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Going beyond ASTM – Environmental Site Assessments (ESA)

ASTM International, Inc. created ASTM E1527 Standard Practice to direct the Phase I Environmental Site Assessment Process. ASTM E1527 is a Practice meaning that there less flexibility in the scope of work than a there is under an ASTM Guide.

According to EPA Rule 40 CFR 312, a report written by an Environmental Professional that meets the ASTM Standard will also meet the requirements of “All Appropriate Inquiry” established in the Rule. This will help a user to qualify for one of the “landowner liability protections” defined in the Comprehensive Environmental Response, Compensation, and Liability Act.

The current version of this Practice (ASTM E1527-05) is currently being updated (ASTM E1527-13) because ASTM organizational guidelines require that standards be recertified by the committees made up of experts in the field every eight years.  There are some significant changes in the new standard, but for the most part these changes don’t affect the points I am discussing here.

This blog addresses the instances when and how certain investors require more intense investigation than is stipulated in the ASTM practice based on their own risk profile.

When Investors go beyond ASTM
Additional items requested as part of an expanded scope of work for the Phase I Environmental Site Assessment (ESA) may include:

  1. Detailed descriptions of all hazardous materials and petroleum products on the property including discussion of the chemical components, with details similar to a Material Safety Data Sheet.
  2. Discussion of RCRA timeframes. The Resource Conservation and Recovery Act mandates limitations for limits on quantities and storage times, handling and disposal of hazardous materials.
  3. Asbestos surveys for buildings built prior to 1995. The date more commonly used is 1990.  Asbestos was banned from building materials in the 1980s.
  4. The need for invasive investigation is to be communicated to the client and the results included in the Assessment before it is finalized.  If the investigation determines the potential subsurface presence of hazardous materials, an investigation will be required.
  5. Obtain a certification regarding the placement of offsite fill in a new or proposed development. In a completed development attempt to obtain the source of any offsite fill. This is to insure that soils used for construction fill don’t contain hazardous materials.
  6. If above-ground high voltage lines are within 300 ft. of the property line, determine and record the distance from the utility easement line to the property line and to the nearest occupied structure on the property.
  7. Determine electrical transformer ownership and other potential Polychlorinated biphenyl (PCB)-containing equipment.  PCB is a hazardous material and it was used in electrical transformers and fluorescent light ballast as a coolant because it is non-flammable.
  8. Lead-based Paint Assessments. The assumption can be made that residential, interior lead based paint after 1979 does not contain lead. However, that does not apply to applications on steel beams, columns and metal grid work.  Steel framed buildings beams and columns were often painted with lead paint.
  9. Determine which drinking fountains along with their location and data are included in the Federal Register entitled “Drinking Water Coolers That Are Not Lead Free.”
  10. Confirm with drinking water provider (Municipal or well operator) that their water complies with the Safe Water Drinking Act.  Obtain copies of the most recent test results.  This is not done as part of the ASTM standards
  11. Determine if the site has been designated as Wetlands by any federal, state or local agency.  Notify the client immediately if this appears to be the case.
  12. Provide a history of the property and surrounding properties. Historical research for the use of the property shall go back to 1940 or whenever the site was undeveloped, whichever is later.  Include a list of ownership, like a chain of title and investigate any ownerships that might have contributed to contamination.  Search for cleanup liens.  Chains of Titles are reviewed to see if a prior owner’s operations might have included hazardous materials.  Generally this report needs to be provided by the client.
  13. Conduct All Appropriate Inquiry (AAI) to all Federal, State, and Local regulatory agencies.  Direct inquiry shall be made to request a search and evaluation of existing files regarding the property and surrounding properties.  Make inquiry to each agency by phone to determine the availability of information and the timing related to a review of the file.  A direct review of available files, whether in person at the agency or via review of information the agency provides verbally or by mail is also required.  Note – the new version of ASTM E1527-13 is requiring file reviews of properties and adjoining properties that have contamination issued listed in the federal state and local databases which are commercially available.
  14. A regulatory file review is a necessary component of this investigation in almost every case where a potential environmental impact poses a concern to the property.  Notify the client where an agency fails to make time for an interview/file review.
  15. Lead Paint, Lead in Drinking Water and Radon assessments shall be performed according to client-specific protocols.
  16. Determine the presence of a state requirement for an “environmental disclosure” statute and provide the citation for that statute.
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