During our latest webinar, “Industry Adoption of ASTM E1527-21: “Are We Done Yet?”, on November 10th, leading ESA reviewers joined LightBox for a candid look at the industry’s ongoing adoption of the ASTM E1527-21 Phase I ESA standard. LightBox’s Alan Agadoni led a moderated discussion with experts Enrique Garcia, Executive Director, Environmental Risk Management, at JP Morgan Chase; Lizz Lagomarsino, Principal at Lagomarsino Planning + Management; and Deb Daniel, CEO and Founder of Environmental Professional Partners. During the Q&A session, panelists fielded questions from our audience, which included nearly two thousand environmental consultants and lenders from across the U.S.
The questions submitted by attendees were too numerous to cover during the live event so, as promised, we are sharing panelists’ responses to each question below, organized by broad topic area.
Liens/AUL searches under ASTM E1527-21
In terms of lien/AUL searches on adjoining properties and back to 1980, so far the reports from other consultants that I have seen do not include this research. Instead, they use various exceptions. What is the norm?
PANELIST: Right now, I agree that the majority of Phase I ESA reports do not include the lien/AUL research on behalf of the User. Many reports simply cite the absence of responses from the User regarding the User Questionnaire. Some identify a response to the User Questionnaire that the User was not aware of any liens or AULs. If there is an EC/IC database reported, some reports will make reference to that as well. It is generally the exception, not the norm, for the Consultant to contract for lien/AUL research on behalf of its Client.
How do consultants adhere to the comprehensive lien/AUL search requirements of -21?
PANELIST: I don’t think I’ve seen any reports that represent the new standard exclusively that include the lien/AUL research done on behalf of the User. I have seen some reports that refer to both standards and if the lien/AUL search is done, it is conducted at the same level of review that had been done for the previous 2013 standard.
In reviewing E1527-21 compliant Phase I ESAs, what type of adjoining property mistakes are you seeing? Do they involve distinguishing between HRECs and RECs on adjoining properties?
PANELIST: I often see instances where consultants are not ordering city directory abstracts that cover all adjoining properties. Historical addresses are also a tripping point. It is usually on properties with history that have been split or re-developed over the years. On one review, the subject property was formerly part of a larger operation that was not identified by the consultant because they stated the adjoining property directories were only available back to 1990. If they had checked all historical addresses, they would have found listings for the adjoining property’s historical address (before the property was split and redeveloped in 1990, and a related database entry for an underground storage tank at that address)which may have been on the subject property due to the historical larger development.
Isn’t the Lien/AUL search a USER responsibility of AAI, and not necessarily a required aspect of ASTM E1527-21?
PANELIST: It is a requirement of All Appropriate Inquiries pursuant to CERCLA section 101(35)(B). Under ASTM E1527-21 it is the User’s responsibility. Consultants can complete the research at the request of the User and can present the findings in the Phase I ESA.
For those who submit FOIA requests, is there a specific resource to go to if Fire Department records are not available? or are Fire Insurance Maps used?
PANELIST: There is no one resource answer. Each property is different and the historical resources to be used depend on the property type, location and development history. If fire department records are not available and a historical use of concern is present at the property, another resource (not just the obvious ones) should be checked within reason. A quick phone call or stop in town can provide helpful information. For example: Sometimes the local library, historical society, or a neighboring business can quickly tell you if a building was formerly a gas station. Sometimes the health department is the lead agency for environmentally-relevant files. The local permit office also can be a resource in some areas. The experience of the environmental professional to the area of the evaluation can be critical to this research in knowing which local agencies to reach out to.
For adjoining properties, do we need to ask the Fire Dept/City Departments about adjoining addresses as well, or are those still limited to just the subject property? Sometimes it is difficult to ask for all the adjoining records from the local departments, especially if the subject property is in a very populated area that is densely developed and may have adjoining properties.
PANELIST: During the pre-screening and initial review of the project, database, and other records, the EP should be able to identify adjoining properties that might have a use of concern. For those properties, yes, records requests should be made. Field personnel should also be made aware of these adjoining properties of potential concern for their site reconnaissance.
