Volume 20/Issue 3 June 2014

Thank you to our 2013/2014 Platinum Corporate Sponsor

In This Issue

Request for Info on EPH Results

Above-Par Fund-Raising Event for Scholarship Fund

Summary of 2013 NOAFs on DPS Submissions

Who's Paying for this Cleanup? Insurance at 21E Sites

Profile: LSP Board Member Kirk Franklin

The New ASTM Phase I vs. MCP Phase I

Notice

The LSPA newsletter is a benefit to LSPA members. As an LSPA member, you are free to share portions of or republish entire articles so long as you provide attribution to the title of the article, followed by the author's name and affiliation, and the LSPA newsletter as the original source.

The President's Message

The Future
By: Matthew Hackman, LSP, President, LSPA

In my closing President's message, I want to once again focus our attention on the future. Like most people trying to predict the future (my Magic 8-ball keeps saying "Reply hazy - ask again later"), I try my best to notice developments in the present and look to the past human experience for analogies and trends. I have written in previous messages in some detail, but now want to step back and focus again on "The Big Picture" as I see it.

The field of environmental science and practice is relatively new, although study of the natural sciences is as old as humanity, as we observed the world around us and strove to understand it. But codifying environmental awareness and protection into the fabric of our society is something that has really taken place in the last two generations. It is "not for nothing" that we established the U.S. "Environmental Protection Agency" and most similar state agencies incorporate the words "Environmental Protection" in their names, including our own MassDEP.

But this concept of "environmental protection" is relatively recent. It was only a generation or two ago that people like John Muir and Theodore Roosevelt helped people understand environmental conservation, but the ideas that all of the environment could be protected and even restored, at least in part, was a new concept.

Professions evolve.

"Abraham Lincoln, who attended school for less than a year, became a lawyer under an Illinois law enacted in 1833. This law stated that to be a lawyer someone had to 'obtain a certificate procured from the court of an Illinois county certifying to the applicant's good moral character.' Lincoln actually went to the Illinois Supreme Court to get his certificate. On September 9, 1836, a license to practice law was issued to Abraham Lincoln by two of the justices of the Illinois Supreme Court." [1]

"Attempts to regulate medicine occurred early in the Virginia and Massachusetts Bay Colonies. Like most colonial era attempts at regulation, enforcement seldom happened. Most medical licenses granted by the colonies remained honorifics, attesting to the fitness and experience of an eminent practitioner." [2]

"A century ago, anyone could work as an engineer without proof of competency. In order to protect the public health, safety, and welfare, the first engineering licensure law was enacted in 1907 in Wyoming. Now every state regulates the practice of engineering to ensure public safety by granting only Professional Engineers (PEs) the authority to sign and seal engineering plans, and offer their services to the public." [3]

As the prior examples attest, several of our modern licensed professions, such as law and engineering are fairly recent, and the licensed practice of medicine is not much older. Initially, practitioners learned what they could, often apprenticing to a professional in that particular field. Even today, many environmental practitioners, including myself, started out that way, getting an education in geology, chemistry, or engineering, and then "learning by doing" the practice which we now know as environmental assessment and remediation.

This past year LSPA commemorated its 20^th anniversary, the 20^th anniversary of the Massachusetts Contingency Plan, and the creation of the LSP profession. It may be hard for some of our younger members to imagine a world where environmental practitioners were not licensed for such practice, and were sometime considered "contractors" rather than environmental professionals. I can't really express in words the tremendous insight, courage and imagination that MassDEP had in envisioning a new kind of licensed professional practitioner, the LSP, as a key principle for the success of the "new" MCP, and beginning the arduous process of convincing society that they should be licensed as professionals and accorded the rights and responsibilities as such.

Similarly, that group of visionaries meeting at the Café du Monde in New Orleans in 1992, recognized that what they were doing was really a profession, analogous to law, medicine, engineering, architecture, the ministry, teaching, and others. They recognized they would need to organize themselves in this new profession, to work with MassDEP and the new Board of Registration of Hazardous Waste Site Cleanup Professionals, to define what it meant to be a LSP. From the very beginning, the LSP Association has provided the continuing education, technical practice and loss prevention guidance, and regulatory and statutory advocacy that has helped LSPs continue to develop and refine our practice, and to achieve recognition for our role in Waste Site Cleanup and the protection of human health and the environment in Massachusetts.

