Comparison ASTM E 1527 versus EPAs AAI Rule

Please note that there may be changes to the AAI final consensus draft after public comments. The ASTM Draft is also a work in process and may be changed after input from EPA, further edits and balloting comments. Topic/Segment 1. Scope ASTM 2000 Define good commercial and customary practice for ESAs with respect to all CERCLA contaminants and to petroleum products. Satisfy one of the requirements for innocent landowner defense. 1.1 EPA AAI Final Consensus Draft Provide standards for AAI under CERCLA. For persons seeking to qualify for: 1. Innocent landowner defense 2. Bona fide prospective purchaser defense 3. Contiguous property owner defense Also for persons doing site characterization and assessments with the use of a CERCLA grant. 312.1(a) & (b) Addresses CERCLA 101(14) hazardous substances only, except that those using grants must also address CERCLA 101(33) pollutants, petroleum products, and controlled substances. 312.1(c) 2. Referenced Documents Refers to ASTMs E 1528 Transaction Screen Standard. 2 Not yet filled in. 312.11 The Rule does not mention or allow for a reduced level of inquiry. A property that can be presumed to be deserted, or an intent to relinquish possession or control can be inferred from the general disrepair or lack of activity thereon such that a reasonable person could believe that there was an intent on the part of the current owner to surrender rights to the property. 312.10(b) Same as AAI. All references to E 1528 are deleted. ASTM 2004/5 Draft Same as 2000, but adds contiguous property owner and bona fide prospective purchaser defenses. All 3 defenses are collectively defined as the landowner liability protections, or LLPs. Petroleum products still included in scope. Current draft does not address controlled substances.

3. Terminology Abandoned Property

Not defined or mentioned.

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Topic/Segment IC registry

ASTM 2000 Not defined or mentioned. (IC stands for Institutional Controls.)

EPA AAI Final Consensus Draft Not specifically defined, but registries of publicly available lists of institutional controls must be searched to mile 312.26(c)(2)(iii) Institutional controls are defined as nonengineered instruments, such as administrative and/or legal controls, that help to minimize the potential for human exposure to contamination and/or protect the integrity of a remedy. 312.10(b)

ASTM 2004/5 Draft A database maintained by a federal, state, tribal or local agency for purposes of tracking sites that may contain residual contamination and AULs (Activity and Use Limitations). In Colorado, its called the Environmental Real Covenants list.

Landowner Liability Protections (LLPs) Data Gap

Not defined or mentioned. Standard only references innocent landowner protection.

Not defined, but Rule references innocent landowner, contiguous property owner and bona fide prospective purchaser protections. A lack of or inability to obtain information required by the Rule despite good faith efforts to gather such information. Good faith is defined as the absence of any intention to seek an unfair advantage or to defraud another party; an honest and sincere intention to fulfill ones obligations in the conduct or transaction concerned. 312.10(b)

Refers collectively to innocent landowner, contiguous property owner and bona fide prospective purchaser protections. A lack of or inability to obtain information required by the Standard despite good faith efforts to gather such information. Data gaps may result from incompleteness in any component of the practice, including but not limited to the records review (e.g., gaps in the historical use), site reconnaissance (e.g., an inability to conduct the site visit), and interviews (e.g., an inability to interview the key site manager, agency officials, etc.). A failure to achieve the historical research objectives even after reviewing all of the 8 standard historical sources (or at least all that are reasonably ascertainable and likely to be useful). Data failure is one type of data gap.

Not defined. Data failure is defined but pertains only to historical research (see below).

Data Failure

A standard historical source may be excluded (1) if it is not reasonably ascertainable, or (2) if past experience indicates that it is not likely to be sufficiently useful, accurate or complete in terms of satisfying the objectives. Other historical sources may be used but are not required. 7.3.2.3

Data failure is not mentioned. See Data Gap above.

