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Q&A: Challenges with the Phase I ESA Process

Below are Julies Kilgore answers to the questions from the webinar: Challenges with the Phase I ESA Process

  1. Question: Regarding RECs: What about natural attenuation for historical releases? A gas station or dry cleaners back in the 50s or 60s should be attenuated simply by age. Do you agree?

Answer:  No.  Whether or not a release has naturally attenuated over that period of time depends on a lot of things.   I’ve dug up a lot of tank sites with remaining residual contamination above unrestricted use criteria.  And I’ve investigated dry cleaner sites that ceased operations in the 1960s, and we’re still pulling out free product from 30 feet below the water table.  So, No, that’s an incorrect and dangerous assumption.

  1. Question: Regarding the examples of a dry cleaner at a neighboring property, please clarify why that would be a REC at the Subject Property considering its next door and not on, at, or in the property?

Answer:  The existence of the neighboring dry cleaner is not a REC.  That’s a finding.  If the EP opines that the release from the neighboring property is likely to have affected the subject property, that is the REC.

  1. Question: For HRECs, if an incident or property is closed out through the applicable regulatory agency, but you have impacts above current standards, how to address in a Phase I?  In addition, what if vapor was not addressed?

Answer:  The first question is addressed in Section 3.2.42 of the E1527-13.  If the impacts are about current standards, that may be a REC or a CREC, depending on your jurisdiction and the use of the property.  The second question, that depends on the EPs evaluation of the data.  If a vapor pathway was not previously evaluated, and the available data suggests a vapor risk, the EP could opine that the release does not satisfy current regulatory criteria, and would, therefore, revert to a REC.

  1. Question: What if something was a REC – then became an HREC or CREC due to remediation or similar – but then threshold contamination levels are reduced or new chemicals of concern eg. PFOAs become an issue – can these go ‘back’ to being a REC?

Answer: That would be a reasonable conclusion.

  1. Question: If a REC is identified and a Phase II is conducted and there is no contamination, I would think this is still a HREC even though no contamination was found because there was still a REC initially identified?

Answer:  No, the definition of HREC is based on a past release, not a past opinion.

  1. Question: Don’t HRECs and CRECs require written regulatory agency concurrence?

Answer: No.

  1. Question: So, something with an engineering control or Use Limitation is considered a CREC?

Answer:  It can be.  Follow the definition closely.  If there has been a past release, it’s been addressed to some acceptable risk-based criteria, this could be a CREC as long as the engineering controls or use limitations are adhered to.

  1. Question: HRECs often are limited to a set of contaminant types, i.e., TPH and BETX when a petroleum UST release is mitigated.  The UST may have been located at a retail gasoline and an automotive service station.  The investigated impacts do not include all potential compounds (solvents).  The HREC should be qualified, and a REC remains for the site given the automotive repair use-correct?

Answer:  Yes, that would be one way of approaching.

  1. Question: So, these examples are quite illustrative, particularly of the varying opinions that can come from data. Is there any discussion at all about a national certifying program that would use examination to supplement qualification as an EP?

Answer:  There has been discussion about that, and some private certifying bodies to offer that.  The primary drawback has been that EPA has not recognized those certifications.

  1. Comment: Good source of depth to groundwater in California, you can use Greggdrilling.com, When they drill, they tabulate their data and put Depth to Groundwater.

Answer:  Good information to share with other EPs.

  1. Question: Is a brand-new retail gasoline station adjacent to a subject property considered a REC?  Give the USTs and dispensers are under conditions that pose a material threat.

Answer:  The gas station is not the REC.  That is a finding.  The opinion by the EP that a release from that gas station has likely impacted the subject property would be a REC.   Regarding material threat, there needs to be some obvious concern, mismanagement, damage, or something that can be corrected.  The fact that it merely exists is not the threshold that makes something material threat.

  1. Question: Will the new standard address emerging contaminants?

Answer:  There is some proposed language in the non-scope considerations section that would say something to the effect that “Substances not defined as hazardous substances (see Section 3.2.39), (including some substances sometimes generally referred to as emerging contaminants)” would be non-scope considerations.

  1. Question: Can you please post the potential upcoming changes for the updated 1527?

Answer:  No, the revision process is still underway.  There is no confirmed language yet.

