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EPA Proposes Amendments to AAI Rule Under CERCLA for Phase I Site Assessment for Forest Land or Rural Property

            U.S. EPA is proposing to amend the All Appropriate Inquiry (AAI) Rule at 40 CFR Part 312 to reference a new standard by ASTM International for Phase I environmental site assessments.  The new standard, ASTM E2247-08, “Standard Practice for Environmental Site Assessment:  Phase I Site Assessment Process for Forestland or Rural Property,” addresses property uses and environmental concerns typical of large tracts of forested or rural land.  For example, the new standard provides for the use of remote sensing methods such as the use of aerial photography or flyovers. 

 

            The AAI Rule provides that ASTM International standard E1527-05, “Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process,” may be used to comply with the all appropriate inquiries requirements under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  U.S. EPA is proposing to conclude that the new standard for large tracts of forest land and rural property is compliant with the AAI Rule. 

 

            Parties potentially affected include the forest industry, other natural resource industries, conservation organizations, forest and rural real estate professionals, lenders, resource management agencies, and environmental consultants.  Specifically, the new standard may affect parties claiming a limitation on CERCLA liability as bona fide prospective purchasers, contiguous property owners, or innocent land owners who are purchasing large tracks of forested lands or large rural properties.  In addition, any party conducting a site characterization or assessment on a property that consists of large tracks of forested or rural land with a brownfields grant awarded under CERCLA may be affected.  This would include state and local governments that receive brownfields site assessment grants.

 

            While there are differences between the regulatory requirements and the two ASTM standards, U.S. EPA maintains that the differences are “minor in nature”.  Most of the differences relate to applicability and scope.  The AAI Rule applies to all properties and includes controlled substances.  The new standard applies to 120 acres or greater of forest land or rural property or with a developed use of only managed forest land and/or agriculture.  The 120 acres do not have to be contiguous; however, the non-contiguous areas should have substantially the same general land use and be part of the same transaction.  The property may contain isolated areas of non-forest land and non-rural property.  The new standard expressly states that controlled substances are not within its scope; however, controlled substances must be included if the assessment is conducted under a U.S. EPA brownfields assessment and characterization grant and the grantee requests that controlled substances be included within the scope of the investigation.  The new standard also discusses threatened and endangered species and non-point source pollution which are not addressed in the AAI Rule. 

 

            In addition to applicability and scope, some other differences include the following:

 

ü                  Additional inquiries, 40 CFR §312.22:  The AAI Rule provides that a person seeking liability protection or conducting assessments with brownfields grants may provide to the environmental professional information on environmental cleanup liens, specialized knowledge, relationship of purchase price to fair market value, and other commonly known information to the user.  The new standard imposes upon the user the responsibility to collect the information and requires the user to report environmental cleanup liens information to the environmental professional. 

 

ü                  Interviews with past and present owners, operators, and occupants, 40 CFR §312.23:  The AAI Rule requires that the current owner and an occupant be interviewed.  The new standard states that the key site manager or someone with knowledge of the property should be interviewed.

 

ü                  Reviews of historical sources of information, 40 CFR §312.24:  The new standard provides a more detailed list than the AAI Rule of documents to be used in an historical review, including activities likely to be found on large tracts of forested or rural land, such as oil/mineral development and livestock dipping vat records.  The new standard is also more stringent than the AAI Rule with respect to the period to be covered in the review and requires that all records back to 1940 or back to the property’s first developed use, which is specifically defined to include forestry use, whichever is earlier, be used. 

 

ü                  Searches for recorded environmental cleanup liens, 40 CFR §312.25:  The AAI Rule gives the user the choice to retain the information or share it with the environmental professional.  The new standard requires the user to provide the information to the environmental professional.

 

ü                  Reviews of federal, state, tribal, and local government records, 40 CFR §312.26:  The new standard provides a more expansive list of secondary environmental records sources than the AAI Rule.  The secondary sources include records for the optional scope areas including inventory of threatened and endangered species and best management practice violations for water quality protection.  Additional record sources specifically reference Department of Natural Resources and Division of Forestry.  The new standard requires that the user notify the environmental professional before site reconnaissance of commonly known or reasonably ascertainable information about the property. 

