Received over 100 questions in the two webinars we hosted in March and April on the topic of HREC.
How did we choose the focus of today’s panel?
Is it a REC today? Then it can’t be a HREC. No AUL’s. Unrestricted use.
Is it a REC today? Then it can’t be a HREC. No AUL’s. Unrestricted use.
Good RECs and bad RECs.
QUESTION FOR PANELApril 16, the U.S. Environmental Protection Agency released a draft document, the OSWER Final Guidance For Assessing And Mitigating The Vapor Intrusion Pathway From Subsurface Sources To Indoor Air — External Review Draft (PDF) for public comment. EPA’s final vapor intrusion guidance is directed at vapor intrusion into structures. The vapor screening identified in the upcoming ASTM E1527-13 standard is directed at vapor migration onto a target property, and says nothing about whether the vapor potentially migrating on the target property might result in a vapor intrusion problem. The two standards are consistent.
Vapor migration is part of a Phase I ESA. Vapor intrusion assessment is not. If vapors are not potentially capable of encroaching upon a target property (per the Tier 1 VEC screen), vapor intrusion becomes irrelevant. If the vapors are potentially encroaching upon the target property, then of course there is the possibility of vapor intrusion into buildings on the property, but this can only be established by a separate follow-on investigation, typically applying the state’s VI guidance document, assuming one is available, or EPA’s VI guidance.
QUESTION FOR PANEL
QUESTION FOR PANEL
I’m going to blow through these survey slides very fast. “60% OF RESPONDANTS STATED AGENCY FILE REVIEWS ARE CONDUCTED VERY OFTEN OR ALWAYS WHEN PERFORMING A PHASE I ESA”.
CHALLENGES EXIST, BUT ARE VARIABLE, AND INCLUDE TRAVEL, SCHEDULING, VOLUME OF FILES, ACCESS TO ONLINE INFORMATION.
62% SAY THEY CONDUCT THE FILE REVIEW AT THE SAME TIME AS THE ESA, 31% SAY IT TYPICALLY HAPPENS LATER.
20% TRAVEL OVER 50 MILES.
ONLINE AVAILABILITY OF FILES: VISIT TO OFFICE, ONLINE, OR COMBINATION OF BOTH.
PROBABLY THE MOST IMPORTANT QUESTION: HOW DO YOU CHARGE?
Julie: can you cover?
The New ASTM E 1527-13 Standard
Upcoming revisions to the ASTM1527 Standard
ASTM 1527-13 StandardFor the first time in eight years, there is a revision tothe ASTM protocol for conducting Phase I ESAs.While the key areas of change are known, the waysthat EPs and lenders are responding to them is not.In this track, we will dig into three specific areas ofchange to illuminate how firms may adjustpractices. A panel of insiders will candidly sharetheir views on the new requirements, managingclient communication in the areas of REC’s, vaporand agency file reviews, and E 1527-13’s impact ondelivery time and pricing.
Kathryn Peacock• Serves as the Western Regional Manager forPartner Engineering and Science, a nationalenvironmental and engineering due diligenceconsulting firm. Kathryn has been practicing inthe environmental and engineering due diligencefield for over 12 years.• Kathryn has worked on thousands oftransactions, subsurface investigations, and siteremediation projects. Her clientele includesmany of the nation’s largest lenders, real estateinvestors, and corporations.
John Sallman• Assistant Director of Environmental Services atTerracon Consultants, Inc. Prior to this role,John was Office Manager of Terracon’s FortWorth office and Environmental DepartmentManager of Terracon’s Dallas office. John’sexpertise is in Phase I ESA’s, risk basedcorrective action and brownfields projects. Asan original member of the ASTM 2600committee, John helped craft the currentstandard for vapor encroachment screening.
