Voting Begins On Revised ASTM E1527 Phase I ESA Standard

A ballot version of the ASTM E1527 Phase I ESA Standard including potential changes was opened up to vote by the E50 committee on September 17, 2012. Voting is open through mid-October.

 According to ASTM bylaws, standards must be reviewed, updated and voted upon every 8 years or else are left to “sunset,” becoming invalid. While the E1527 task group did have the option to make no changes to the standard and simply put it out for committee vote, the group believes that clarifying language in various sections of the standard would be helpful. It is important to note that none of the changes are intended to change the spirit of the standard that was written in 2005.

Some of the changes being proposed include:

• The term Migration has been added to the definitions sections. Within the definition, there is note of the ASTM E2600-10 vapor encroachment standard
• Clarifications to the Recognized Environmental Conditions (REC) definition along with the Historical REC definition. A new type of REC has also been added, the Controlled REC
• Enhanced descriptions of what is required of the User of the report, and why it is important
• Further explanation the requirements to review agency files when they might help to make REC determinations

There are also numerous of other editorial changes being proposed for the 2013 version. Following the balloting period, the task group will meet in Atlanta on October 23 during the semi-annual ASTM Committee Week meetings.

FAQ: How Often Does A Phase 1 Report Need To Be Updated?

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Certain LUST Clean Up Allowed Under Ohio EPA Voluntary Action Program VAP

Ohio EPA will now allow some Underground Storage Tank Cleanups to be included in the Voluntary Action Program (VAP). The cleanups are for Class C or “orphan” tanks. Since enactment of Senate Bill 294, which became effective on September 3, 2012, additional Bureau of Underground Storage Tank Regulation (BUSTR) release sites are now also eligible for the VAP. These include sites with BUSTR UST releases where the volunteer is not a responsible party, as defined by BUSTR, or the subject of a BUSTR administrative order or referral to the Attorney General’s Office.

In addition, the property on which the UST release exists must include other non-BUSTR hazardous substances that are being addressed under the VAP.


Caltha LLP assists Sellers, prospective Buyers and their Lenders in meeting Due Diligence, Environmental Site Assessment and Environmental Review requirements.
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Brownfields Grants Awarded To Madison, Wisconsin

U.S. Environmental Protection Agency Region 5 has awarded EPA brownfields grants totaling $800,000 to clean up contaminated properties in Madison, Wisconsin. The grants include:

• $400,000 to clean up a former automotive sales and repair site on East Washington Avenue. The City will provide another $80,000 toward the cleanup.
• $400,000 to conduct environmental assessments and plan future cleanups in the surrounding area.

The City of Madison previously received a $400,000 cleanup grant for the East Washington property from WDNR’s brownfield revolving loan program, which is also funded by EPA.


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Region 7 Brownfields Grant To Nebraska Tribe

US EPA Region 7 Office of Tribal Affairs has awarded two grants to the Winnebago Tribe of Nebraska to support a brownfields tribal response program and increase the capacity of its environmental protection department to protect human health and the environment.

• A $94,298 grant, expressed through a cooperative agreement, will allow the tribe to continue the process of establishing a brownfields tribal response program to address contaminated sites on the reservation with the goal of returning them to beneficial reuse.
• A $15,000 grant to the tribe’s Environmental Protection Department will help the department build its overall capacity to protect human health and the environment.

Specific work to be funded by the grant includes expansion of the tribal solid waste program, including tire removal; research for additional funding opportunities; the mapping of abandoned homesteads; and working with the tribe’s land management office to plot no-till acreage.

EPA provides financial assistance to states and tribes to help them implement environmental programs. States and tribes may receive these funds in individual environmental program categorical grants, or choose to combine grants in a performance partnership grant. The Winnebago Tribe of Nebraska is one of nine federally recognized tribes within EPA Region 7.

Caltha LLP assists Sellers, prospective Buyers and their Lenders in meeting Due Diligence, Environmental Site Assessment and Environmental Review requirements. To request a quote on-line, go to Caltha Environmental Assessment Quote Web Page.