If you have never watched the LSPA 20^th anniversary video recounting this amazing process, please take the time to do so by clicking here.

Watching this video, and listening to some of those who were involved in the birthing of the "new" MCP over 20 years ago, really helps you understand what a novel, innovative, even radical concept the LSP was at that time. And many of these giants of our profession still walk among us today, though, alas, fewer as the years go on. You can actually meet them and talk to them at LSPA meetings, and I encourage you to do so. (I don't know their policy on autographs, but I suggest to you that they could be valuable in the future!)

The concept of the environmental professional as a licensed practitioner continues to evolve. As noted in prior articles, Massachusetts' licensing is limited to "Professional Services", which are defined as "the rendering of waste site cleanup activity opinions, and services associated with the rendering of such opinions" under the MCP. New Jersey's Licensed Site Remediation Professionals (LSRP), modeled on the LSP, must qualify for licensure based on practice within New Jersey. Connecticut's "Licensed Environmental Professional" (LEP) licensing board regulates the practice more broadly, and other states use other models and restrictions. It is helpful to reflect for a moment on what it means to be a licensed professional, as opposed to a practitioner, tradesperson or businessperson.

The word "professional" is defined in the OED as "a person engaged in a specified activity, especially a sport or branch of the performing arts, as a main paid occupation rather than as a pastime." "A person competent or skilled in a particular activity" [4] captures part, but not all of the meaning. Environmental practitioners prior to 1993 already met that standard in large part, and many, if not most, practitioners do today. "Licensure" or "Licensed professional" has a stronger meaning, implying a more restricted practice requiring a license conferring a "permission to practice"; such licenses are usually issued in order to regulate some activity that is deemed to be dangerous or a threat to the person or the public or which involves a high level of specialized skill. The concept of licensure thus involves a two-way exchange of permission and responsibility between society and the licensed professional.

Society gives the privilege to the licensed professional to practice, recognizing that society benefits from the competent practice, but also recognizing that incompetent practice can do more harm than good. In exchange for this privilege, the licensed professional commits to putting the good of his or her clients and society above personal interests and gain, economic or otherwise. Thus for LSPs, in accordance with 309 CMR 4.03(1): "A licensed site professional shall hold paramount public health, safety, welfare, and the environment in the performance of professional services." Similar language is contained in LEP and LSRP regulations as well, and in the statutes and regulations governing the practice of all licensed professionals. This is in effect a contract between the licensed professional and society.

As discussed in prior articles, this great privilege and great responsibility will, I believe, gain increasing recognition in society, as government, including legislative, executive and judicial branches, as well as citizens, businesses, and institutions, will increasingly ask that licensed environmental professionals oversee or perform work related to all aspects of environmental protection and restoration. I believe they will ask this because of their increasing realization that these decisions, judgments and professional opinions regarding the environment, and the environment itself, on which all of us depend for our existence, is too critically important to be left to practitioners, no matter how well intentioned, who have not made this contract with society, to use their professional experience and judgment to determine the means of achieving a condition of "No Significant Risk" at disposal sites, within the mechanisms allowed under the MCP.

Thus I believe our profession will continue to evolve, as other professions have, in keeping with the changing needs and complexities of society and our knowledge and understanding of our world and universe. I believe that the future is bright, and to our younger practitioners and to young people considering entering our profession, who wonder whether a career path to becoming a licensed professional, and particularly a Massachusetts Licensed Site Professional, is a worthwhile goal, I answer "Yes." As a young chemical engineer, I wondered about becoming a licensed professional engineer, as not many chemical engineers do so, and an older and wiser engineer strongly encouraged me and mentored me to do so. And when the opportunity to become a LSP, and later a LEP, arose, I grasped those opportunities as well. Because what my mentor told me was true about this as well as much or all of life (and wasn't original from him): "Do this because of what it will make of you." Don't do it just for personal gain or achievement. Don't do it just for another "trophy" or to advance on the career ladder. Being a licensed professional will change you. It will change how you look at the world, much like becoming a parent. It will make you a better person, more focused outwardly rather than inwardly, more focused on helping others rather than just yourself.

