ASTM 15-27-05 and AAI Final Rule Are Here

This ASTM -05 version of the standard has significant changes from previous versions. Some of the major changes include:

• Changing the scope language to include the contiguous property owner and bona fide prospective purchaser along with the existing innocent landowner defense. These are collectively referred to as landowner liability defenses or LLPs.

• Removing all references to the Transaction Screen which no longer meets the requirements of AAI.

• Providing a more detailed definition of Environmental Professional (EP) requiring a self certification by the EP as to their qualifications and a second certification as to their experience.

• Introduction of a concept of Data Gaps which are defined as a lack or inability to obtain information. Significant Data Gaps must be discussed in the report.

• There is increase emphasis on user participation and an optional Appendix X-3 was included to facilitate user participation. This questionnaire will be provided to users for them to complete as part of the Phase I process.

• There is increased emphasis on identifying Activity an Use Limitations such as intuitional controls ( deed restrictions, easements, restrictive covenants) and engineering controls ( slurry walls, fences, caps). Environmental liens need to be identified.

ASTM 1527-05 will likely become the standard operating guidance since it is more detailed than AAI. ASTM can be more stringent but not less stringent than AAI. A few examples of where ASTM is more stringent are:

• AAI only includes Petroleum products for assessments conducted using EPA Brownfield grant funding. ASTM always requires an assessment of petroleum products.

• AAI introduces a concept of responsible charge whereby the EP may use their judgment on the qualifications of those assigned to actually perform the work. ASTM provides specific minimal qualifications for those doing the site walk and interviews.

There are many other changes which will impact the way Phase I work is performed and the way that the reports are written. Firms and individuals preparing these documents will be modifying their practices over the coming year. Users need to be sure that the people preparing their documents are current with the provisions of AAI and ASTM-05.

One of the important changes brought about by the Brownfield Amendment which is not fully reflected in either AAI or ASTM is that while the Brownfields Amendment expanded the liability protections it also introduced a much broader concept of continuing obligations. The preamble to the EPA AAI Rule states:

The Brownfields Amendments provide important liability protections for landowners who qualify as contiguous property owners, bona fide prospective purchasers, or innocent landowners. To meet the statutory requirements for any of these landowner liability protections, a landowner must meet certain threshold requirements and satisfy certain continuing obligations ... Continuing obligations required under the statute include complying with land use restrictions and not impeding the effectiveness or integrity of institutional controls; taking ''reasonable steps'' with respect to hazardous substances affecting a landowner's property to prevent releases; providing cooperation, assistance and access to EPA, a state, or other party conducting response actions or natural resource restoration at the property; complying with CERCLA information requests and administrative subpoenas; and providing legally required notices.

Parties involved with Brownfield projects need to be aware that AAI is only part of the requirement. Sites which make good Brownfield projects, almost by definition, will be sites likely to have continuing obligations. These continuing obligations are for the most part beyond the scope of the Phase I and begin after the acquisition of the property.

Mr. Worlund is a Professional Engineer with over 35 years experience. He has been active in ASTM standards development for Phase I, Phase II, underground storage tanks, site characterizatrion and wetlands. He is co author of a soon to be published ASTM book on conducting Phase I and Phase II site assessments. He has served as an instructor for ASTM for over 12 years, teaching courses on site assessments.

- John R. Worlund PE