[Federal Register Volume 79, Number 73 (Wednesday, April 16, 2014)]
[Notices]
[Pages 21479-21480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08629]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-5773-N-01]
Adoption of Updated Standard ASTM E 1527-13 Standard Practice for
Environmental Assessments: Phase I Environmental Site Assessment
Process
AGENCY: Office of Housing of the Assistant Secretary for Housing--
Federal Housing Commissioner, HUD.
ACTION: Notice.
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SUMMARY: This notice updates guidance documents of HUD's Office of
Housing and Federal Housing Administration (FHA) that reference the
ASTM E 1527-05 standard for Phase I Environmental Site Assessments
(ESAs) to the most recent standard, ASTM E 1527-13.
DATES: Effective Date: May 16, 2014.
FOR FURTHER INFORMATION CONTACT: Hilary Atkin, Housing Environmental
Officer, Office of Housing, Department of Housing and Urban
Development, 451 7th Street SW., Room 9132, Washington, DC 20410,
telephone 202-402-3427 (this is not a toll-free number). Persons with
hearing or speech impairments may access this number through TTY by
calling the toll-free Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
HUD environmental regulations state that ``[i]t is HUD policy that
all property proposed for use in HUD programs be free of hazardous
materials, contamination, toxic chemicals and gasses, and radioactive
substances, where a hazard could affect the health and safety of
occupants or conflict with the intended utilization of the property''
(24 CFR 50.3(i)(1)). In order to accomplish this policy, ``HUD shall
require the use of current techniques by qualified professionals. . .''
(24 CFR 50.3(i)(4)). Currently, a Phase I ESA in accordance with ASTM E
1527-05 is required by several guidance documents throughout Office of
Housing/FHA, including, but not limited to, the Multifamily Accelerated
Processing (MAP) Guide, the Condominium Project Approval and Processing
Guide, Handbook 4600.1 REV-1, Section 232 Mortgage Insurance for
Residential Care Facilities, and Handbook 4615.1, Mortgage Insurance
for Hospitals.
In November 2013, ASTM International published ASTM E 1527-13,
Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process. ASTM E 1527-13 defines good
commercial and customary practice in the United States for conducting
an Environmental Site Assessment (ESA) of a parcel of commercial real
estate with respect to the range of contaminants within the scope of
the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA) (42 U.S.C. 9601) and petroleum products. In order for a
defendant to limit liability for a release of hazardous substances,
CERCLA requires that the defendant has ``no reason to know'' that the
hazardous substance involved in the release or threatened release was
present. In establishing no reason to know, the defendant must be able
to show that it carried out, on or before the date on which the
defendant acquired the facility, all appropriate inquiries into the
previous ownership and uses of the facility in accordance with
generally accepted good commercial and customary standards and
practices, and took other reasonable steps (42 U.S.C. 9601(35)(B)(i)).
The standards and practices that determine whether all appropriate
inquiries have been carried out are established by regulation by the
Environmental Protection Agency (EPA) (42 U.S.C. 9601(35)(B)(ii)). On
December 30, 2013, the EPA updated these standards, and allowed parties
to use ASTM E 1527-13 rather than the previous standard, ASTM E 1527-05
(78 FR 79319).
[[Page 21480]]
HUD's regulation at 24 CFR 50.3(i)(1) states as a matter of policy
that all property to be used in HUD programs be free of hazardous
substances, and Sec. 50.3(i)(2) requires that HUD's environmental
review include evaluation of previous uses of the site and other
evidence of contamination on or near the site, ``to assure that
occupants of proposed sites are not adversely affected'' by hazardous
substances. Additionally, FHA's General Insurance Fund (GIF) and Mutual
Mortgage Insurance (MMI) Fund can be at legal risk if HUD acquires a
property and subsequently a hazardous substance is released or
threatened to be released. For these reasons, adoption of the updated
standard protects the GIF and MMI Fund from risks stemming from
insuring sites with hazardous waste and/or petroleum product
contamination. The updated standard will better equip HUD's Office of
Housing/FHA staff to assess such risks as the standard includes updated
definitions that will more fully inform the Office of Housing/FHA about
the environmental conditions on the subject property.
One advantage of ASTM E 1527-13 is that it newly defines Controlled
Recognized Environmental Conditions (CREC), which must be identified in
the Phase I ESA. The new CREC definition will result in some
environmental conditions being listed as CRECs if they have been
remediated to restricted levels, as opposed to an unrestricted or de
minimis level, and will be a great tool for Office of Housing/FHA staff
to assess whether the site is appropriate for residential use. The
definition does not create new analyses or documentation, as Phase I
ESAs that were compliant with ASTM E 1527-05 would have discussed CRECs
in the context of being either a Recognized Environmental Condition
(REC) or a Historical Recognized Environmental Condition (HREC).
The ASTM E 1527-13 standard also newly defines migration, which
includes hazardous waste or petroleum products in vapor form. Previous
to this definition, it was unclear whether vapors had to be assessed
under a Phase I ESA, and as a result many Phase I ESA reports did not
include this analysis. The new definition will generally not change
Office of Housing/FHA Phase I ESA report requirements, however, as the
Office of Housing/FHA has required that a Vapor Encroachment Survey
performed in accordance with ASTM E 2600-10 be incorporated into the
Phase I ESA report for several years, and will continue to do so.
Finally, ASTM E 1527-13 modifies the definitions of HREC to require
evaluation of whether a historical release of a hazardous waste or
petroleum product that was addressed to the satisfaction of the
regulatory authority in the past is considered a REC at the time the
Phase I ESA is prepared because of a change in regulatory criteria.
Such an analysis was conducted by many Phase I ESA preparers under the
past standard, but the modification of the definition clarifies this
requirement.
II. Action
ASTM E 1527-13 is formally adopted by the Office of Housing/FHA
through this notice. Wherever ASTM E 1527-05 is referenced in Office of
Housing/FHA guidance, participants in Office of Housing/FHA programs,
funding recipients, FHA-insured mortgagees, and contractors must use
ASTM E 1527-13. The Office of Housing/FHA will update guidance
documents to reflect the adoption of ASTM E 1527-13 for Phase I ESA
reports.
Dated: April 10, 2014.
Carol Galante,
Assistant Secretary for Housing--Federal Housing Commissioner.
[FR Doc. 2014-08629 Filed 4-15-14; 8:45 am]
BILLING CODE 4210-67-P