Thanks to all of you in the LSPA who have allowed me the privilege of serving as your president this last year. I hope that this series of articles has been thought-provoking, whether you agree or disagree. I believe that the future for LSPs, and for the LSPA, is bright, and that the possibilities for what we can do are truly limited only by our imagination. And if anyone ever tells you "It can't be done" or "It will never happen," just remember that little band of visionaries at the Café du Monde, and say, as President Obama says: "Yes we can."

[1] http://rogerjnorton.com/Lincoln91.html

[2] http://www.fsmb.org/centennial/medical-licensure-prior-1900.html

[3] http://www.nspe.org/resources/media/resources/100-years-engineering-licensure

[4] http://www.oxforddictionaries.com/us/definition/american_english/professional

Matthew Hackman, P.E., CHMM, LSP, LEP
LSPA President

Request for Information on EPH Results

By: The LSPA Technical Practices Committee

The LSPA Technical Practices Committee is looking for information from members on situations where non-petroleum related compounds could possibly have impacted EPH hydrocarbon ranges. This is an outgrowth of the study described in the article, "Potential False Positives in the Volatile Petroleum Hydrocarbon (VPH) Analytical Method: The Effect of Non-Target Compounds on MCP Decisionmaking" by Richard J. Rago and Jane Parkin Kullmann, Haley & Aldrich, Inc. and James F. Occhialini, Alpha Analytical Labs. That article appears in the LSPA's online journal here.

The researchers of that study, which investigated whether the presence of non-petroleum related compounds could cause the over-estimation of VPH hydrocarbon ranges, are seeking information to determine whether an analogous situation could affect EPH hydrocarbon ranges in the same way.

Specifically, they are interested in your responses to these questions:

1. What have you found as non-petroleum based peaks via EPH? Examples might include phthalates, pesticides, phenols, PCBs (at high concentrations), and others.

2. Have you had problems with 'unknown' peaks showing up in your EPH results?

3. How are you evaluating your lab reports? Do you look at your EPH chromatograms?

If you have information to share, please contact Rich Rago, Lead Scientist, Haley & Aldrich at rrago@haleyaldrich.com or Jim Occhialini, VP of Technical Sales, Alpha Analytical at jocchialini@alphalab.com.

An Above-Par Fund-Raising Effort

By: Larry Feldman, LSP, Senior Principal, GZA GeoEnvironmental, and LSPA Past President

On May 29, 2014 the LSPA Scholarship Fund held its first annual fund-raising golf tournament. Originally conceived of at the annual Past Presidents meeting last summer as a means to raise a targeted amount of $3,500 for the LSPA Scholarship Fund, the tournament actually netted over three times that amount - $11,000 - for the Fund, which celebrates its 10^th anniversary this year. Over 100 golfers enjoyed a beautiful day, a well-maintained course (Highfields in Grafton), and a hearty post-golf repast. Prizes were awarded for best-ball team scores and individual skill accomplishments, and a raffle stocked with both golf-related and non-golf related items allowed all the chance to win while supporting the LSPA Scholarship Fund. Photographs of the event, taken by LSPA member and professional photographer Tom Barrasso, are available here.

While all participants and sponsors deserve thanks for their participation and support, special thanks go to the following individuals and companies:

The Ad Hoc Golf Committee:

Bill Betters, CDW Consultants

Will Caldicott, ISOTEC (extra special thanks for picking a great course!!)

Larry Feldman, GZA GeoEnvironmental

Eric Henry, Kleinfelder

Andy Irwin, IRWIN Engineers

Chuck Myette, Brown and Caldwell

Cole Worthy, Haley & Aldrich

The non-golfing volunteers who helped with registration, mulligan sales, etc., including many from the LSPA's Young Professionals committee:

Anne Fardy, Bluestone Engineering

Theresa Ferrentino, Con-Test Analytical Laboratory

Ken Gendron, Tighe & Bond

Lauren Konetzny, CHA Companies

Isabelle Lavigne, IRWIN Engineers

Deb Listernick, O'Reilly, Talbot & Okun

Dot McGlincy, Cumberland Gulf

Bill Mitchell, Clean Soils

Krista Molettieri, IRWIN Engineers

Brian Roden, AMEC

Major corporate sponsors ($1000 or more):

Alpha Analytical

Hanna Instruments

ISOTEC

EDR

GZA GeoEnvironmental

Haley & Aldrich

IRWIN Engineers

Woodard & Curran

Heritage Environmental Services

Look for news in early 2015 regarding the 2015 tournament. One hundred players is a good start, but a full course is 128 players. We're just sayin'....

