Anthony Buonicore's webinar presentation on 4/23/13

1. Upcoming Revisions to the ASTM E1527
Phase I Standard
by
Anthony J. Buonicore, P.E., BCEE, QEP
CEO, The Buonicore Group
for presentation at
EDR Insight Webinar
April 23, 2013

2. • Key Revisions to E1527 Phase I Standard
• Anticipated Publication Schedule
• Use of E2600-10 for Vapor Migration Assessment in Phase Is
Overview

3. Key Revisions to ASTM
E1527 Phase I ESA Standard

4. Major
• Recognized Environmental Conditions (RECs)
• Vapor Migration
• Regulatory File Review
Minor
• User Responsibilities
• Industrial/Manufacturing Properties
• Appendices
Key Revisions to E1527-05 Impacting Phase I
Investigations

5. • REC definition “simplified”
• Revised definition of HREC
• New definition for a “controlled” REC (CREC)
RECs

6. Old Definition:
“the presence or likely presence of any hazardous substances or
petroleum products on a property under conditions that indicate an
existing release, a past release, or a material threat of a release of any
hazardous substances or petroleum products into structures on the
property, or into the ground, ground water, or surface water of the
property. The term includes hazardous substances or petroleum
products even under conditions in compliance with laws.”
New Simplified Definition:
“the presence or likely presence of any hazardous substances or
petroleum products in, on, or at a property: (1) due to any release to the
environment; (2) under conditions indicative of a release to the
environment; or (3) under conditions that pose a material threat of a
future release to the environment.”
Simplified REC Definition

7. 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 the
abandonment or discharging of barrels, containers, and other closed
receptacles containing any hazardous substances or pollutant or
contaminant”
(refer to New Legal Appendix in Revised E 1527, XI.1.1)
CERCLA Definition of a “Release”

8. The term “environment” includes (A) the navigable waters, the waters of
the contiguous zone, and the ocean waters…and (B) any other surface
water, groundwater, drinking water supply, land surface or subsurface
strata…”
(refer to New Legal Appendix in Revised E 1527, XI.1.1.1)
CERCLA Definition of “Environment”

9. Old Definition:
“an environmental condition which in the past would have been considered a
REC, but which may or may not be considered a REC currently.”
New Definition:
“a past release of any hazardous substances or petroleum products that has
occurred in connection with the property and has been addressed to the
satisfaction of the applicable regulatory authority or meeting unrestricted
residential use criteria established by a regulatory authority, without subjecting
the property to any required controls (e.g., property use restrictions, AULs,
institutional controls, or engineering controls). Before calling the past release
an HREC, the EP must determine whether the past release 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
time the Phase I ESA is conducted, the condition shall be included in the
conclusions section of the report as a REC.”
Revised HREC Definition

10. “a REC resulting from a past release of hazardous substances or
petroleum products that has been addressed to the satisfaction of the
applicable regulatory authority (e.g., as evidenced by the issuance of a
NFA letter or equivalent, or meeting risk-based criteria established by
regulatory authority), with hazardous substances or petroleum products
allowed to remain in place subject to the implementation of required
controls (e.g., property use restrictions, AULs, institutional controls, or
engineering controls)… a CREC shall be listed in the Findings Section
of the Phase I ESA report, and as a REC in the Conclusions Section of
the…report.”
New CREC Definition

11. REC-HREC-CREC Relationship
Contamination
in, at or on the
target property.
Is it de minimis? Has it been
addressed?
Would
regulatory
officials view
cleanup as
inadequate
today?
Are there
restrictions?
YES
NO
NO
YES
REC
(“Bad REC”)
De minimis
(“Not a REC”)
NO
CREC
(“Good REC”)
HREC
(“Not a REC”)
YES
YES
NO

12. • List in Findings
‒ Known or suspect RECs
‒ CRECs
‒ HRECs
‒ De minimis conditions
• List in Conclusions
‒ Known or suspect RECs
‒ CRECs
Findings and Conclusions Sections

13. • 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)
Vapor Migration Clarified as Included in Phase
I Investigation

14. “refers 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.”
Migrate/Migration Definition Added

15. • 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”).
E2600-10 Included as a Referenced Document

16. “activity and use limitations – legal or physical restrictions or limitations
on the use of, or access to, a site or facility: (1) 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…”
Revised AUL Definition

17. • 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!
IAQ Non-Scope Consideration Clarified

18. • 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
Regulatory File Review

19. • 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

20. •Although user is responsible to provide known environmental lien and
AUL information to EP (unless EP given responsibility through a change
in the scope of work), the search for environmental liens and AULs
under User Responsibilities Section does not preclude the EP from still
conducting a search of institutional control and engineering control
registries in the EPs government records search (under 8.2).
•Commonly known or reasonably ascertainable information within the
local community about the property which could be material to the REC
determination by the EP must be taken into account by the user and
communicated 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 this
shortcoming similar to any other data gap.
Revisions to User Responsibilities cont’d

21. • 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.
Industrial/Manufacturing Properties

22. • 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
Revisions to Appendices

23. • 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
that the standard is AAI-compliant)
• EPA plans to publish both the proposed rule (with a 30 day public
comment period) and the final rule simultaneously in early summer
• Assuming there are no objections to the proposed rule, the already
published final rule becomes effective 30 days after the public comment
period ends (likely becoming effective around Labor Day)
• ASTM would then immediately publish the standard (as E1527-13) and
the standard would be effective immediately
Status of ASTM E 1527 Revision Process

24. Use of ASTM E2600-10 for Vapor Migration
Assessment in Phase Is

25. 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 “imminent”

26. Phase I Environmental Consultants Roundtable
Industry Survey in August-September 2012
Did you typically include vapor migration
screening in your Phase I scope of work
prior to 2010 (prior to E2600-10 being
published)?
Yes 11.8%
No 88.2%

27. Phase I Environmental Consultants Roundtable
Industry Survey in August-September 2012
Today do you typically include vapor
migration screening in your Phase I
scope of work?
Yes 21.7%
Only When Requested 49.2%
No 29.1%

28. Phase I Environmental Consultants Roundtable
Industry Survey in August-September 2012
When you conduct vapor migration
screening 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%

29. 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
Steps for Conducting a Tier 1 VEC Screen in a Phase I
(assuming no preferential pathways direct to the TP from contaminated sites)

30. 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 Suspect
COC SOURCES if Groundwater Flow Direction is Known or Can
Be Inferred

31. 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 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 Suspect
PHC SOURCES if Groundwater Flow Direction is Known or Can
Be Inferred

32. 2. 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’d

33. 4. 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 exist
5. If VEC can be ruled out, vapor migration evaluation is completed
Conducting a Tier 1 VEC Screen cont’d

34. • 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?
6. If VEC exists/likely/cannot be ruled out, determine if
VEC is a REC

35. • 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 are there more likely to be RECs based
solely on vapor migration considerations?

36. • Up-gradient known or suspect contaminated sites with volatiles
Where is it more likely that what caused a
VEC would have been viewed as a REC
anyway even if vapor migration was not
considered?

37. 7. If VEC is a REC, E2600-10 Tier 2 provides a suggested vapor
migration scope-of-work for follow-on investigation in Phase II
Conducting a Tier 1 VEC Screen cont’d

38. • 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 to be 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 EPs professional judgment and is therefore able
to “cover” virtually any “alternative” vapor migration methodology
(making a strong case for using Tier 1 in E 2600-10)
Bottom Line