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Revised SBA Procedure SOP 50 10 5(E) Effective June 1

A new U.S. Small Business Administration (SBA) procedure became effective June 1, 2012 for the agency’s 7(a) and Certified Development Company (CDC) loan programs. As of that date, all documentation submitted in support of SBA loans needs to be updated to reflect SOP 50 10 5 (E), not its predecessor, SOP 50 10 5(D).

Since its initial release, the SBA has made a number of revisions and clarifications to SOP 50 10 5, Chapter 4, Section III (Environmental Policies and Procedures) in response to comments from lenders and the environmental professionals who support work under these two lending programs. Previous revisions reflected new language clarifying the role of qualified environmental professionals, additions/deletions to the NAICS code list of environmentally sensitive industries, a unique set of requirements for gas stations loans or loans on properties that once housed dry cleaners, among other changes.

Unlike previous SBA updates, SOP 50 10 5(E) is much more similar to the previous version (D). Version E does have one significant change related to loans processed under the SBA SLA program (as is the case for the SBA’s PLP, SBA Express, Export Express and Patriot Express programs). Lenders must still follow the guidelines, but do not have to submit documentation or obtain SBA’s concurrence prior to approval or disbursement of the loan in most cases.

Like the previous version of the SOP, for all property (except for a unit in a multi-unit building), the lender/CDC must compare the property’s current and known prior uses and compare the NAICS code(s) to the list of environmentally sensitive industries. Then, if there is a NAICS code match, the Environmental Investigation must begin with an AAI-compliant Phase I ESA conducted by a qualified environmental professional, regardless of the amount of the loan. In this revision, SBA did not make any changes to the qualifications required of environmental professionals, the NAICS code list, the Reliance Letter language or other elements of the environmental requirements.

 Caltha LLP is a Qualified Environmental Professional and assists Lenders in meeting SBA Due Diligence, Environmental Site Assessment and Environmental Review requirements. To request a quote on-line, go to Caltha Environmental Assessment Quote Web Page.



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Revised ASTM E1527 For Phase 1 Assessments

In April 2012, the ASTM E50 task met to continue discussions regarding revisions to the ASTM E1527-05 Phase I Environmental Site Assessment Standard. The last time the standard was updated was in 2005, when EPA released the details of its All Appropriate Inquires Rule, which cites the current standard as “at least as stringent” as EPA’s rule. According to ASTM bylaws, standards must be updated and reissued every eight years to avoid sun-setting and becoming invalid. A task group formed in 2010 and has since issued two revised versions to sub-committee voting.

In the most recent draft of the standard, the task group has proposed several changes to the standard, most intended to be clarifications rather than changes to industry practices. These proposed revisions include:
• Clarification about when an Agency File Reviews should be conducted as part of a Phase I ESA to create greater consistency without adding undue burden on professionals
• Introduction of a new term, Controlled Recognized Environmental Condition, which would cover past contamination to soil and groundwater that has previously been remediated. A CREC would be distinct from a Historical Recognized Environmental Condition (REC) and a REC.
• Reference to the ASTM E2600-10 Vapor Encroachment Screening Standard and explanation that vapor plumes should be treated as any other source of contamination would be treated within the Phase I ESA.

The task group’s meeting included discussions on each of these topics, and focused on the negative votes and comments that were returned in the latest ballots. The group will adjust the draft accordingly over the next several weeks and is likely to send a new draft to main committee ballot this fall. It is expected that the new E1527 Standard will be finalized sometime in 2013, pending EPA approval and update to the AAI rule

Caltha LLP assists Sellers, prospective Buyers and their Lenders in meeting Due Diligence, Environmental Site Assessment and Environmental Review requirements. To request a quote on-line, go to Caltha Environmental Assessment Quote Web Page.