Summary of FY 2013 NOAFs Concerning Downgradient Property Status Submissions

By: Michelle N. O'Brien, Esq., Mackie Shea O'Brien, PC, and Loss Prevention Committee

The annual review of MassDEP Notices of Audit Findings (NOAFs) conducted by the LSPA's Loss Prevention Committee included a review of audit findings for five sites with Downgradient Property Status (DPS) submissions. The following is a summary of our review.

Only one of the five DPS submissions was deemed adequate by MassDEP. At that site the contamination was discovered during a Phase I Environmental Site Assessment, and the property owner submitted the DPS Opinion two days after filing the Release Notification Form. The property owner identified a known upgradient MCP site as the likely source.

The other four DPS submissions examined each resulted in MassDEP's issuance of a Notice of Noncompliance with the NOAF. Three of the four also terminated the DPS; the fourth required either a termination of the DPS or a revised DPS Opinion. All of these NOAFs concluded that there was insufficient information provided in the DPS submission to support the conclusion that the source of oil or hazardous materials was located on an upgradient property and had migrated in or on groundwater.

The practice tips from review of the DPS submissions are as follows:

Evaluate and rule out potential on-site sources. This includes contacting government agencies and owners and operators of the property and reporting on the information obtained. In one NOAF, MassDEP noted that although the DPS stated there was no knowledge of any on-site storage or use of #2 fuel oil, there was "no discussion of what local/state/federal agencies and current/former property owners/operators were contacted and what information they provided." In some instances on-site soil or groundwater data collection may be necessary to rule out potential on-site sources.

Determine the groundwater flow direction at the property to establish upgradient potential contribution areas. Use data from nearby sites in addition to data from the subject property.

Demonstrate the migration of oil or hazardous materials in or on groundwater onto the property. The amount and type of data necessary to do this will vary from site to site, but the DPS should at least account for temporal and spatial variations in contaminant concentrations and the presence or absence of particular constituents (or NAPL).

Who's Paying for this Cleanup?

Insurance at CERCLA and 21E Sites

By: James J. Decoulos, LSP; James Curtis, LSP; Richard Eurich, Esq.; and Arthur Kreiger, Esq.

At the May 8, 2014 LSPA Membership Meeting, the Loss Prevention Committee presented a special program on the complexities of insurance coverage issues at contaminated sites - especially homeowner sites. This article is intended to provide a brief summary of the issues discussed at the meeting. Note, it is impossible in this brief article to provide a full discussion of all the relevant issues that come into play in evaluating insurance. Further, the exact coverage that is provided by a particular policy depends on the language of the policy, and the generalizations discussed at the meeting may not apply.

The program was developed by the Loss Prevention Committee and the panelists, who were:

Attorney Arthur ("Art") Kreiger of Anderson & Kreiger LLP, who provided the perspective of counsel for the insured;
Attorney Richard ("Rick") Eurich of Morrison Mahoney LLP, who provided the perspective of the insurance companies; and
James ("Jim") Curtis, PE, LSP, of Cooperstown Environmental, who provided the perspective of an LSP for the insured.

James J. Decoulos of Decoulos & Company, LLC moderated the event. The program provided point, counterpoint discussion on three questions.

1. When does the insurance coverage come into play at a site?

A release of oil or hazardous material on residential or business property may lead to significant assessment and cleanup costs. The owner or operator must find money to pay for the work, and typically there are few options: savings, a loan or mortgage, claim financial inability (a rigorous process with MassDEP), insurance, or identifying a PRP with responsibility.

A homeowner policy covers damages to property of the insured (the first party) such as the roof of the home if damaged by a covered event. This first-party, property side of the policy does not cover damage to land. Nor does it cover pollution, except in very rare instances. A homeowner policy also covers certain harms sustained by third parties. While this could include MCP response actions required by law, unfortunately, in most cases the homeowner policy will not provide any coverage due to the "owned-property" exclusion. Art explained that this exclusion means that, at best, coverage is not implicated until there is a threat that the release will reach another person's property or at least the groundwater. In most cases, the third-party liability side of the homeowner policy will not provide any coverage because of this exclusion. A number of court cases have reached this issue, but if there is a "bright line" in Massachusetts, it has not yet been determined.