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Environmental Professional (EP)

A person possessing sufficient training and experience necessary to conduct a site reconnaissance, interviews, and other activities in accordance with this practice, and from the information generated by such activities, having the ability to develop opinions and conclusions regarding recognized environmental conditions in connection with the property in question. An individuals status as an environmental professional may be limited to the type of assessment to be performed or to specific segments of the assessment for which the professional is responsible. The person may be an independent contractor or an employee of the user. 3.3.12

(a) a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases . (b) Such a person must: (1) Hold a current Professional Engineers or Professional Geologists license and have the equivalent of 3 years of full-time relevant experience; or (2) Be licensed or certified by the federal government, a state to perform environmental inquiries and have the equivalent of 3 years of full-time relevant experience; or (3) Have a Baccalaureate or higher degree in a relevant discipline of engineering, environmental science, or earth science and the equivalent of 5 years of fulltime relevant experience; or (4) as of the date of the promulgation of this rule, have a Baccalaureate or higher degree and the equivalent of 10 years of fulltime relevant experience. (c) An environmental professional should remain current through participation in continuing education or other activities and should be able to demonstrate such efforts. (d) The definition of environmental professional does not preempt state professional licensing or registration Before commencing work, a person should determine the applicability of state professional licensing or registration law. (e) A person who does not qualify may assist if such person is under the supervision of a person meeting the definition. 312.10(b)

Same as AAI.

PE or PG + 3 years relevant experience is defined on next page or Government certified + 3 years or Relevant Bachelors Degree + 5 years or Any Bachelors Degree + 10 years, but only grandfathered as of the date Rule is published. Remain current (vague)

Does not preempt any state requirements

Non-EPs may assist under EP supervision.

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Relevant Experience

Not defined or mentioned.

Participation in the performance of environmental site assessments that may include environmental analyses, investigations, and remediation which involve the understanding of surface and subsurface environmental conditions and the processes used to evaluate these conditions and for which professional judgment was used to develop opinions regarding conditions indicative of releases 312.10(b)

Same as AAI.

Historical REC

An environmental condition which in the past would have been considered a REC, but which may or may not be considered a REC currently. If a past release has been remediated and accepted by the responsible agency (e.g., no further action), this is an historical REC and should be included in the findings section of the report. The EP shall provide an opinion of the current impact in the opinion section of the report. If this historical REC is determined to be a REC at the time the Phase I is conducted, it shall be identified as such in the conclusions section. 3.3.16

Not defined or mentioned.

No change from 2000.

RECs

Presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, past release or material threat of a release into structures, ground, groundwater or surface water on the property, even if conditions are in compliance with the law. Excludes de minimus conditions that do not present a material risk of harm to public health or the environment and would not be the subject of enforcement if brought to the attention of appropriate authorities. 3.3.32

Not used or defined. However, objective is to identify conditions indicative of a release or threatened release of hazardous substances on, at, in, or to the subject property. 312.20(d) Rule does not apply to quantities that generally would not pose a threat to human health of the environment. 312.20(g)

No change from 2000.

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4. Significance and Use Shelf life Using assessments after 180 days

180 days. After 180 days, see below. 4.6 Okay to use information if assessment met todays standard, and: A) Property conditions are not likely to have changed materially (e.g., raw land in undeveloped area); or B) If property conditions may have changed, update at a minimum the site visit, interviews, and records review. Cant use information if the user or EP knows its not accurate. Standard does not address legal reliance issues. 4.7

Not specifically addressed, but effectively 180 days. After 180 days, see below.

Still 180 days. If not the original User, satisfy User Responsibilities.

Okay to use information if assessment met the Rule, and: A) It was done or updated within 1 year; and B) If its more than 180 days old, update the: 1. Interviews w/ owners, operators 2. Environmental lien search 3. Records review 4. Site visit 5. Declaration by EP; and C) All information is updated to include relevant changes in property condition and in specialized knowledge. 312.20(b) If prior assessment was for other persons, add: 1) users specialized knowledge; 2) relationship of purchase price to fair market value; and 3) commonly known or reasonably ascertainable information. 312.20(c)

If 180 days to 1 year old, update: 1. Interviews w/ owners, operators 2. Environmental lien search 3. Records review 4. Site visit 5. Declaration by EP 6. User Responsibilities If >1 year old, okay to use information if: 1. Assessment met then-current standard 2. Investigate conditions likely to effect RECs 3. Add tasks as necessary to document conditions that may have changed materially Cant use information if the user or EP knows its not accurate. Standard does not address legal reliance issues.

