RECs• REC definition “simplified”• Revised definition of HREC• New definition for a “controlled” REC (CREC)
Simplified REC DefinitionOld Definition:“the presence or likely presence of any hazardous substances orpetroleum products on a property under conditions that indicate anexisting release, a past release, or a material threat of a release of anyhazardous substances or petroleum products into structures on theproperty, or into the ground, ground water, or surface water of theproperty. The term includes hazardous substances or petroleumproducts even under conditions in compliance with laws.”New Simplified Definition:“the presence or likely presence of any hazardous substances orpetroleum products in, on, or at a property: (1) due to any release to theenvironment; (2) under conditions indicative of a release to theenvironment; or (3) under conditions that pose a material threat of afuture release to the environment.”
CERCLA Definition of a “Release”42 U.S.C. § 9601(22) defines a “release” as “any spilling, leaking,pumping, pouring, emitting, emptying, discharging, injecting, escaping,leaching, dumping, or disposing into the environment (including theabandonment or discharging of barrels, containers, and other closedreceptacles containing any hazardous substances or pollutant orcontaminant”(refer to New Legal Appendix in Revised E 1527, XI.1.1)
CERCLA Definition of “Environment”The term “environment” includes (A) the navigable waters, the waters ofthe contiguous zone, and the ocean waters…and (B) any other surfacewater, groundwater, drinking water supply, land surface or subsurfacestrata…”(refer to New Legal Appendix in Revised E 1527, XI.1.1.1)
Revised HREC DefinitionOld Definition:“an environmental condition which in the past would have been considered aREC, but which may or may not be considered a REC currently.”New Definition:“a past release of any hazardous substances or petroleum products that hasoccurred in connection with the property and has been addressed to thesatisfaction of the applicable regulatory authority or meeting unrestrictedresidential use criteria established by a regulatory authority, without subjectingthe property to any required controls (e.g., property use restrictions, AULs,institutional controls, or engineering controls). Before calling the past releasean HREC, the EP must determine whether the past release is a REC at thetime the Phase I ESA is conducted (e.g., if there has been a change in theregulatory criteria). If the EP considers this past release to be a REC at thetime the Phase I ESA is conducted, the condition shall be included in theconclusions section of the report as a REC.”
New CREC Definition“a REC resulting from a past release of hazardous substances orpetroleum products that has been addressed to the satisfaction of theapplicable regulatory authority (e.g., as evidenced by the issuance of aNFA letter or equivalent, or meeting risk-based criteria established byregulatory authority), with hazardous substances or petroleum productsallowed to remain in place subject to the implementation of requiredcontrols (e.g., property use restrictions, AULs, institutional controls, orengineering controls)… a CREC shall be listed in the Findings Sectionof the Phase I ESA report, and as a REC in the Conclusions Section ofthe…report.”
Findings and Conclusions Sections• List in Findings ‒ Known or suspect RECs ‒ CRECs ‒ HRECs ‒ De minimis conditions• List in Conclusions ‒ Known or suspect RECs ‒ CRECs
Vapor Migration Clarified as Included inPhase I Investigation• CERCLA/AAI do not differentiate the form (e.g., solid, liquid, vapor) of the release to the environment (refer to CERCLA definition of “release” and “environment”)• Migrate/migration now defined in E1527 (as it is used in many places in E1527)• E2600-10 is a referenced document in E1527• Addressed in revised AUL definition• Contaminated vapor migration/intrusion now specifically excluded from IAQ (which is a non-scope consideration)
Migrate/Migration Definition Added“refers to the movement of hazardous substances or petroleum productsin any form, including, for example, solid and liquid at the surface orsubsurface, and vapor in the subsurface.”
E2600-10 Included as a Referenced Document• Referenced in Section 2.1 of ASTM E1527 Standard**Vapor migration must be considered no differently than contaminated groundwater migration in the Phase I investigation. While E2600-10 provides an industry consensus methodology to assess vapor migration, use of E2600-10 methodology is not required to achieve compliance with AAI – an EP may use alternative methodology as deemed appropriate, but this must be documented in the Phase I report (i.e., it must be “capable of being reconstructed by an EP other than the EP responsible for the Phase I”).
Revised AUL Definition“activity and use limitations – legal or physical restrictions or limitationson the use of, or access to, a site or facility: (1) to reduce or eliminatepotential exposure to hazardous substances or petroleum products inthe soil, soil vapor, groundwater, and/or surface water on theproperty…”
IAQ Non-Scope Consideration Clarified• IAQ exclusion had been used as a rationale NOT to consider vapor migration/intrusion in the Phase I investigation, e.g., vapor migration/intrusion is an IAQ issue and as such is a non-scope consideration in the Phase I• The following words were added after IAQ: “unrelated to releases of hazardous substances or petroleum products into the environment”• The words imply that if the IAQ issue is related to releases of hazardous substances or petroleum products into the environment (i.e., vapor intrusion), then this would be within the scope of the Phase I – however, if vapor migration is eliminated as a concern (and vapor migration must now be considered in the Phase I investigation), then the issue of there being a vapor intrusion problem is a moot point!