  1. Comment: I would love to see the new standard get more specific on vapor.  Depending on which environmental company I choose or talk with, I get all sorts of different answers about what they will and will not look into or what they interpret the standard to include.

Answer:  So far, there are no suggested changes related to vapor migration (the potential for vapors to have migrated on to the subject property from an off-site source).

  1. Question: Will additional guidance be provided in new standard on defining “material threat of release”?

Answer:  Nothing significant.

  1. Question: Will the updated standard include a requirement to outline/show the subject property on aerials, Sanborns, etc?

Answer:  Not so far.  It’s a good question that I will pose to the focus group working on the report contents.

  1. Question: Why is it the ASTM’s responsibility to tell EPs how to write their reports, specifically wherein the report itself must describe data gaps?

Answer:  Keep in mind that the ASTM task group for E1527 consists of Users and Producers.  What goes into the standard is a process of consensus.  Data gaps have been extensively discussed and debated.  The goal is for consistency in the deliverable.  Users on the task group have expressed a desire to have the information presented in a report in a clear and consistent manner.

  1. Question: What about interviews with locals?  A lot of this information is now available online.  I continue to email a local agency for information, but this is often fluff as I already have obtained necessary information through agency websites.

Answer:  That may be.  But so far, the task group has preferred to leave those requirements in the standard.

  1. Question: About HRECs, if there is no analytical data available, does that mean you cannot call it an HREC? For example, you have a LUST closure letter, but not the whole report that includes data.

Answer:  If you don’t have the data, how would you know if it’s an HREC.  Or a CREC.  Or maybe a REC.   The HREC example presented in E1527-13 says “Before calling the past release a historical recognized environmental condition, the environmental professional must determine whether the past release is a recognized environmental condition at the time the Phase I Environmental Site Assessment is conducted (for example, if there has been a change in the regulatory criteria).  How can the EP do that with the data?

  1. Question: Does ASTM address the risks associated with a commercial condo unit (i.e. restaurant within a larger commercial condo development that may include a dry cleaner or potential REC)?

Answer:  Not specifically.

  1. Question: Can you have an HREC without reviewing Site-Specific analytical results?

Answer:  Same answer at 19.  If you don’t have the data, how would you know if it’s an HREC.  Or a CREC.  Or maybe a REC.   The HREC example presented in E1527-13 says “Before calling the past release a historical recognized environmental condition, the environmental professional must determine whether the past release is a recognized environmental condition at the time the Phase I Environmental Site Assessment is conducted (for example, if there has been a change in the regulatory criteria).  How can the EP do that with the data?

  1. Question: Do you have any statistics on the percentage of body shops and auto repair shops where soil or groundwater contamination is found?

Answer:  No.

  1. Question: You mention addressing not yet regulated compounds.  Similarly, is there a requirement to address state-only regulated compounds?

Answer:  Section 1.1.4 of E1527-13 reminds us that there may be other obligations beyond the scope of this standard.

  1. Question: If a state requires a professional, such as an LSRP to address the potential for PFAS impacts as part of their assessment process, does it then become an in-scope item?

Answer:  Section 1.1.4 of E1527-13 reminds us that there may be other obligations beyond the scope of this standard.  The standard does not specifically state how to deal with that within the context of the Phase I.

  1. Question: Can you speak to EC/ICs and how they will be treated in the revised standard?  For example, we have heard that the EP may have to opine on the sufficiency of IC/ECs that are currently in place related to a CREC.

Answer:  So far, the task group has retained the E1527-13 language that “A condition identified as a controlled recognized environmental condition does not imply that the environmental professional has evaluated or confirmed the adequacy, implementation, or continued effectiveness of the required control that has been, or is intended to be, implemented.”  That really is more appropriately addressed as part of continuing obligations.  Also, remember that a CREC is a REC.  The CREC acknowledges that the contamination is present, it has been evaluated, and it is ok to remain in places subject to certain controls.  The objective of the Phase I (identify the presence or likely presence) has been achieved at that point.

  1. Question: If past pesticide application, i.e. DDT, was done in accordance with appropriate application rates, is it a REC or not?

Answer:  Application is specifically excluded from the “release” definition under CERCLA.  There is a discussion about this in the legal appendix of E1527-13.  See X1.1.1.2(5) on pdf page 26.  But EPs need to be careful about this.  Once that agricultural property is under consideration for redevelopment, there is case law when the situation changes and there is a risk of “release” or “disposal.”