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New SBA Environmental Review Policy Effective October 1, 2011

Effective on October 1, 2011, the Small Business Administration has revised its SOP relating to environmental review and environmental investigations. Any lenders participating in the 7(a) or CDC loan programs must follow the new requirements under SOP 50 10 5(D). As of October 1, 2011, all documentation submitted in support of SBA loans needs to be updated to reflect SOP 50 10 5 (D), not its predecessor, SOP 50 10 5(C).

Some of the important modifications to the SBA’s environmental due diligence requirements under SOP 50 10 5(D) include:

• The only change to the NAICS code list of environmentally sensitive industrial classifications is for 8111 Automobile Repair and Maintenance. All loans under this NAICS code must start with an AAI-complaint Phase I environmental site assessment with the exception of "car wash only" facilities, which can start with a Transaction Screen.


• If the Property is a unit in a multi-unit building (defined as any non-industrial, multi-unit building that is comprised of four or more individual units), the investigation must proceed as follows:
  -For loans $150,000 and below, the Environmental Investigation may begin with an Environmental Questionnaire.
  -For loans more than $150,000, the Environmental Investigation must, at a minimum, begin with an Environmental Questionnaire and a Records Search with Risk Assessment.


• Within the unique requirements for gas station loans, the SBA:
  - expanded the definition of gas station loans to also include "commercial fueling facilities;" and
  - replaced the previous requirement for UST testing with a requirement that the environmental professional ensure compliance with all state requirements pertaining to tank and equipment testing.


• The provisions for conducting a lead risk assessment for lead based paint and testing for lead in drinking water for certain "special use facilities" (e.g., day cares, nursery schools) were expanded to include "residential care facilities occupied by children."


• To the definition of Environmental Questionnaire, the SBA allows for:
  - The EP to assist with the responses to the questionnaire.
  - Use of the ASTM's questionnaire for Transaction Screens ( ASTM E1528-06) as a protocol for the Environmental Questionnaire.


• To the definition of "Phase I ESA," the SBA added language from the EPA’s AAI rule that allows a person who is not a qualified EP to assist in an AAI-compliant Phase I, provided the person works under the supervision or responsible charge of a qualified EP and the EP reviews and signs the report.

Caltha LLP assists Sellers, prospective Buyers and their Lenders in meeting Due Diligence, Environmental Site Assessment and Environmental Review requirements, including Records Search With Risk Assessment of any property nationwide. To request a quote on-line, go to Caltha Environmental Assessment Quote Web Page.




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Draft Revision To ASTM Standard For Phase 1 ESA Completed

The E1527 task group has completed the draft revision to E 1527 and the draft has been submitted to the E50.02 subcommittee for review and input. After initial discussions and review of recent court interpretations involving Phase I ESAs, the overall objective that was established to guide the task group through this revision process was to clarify the process and strengthen the deliverable. The task group has coordinated these revision efforts with EPA, and anticipates completing the full ASTM balloting process no later than late 2012 to allow EPA time to complete its process necessary to reference the updated standard by the end of 2013.

Some of the key elements of the proposed modifications include the following:

• Historical Recognized Environmental Conditions (HRECs): The task group recognized that Environmental Professionals (EPs_ are addressing HRECs with residual contamination differently, so the goal was to establish consistency in how these conditions are described and presented in the final report.
• User Responsibilities: The Group believed that is broad industry confusion about the user responsibilities. The task group did not propose a change to the definition of the user, but the revised standard does explain that a user seeking an LLP or an EPA brownfield assessment grant has certain obligations, in accordance with the CERCLA statute and as specified in the EPA All Appropriate Inquiries rule.
• Regulatory Agency File Reviews: The task group generally agreed that a review of agency file records should be conducted if the property is identified on one of the standard record source databases outlined in section 8.2.1. A new section 8.2.2 has been added to emphasize the need to conduct agency file reviews, recognizing that this effort is subject to reasonable time and cost constraints. This is particularly important with the connection to Continuing Obligation requirements that must be met after property acquisition to maintaining an LLP.