 

            U.S. EPA’s proposed amendments would not require the use of the new standard but allows parties the option of using the new standard.  Parties purchasing large tracks of forest land or rural property may choose to follow the specific requirements of the AAI Rule or the ASTM E1527-05 standard. 

 

            U.S. EPA published the proposed rule (73 Fed. Reg. 78716) and a direct final rule (73 Fed. Reg. 78651) December 23, 2008.  Unless U.S. EPA received adverse written comment by January 22, 2009, the rule automatically takes effect March 23, 2009.  For additional information concerning all appropriate inquiries requirements under CERCLA for Phase I environmental site assessments, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com.

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Phase I Environmental Site Assessments All Appropriate Inquiry

Although the All Appropriate Inquiry (AAI) standard for Phase I Environmental Site Assessments has been around for two years now, many reports now being prepared in accordance with the AAI standard fall short of the current requirements.  Below is a list of provisions that became effective under the AAI standard.  If you are preparing or reviewing a report, the following issues must be identified in the report.

• Data Gaps – AAI requires more extensive documentation of data gaps – The Environmental Professional must identify data gaps, including the sources of information that were consulted to address the data gaps, for all required provision of AAI.  The Environmental Professional is required to comment on the significance of the data gaps with regard of the ability of Environmental Professional to identify conditions indicative of releases or threatened releases of hazardous substances.

• Research back first identified use or 1940, whichever is earlier.  Identify uses in 5 year intervals.  To establish the use, must use at least one of the following.

Aerial Photographs

Fire Insurance Maps

Property Tax Files

Recorded Land Title Records

USGS Topographic Maps

Local Street Directories

Building Department Records

Zoning/Land Use Records

If the fire insurance maps show the same parking garage between 1940 and 1960, the period in between does not need to be researched.

• The Phase I report is to be conducted/supervised by an “Environmental Professional”.  Although this is similar to the previous E 1527-00.  The AAI defines requirements for the Environmental Professional.  Requirements regarding training, experience and education are noted in the standard.

Environmental Professional statement is required in report, “[I, We] declare that, to the best of [my, our] professional knowledge and belief, [I, we] meet the definition of Environmental Professional as defined in §312.10 of 40 CFR Part 312…..”

 

• The shelf life of a Phase I is stated as one year.  All appropriate inquiries must be completed within one year, prior to acquisition of the property, HOWEVER, interviews, liens searches, records review and visual inspection must take place within 180 days. (Not 180 days from the date of the final report!) 

Relevant portions of the report (interviews, etc.) can be updated within the one year period in order to avoid reproduction of the entire report.

·        Interview with the owner and occupants is mandatory.

·        CERCLA landowner liability defense.  Standard E 1527-00 included petroleum products for liability protection.  New standard excludes petroleum products.

·        Either the purchaser or the Environmental Professional must conduct the search for Recorded Environmental Cleanup Liens.  If the search is performed by the prospective property owner and the results are not provided to the EP.  The lack of information to be identified as a data gap.

• Either the purchaser or the Environmental Professional must compare the purchase price of the property to the fair market value of the property, taking into consideration if the difference between the purchase price and the fair market value is due to the presence of releases or threatened releases of hazardous substances.  It is possible that the purchase price information may not be disclosed for business reasons.  This would be addressed as a data gap in the report.

• The report shall include one of the following statements:

“We have performed a Phase I Environmental Site Assessment in conformance with the scope and limitations of ASTM Practice E 1527 of [insert address or legal description], the property.  Any exceptions to, or deletions from, this practice are described in Section [  ] of this report.  This assessment has revealed no evidence of recognized environmental conditions in connection with the property,” or

“We have performed a Phase I Environmental Site Assessment in conformance with the scope and limitations of ASTM Practice E 1527 of [insert address or legal description], the property.  Any exceptions to, or deletions from, this practice are described in Section [  ] of this report.  This assessment has revealed no evidence of recognized environmental conditions in connection with the property except for the following:  (list).”

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.