Art suggested rather than parsing the policy, the best course of action when a release occurs and there is a possibility of insurance coverage is to file a claim with the insurance company. If there is a delay in notifying the insurance company which may result in prejudice to the insurance company, that delay may provide a basis for denying the claim. Rick agreed, and added that some policies specifically state that the insurer will not pay for costs or expenses incurred by the insured without the insurance company's written consent.

Finally, a member of the audience asked about the recently enacted state law that requires homeowner insurance companies to offer coverage for fuel releases from above-ground storage tanks where specific improvements have been made. Rick explained that this coverage, when available, provides coverage with no "owned-property" exclusion, so coverage should be available to pay for cleanup and damage to personal property, up to the limit stated in the coverage, even if only the insured's property is impaired. An informal survey suggests that adding an amendment to the homeowner policy (commonly referred to as a "rider") to add this coverage typically costs less than $100 per year.

2. How does the LSP exercise discretion to address obligations under the MCP and to his/her client?

Art explained that in many cases, the insurance company will respond to notice of a claim with a reservation of rights. This essentially means that the insurer is continuing its evaluation of the claim and in some cases paying some costs associated with the claim, while deciding whether to deny the claim. In most other cases, the insurance company will issue a denial. An environmental attorney can assist in negotiating with the insurance company.

In terms of the response costs, where a reservation of rights has been issued or the claim has been accepted, the insurer should be kept informed of the response actions. In some instances, the insurance company may disagree with the course of action that the LSP has proposed. In these cases, the LSP must be cognizant of his or her professional responsibility, and the obligation to ensure that the requirements of the MCP are met. It may be that the critiques of the insurance company's representative are constructive and lead to more efficient response actions but Jim referred to one instance where that was not the case. In that instance the representative of the insurer implied that the proposal to install monitoring wells was a ruse to cause contamination and therefore trigger coverage. Rick indicated that if this were to happen, it would be improper, and may expose the insurance company to liability under certain consumer protection laws.

3. What are the differences between defense and indemnity coverages under the various liability policies?

Most liability policies have a limit for indemnity, but not for defense. Because these are legal terms that are used frequently in the insurance arena, Rick and Art spent a few moments describing what they mean.

Under a liability policy, indemnity refers to payments by the insurer to make the insured whole - to pay the damages sustained by a third party for which the insured is liable - when the insured must pay the third party for damage to that party's property. For an environmental claim, this refers to the costs of cleanup (assuming cleanup is covered under the policy).

Defense refers to the costs to defend the insured from the claim. In a traditional lawsuit, these are the costs of an attorney to defend the case. For an environmental claim, they also can include the costs to investigate the site and take other steps under the MCP. Investigation costs may include, in part, some of the fees charged by LSPs for their services, usually those associated with testing, monitoring and assessment activities.

Art argued that defense costs could include Immediate Response Actions and Release Abatement Measures, even where some soil excavation and disposal or similar work occurs. Rick argued that the name and timing of the work is not relevant. If it is cleanup, it is indemnity; and if it is investigation, it is defense. This can be very important. In some cases, defense costs are not capped, but indemnity costs always are capped by the insurance limit.

The presentation demonstrated how complex insurance coverage can be at contaminated sites. Art and Rick made it clear that there are many different legal arguments that the insured and the insurance companies can pursue based on the individual policy and the unfolding case law. Therefore, LSPs should consider referring clients to legal counsel who are familiar with these issues and their interrelationship to Chapter 21E and the MCP.

The Loss Prevention Committee hopes that the LSPA community found this presentation helpful.

Kirk Franklin, Board Member, LSP Board of Registration

By: Katherine Robertson, Robertson Associates, and the LSPA's media consultant

This is the second in a series of articles profiling current members of the LSP Board of Registration.

Back in 1999, Kirk Franklin was approached by members of several of the environmental organizations with which he was involved. "There's this LSP thing and we've been requested to nominate a person qualified to serve on the board," they told him. "We don't know anything about it, and you're the closest person we could think of." Would he mind, they asked, if they put his name forward as a candidate for one of Board's slots designated for a member of a statewide organization that promotes the protection of the environment?