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Revised ASTM Standard For Phase 2 Environmental Site Assessment

ASTM has revised the standard practice guidance for conducting Phase 2 Environmental Site Assessment (ASTM E1903 - 11 Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process). The revised guidance provides practical procedures for further assessment of a commercial property with recognized environmental conditions (REC). It is intended to assist in the evaluation of known releases or likely release areas identified by the user or Phase II Assessor.

Some of the significant changes to the revised standard method include:

• Language to confirm that the Phase II Assessor does not provide legal or business advice


• Use of a scientific approach, which is a collaboration with the servicer provider and user


• Revision of “Assessor” definition to incorporate “Environmental Professional” definition


• Concept that assessment steps are to be implemented “in the manner and level of detail appropriate to achieving the objectives”
  
  

The revised standard practice is intended for use on a voluntary basis by parties who wish to evaluate known releases or likely release areas identified during a Phase I ESA. The practice does not address the evaluation of business environmental risks in light of data collected through the Phase II ESA. Such evaluation is a function of site- and transaction-specific variables, and of the user’s objectives and risk tolerance. However, this practice assumes that the Phase II ESA process will be planned and conducted with such variables in mind, and that the user will evaluate legal, business and environmental risks in light of known data relating to the particular site and transaction, and in consultation with legal and business advisors as well as the Phase II Assessor.

Likewise, ASTM E1903-11 does not define the threshold levels at which target analytes pose a concern of significance to the user. Users may apply this practice not only in light of applicable regulatory criteria and relevant liability principles, but also to meet self-defined objectives.

Regarding reliance on the Phase II, the revised ASTM standard does not define whether or to what extent any person other than the user may use or rely upon a Phase II ESA prepared for the user. The appropriateness of third party use or reliance is a contractual matter that should be addressed between user and Phase II Assessor.

ASTM E1903-11 lays out basic principles that are an integral part of the practice of conduct Phase II investigations, including the elimination of uncertainty, the significance of the failure to detect specific chemicals, the limitations of information, and the significance of possible analytical laboratory error.

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Iowa Grant Program To Fund Environmental Assessment And Cleanup

The Iowa Department of Natural Resources – Financial and Business Assistance (FABA) Program has created the Derelict Building Grant Program. The program was established to assist small communities and rural counties in improving the attractiveness and appearance of their jurisdictions by providing them financial assistance to address derelict buildings. In accordance with the statutory requirement on how these funds are to be used the emphasis will be on landfill diversion through the recycling and reuse of building materials.

The eligibility requirements will entail the derelict building be located in a town or unincorporated county area of 5,000 residents or less and require the building to be owned or in the process of being owned by the town or county. The program will provide the following:

100% reimbursement for a certified Asbestos Containing Material (ACM) inspection.
100% reimbursement, not to exceed $5,000, for removing ACM. A 50% cost share is required for those costs exceeding $5,000.
100% reimbursement not to exceed $3,000 for conducting a Phase I Environmental Audit. Applicant is responsible for all costs exceeding $3,000.
50% reimbursement not to exceed $5,000 for conducting a Phase II Environmental Audit.
Building Renovation: If the building is going to be renovated, 50% reimbursement not to exceed $25,000 is available for offsetting costs related to removing materials for reuse, either at the site or offsite, or for recycling. The grant also compensates for the purchase and installation of reused or recycled materials that will be incorporated into the project.
Deconstruction: If the building is going to be deconstructed, 50% reimbursement not to exceed $50,000 is available for offsetting costs related to deconstruction.

The program is funded by the DNR’s Solid Waste Alternatives Program (SWAP) for the next three years. DNR is partnering with Keep Iowa Beautiful in the application and review process.

Caltha LLP assists clients in Iowa and nationwide in meeting Due Diligence, Environmental Site Assessment and Environmental Review requirements. To request a quote on-line, go to Caltha Environmental Assessment Quote Web Page.

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