  1. Question: Vapor Migration versus encroachment. Will there be any clarity to this issue as it pertains to a Phase I? Too often, we are asked to address VECs, which require the use of 2600 to evaluate. Vapor migration in a Phase I typically follows the tier 1 screen, can’t that be used in 1527 to clarify evaluation and conclusion?

Answer:  There are no proposed changes with respect the vapor migration.

  1. Comment: Regarding research for adjoining properties, I wanted to remind that AAI section 312.20 ( e )  (1) (vii) Objectives section says the EP must seek to identify… “Properties adjoining or located nearby the subject property that have environmental conditions that could have resulted in conditions indicative of releases or threatened  releases of hazardous substances to the subject property.”

Answer:  Yes.  And E1527-13 says something similar in Sections 8.2.2.1, 9.4.1.3, and 9.4.1.4.  Current suggested revisions also place more emphasis on historical research for adjoining properties.

  1. Question: During site reconnaissance, are you supposed to visit the adjoining property? What if you are not allowed to visit the adjoining property, does this count as a data gap? Further, if you are not allowed access to the adjoining property, but you notice during your site visit, a punctured above ground storage tank, (but can’t get close) would this count as a REC?

Answer:  There is no obligation to conduct a site visit of the adjoining property.  If the EP observes a punctured AST on the adjoining property, that is a finding.  If the EP opines that the release from that AST is likely to have impacted the subject property, that is the REC.

  1. Question: Are off-site environmental conditions considered a REC or a finding? For example, an adjoining gas station with records of leaking underground storage tanks, however, there are no records indicating that migration occurred onto the Subject Property.

Answer:  Off-site environmental conditions are findings.  If the EP opines that the off-site environmental condition is likely to have impacted the subject property, that is the REC.

  1. Question: Do you take the possible amount of contaminant released into account when considering a REC? Say you notice a gas canister that has a puncture and may have held some petroleum products at some time, but it is clearly a small amount, for example.

Answer:  Yes.  See ASTM E1527-13 Section 3.2.22

  1. Question: We see differences of opinions regarding whether old railroad tracks (1800s) adjoining the border of a Subject Property should be considered a REC.  What’s your opinion?

Answer:  The presence of the old railroad tracks would be a finding.  If the EP opines that releases associated with those tracks (spills from passing train cars?  Leaching creosote from the railroad ties?  Heavy metals leaching from the material used for the ballast?) would be the REC.  But you also asked my personal opinion.  In my experience, if the railroad tracks are not on the subject property, I don’t generally see creosote or heavy metals migrating on to the subject property.

  1. Question: Can there be some clarification with regard to the use of the terms HREC and CREC as it relates to the subject property versus adjoining/surrounding properties?  As I understand, HREC and CREC are only applicable to the subject property?

Answer:  Releases on adjoining properties are findings.  If the EP opines that the release or releases from the adjoining properties have impacted the subject property, that would be a REC.  If that release that migrated onto the subject property has been addressed to the satisfaction of the overseeing regulatory agency and current data on the subject property now meets unrestricted use criteria, that’s the HREC.  If that release that migrated onto the subject property has been addressed and there is still residual contamination that has been allowed to remain on the subject property, subject to certain controls that the subject property owner/tenant/occupant whoever will need to be aware of and manage properly, that is the CREC.  The key here is that the release from the off-site source has impacted the subject property.

  1. Question: Will there be any changes to ASTM Practice E2247-16?

Answer:  Yes, at some point, the E2247 task group will incorporate the changes from E1527.

  1. Question: Regarding agency records that used to be readily available online: I now have to file a FOIA request to see records.  How long should I have to wait before they are not “readily available” and become a gap?

Answer:  See E1527-13 Section 8.1.5 regarding reasonable time and cost.  The task group did discuss changing that time frame but has opted to leave it as is.

  1. Question: What other sources of historical use records if you do not have City Directories or Sanborns?

Answer:  See Section 8.3.4 for the standard historical sources, including some suggestions in 8.3.4.9 for other historical sources.

  1. Question: You stated that the task force will be looking at the requirement for additional historic review. I understand the need for better documentation of historical sources; however, how will you balance the need for better documentation and a more thorough discussion in the new revision with the pressure to keep costs down and be competitive?  Not trying to skirt the historic reviews, just wondering what those “additional reviews” will include.