Julie H. Kilgore• President of Wasatch Environmental, anenvironmental science and engineering firmbased out of Salt Lake City, Utah.– 20 years experience– Chair of Committee E50 on EnvironmentalAssessment, Risk Management, and Corrective Action– Chair of E1527 the task group– Served on the ASTM International Board of Directors– Appointed by EPA as one of 25 negotiators to assistEPA in developing All Appropriate Inquiry regulation
Background• Sunset provision – if not revised, standardwould sunset.• Could either re-ballot as is, or make somechanges.• Key consideration: Don’t mess up alignmentw/ EPA AAI Rule.• Task group’s mission: strengthen & clarifymore than change.
Agenda• Focus on three areas• Impacts on cost and pricing• When is it coming out?
REC, HREC, CREC• Received over 100 questions in the two webinars we hosted inMarch and April on the topic of HREC.• EP’s are trying to apply the concept on real world scenario’sthey are familiar with.
Simplified REC Definition• Old Definition:– “the presence or likely presence of any hazardous substances orpetroleum products on a property under conditions thatindicate an existing release, a past release, or a material threatof a release of any hazardous substances or petroleum productsinto structures on the property, or into the ground, groundwater, or surface water of the property. The term includeshazardous substances or petroleum products even underconditions in compliance with laws.”• New Definition:– “the presence or likely presence of any hazardous substances orpetroleum products in, on, or at a property: (1) due to anyrelease to the environment; (2) under conditions indicative of arelease to the environment; or (3) under conditions that pose amaterial threat of a future release to the environment.”
Revised HREC Definition• Heres the -05 HREC definition• 3.2.39 historical recognized environmental condition—an environmental conditionwhich in the past would have been considered a recognized environmentalcondition, but which may or may not be considered a recognized environmentalcondition currently. The final decision rests with the environmental professionaland will be influenced by the current impact of the historical recognizedenvironmental condition on the property. If a past release of any hazardoussubstances or petroleum products has occurred in connection with the propertyand has been remediated, with such remediation accepted by the responsibleregulatory agency (for example, as evidenced by the issuance of a no furtheraction letter or equivalent), this condition shall be considered an historicalrecognized environmental condition and included in the findings section of thePhase I Environmental Site Assessment report. The environmental professionalshall provide an opinion of the current impact on the property of this historicalrecognized environmental condition in the opinion section of the report. If thishistorical recognized environmental condition is determined to be a recognizedenvironmental condition at the time the Phase I Environmental Site Assessment isconducted, the condition shall be identified as such and listed in the conclusionssection of the report.
Revised HREC Definition• New Definition– “a past release of any hazardous substances or petroleumproducts that has occurred in connection with theproperty and has been addressed to the satisfaction of theapplicable regulatory authority, without subjecting theproperty to any required controls (e.g., property userestrictions, AULs, IC’s, or EC’s). Before calling the pastrelease an HREC, the EP must determine whether the pastrelease is a REC at the time the Phase I ESA is conducted(e.g., if there has been a change in the regulatory criteria).If the EP considers this past release to be a REC at the timethe Phase I ESA is conducted, the condition shall beincluded in the conclusions section of the report as a REC.”
New CREC Definition• “a REC resulting from a past release of hazardoussubstances or petroleum products that has beenaddressed to the satisfaction of the applicableregulatory authority (e.g., as evidenced by the issuanceof a NFA letter or equivalent, or meeting risk-basedcriteria established by regulatory authority), withhazardous substances or petroleum products allowedto remain in place subject to the implementation ofrequired controls (e.g., property use restrictions, AULs,institutional controls, or engineering controls)…a CRECshall be listed in the Findings Section of the Phase I ESAreport, and as a REC in the Conclusions Section ofthe…report.”
REC-HREC-CREC RelationshipContaminationin, at or on thetarget property.Is it de minimis? Has it beenaddressed?Wouldregulatoryofficials viewcleanup asinadequatetoday?Are thererestrictions?YESNONOYESREC(“Bad REC”)De minimis(“Not a REC”)NOCREC(“Good REC”)HREC(“Not a REC”)YESYESNO
In your Phase I Report• List in FINDINGS– RECs– CRECs– HRECs– De minimis conditions• List in CONCLUSIONS– RECs– CRECs
For the panel…• Best practice for communication andeducation?• The REC, HREC, and CREC system can be alittle confusing at first. What is the best wayto teach it to staff and clients?– “Good REC vs. Bad REC”?– Flow charts?
