Vapor risk and ASTM E 1527-13 – Phase I ESA

The ASTM International, Inc., the international standards agency, has introduced ASTM E 1527-13 for the performance of a Phase I Environmental Site Assessment (ESA) prior to the acquisition of a commercial property (see our November 13th blog entry).  The purpose of ASTM E 1527-13 is to provide a format for meeting the All Appropriate Inquiries (AAI) federal rule.  ASTM E 1527-13, introduced on November 6, 2013, includes the addition of the term “vapor.”  Note that the Environmental Protection Agency (EPA) has not yet approved the use of ASTM E 1527-13 (in the AAI rule); its anticipated to be approved by the end of 2013 or in early 2014.

The addition of vapor in E 1527-13 will add some complexity to transactions.  And though vapor is now a formal part of the assessment process, we continue to caution against knee-jerk reactions, especially as it relates to quantitative testing of vapors.

As it relates to E 1527-13, there are three areas of revisions relating to vapor:

1.   Section 3.2.2 activity and use limitations:  the purpose of which is “to reduce or eliminate potential exposure to hazardous substances or petroleum products in the soil, soil vapor, groundwater and/or surface water on the property…”

2.   Section 3.2.56 definition of migrate/migration“…to the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface.”

3.   Section 13.1.5.7 (and X5.8):  clarifies that “indoor air quality” is a non-scope consideration, only if it is unrelated to releases of hazardous substances or petroleum products.

Note that a vapor migration study (actual physical testing) would be part of the Phase II ESA (i.e., quantitative testing of soil, groundwater, and now vapor).

If you would like to read a more detailed discussion on vapor intrusion, see our article in Michigan Defense Trial Counsel:  Vapor Intrusion — A New and Challenging Issue (co-authors Jeffrey A. Bolin, Dragun Corporation, and Arthur Siegal, Jaffe, Raitt, Heuer, and Weiss).

Vapor migration and vapor intrusion continues to be an evolving and complicated issue.  We encourage you to carefully consider how vapor may impact your transaction, and seek good technical and legal advice.

If you have questions about transactions and or vapor intrusion, contact Mark Resch (mresch@dragun.com) or Jeffrey Bolin (jbolin@dragun.com) at 248-932-0228.

(Thanks to Mark Resch for providing the content of this blog entry)

 

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Should you use ASTM E1527-13 for CERCLA Liability Protection?

On November 6, 2013, ASTM International, Inc. (ASTM) approved the long-awaited ASTM E1527-13, the Standard Practice for Phase I Environmental Site Assessments.  As far as ASTM is concerned, the new E1527-13 officially replaces the 2005 version (E1527-05).  However, if your environmental due diligence goal includes receiving Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) liability protection under the federal All Appropriate Inquiries (AAI), E1527-13 may not be your best choice.

ASTM considers E1527-13 to have immediately replaced E1527-05.  But from the perspective of the United States Environmental Protection Agency (EPA), the AAI Rule states that E1527-05 may be used to comply with CERCLA. 

While the EPA will reportedly be formally revising the AAI Rule to recognize E1527-13, they have not done so at the time of this writing.  So, until EPA updates AAI, it may be best to continue to use E1527-05 if the goal includes CERCLA liability protection.

Our advice is to formulate a path forward with input from your environmental advisors (environmental consultants and legal counsel) that will afford you the appropriate liability protection.

If you have questions about environmental due diligence, including Phase I or Phase II Environmental Site Assessments, contact Mark Resch (mresch@dragun.com) or Jeff Bolin, M.S., CHMM (jbolin@dragun.com) at 248-932-0228.

(Thanks to Mark Resch for providing the content of this blog entry)

Important Developments in Environmental Site Assessments

Over the past several months, we have been asked to assist a long-time client with some continuing education programs.  We have completed more than a half-dozen training sessions relating to environmental cleanup/environmental due diligence developments in Michigan.

During our hour-long environmental update, we share why understanding environmental acronyms such as HRECs, CRECs, BFPP, NAPL, and DNAPL are more important than ever.  We also discuss vapor intrusion (or VI) and why proper assessment of neighboring properties can be the difference between a great deal and a great deal of grief.

We then put the information into context with a case study that shows how we helped keep the lid on Pandora’s Box.  Finally, we provide three environmental due diligence “musts” for assessing sites in Michigan.

If you would like to see some of what we covered at this seminar, follow this link to view the PowerPoint Presentation.  If you know of anyone that is conducting environmental site assessments in Michigan, please share this important information with them.

Do you need more information?  Contact Jeffrey Bolin (jbolin@dragun.com) at 248-932-0228.