Answer:  Interesting question, and one the task group has been working through.  The CERCLA legislative mandate is for All Appropriate Inquiries to be conducted “consistent with good commercial and customary practice.”  That’s what the task group seeks to find through industry outreach and User/Producer consensus.  We can’t make something up just because we think it’s a good idea.  So, what you will see in the revision is a reflection of that research, industry outreach, and consensus process.  Bottom line is that if consultants have been doing good commercial and customary practice, they will see little difference between what the revised standard says and what they have already been doing.

  1. Question: How far (miles) is a LUST or dry cleaner site considered a concern to the subject site? Any recommended source for reference?

Answer:  There is so much variation in how far a plume will travel.  Really, the best research that I know of was done in preparation for the E2600.  That task group gathered a lot of real data from release sites all across the country.

  1. Question: How do you price your services for a phase 1 ESA to manage risk? Should service estimates for Phase 1 ESA increase under the updated 1527?

Answer:  Pricing is not, and cannot be, addressed in the ASTM standard.

  1. Question: If you have some extra time, could you please give some examples of what would AND would not be considered a “material threat of a future release”?

Answer:  See the example in section 3.2.55.  A new gas station with recently installed tanks and leak detection in my mind would not represent “an obvious material threat likely to lead to a release,” but others disagree.   The question I ask myself when I am considering whether a situation represents a material threat of a future release is, what should they be doing differently to better manage the situation to avoid that threat of a future release.

  1. Question: If PFOA/PFOS are identified in a municipal water purveyor’s Water Quality or Consumer Confidence Report as being detected and furthermore above a drinking water MCL set forth by a regulatory agency (i.e., such as in New Jersey), would this be considered a REC or non-scope issue? What, if any recommendations could be made?  Contact water purveyor to verify if they have explored remedial technologies to remove PFAS compounds from drinking water? Collect a drinking sample and analyze for PFOA/PFOS?

Answer:  Drinking water provided by the municipal water purveyor is a non-scope consideration.

  1. Question: States with risked based UST closure…NFA letters mentioned “at this time” no further action is required. CREC? HREC?

Answer:  Depends on the data, but as presented in your question, “risk-based” are the keywords here.  Considering all the factors of you site-specific and data-specific situation, see ASTM E1527-13 section 3.2.18 and compare to Section 3.2.42.

  1. Comment: Once interviewed with a company that stated all UST facilities, regardless of status, regulatory files, or age was considered a REC.  I did not accept the job because I could not make that statement, knowing that it would go to a recommendation for a Phase II (and additional money for the firm) but very glad you clarified your opinion on that.

 

  1. Question: What about releases to air?  We’ve worked at many generated stations that have extensive history of releases to air of coal, various gases, etc.

Answer:  Yes, and other good examples are the NPL sites that are old smelters (Midvale Slag and Sharon Steel).  Also, check out the Libby Montana Superfund site (asbestos releases to air that settled throughout town).

  1. Question: Will the revision to the ASTM include a definition for “environmental concern”? do you think this is necessary? For instance, the adjoining property is not a rec at the time of the assessment but has the potential to impact the subject property.

Answer:  There is no definition of “environmental concern.”  What you describe is a finding.

  1. Question: What is the definition of a “Finding”?

Answer:  There is no specific definition for “Finding.”  These are pieces of information that the EP gathers through the course of the Phase I research.  There is a tank on site.  That’s a finding.  There is a database LUST listing a block away.  That’s a finding.  There used to be a gas station next door.  That’s a finding.  The fire department said they responded to a Haz-Mat spill at the intersection.  That’s a finding.

  1. Question: Could you ask if adjacent properties get classified as “CREC or HREC” for a site, or only just a REC or not a REC for the site?

Answer:  Releases on adjoining properties are findings.  If the EP opines that the release or releases from the adjoining properties have impacted the subject property, that would be a REC.  If that release that migrated onto the subject property has been addressed to the satisfaction of the overseeing regulatory agency and current data on the subject property now meets unrestricted use criteria, that’s the HREC.  If that release that migrated onto the subject property has been addressed and there is still residual contamination that has been allowed to remain on the subject property, subject to certain controls that the subject property owner/tenant/occupant whoever will need to be aware of an manage properly, that is the CREC.  The key here is that the release from the off-site source has impacted the subject property.