New ESA Standard Could Impact Risk

A new standard protocol for conducting environmental due diligence studies has been published by the American Society for Testing and Materials (ASTM) and is now being put into action. In December, the U.S. Environmental Protection Agency published a Final Rule that incorporates the latest version of ASTM International standard E1527-13, Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, in the performance of all appropriate inquiries when conducting environmental site assessments. The new standard includes technical and procedural changes that could have a significant impact on the risk profile of the environmental consulting industry.

One major change in the new Phase I standard is a greater focus on when regulatory files reviews should be conducted by the professional completing the Phase I environmental site assessment. Until the new standard took effect, regulatory files would be reviewed if the environmental professional believed they would provide useful information. Now, with the new standard, the environmental professional, by default, must review standard database files for the subject property or adjoining properties. Since the default is to review the files, the environmental professional must provide adequate justification if they are not reviewed as part of the environmental site assessment.

One other change includes the introduction of a new classification titled a Controlled Recognized Environmental Condition, which indicates that a release has occurred on the property but has been addressed to the satisfaction of the applicable regulatory authority and has resulted in a use restriction imposed on the property.

The new standard also involves the inclusion of a definition for migration that mirrors the federal statutes. The new definition basically requires that environmental professionals consider vapor migration as no different from groundwater migration contamination.

With the publication of the new standard, the way environmental due diligence studies are conducted will change. The magnitude of the change – and the accompanying change to the risk profile of environmental professionals – may not be immediately apparent, but will be unavoidable.