AULs

Not mentioned. (AUL stands for Activity and Use Limitation.)

Mentioned in Rule, but no background comparable to ASTM 2004/5.

An AUL is inherently a REC. The User must comply with AULs. AULs include institutional controls (legal) and engineering controls (physical). Also known as land use controls or restrictions. AULs may be recorded in land title records, but will not usually show up in a chain of title. Some states maintain IC registries. The EP is cautioned to consider if AULs are readily available in a given state.

5. Users Responsibili ties Environmental liens and AULs

User must check reasonably ascertainable land title records for environmental liens or AULs recorded against the property, and communicate any findings to the environmental professional. 5.2

User must search for environmental liens filed or recorded against the property under federal, tribal, state or local law and provide any such liens or AULs to the EP. 312.22(a)(1)

No change from 2000. Not the EPs responsibility.

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Specialized Knowledge

User must communicate to EP (before the site reconnaissance) any specialized knowledge that is material to RECs. 5.3

User must take into account their specialized knowledge of subject property, area around the subject property, conditions of adjacent properties, and any other relevant experience and provide any such specialized knowledge to the EP. 312.22(a)(2)

No change from 2000.

Significantly Low Purchase Price

If user knows that purchase price is significantly less than comparable properties, user should try to identify an explanation and record the reason. 5.4

User must consider whether purchase price of the subject property reflects fair market value of the property if the property were not contaminated, and provide any such information to the EP. 312.22(a)(3) User must take into account commonly known or reasonably ascertainable information within the local community about the subject property that is relevant, and provide any such information to the EP. 312.22(a)(4)

Same as 2000, and adds that user shall provide an explanation to the EP.

Commonly known information

No similar requirement.

Same as AAI, and adds that user should communicate such information to the EP before the site reconnaissance.

Reason for Phase One

User should communicate to EP the reason for conducting the Phase One. If user does not, EP should assume its for innocent landowner protection. 5.5

No similar requirement.

No change from 2000.

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6. Assessment Objective

Identify RECs in connection with the property. 6.1

Identify conditions indicative of a release or threatened release on, at, in or to the property, by identifying: 1 current/ past property uses & occupancies; 2 current/ past hazardous substance use; 3 waste management & disposal activities that could have caused releases or threatened releases; 4 current/ past corrective actions & response activities for past & on-going releases; 5 engineering controls; 6 institutional controls; and 7 adjoining/ nearby properties w/ conditions indicative of releases or threatened releases to the subject property. 312.20(d)

No change from 2000.

Components

1. Records review - Government records - Historical 2. Site reconnaissance 3. Interviews with: - Present owners, operators, & occupants - Local officials 4. Report - Opinion on impacts to the property - Conclusions, statement about RECs 6.2 and 11 Also information from user. 5

Government records Historical sources Visual inspections Interviews with present & past owners, etc. Commonly known info, as required from one or more: - Current neighbors - Local and state officials - Other people with knowledge of site - Other sources (newspapers, websites, etc) Information from User Report - Opinion on need for additional investigation - Opinion on release or threatened release - Identify data gaps - EP qualifications, declaration 312.21(b) & (c)

Same as 2000, and adds past owners, operators and occupants.

No sampling

No sampling of materials is included. 6.4

Sampling and analysis may be conducted to address data gaps. 312.20(f)

No change from 2000.

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Who may conduct

EPs must perform site reconnaissance, interviews, review and interpret all information, and oversee the writing of the report. Records review must be obtained by a specialized vendor or under the supervision of an EP. 6.5

Non-EP may assist under EP supervision. 312.10

Performed or supervised by EP. Qualified person must do site visit and interviews. EP must review and interpret information.