Regulatory File Review• New section 8.2.2 added on Regulatory Agency File and Records Review• If the TP or any adjoining property is identified in government records search, “pertinent regulatory files and or records associated with the listing should be reviewed” - at the discretion of the environmental professional• If in the EP’s opinion such a file review is not warranted, the EP must provide justification in the Phase I report• EPs may review files/records from alternative sources such as on-site records, user-provided records, records from local government agencies, interviews with regulatory officials, etc.• Summary of information obtained from the file review shall be included in the Phase I report and EP must include opinion on the sufficiency of the information obtained
Revisions to User Responsibilities• Environmental liens and AULs are commonly found in recorded land title records.• Environmental liens and AULs recorded in any place other than recorded land title records are not considered to be reasonably ascertainable - unless applicable statutes or regulations specify a place other than recorded land title records.• Environmental liens and AULs imposed by judicial authorities may be recorded or filed in judicial records only.• In jurisdictions where environmental liens and AULs are only recorded or filed in judicial records, these records must be searched.• Chain of title reports will not normally disclose environmental liens.
Revisions to User Responsibilities cont’d•Although user is responsible to provide known environmental lien andAUL information to EP (unless EP given responsibility through a changein the scope of work), the search for environmental liens and AULsunder User Responsibilities Section does not preclude the EP from stillconducting a search of institutional control and engineering controlregistries in the EPs government records search (under 8.2).•Commonly known or reasonably ascertainable information within thelocal community about the property which could be material to the RECdetermination by the EP must be taken into account by the user andcommunicated to EP•If user does not communicate to the EP the information in Section 6,User Responsibilities, the EP needs to consider the significance of thisshortcoming similar to any other data gap.
Industrial/Manufacturing Properties• If property use is/has been industrial or manufacturing, then “additional standard historical sources shall be reviewed if they are likely to identify a more specific use and are reasonably ascertainable, subject to the constraints of data failure.”• Standard historical sources include: aerials, fire insurance maps, property tax files, recorded land title records, USGS topo maps, street directories, building department records, zoning/land use records, and “other historical sources” such as newspaper archives, internet sites, etc.
Revisions to Appendices• Completely re-written Legal Appendix• Minor revisions to User Questionnaire Appendix• Simplified Recommended Table of Contents and Report Format Appendix• New Appendix discussing Non-Scope Business Environmental Risk Considerations
Status of ASTM E 1527 Revision Process• Ballot closed October 17, 2012• 96% voted affirmative (or abstained); 14 negative votes• At October 24, 2012 Task Group meeting in Atlanta, all the negatives resolved except for those against the HREC/CREC/Regulatory File Review revisions – 8 negatives remain - these going through the persuasive/non-persuasive ruling process• EPA negative vote was resolved• Anticipate that final standard should go to EPA for formal approval just after the holidays (to issue a rule that the standard is AAI-compliant)• EPA/OMB approval process and EPA public comment period most likely (assuming no public opposition) should be completed in 4-5 months• Under this expected scenario, ASTM would publish the standard (as E1527-13) in late Spring 2013
Use of ASTM E2600-10 for Vapor MigrationAssessment in Phase Is
Vapor Intrusion Chronology 1991 J&E Model published 1993 MA includes VI pathway in MCP 1998 Redfield Rifles VI case receives national publicity 2002 EPA publishes its DRAFT VI Guidance document 2006 Kiddie Kollege VI Case hits the national media 2007 NYDEC re-opens 438 closed sites 2007 ITRC publishes VI Guidance for states 2002-2008 approximately 26 states publish VI guidance documents ASTM publishes VI/Migration Assessment methodology (E2600-08) - vapor migration investigation identified as optional in a Phase I (up to the client) Lawyers in E2600-10 remove the “optional” provision, must assess vapor migration in Phase I to be consistent with CERCLA and AAI E1527 Phase I revision process begins in 2010 – addressing vapor migration issue (to be treated no differently than contaminated GW migration) Revisions to E1527 completed at the end of 2012 - incorporate vapor migration EPA plans to publish Final VI Guidance document at the end of 2012