WVDEP Proposes Revisions to the De Minimis Table to the Voluntary Remediation & Redevelopment Rule as an Emergency Rule

     On June 2, 2008, the West Virginia Department of Environmental Protection (WVDEP) filed with the West Virginia Secretary of State a proposed emergency rule proposing revisions to the De Minimis Table, Table 60-3B, to the West Virginia Voluntary Remediation & Redevelopment (WV VR&R) Rule, 60 CSR 3. In some cases, a specific proposed value would increase, and in other cases, a proposed value would decrease, i.e., become more stringent or protective.  Additionally, four chemicals would be added to the Table and nine would be deleted.  The proposed revisions were shared with the WV VR&R Technical Subcommittee, which includes representatives of the WVDEP, West Virginia Chamber of Commerce, and National Institute for Chemical Studies, and a licensed remediation specialist, and the subcommittee members concurred with the revisions.

     The West Virginia Voluntary Remediation & Redevelopment Rule establishes cleanup standards based on human health risks in light of the current or future uses of a site.  The De Minimis Table sets forth concentration levels for each of the listed contaminants.  The Table is used extensively in a voluntary remediation to determine if environmental contamination at a site exceeds levels that are protective of human health.  If the environmental contamination at a site exceeds the levels in the Table for the contaminants found on the site, then remediation is necessary.  Based on additional scientific information that has been acquired regarding the toxicity of the chemicals listed in the Table, not all of the values in the Table are current.  Values used to estimate the toxicity for a number of these chemicals have changed, and the protected values for those chemicals have changed, too.  

     The Secretary of State now has 42 days to approve or reject the proposed emergency rule.  In approving or rejecting an emergency rule, the Secretary of State decides if an emergency exists.   Here, the Secretary of State is likely to find that an emergency exists and approve the proposed emergency rule.  Some of the chemicals being revised are known carcinogens and failure to implement the revised Table would result in remediation in properties to levels of protectiveness insufficient to meet the levels mandated elsewhere in the rule to protect human health.  For those chemicals where an increase in value is proposed, however, the existing De Minimis standards may be more restrictive than necessary, and thus require expenditure of resources for unnecessary or excessive remediation.  If the Secretary of State approves the emergency rule, it will take effect July 14, 2008, and be effective for a maximum of 15 months. 

     Meanwhile, the WVDEP must file the emergency rule as a proposed rule and either complete a hearing or comment period or file for a hearing or comment period by July 3, 2008.  In addition, the WVDEP approved legislative rule must be filed with the Legislative Rule-Making Review Committee within 90 days or by September 2, 2008.  If the WVDEP misses either of these deadlines, the emergency rule expires and cannot be re-filed. 

     This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

Status of Memorandum of Agreement with U.S. EPA for the West Virginia Voluntary Remediation and Redevelopment Program

     At the Environmental Academy held in Charleston, West Virginia, on May 29, 2008, Ken Ellison, Director of the Division of Land Restoration of the West Virginia Department of Environmental Protection, reported on the status of negotiations with U.S. EPA concerning the memorandum of agreement (MOA) for the West Virginia Voluntary Remediation and Redevelopment Program.  Mr. Ellison stated that U.S. EPA had hired a contractor to review the West Virginia Voluntary Remediation & Redevelopment Rule, 60 CSR 3, and that the contractor had completed its review.  Mr. Ellison said he expected to have the contractors’ findings in the near future.  Mr. Ellison declined to speculate when West Virginia might have a MOA for its voluntary cleanup program with U.S. EPA.  The state has been pursuing a MOA with U.S. EPA for more than ten years.  An MOA would offer liability protection from federal response and enforcement actions by U.S. EPA unless, in exceptional circumstances, the site poses an imminent and substantial threat to human health or the environment.

     This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.

West Virginia’s Voluntary Remediation Program: Is Compliance Monitoring Next?

     On March 6, 2008, the West Virginia Legislature passed the WVDEP’s revisions to the Voluntary Remediation and Redevelopment Rule, 60 CSR 3.  The major change is a complete rewrite of the land-use covenant (LUC) section and LUC form that is part of the approved rule.  In addition to the changes to the LUC provisions, anticipated revisions to the De Minimis Table (60-3B) were withdrawn by the WVDEP and not included in the approved rule.