As it was, Franklin - who is president of New Bedford-based Frank Corp Environmental Services - had more than a passing knowledge of LSPs and the work they did under the Massachusetts privatized cleanup program. "I don't do that type of work," he said. "But being in the site soil cleanup business, I knew a little about LSPs and the program."

With that in mind, he agreed to have his name put forth and soon found himself trekking around the state as a member of the LSP Board.

As a new appointee, Franklin found the work load heavier than anticipated. But, he said, all the Board members chipped in and there was camaraderie among the members even when there was disagreement. "I was very fortunate there was a great bunch of a people," he said. "It was okay to argue a point. No one got upset. It wasn't personal."

"It was a lot of work, but the people were fun."

As a non-LSP with a background in construction and environmental services, Franklin considers himself as somewhat of an outsider to the Board. But he believes that his outsider's perspective has been a healthy - and appreciated - addition to Board discussions. MassDEP and the LSPs can get caught up in the details, he said, while the environmental members have the ability to look at the big picture. "All the members have the same common agenda, but they come from different places," he said. "I am on the outside looking in. It's a different perspective, but it's a good perspective because we can get lost in the details."

Franklin believes that his approach may have taken some getting used to by his colleagues on the Board. "After a while, I think they actually liked that I had some first-hand experience in the field," he said. "While they were looking at it from a regulatory side, I was looking at it from my experience in the field."

According to Franklin, the responsibilities of being a Board member have changed substantially since he was first appointed. There were so many active Complaint Review Teams (CRTs) at one point - Franklin estimates the number as being between 15 and 20 active cases - that the Board came up with a spreadsheet to help prioritize them in terms of impact on public health and the environment. At the time, members committed 40 to 60 hours a month to Board business, a far cry from the 10 hours a month he estimates he puts in today.

It is Franklin's opinion that the crush of CRTs during the early years of the program was a result of MassDEP's ending its informal grace period for LSPs, during which it used education rather than enforcement to familiarize LSPs with the relatively new regulations and policies. In recent years, the number of complaints has decreased again, a fact Franklin attributes to greater familiarity with the rules on the part of LSPs, as well as a reduction in both the MassDEP staff who bring the majority of cases to the board and the Board staff who investigate them.

Other Board business has also been slowed by staff and board changes which have brought with them the loss of institutional memory and a steep learning curve for new appointees and staff alike, said Franklin. "Things have slowed down a little in order to let new staff and new board members catch up," he said. "There are still some complaints; we're preparing to redo the exam; there is always continuing education; and we are trying to hire new staff. " That said, he is still comfortable in his role as a Board outsider, the person other Board members look to for a different perspective and to keep discussions on point and within the Board purview. "I like efficiency," he said. "And I do not want to lose our focus on protecting the environment."

The New ASTM E1527-13 Standard Practice for Phase I Environmental Site Assessments vs. The MCP Phase I - Initial Site Assessment: Part I Introduction, Definitions, and Descriptions

By: Marian Rambelle, Senior Environmental Engineer, CDW Consultants, and Technical Practices Committee

In Massachusetts, there are generally two different types of "Phase I" investigations in the environmental consulting world: 1) those conducted in accordance with the American Society for Testing and Materials International (ASTM) standard practices, and 2) those conducted under the Massachusetts Contingency Plan (MCP) (310 CMR 40.0000). To the casual observer, these two types of Phase I may seem similar, but they are quite different as they serve different purposes. While LSPs "live" in the MCP universe that guides the regulatory-required (and publicly-available) assessment of releases of oil and/or hazardous materials (OHMs), ASTM standard practices are often used to guide the voluntary (and private) process of assessing the environmental condition of real estate as part of due diligence activities conducted prior to a property transaction.

ASTM E1527, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, is the primary tool of these voluntary assessments. It was developed to satisfy the federal Brownfields Law's "All Appropriate Inquiries" (AAI) rule requirements under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). "All Appropriate Inquiries" into the previous ownership and uses of a property are required to qualify for one of the "Landowner Liability Protections" (LLPs) - innocent purchaser, bona fide prospective purchaser, or contiguous property owner - defined in CERCLA. However, ASTM E1527 was also more broadly designed as an approach to identify "Recognized Environmental Conditions" (RECs) in connection with a property; in fact, it is likely used more often in practice for this purpose than to qualify for strict CERCLA-related liability protection.