7. Records Review Accuracy

Make a reasonable effort to compensate for mistakes or insufficiencies that are obvious. Applicable to records review. 7.1.3 Defined as publicly available, obtainable within reasonable time and cost constraints, and practicably reviewable. Applicable to records review, environmental liens and commonly known information. 7.1.4

Evaluate the thoroughness and reliability of the information, taking into account all the other information collected. Applicable to all information, not just records review. 312.20(e) Gather required information (not just records review) that is publicly available, obtainable within reasonable time and cost constraints, and practicably reviewable. 312.20(e) No comparable statement.

No change from 2000.

Reasonably Ascertainable

No change from 2000.

Significance

Report must include EPs judgment about significance of the findings, but okay to use blanket statement like none of the sites listed are likely to have a negative impact on the property except. 7.1.9

No change from 2000.

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Agency Records

Lists standard federal and state records that are required, plus additional state and local records that may be checked. 7.2.1 & 2

Vague, poorly organized, and difficult to compare. See next column for how ASTM reconciled the requirements. Changes are underlined. 312.26

Federal - NPL - CORRACTS - CERCLIS - TSD - NFRAP - RCRA Generators - ERNS

Miles 1.0 1.0 0.5 0.5 0.5 adjoining site only

State and Tribal - NPL equivalent 1.0 - CERCLIS equivalent 0.5 - Landfills 0.5 - UST and AST leaks 0.5 - Registered tanks adjoining 0.5 - Engineering control registries 0.5 - Institutional control registries 0.5 - Voluntary cleanups 0.5 - Brownfield sites Additional state, tribal, and local records shall be checked if they are: 1) reasonably ascertainable; 2) sufficiently useful, accurate and complete; and 3) generally obtained pursuant to local good practice. Types of Additional Records: - Brownfield Sites - Landfill Lists - Hazardous Waste/ Contaminated Site Lists - Registered tank lists - Local land records for AULs - Records of Spills (SARA 304) - Records of Contaminated Public Wells Sources of Additional Records - Health Department/ Environmental Divn - Fire Dept - Planning Dept - Building Permit/ Inspection Dept - Local/ Regional Pollution Control Agency - Local/ Regional Water Quality Agency - Local Electric Utility (for PCB records)

Physical Setting

Only requires a topo map 7.2.3

None required

No change from 2000.

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Historical Use Objective

Back to first use or 1940, whichever is earlier. Lists many other requirements regarding intervals, general use, surrounding area, data failure, etc. 7.3.2

As far back as it can be shown that the property contained structures or was first used for residential, agricultural, commercial, industrial or government purposes. EP may exercise judgment as to how far back is necessary. 312.24(b)

No change from 2000, except data failure is clarified (see below).

Historical Use Sources

Standard sources include: 1. Aerials 2. Sanborns 3. Assessor Property Tax Files 4. Recorded Land Title Records 5. Topos 6. Local Street Directories 7. Building Department Records 8. Zoning/ Land Use Records 9. Other 7.3.4

May include, but are not limited to: 1. Aerials 2. Sanborns 3. Building department records 4. Chain of title 5. Land use records 312.24(a)

No change from 2000.

Data Failure

A standard historical source may be excluded (1) if it is not reasonably ascertainable, or (2) if past experience indicates that it is not likely to be sufficiently useful, accurate or complete in terms of satisfying the objectives. Other historical sources may be used but are not required. 7.3.2.3

No comparable language.

The historical research is complete when either: 1) the objective is achieved; or 2) data failure is encountered. Data failure occurs when the objective is not achieved even after all 8 standard historical sources have been reviewed (or at least all that are reasonably ascertainable and likely to be useful). Data failure is not uncommon in trying to identify the use of the property at five-year intervals back to first use or 1940 (whichever is earlier). Notwithstanding a data failure, standard historical sources may be excluded if: 1) the sources are not reasonably ascertainable; or 2) if past experience indicates that the sources are not likely to be sufficiently useful, accurate, or complete in terms of satisfying the objectives. No change from 2000. 312.27

8. Site Recon Specifics

Very specific requirements. 8.

Very general. Referred to as visual inspection.

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No inspection

No provision.