     Under the former rule, there were two LUC forms -- one for where the applicant is not the owner of the property (Appendix 60-3D), and one for where the applicant is the owner (Appendix 60-3E).  Under the revised rule, there is only one LUC form.  The approved rule addresses non-ownership/ownership issues by requiring that the covenant identify all holders of the covenant and owners of the property and, unless the WVDEP waives the signature of the owner, by requiring everyone to sign the covenant.

     The approved rule incorporates the Uniform Environmental Covenant Act, W. Va. Code §§22-22B-1 et seq. (2007 Supp.) (UECA), as a basis for promulgating rules concerning LUCs in the Voluntary Remediation and Redevelopment Program.  The revised rule adds a definition in Section 2.32 for the term LUC that clarifies that a “land use covenant” under the Voluntary Remediation and Redevelopment Act, W. Va. Code §§22-22-1 et seq. (2002 Repl. Vol.), is an “environmental covenant” under UECA. 

     In addition, the approved rule requires that a LUC:

1.  state that the LUC is an environmental covenant executed pursuant to UECA;

2.  contain a legally sufficient description of the real property subject to the covenant;

3.  describe the activity and use limitations on the property;

4.  identify every owner of record of a fee interest in the property;

5.  identify every holder of the land-use covenant;

6.  “[p]rovide a brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure and the location and extent of the contamination and state whether residential or non-residential exposure assumptions were used to comply with a site-specific remediation standard”;

7.  “[p]rovide requirements for notice within 10 days following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant”;

8.  contain a provision for relief from civil liability to the state for further remediation;

9.  identify the name and location of the administrative record for the work performed under the Voluntary Remediation and Redevelopment Act at the real property subject to the covenant;

10.  “[g]rant access to the property for purposes of implementation or enforcement of the covenant”; and

11.  contain notarized signatures of the agency, holder(s) and unless waived by the agency, owners of the fee simple of the real property.

     Under UECA, the provisions for a brief narrative description of the contamination, notice, and access  (Nos. 6, 7, and 10 above), are discretionary, W. Va. Code §22-22B-4(b), but these provisions would have been mandatory under the WVDEP’s original proposed revisions to the Voluntary Remediation and Redevelopment Rule.  In response to comments, however, the WVDEP did agree to delete in the final proposed rule a mandatory requirement for periodic reporting describing compliance with the LUC that was in the original proposed rule.  However, under UECA, the persons who sign the covenant may agree to requirements for periodic reporting. 

     In 2006, Ken Ellison, WVDEP Land Restoration Director, explained how the agency would implement the new LUC provisions at a brownfields conference I attended in Charleston.  Director Ellison stated that the WVDEP would use EPA's CDX Institutional Controls Tracking System (http://www.epa.gov/superfund/action/ic/index.htm). He also stated that the WVDEP would register sites with Miss Utility West Virginia (MUWV) (http://www.muwv.org).  If MUWV receives a call that someone plans to dig on a site that is subject to a LUC, then MUWV will relay that information to the WV DEP and the WVDEP will have 48 hours to respond. 

     Two years later, the WVDEP is now sending to licensed remediation specialists working on projects in the program LUC templates that impose a monitoring requirement on the owner.  The WVDEP asserts it has reached its capacity for monitoring and has not received any additional funding for monitoring. The language that the WVDEP is including in the LUC template has not been agreed to by the regulated community and neither the Act nor the LUC form that is part of the approved rule contains any language requiring monitoring of compliance with the certificate of completion and LUC.  Discussions are underway between the WVDEP and industry trade organizations to come to a consensus on the issue of monitoring.  Some view the lack of monitoring as the Achilles’ heel of voluntary clean-up programs.  Others argue that a monitoring requirement will discourage use of the program.

     In addition to the changes to the LUC provisions, major revisions to the De Minimis Table were planned.  However, the revised Table (60-3B) was found to have computational errors in the imbedded derivative equations and the WVDEP withdrew it.  Revisions to the withdrawn table included the addition of elemental mercury and changes regarding trichloroethylene (TCE).  In addition to further work on the De Minimis Table, the WVDEP is also considering withdrawing the draft supplemental guidance on petroleum fractions (TPH) and MTBE available on the WVDEP’s web site.  Any one currently having a site in the Voluntary Remediation Program should work closely with the WVDEP project manager if there is any concern that the applicable values may change before issuance of the certificate of completion.

     This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.