We seem to struggle with completing interviews. Do others struggle with that also?
PANELIST: I believe so, yes. It often seems that inspectors are hesitant to be persistent in reaching out to, and getting in touch with, the correct person, whether that is a property representative, or a User representative. Reports often do not reflect lack of access, or denial of information. A respondents’ participation is voluntary. It just seems that the diligence to dig deeper is not always indicated.
What do Phase I ESA reviewers see with respect to the historic topo map section? Topos are now required and almost all of the time, the topos are worthless and tell you nothing about the property. Since topos are readily available prior 1940, does a worthless topo map satisfy the pre-1940 historic data point?
PANELIST: Per E1527-21, a current USGS topographic map or historical 7.5 minute topographic map are standard and shall be reviewed as a physical setting resource. Historical topographic map review is also a part of standard historical resource research. The environmental professional’s judgment is needed to determine the value of a resource for a specific project and whether the objectives for the research have been met. Topographic maps can contain important information such as the locations of buildings, roads, water bodies, mines, or landfills.
Can you give an example of what you would consider a “data failure”?
PANELIST: Scenario One – The oldest aerial photograph available is 1975 and the subject property is unimproved; there are no fire insurance maps; there is no city directory coverage prior to the 1980s, and there are no topographic maps older than 1960. The historical records do not cover back to 1940. A data failure condition exists in documenting the subject property conditions between 1940 and 1960. Scenario two – Aerial photographs back to 1950, City directories back to 1920, fire insurance maps back to 1906 (show the subject property improved with structures), and topo maps back to 1920. The first historical land use record (the 1906 fire insurance map), which predates 1940 shows the subject property with improvements. There are no reasonably ascertainable known historical land use records to review to further research the use and development conditions of the subject property prior to 1906.
When conducting surrounding properties research, when it comes to agency requests, how far away from the site should the research go? Just adjacent properties or even further?
PANELIST: This would depend on the history of uses and releases in the area and is at the discretion of the EP. Adjoining properties of concern should be included in agency research (see answer above). For example, if there is a groundwater plume and monitoring wells in the area of the subject property, the source should be identified and records reviewed for an opinion on the impact to the subject property.
PFAS and Phase I ESA Research
Given that the Phase I ESA standard does not specifically address or speak to PFAS, would you consider the lack of attention to PFAS a potential business risk in light of the potential for the US EPA seeking to define PFAS as a hazardous substance under CERCLA?
PANELIST: The manner in which the chemical of concern is viewed and handled is so highly variable at the moment by regulatory agencies. The situations where this is truly in play as a property owner cleanup liability or occupant exposure condition are limited. It is important to note, however, that E1527-21 does specifically address emerging contaminants and advises that EPs discuss the potential for environmental conditions and/or regulatory enforcement with their clients when appropriate.
How are consultants “addressing” PFAS? Are they discussing it if there is known PFAS only? Is there a blanket statement being used?
PANELIST: So far, there is not much discussion of PFAS in reports I have reviewed. I have seen it mentioned or presented once or twice when there is a local agency record that otherwise draws attention to the matter, or when there has been a specific property use or property incident that calls the risk of the property as a contaminant source into question (i.e., a recent fire that clearly documents use of foam by the fire department, or a clearly suspect on-site past manufacturing operation for which chemical use and handling practices were unknown, in an urban setting and a conservative regulatory environment.
Impacts of ASTM E1527-21
What do you see as the greatest areas of improvements in Phase I ESAs in response to ASTM E1527-21?
PANELIST: One large improvement is the additional research and discussion of adjoining property historical uses.
Have there been cases of lenders rejecting a report because it was completed in adherence to E1527-21 and not -13?
PANELIST: From what I have seen, only in cases where SBA is involved in the transaction.
How big a difference in cost to complete are consultants experiencing and has there been any pushback from clients on the added cost to complete Phase I ESAs under E1527-21? Have you seen that banks are willing to pay for a Phase I ESA increase?
PANELIST: Pricing for Phase I ESAs is largely driven by the competitive market. Banks are willing to increase fees for work ordered by the bank to get the quality they desire. Other users such as property owners or brokers may be looking for the lowest bid.
