considered a significant assumption. Another example might be the assumption that a former dry cleaner on a property actually dry cleaned on site using perchloroethylene, and therefore represents a REC. Without evidence to the contrary, it still may be possible that the dry cleaner did not dry clean on site, but solely acted as a dropoff and pickup point. Hence, the assumption that on site dry cleaning took place would be considered a significant assumption.
Limitations and Exceptions

The confusion surrounding this section in the table of contents in Appendix X2 has been associated with its purpose. The Task Groups intent with this section was to allow the environmental professional to identify any limitations inherent in the investigation conducted and exceptions (or deviations) from the E 1527-00 scope of services. Limitations might include: limiting the historical research on a shopping center to identifying tenants on the property at approximately five-year intervals since the scope of services was to follow the ASTM E 1527-00 standard; or limiting the investigation to data which can be collected and reviewed in an abbreviated time frame dictated by the client for completing the Phase I. Clearly, if the

turnaround time specified by the client is five days, then the environmental professional would not be able to collect and review as much information as might be possible if the turnaround time was three weeks. Limitations introduced by weather conditions would be another example. Exceptions (or deviations) might include conducting the Phase I on only a portion of a complete parcel of property, perhaps only where the physical plant exists (or existed) and not including the back 200 acres, or an inability to physically observe the total periphery of a very large parcel of property. Including deviations from the E 1527-00 standard in the limitations and exceptions section means that it would not be necessary to have another separate section for deviations as shown in Appendix X2 (refer to X2.11).
Opinions

There has been confusion over whether the ASTM Phase I must include the environmental professionals opinions. The E 1527-00 standard requires that the Phase I report include the environmental professionals opinion(s) of the impact on the target property of known or suspect environmental conditions (identified in the Findings section) associated with the property. If the impact is not de minimis or otherwise inconsequential, the environmental condition will likely be judged a REC and must therefore be listed in the Conclusions section of the Phase I report.
Assessing Known or Suspect Nearby Contaminated Sites

Confusion existed with respect to how far the E 1527-00 standard requires environmental professionals to go when known or suspect contaminated properties are identified within the search radius of the government records check report. Section 7.1.9 of the standard requires that the environmental professional must include his opinion about the significance of such properties. However, it was always the ASTM Task Groups belief that this should not be a major level of effort since the environmental professional would have already collected and reviewed available geological/ hydrologic/ hydrogeological, etc. information to identify the zone of concern upgradient from the target property. If the data then shows that known or suspect contaminated sites exist in this zone, it could reasonably be assumed they might impact the target property in some way. Hence, the actual assessment effort would be limited only to nearby properties identified in this zone of concern. This would also be viewed as a significant assumption and should be so identified in the Phase I report.
Recommendations

Since so many clients ask their Phase I consultants for recommendations on what to do about RECs, many Phase I professionals believe that recommendations are a part of the E 1527-00 standard. This is not the case. The E 1527-00 standard does not include a recommendations section. Only if the client specifically asks the consultant to include recommendations in the agreed upon scope of services is it necessary for the consultant to do so. While most clients do prefer recommendations from the consultant, most sophisticated clients prefer that these

recommendations be provided outside of the Phase I report. In this way, the client retains the option of not implementing a particular recommendation (perhaps for good business reasons) and thereby is able to avoid any potential repercussions. Report
Phase I Report Format

There has been confusion over whether or not the Phase I report format included in Appendix X2 must be followed in order to conform to the E 1527-00 standard. The E 1527-00 standard does not dictate a specific report format (refer to Section 11.1). The report format included in Appendix X2 is only a recommended report format. The ultimate format is the prerogative of the environmental professional and the client. While Appendix X2 includes Section X2.11-Deviations in the recommended format, this section is not necessary if deviations are actually included in Section X2.2.4-Limitations and Exceptions. Also, if a detailed scope of services for everything conducted is included in Section X2.2.2Detailed Scope of Services, it is not necessary to separately identify in Section X2.12-Additional Services, those services above those required by the E 1527-00 standard. Hence, from a practical viewpoint, X2.11 and X2.12 can be deleted. The Task Group believes all other sections included in the recommended report format in Appendix X2 are appropriate for most Phase I reports. Section X2.2.5-Special Terms and Conditions was included so that the environmental professional could identify limitations to liability, e.g., setting maximum liability at a specific amount of dollars or consistent with E&O policy limits. If the consultants terms and conditions, including limitations to liability, have already been made a part of the contract, it may not be necessary to include Section X2.2.5. The consultants legal counsel clearly should be consulted. Section X2.2.6-User Reliance was added to the recommended report format to stress the importance of stating in the Phase I report who may rely on it. Section X2.4-User Provided Information was included to clarify the information received from the user, if anything, and also that the consultant did request such information. For a more detailed and practical list of information that a consultant might request from a client user, the Phase I consultant is referred to Appendix X3, and specifically Section X3.1. Section X2.13-References Section is to list sources relied upon in the Phase I investigation, but not physically included in the report. For example, a particular USGS publication may have been relied upon for groundwater flow information. Rather than copy the publication and physically include it in the Phase I report, the consultant may choose to simply list it in the References section. An appropriate reference would include, at the minimum, the publications title, author, publisher, year, volume and page number.
Documentation

There has been considerable confusion over how much documentation is required to be included in the Phase I report according to E 1527-00. The ASTM standard does require all sources relied upon in formulating an opinion related to recognized environmental conditions connected with the property to be documented in the Phase I report. Sources investigated, but with no pertinent findings, must be documented as well. The environmental professional has two choices for including this documentation either the information should be physically included in the report or it should be appropriately referenced in the References section of the Phase I report. Either approach is acceptable according to E 1527-00. The overriding criterion is that a third party environmental professional be able to reconstruct what was done. For interviews with various parties, the intent of the Task Group has always been that these be documented on standardized interview forms and physically included in the Phase I report.
Summary

It is hoped that this discussion will reduce confusion that might exist with the ASTM E 1527-00 Phase I standard. If you have any further questions or there is still confusion about certain sections of the standard, you may e-mail Mr. Buonicore at ajb@edrnet.com. If you would like to suggest possible changes to the E 1527-00 standard for the next revision planned for 2005, you may e-mail these to Julie Kilgore, the new Chair of the ASTM Phase I Task Group, at jk@wasatch-environmental.com. (Part I of this article appeared in the September issue of the ESA Report.)

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