Phase I Environmental Consultants RoundtableIndustry Survey in August-September 2012Did you typically include vapor migrationscreening in your Phase I scope of workprior to 2010 (prior to E2600-10 beingpublished)? Yes 11.8% No 88.2%
Phase I Environmental Consultants RoundtableIndustry Survey in August-September 2012Today do you typically include vapormigration screening in your Phase Iscope of work? Yes 21.7%Only When Requested 49.2% No 29.1%
Phase I Environmental Consultants RoundtableIndustry Survey in August-September 2012When you conduct vapor migrationscreening today as part of your Phase I,what methodology do you follow? Tier 1 in E2600-10 59.0%In-house methodology 10.9%EP Professional Judgment 30.1%
Steps for Conducting a Tier 1 VEC Screen in a Phase I (assuming no preferential pathways direct to the TP from contaminated sites)1. Identify AOC and minimize to the maximum extent possible based on experience• Start out with 1/3rd mile or 1/10th mile (for petroleum hydrocarbons), BUT• Can reduce significantly when GW flow direction known or can be inferred (from topographical data or nearby Phase II data or hydrologic data, etc.)• Can further reduce by using professional judgment based on local knowledge ‒ Hydraulic barriers (such as rivers and wetlands) ‒ Sub-surface man-made physical barriers (preventing vapors from reaching TP such as utility lines in a main road that can intercept migrating vapors moving toward a TP) ‒ Sub-surface natural barriers (preventing vapors from reaching the TP such as confining layers, e.g., low permeability soil (e.g., clay layer) or fresh water lens
Net Reduction in AOC for Tier 1 Screening of Known or SuspectCOC SOURCES if Groundwater Flow Direction is Known or CanBe Inferred E 2600-10 w/ Source Location E 2600-10 Buonicore Methodology* Up-gradient 1,760’ 1,760’ Down-gradient 1,760’ 100’ Cross-gradient 1,760’ 365’ *Buonicore, A.J. , Methodology for Identifying the Area of Concern Around a Property Potentially Impacted by Vapor Migration from Nearby Contaminated Sources, Paper No. 2011-A-301, Proceedings, Air & Waste Management Association, 104th Annual Meeting, Orlando, Florida, June 20-24, 2011.
Net Reduction in AOC for Tier 1 Screening of Known or SuspectPHC SOURCES if Groundwater Flow Direction is Known or CanBe Inferred E 2600 Revised w/ Source Location E 2600-08 Buonicore Methodology* Up-gradient 528’ 528’ Down-gradient 528’ 100’ (LNAPL) 30’ (dissolved) Cross-gradient 528’ 165’ (LNAPL) 95’ (dissolved)*Buonicore, A.J. , Methodology for Identifying the Area of Concern Around a Property PotentiallyImpacted by Vapor Migration from Nearby Contaminated Sources, Paper No. 2011-A-301,Proceedings, Air & Waste Management Association, 104th Annual Meeting, Orlando, Florida, June20-24, 2011.
Conducting a Tier 1 VEC Screen cont’d2. Are there any known or suspect COC-contaminated sites in the EP- defined AOC? • Government records • Historical research • Other (?)3. Evaluate each site remaining in the EP-defined AOC • Remediation status? • Did remediation consider vapor pathway? • Regulatory file review may help • Review AULs – contamination left on-site? • Other (?)
Conducting a Tier 1 VEC Screen cont’d4. Identify VEC status • exists (physical evidence) • likely (within close proximity, e.g., two properties?) • can not be ruled out (further away, beyond two properties?) • can be ruled out because it does not or is unlikely to exist5. If VEC can be ruled out, vapor migration evaluation is completed
6. If VEC exists/likely/cannot be ruled out, determine if VEC is a REC• State VI Guidance• E 1527-05 de minimus criteria in REC definition• Soil characteristics, subsurface confining layers and depth to water table• Hydraulic barriers• Physical barriers• Building design and location on property• Building operation (positive pressure?, etc.)• Chemical vapor barrier already exists?• Other?
Where are there more likely to be RECs basedsolely on vapor migration considerations?• Down-gradient known or suspect contaminated sites with volatiles• Cross-gradient known or suspect contaminated sites with volatiles• Vapor migration takes the path of least resistance no matter what direction it is!
Where is it more likely that what caused aVEC would have been viewed as a RECanyway even if vapor migration was notconsidered?• Up-gradient known or suspect contaminated sites with volatiles
Conducting a Tier 1 VEC Screen cont’d7. If VEC is a REC, E2600-10 Tier 2 provides a suggested vapor migration scope-of-work for follow-on investigation in Phase II
Bottom Line• Vapor migration should be treated no differently than the way contaminated groundwater migration is considered in a Phase I• EP can evaluate vapor migration using whatever methodology the EP determines is appropriate (if not E 2600-10, then EP needs to document “alternative” methodology and include documentation in the Phase I)• E 2600-10 Tier 1 screening methodology is an industry consensus methodology• E 2600-10 allows for EP’s professional judgment and is therefore able to “cover” virtually any “alternative” vapor migration methodology (making a strong case for using E 2600-10)