This article is Part I of a two-part series; this article:

Provides a brief description and history of ASTM E1527;
Outlines some key differences between ASTM and MCP Phase I environmental investigations (or site assessments);
Provides clarifications and updates on the revised ASTM Standard Practice related to environmental site assessments; and
Describes in further detail the changes to the ASTM standard, as set forth in E1527-13.

In Part II of this series, which will appear in the next LSPA newsletter, the new ASTM and MCP terminology will be discussed as it relates to vapor intrusion and site closure.

ASTM E1527 - Brief Description and History

ASTM E1527 was issued originally in 1993 (the same year, coincidentally, as the last major MCP revision) and revisions have been published in 1994, 1997, 2000 and 2005. The U.S. Environmental Protection Agency's (USEPA) AAI rule, promulgated in 2005, recognized ASTM E1527-05 as satisfying the AAI requirements for CERCLA liability protection. Similarly, USEPA published a final AAI rule on December 30, 2013 that stated that the 2013 version will replace the 2005 version in satisfying AAI requirements.

In a nutshell, an ASTM Phase I Environmental Site Assessment's (ESA) purpose is to identify RECs in connection with a property. The term "Recognized Environmental Condition" in E1527-13 generally refers to the presence or likely presence of any hazardous substances (as defined by CERCLA) or petroleum products at a property due to a release or future release to the environment.

A Phase I ESA report, which identifies known and potential sources of contamination and evaluates their likely impact on a property, is prepared using information gathered by all of the following means:

Records Review
Site Reconnaissance
Interviews with present/past owners, operators and occupants
Interviews with local government officials

The ASTM and MCP Phase I investigations are distinct in the following ways:

An ASTM Phase I investigation is a voluntary assessment performed to qualify for an LLP under CERCLA or (more typically) as part of real estate due diligence activities, while Massachusetts state law requires an MCP Phase I investigation of applicable releases of OHM.
An ASTM Phase I investigation typically does not involve sampling, while an MCP Phase I investigation usually does.
An MCP Phase I investigation requires the gathering and reporting of much more site specific detailed information than an ASTM Phase I investigation.
An ASTM Phase I report is a private document, while MCP Phase I reports are public documents (available on the MassDEP website and at MassDEP regional offices).

ASTM E1527-13's Major Changes

The 2013 revision of ASTM E1527, which was published on November 6, 2013 as ASTM E1527-13, introduced several significant changes reflective of current environmental site assessment practices since the previous 2005 revision, while also clarifying and introducing new definitions. While the overall purpose and processes described in E1527 have generally not changed in the 2013 revision, certain key elements have been clarified in order to bring consistency to the environmental site assessment process, and to better align ESAs with current practices in the field. The 2013 revision also brings definitions in line with those found in CERCLA. Major changes found in ASTM 1527-13 include the following:

Updated/New "Recognized Environmental Condition" Definitions

"Recognized Environmental Condition" (REC) - simplified definition
"Historical Recognized Environmental Condition" (HREC) - changed to include only past site closures that meet unrestricted use (i.e., residential) criteria
"Controlled Recognized Environmental Condition" (CREC) - new term for site closures with controls (i.e., not unrestricted residential use)

Vapor-Related Revisions

New "Migrate/Migration" Term - explicitly includes soil vapor
ASTM E2600-10, Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions - referenced for screening for potential soil vapor encroachment

Updated Regulatory Agency File Review Guidance - required now if the subject property or an adjoining property is identified in a standard environmental record source

Each of these changes is discussed in more detail below.

Updated/New "Recognized Environmental Condition" Definitions:

Updated "Recognized Environmental Condition" (REC)

To match the CERCLA definition of a release, the definition of a REC was simplified to revolve solely around "a release to the environment." Therefore, for example, a fully-contained indoor release that is not likely to pose a material threat to the environment is no longer considered a REC under E1527-13.

A "Recognized Environmental Condition" in E1527-13 refers to the presence or likely presence of any hazardous substances (as defined by CERCLA) 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.

A de minimis condition (described below), however, does not constitute a REC.