Vapor Migration• No differentiation between state of matter:– Solid, liquid, or gas– Refer to CERCLA definition of “release” and “environment”• Definition of “migrate”• E2600-10 is a referenced document in 1527– You can use it or any other vapor screening standard, justdocument a replicable practice.– Addressed in revised AUL definition• Contaminated vapor migration now clarified to beassociated w/ a release.• Driven by legal community. They wanted vapor included.• If vapor migration or encroachment is eliminated as an issue, thenlogically, vapor intrusion is a moot point.
Migrate/Migration Definition Added• “refers to the movement of hazardoussubstances or petroleum products in anyform, including, for example, solid and liquidat the surface or subsurface, and vapor in thesubsurface.”
Vapor and 1527• “The EPA will come out with vapor guidancethis year, and the ASTM 1527 standard willclarify vapor as a consideration. What do youthink the impact will be on our market?”• “Do you expect the EPA guidance for VI will beconsistent with 1527-13?”
• “Does my Phase I ESA need to address vaporintrusion into buildings on my target propertyif I’m dealing with a situation where vaporsare potentially migrating onto the property?”– Emphasis added• “vapor pathway”
Vapor and 1527• “Have you seen vapor impacting any clientsdeals?”
Vapor and 1527• “In a recent article on REIT.com, David Farer,chairman of the environmental departmentwith Greenbaum Rowe Smith & Davis LLPnoted that more investors are payingattention to the issue of vapor intrusion. Doyou agree?”
Regulatory File Reviews• New section added, 8.2.2• If TP or adjoining is identified in gov’t records, “pertinentregulatory files and/or records associated with the listingshould be reviewed” at the EP’s discretion.• If EP deems it not warranted, or not reasonablyascertainable, the EP must provide justification in the PhaseI report.• EP may use files from alternative sources such as on-siterecords, user provided records, records from local agencies,interviews w/ agency officials, online resources, etc.• Summary of information obtained from the file review shallbe included in the Phase I report and EP must includeopinion on the sufficiency of the information obtained.
Regulatory File Reviews• Challenges inherent– High variability of availability across states– Research project canvassed all 50 states• Variability of TAT from instant to months• Variability in access includes internet, phone (verbal), email,and regular mail.• Variability of cost from free to prohibitive• Variability in number of pages/documents from very few toprohibitive• Variability in distance traveled– Result: High variability in current practices
Current Practice• Survey of 400 EP’s last year.
Questions• What are your suggestions for how my firmcan adequately account for the effort/cost ofvisiting regulatory agency offices to reviewfiles of adjoining properties in my Phase Iprice? I have no idea at the proposal stagewhether or not there are any problemproperties adjoining my target property orhow extensive any files are that may beavailable.
Questions• How will the revision impact pricing?• Which areas will impact pricing?• Which will not?• How will firms communicate changes to theirclients?
Kathryn Peacock, Partner Engineering & ScienceCopyright 2013 by RMA | March 2013 The RMA Journal 73
Q&A• How did the task group engage w/ the SBA tomake sure the standard was embraced bythem?
• Ballot closed October 17, 2012• Negatives ruled non-persuasive in follow-on ballot that closed January 9,2013• Final standard submitted to EPA for formal approval (to issue a ruling thatthe standard is AAI-compliant)• EPA plans to publish both the proposed rule (with a 30 day public commentperiod) and the final rule simultaneously in early summer• Assuming there are no objections to the proposed rule, the alreadypublished final rule becomes effective 30 days after the public commentperiod ends (likely becoming effective around Labor Day)• ASTM would then immediately publish the standard (as E1527-13) and thestandard would be effective immediatelyStatus of ASTM E 1527 Revision Process