| June 6, 2006
The following article was originally published in the March 2006 issue of Florida Specifier and is being used with the permission of NTCC, Inc.
Authors:
- Sandie Will, P.G., is a project manager/hydrogeologist with Gannett Fleming, Inc., in Tampa, Fla.
- Julian P. Caballero, P.G., is the S.M. Stoller Corporation site hydrogeologist at the Young-Rainey Science, Technology, and Research Center in Largo, Fla.
The requirements for Phase I Environmental Site Assessments (ESAs) are about to change and, by Nov. 1, we better be ready. With the United States Environmental Protection Agency’s (EPA) Standards and Practices for All Appropriate Inquiries (AAI) Final Rule (40 CFR Part 312) and the updated American Society for Testing and Materials (ASTM) E1527-05 standard, we environmental professionals (EPs) will need to spend more time interviewing property owners and reviewing historical information than ever before. So what are these new requirements? Basically, there are four new items: mandatory interviews, additional record reviews, data gap identifications, and additional site inspection requirements. There are also updates on which compounds must be considered contaminants of concern (COCs) and the roles and qualifications of EPs.
New Requirements
The current ASTM standard requires us to make a reasonable attempt to interview key site managers and personnel with no requirement to interview past owners or occupants or neighboring or nearby property owners or occupants. The new standards will require the following: 1) a mandatory interview with the current owner and occupants of the subject property; 2) a mandatory interview with neighboring and nearby property owners or occupants if the subject property is abandoned; and 3) discretionary interviews with past owners and occupants of the subject property.
The current standard requires us to research uses of the subject property back to the first obvious development or 1940, whichever is earlier, and to research federal and state records (local records/sources are discretionary). The new standards will require us to review historical sources from the present back to when the property first contained structures or was used for residential, agricultural, commercial, industrial, or governmental purposes, and include federal, state, tribal, and local records. Research on environmental cleanup liens and records of activity and use limitations (including institutional and engineering controls) is currently the user’s responsibility and the results must be reported to the EP. The new AAI standard does not designate who is responsible for the search, but Phase I ESAs must include liens filed or recorded under law.
Visual inspection of the subject property is currently required, but there is no requirement to inspect adjoining properties. The new standards will require a visual inspection of the subject property and adjoining properties from the subject property line, public rights-of-way, or another vantage point. The EPA recommends that the EP conduct this inspection; however, it is not a regulatory requirement. A limited exemption with specific requirements will be available if the subject property cannot be visually inspected.
The current standard has no requirements on gaps in data other than to document the sources that were researched that revealed no findings. The new standards will require documentation of any data gaps. EPs must identify the sources used to address the data gaps and comment on the significance of the data gaps to potential releases.
Other Updates
The compounds that must be considered COCs according to the current standard are Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances and petroleum products. The new standards define COCs in two groups. Parties seeking CERCLA defense must consider CERCLA hazardous substances, while EPA Brownfields Grant recipients must consider CERCLA hazardous substances, petroleum products, and controlled substances.
The current standard lists no specific requirements of experience, education, certification or licensing of an EP performing or supervising a Phase I ESA. The new standards will require that an EP supervising an ESA must have the following credentials: 1) hold a current Professional Engineer (P.E.) or Professional Geologist (P.G.) license or hold a license or current registration/certification from a state, tribe, U.S. territory, or the Commonwealth of Puerto Rico, and have an equivalent of three years of full-time relevant experience; or 2) have at least a Bachelor’s degree in engineering or science and the equivalent of five years of full-time relevant experience; or 3) have the equivalent of 10 years of full-time relevant experience.
Why Do It?
The AAI Standard is part of the Small Business Liability Relief and Brownfields Revitalization Act, part of which clarified the requirements necessary to establish the innocent landowner defense under CERCLA to include additional liability protections for property owners and prospective purchasers. Therefore, for the first time since the enactment of CERCLA in 1980, a person may buy a property with the knowledge that the property is contaminated without being held potentially liable for the cleanup of the contamination, as long as the buyer undertakes all appropriate inquiry prior to the date of acquisition of the property. Keep in mind that the new rule also means an EP will be responsible for Phase I ESAs under federal law.
Costs
These new requirements will be incorporated into Phase I ESAs for an estimated $52-58 increase in costs to small entities, according to an EPA economic impact study. This additional cost breaks down to about $7.25/hour for an additional eight hours of work or $14.50/hour if you can crunch the time to four hours. Certainly, the costs associated with complying with the new standards will be more than the $52-58 EPA estimate.
More Information
www.epa.gov/brownfields/
40 CFR Part 312; Standards and Practices for All Appropriate Inquiries; Final Rule, November 1, 2005.
ASTM E1527-05, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, November 1, 2005.
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