One issue with historical research is the fast turn-around time expected for these reports that don’t lend to waiting for public records. Also, clients balk at the price tag when we add cost for all the research that is needed – they want more for less. How can these be addressed to aid in more robust reports?
PANELIST: Turnaround time for Phase I ESAs is largely driven by the competitive market. The lack of records can affect conclusions. This should be clearly presented to the client and explained in the report. Educating clients on the value of the historical and local agency research might help, but we have been at that for years. Unfortunately, it is client experience, being burned on a project that often opens their eyes to the value of additional more thorough research and presentation.
As folks who review Phase I ESA’s on behalf of banks, do you think the quality of reports would be better if the banks didn’t always go with the lowest cost consultant?
PANELIST: Yes. Many banks don’t always go with low cost. If additional fees are necessary for a property (e.g., high environmental risk, tricky history, necessary records), this should be explained in the proposal.
Phase I ESA Reports
Wouldn’t a report stating that it “uses the -21 standard and is compliant with AAI” indicate that the consultant is recognizing that there is compliance to the -13 standard?
PANELIST: While being clear about documenting the intended project scope is important, it is critical that the report meets the objectives of the referenced standard, be it -13, -21 or both.
Would a Phase I ESA under ASTM E1527-13 inherently fail to cover/address any item(s) that an E 1527-21 assessment is required to address?
PANELIST: It shouldn’t. The -21 standard, however, has added detail and clarification of the standard. For instance, the historical use research specified for -21 is more detailed. The reality is that many -13 reports were already doing much, or all, of the research specified and now explained in -21. If a -13 report was a true bare bones, only what is required by the scope, a more careful application of the -21 standard could cover/address additional subject matter and reveal a historical use concern that might not have otherwise been discovered.
Is it correct to assume that ASTM does not require actual data sources to be reproduced in the report appendices?
PANELIST: Data sources should be provided in the appendices if they are helpful or supportive in clarifying/confirming conclusions in the report. It is helpful to the discerning client or another EP trying to reconstruct the findings and opinions of the report.
Shouldn’t the consultant’s contract state which version of the ASTM E1527 standard they are using? and shouldn’t the client respond with what they are looking for?
PANELIST: Some clients may not understand the differences, and their consultants should help them work through this issue to achieve the objectives of a project.
If using and referencing both -13 and -21 standards, which specific definitions of RECs, CRECs and HRECs are you seeing used?
PANELIST: I am seeing the definitions in the E1527-21 standard.
Did I hear that all previous reports should be appended, even if they are summarized in our Phase I report? We usually don’t include them as appendices, but we do write up an extensive summary within the text.
PANELIST: Data/information sources should be provided in the appendices if they are helpful or supportive in clarifying/ confirming conclusions in the report. For instance, a reviewer will always want to independently look at the Phase II data to confirm conclusions and see details such as boring locations, boring logs, specific analytical data vs. maybe a summary statement of which analyses were run and that all results were below action levels. The summary of a prior report that is provided in a Phase I ESA might not include all details of concern to a User or its associates or representatives. Additionally, once a property is subject to a new transaction and new Phase I ESA, that next consultant in line is at a disadvantage in having only the summary of the last report.
TIMING of US EPA Adoption
What is the process/timeline for final approval of 1527-21 by the US EPA, after the publication of response to public comments?
ANSWER: According to Patricia Overmeyer, EPA’s point person for AAI, at Lightbox’s mid-October PRISM conference, the US EPA is currently going through the negative comments they received, as they are required to do, and will post a Federal Register notice adopting the standard, along w/ the agency response to comments, likely in early January.
FOR MORE INFORMATION
For a replay of our live event on November 10th, including more insights from this trio of reviewers on how -21-compliant reports look different, where EPs should be focused to avoid confusion, what reviewers see as the most common shortcomings in today’s Phase I reports, and advice to ensure you’re making a smooth transition to the -21 SOW. View here. LightBox Webinar (lightboxre.com)
For our background resources on ASTM E1527 as well as links to past blogs and webinar replays, see our LightBox ASTM Resource Center. Visit LightBox’s ASTM Resource Center
