Revisions to Environmental Site Assessment Requirements to Impact Real Property Transactions

In a long-awaited improvement that can have a big affect on homeowners, consumers, sellers, lenders, debtors, and others concerned with actual property, ASTM Worldwide’s Environmental Assessment, Danger Administration and Corrective Motion Committee has revised its customary apply for Part I Environmental Site Assessments (ESAs).  The Part I is the cornerstone of the environmental due diligence course of associated to properties and is a part of the “all appropriate inquiries” course of that should be carried out so as to receive sure protections from legal responsibility below the federal Superfund legislation (aka CERCLA).  See 40 CFR Part 312.

Overview

The unique ASTM customary on this space was printed in 1993 to outline “good commercial and customary practice” for conducting ESAs.  This newest revision was authorised on November 1, and reportedly “represents over three years of ongoing collaboration and consensus-building by more than 150 industry professionals.”

Environmental consultants should not required to use the revised customary for “all appropriate inquiries” functions till the USA Environmental Safety Company adopts it by a proper rulemaking course of that might take important time.

An important adjustments to the usual all contain clarifications to areas of potential or ongoing confusion in performing and drafting Part I ESAs, with an goal towards offering higher consistency of outcomes.  These adjustments embody:

  • Enhancing the reasons for the important thing phrases “Recognized Environmental Condition” (REC), “Controlled Recognized Environmental Condition” (CREC), and “Historic Acknowledged Environmental Situation (HREC). The goal of doing so is to scale back misclassifications of identified or doubtless releases.  A brand new appendix supplies steering on how to distinguish between and amongst RECs/CRECs/HRECs and supplies a move chart and examples.

  • Offering formal definitions for “Property Use Limitation” (PUL) and “Significant data gap,” two phrases which have been seeing use (albeit with out agreed-upon constant which means) in Part I ESAs.  “Property Use Restrictions” had seen use in Part I reviews; as an undefined time period, it was giving rise to some confusion and inconsistency.

  • Offering a brand new customary for assessment of historic data for a property, which is supposed to mirror good business and customary apply on this space, together with how to use customary historic sources.

  • Standardizing web site reconnaissance necessities, with extra particulars offered within the new customary.

  • Updating appendices to deal with enterprise environmental dangers, together with the necessary matter of rising contaminants.

Implications

As to the remedy of rising contaminants on web site (or threatened), essentially the most important concern raised by the brand new revisions is probably going to be a change in the best way the presence of PFAS, or “Forever Chemicals” can be thought-about.  As an rising contaminant that has not but been subjected to the looming federal rules, PFAS has been one thing of a wild card in Part I ESAs; the up to date customary will change that.

Whereas the goal of the brand new revisions is to produce a stronger, extra detailed, and extra constant deliverable, they could include a better price ticket for reviews.  So as to mitigate these prices and make it possible for the Part I ESA meets all vital necessities for all stakeholders of a chunk of property, it’s crucial to have interaction a trusted environmental lawyer and advisor, who’s up to date on these adjustments and may make sure that Part I reviews are ready appropriately the primary time.

“The latest revisions reflect a remarkable compilation of inputs from across industry, including a diverse group of users, providers, and other interests,” mentioned Julie Kilgore, Chair of the usual’s process group.  “This input reflects professional insights, project experiences, and challenges with previous versions of the standard.”

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