2013: ASTM E 1527-13: The standard methodology for performing Phase I’s has been updated for the first time since 2005. The new standard became official on November 13, 2013. The major changes in the new revision include the following:
- New definitions for Recognized Environmental Conditions (RECs)
- Historical RECs – must be cleaned up so that no “activity or use limitations” remain on the property. This means that the site must at least meet residential use contamination screening limits, or the former HREC will now be considered an REC
- Controlled RECs – this is a new term created for past contamination that has been remediated to the satisfaction of the oversight agency, but some contamination remains on the site that pose “activity or use limitations.” Examples could be a site that could not be converted to residential use or have subsurface disturbance without additional environmental investigation, oversight or controls. The Controlled REC is listed under the recognized environmental condition
- RECs – the definition has been simplified and the new category of Controlled REC has been added.
- Files Reviews are No Longer Discretionary
- In the past, some environmental firms, in an effort to minimize cost and/or time, have skipped performing agency file reviews. This step is no longer discretionary in the new standard. (Note: HLENV has always performed agency file reviews for Phase I Reports.)
2005: ASTM E 1527-05: The Federal EPA finalized “Standards and Practices for All Appropriate Inquiries,” published in the Federal Register, Part III Environmental Protection Agency, 40 CFR Part 312 dated November 1, 2005.
- The effective date for these regulations is November 1, 2006. The EPA specified ASTM 1527-00 for Phase I Site Assessments as the designated “interim standards.”
- After November 1, 2006 only ASTM E 1527-05 will meet the AAI regulations.
2002 Brownfields Amendments: The passage of the Small Business Liability Relief and Revitalization Act, the Federal “Brownfields Act,” an amendment to CERCLA, required EPA to develop standards and practices for conducting “all appropriate inquires.” The ASTM E-1527-97 and -00 were found to be inconsistent with applicable law because neither met the statutory criteria.
- The 2002 Brownfields Amendments added potential liability protections for “contiguous property owners” and “bona fide purchasers” who also must demonstrate they conducted all appropriate inquiries, among other requirements, to benefit from the liability protection.
1993: American Society for Testing and Materials (ASTM) published the ASTM E-1527 Standard Practice for Phase I Environmental Site Assessments and ASTM E-1528 Standard Practice for Transaction Screens. These standards were the accepted standards for the minimum levels of environmental due diligence within both the environmental consulting, legal, and financial services industries.
1986: Congress passed the “Superfund Amendment Reauthorization Act,” aka, SARA. As part of SARA, the EPA included liability protection known as the “innocent landowner provision” for purchasers of property, as long as the purchaser completed “All Appropriate Inquiry” consistent with “good commercial real estate practices.” Congress created the “innocent landowner” provisions in 1986.
1980: The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) passed by Congress, aka, SuperFund. The law gave the EPA broad powers to investigate and remediate the worst contaminated sites in the country. The initial investigation consisted of a detailed review of the available background information, inspection of the off-site area and inspection of the on-site area. This process was known as “Preliminary Environmental Site Assessment” or “environmental due diligence.” This is the precursor to the Phase I Environmental Site Assessment process.
- CERCLA contained a concept called “strict liability” – liability without fault. This meant that an “innocent purchaser” of a property could be held liable although they did not cause the contamination.