Updated "Historical Recognized Environmental Condition" (HREC)

Under the revised definition, an HREC is limited to a past release of any hazardous substances or petroleum products that has been addressed to the satisfaction of the applicable regulatory authority and meets unrestricted residential use criteria (i.e., no Activity or Use Limitations (AULs)). A currently-identified REC cannot also be an HREC.

Because an HREC under the previous 2005 revision also included releases that had been cleaned up with use restrictions imposed on them, the HREC term was found to be potentially misleading; it may have appeared that all HREC releases had a closed status and no further action was needed. However, such closed releases with use restrictions differ significantly from those without them, and have "continuing obligations" that are required to maintain their closure status.

In order to distinguish between these two types of HRECs, the 2013 revision includes a new term a past REC with AULs, a Controlled Recognized Environmental Condition (CREC). Thus, HRECs now include only past RECs without AULs.

New "Controlled Recognized Environmental Condition" (CREC)

As described above, the new CREC term applies to a past release that has been addressed to the satisfaction of the applicable regulatory authority, but with AULs (e.g., institutional controls or engineering controls) required due to remaining contamination. A CREC is also considered a REC (and can be viewed as a type of REC).

It is important to note the distinction between AULs under ASTM versus the MCP. AULs under the MCP refer to legal (institutional) controls imposed at site closure. ASTM, on the other hand, defines AULs more broadly as legal (institutional) and/or physical (engineered) restrictions/limitations put in place at site closure to prevent exposure to remaining hazardous substances or petroleum products. (E1527-13 notes that the AUL term is taken from ASTM Guide E2091.)

Clarification of "de minimis condition"

The 2013 revision clarifies that a de minimis condition is distinct from a CREC. The previous definition simply stated that a de minimis condition "generally would not be subject to an enforcement action." This had allowed environmental professionals to dismiss, as de minimis conditions, past closed-out releases with contamination left in place with AULs because they were not subject to an enforcement action. Such closed-out releases with AULs are now clearly defined as CRECs.

Vapor-Related Revisions:

New "migrate/migration" term

Although soil vapor was previously implicitly included as part of contaminant migration in ASTM Phase I ESAs, a great deal of inconsistency was seen among environmental professionals in the consideration of the soil vapor pathway. The new "migrate/migration" term explicitly refers to soil vapor in its definition: "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." Reflective of the increased awareness and focus on vapor intrusion at both the federal and state levels, this new language clarifies that vapor migration should be considered on an equal basis with groundwater migration.

Of note, E1527-13 refers to potential vapor migration rather than vapor intrusion. Vapor intrusion indicates indoor air impacts, which are not intended to be determined as a result of a Phase I ESA. However, the potential for vapor migration to a property's boundary can be determined based on the ASTM E2600-10 methodology (to be discussed in Part II of this series).

The new definition is also consistent with existing CERCLA and AAI definitions of a release (e.g., solid, liquid and vapor) to the environment. In addition, the definitions of "environment" and "release" were updated in the 2013 revision to have the same meanings as defined under CERCLA.

Updated Regulatory Agency File Review Guidance for Subject and Adjoining Properties:

Similar to the vapor migration pathway (above), an inconsistent approach regarding regulatory agency file reviews existed under the 2005 revision, as conducting these reviews was left largely to the discretion of the environmental professional. As a result, the 2013 revision added a new section 8.2.2 that states that a regulatory agency file review should be performed if the subject property or an adjoining property is identified in any of the standard environmental record sources (e.g., federal NPL site list, federal CERCLIS list, or state lists of hazardous waste sites, leaking storage tanks, or registered tanks). Alternatively, files/records from other sources (e.g., on-site records, user-provided records, local government agency records, interviews with regulatory officials knowledgeable about the environmental conditions cited in the standard environmental record source listing, etc.) may be used in place of the regulatory agency file review.

The purpose of the newly-specified regulatory file review is to obtain sufficient information to assist in assessing whether a REC, HREC, CREC, or de minimis condition exists at the property. A summary of the information obtained and the environmental professional's opinion regarding its sufficiency to evaluate the above conditions are to be included in the report.

If the environmental professional decides that such a regulatory file review is not warranted, the justification for not conducting such must be included in the Phase I ESA report.

Part II of this series, which will appear in the next LSPA newsletter, will discuss the new ASTM and MCP terminology as it relates to vapor intrusion and site closure.