In unusual circumstance where physical limitations, inaccessible location, or other reasons preclude access to the property despite good faith efforts, no inspection is required. Mere refusal of a voluntary seller is not an unusual circumstance. EP must inspect from nearest vantage point or other method like aerial photos, document the effort, and explain their failure. 312.27(c)

No change from 2000. Does not allow for such an unusual circumstance.

9. Interviews with Owners & Occupants

Interview current: 1) Key site manager identified by owner, 2) Reasonable number of occupants, and 3) Major occupants. 9.

Interview current: 1) Owner, 2) Occupants likely to have hazardous substances, and 3) Major occupants. To extent necessary, interview one or more: 1) Current and past facility managers, 2) Past owners, occupants or operators, or 3) Employees of current & past occupants. 312.23

Same as 2000, and adds past owners, operators and occupants to the extent necessary.

Abandoned property

No provisions.

If there is evidence of potential unauthorized use or uncontrolled access, interview one or more neighbors positioned to possibly observe uses or releases. 312.23(d)

Same as AAI.

10. Interviews with Local Officials Who

Make a reasonable attempt to interview at least one staff member from a local agency like the fire dept, health agency, or environmental agency. 10.5

To the extent necessary, the EP should gather information from varied sources that may provide commonly known or reasonably ascertainable information about the site. Sources may include: 1) Current neighbors, 2) Local and state officials who may know of or have information on the site, 3) Others with knowledge of the site 4) Other sources (e.g., newspapers, websites, community organizations, local libraries and historical societies). 312.30(c)

Same as 2000, but adds agency issuing building or groundwater permits that document AULs to the possible list. Current neighbors, etc. have been added as examples in the optional Other Historical Sources category.

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11. Evaluation and Report Preparation Format

Recommends a suggested format: Scope of Services Findings Opinion Conclusions Deviations Additional Services References Signature Qualifications Appendices of supporting documents X.2 Appendix

Not addressed.

Recommended format is more detailed.

Opinions

Opinion of the impact on the property of conditions identified in the findings and the rationale for deciding whether they are RECs. 11.6

Opinion on whether inquiry has identified conditions indicative or releases or threatened releases. 312.21(c)(1) Opinion regarding additional appropriate investigation, if any. 312.31(b)

No change from 2000.

Last sentence of AAI is a bombshell. Purposefully ambiguous. ASTM clarifies that opinion should be given only in the unusual circumstance where the EP is unable to determine if a finding is a REC and greater certainty is required. No recommendations required. Identify any data gaps and the sources consulted to address them. If the data gap is significant, comment on the impact of the data gap on the ability to identify RECs. A data gap is not significant unless it impacts the ability to identify RECs. Data gaps are not inherently significant, e.g., if historical use is not identified back to 1940 because of data failure, but the earliest source shows that the property was undeveloped, this would not be significant. A data gap is only significant if other information and/or experience raises reasonable concerns involving the data gap, e.g., if a building is locked during the site visit, and experience indicates that such a building often involves activity that leads to a REC, the inability to inspect the building would be a significant data gap.

Data Gaps

Not mentioned.

Identify any data gaps that affect the EPs ability to identify conditions indicative of a release. Identify the sources consulted to address such data gaps, and comment on the significance of the data gap with regard to the ability to identify conditions indicative of a release. 312.20(f) and 312.21(c)(2)

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Qualifications

Include a qualifications statement for the EP(s). 11.12

Include qualifications of the EP(s) and specific statement declaring that they meet the definition of an EP and that the inquiry complies with the Rule. 312.21(c)(3) and 312.21(d)

Same as AAI

Signature

Required 11.12

Required 312.21(d) Not addressed.

Required.

12. Non-Scope Issues

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Asbestos Radon Lead-based paint Lead in drinking water Wetlands Regulatory compliance Cultural and historic resources Industrial hygiene Health & safety Ecological resources Endangered species Indoor air quality High voltage power lines 1. Legal background 2. Recommended format

Adds: 14. Mold.

12.1.5 None Adds: - Regulatory definition of an EP - User questionnaire Deletes guidance for selecting an EP

X. Appendices

3. Guidance for users in selecting EP

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