ASTM E1527-13: Why the Regulatory Agency File and Records Review is Good for PCBs

The new ASTM Standard for Phase 1 Site Assessments (E1527-13) has received much attention this year (see here, here, and here) and most recently upon publication in November. We were most interested to learn that the updated version contains new requirements concerning regulatory file reviews, Section 8.2.2.  Most notable is the expectation that consultants conducting a Phase I will review the regulatory file, and if not, be able to justify in writing the reason for not doing so. Two case studies below, both concerning unexpected PCB contamination, demonstrate why this is an important update.

The case of the PCB transformer fluid

A decade ago, high levels of PCBs (> 6,000 ppm) were discovered in the soil of a transformer manufacturing facility during construction for a plant expansion.  Subsequent investigations revealed PCBs in the soils throughout the facility and in a drainage ditch that conveyed storm water from the facility to a creek that flowed into a recreational lake. PCBs were also detected in the sediments of the creek, in the yards of nearby residents living along the floodplain, in the fish and lake sediments and in a number of other off-site locations. Remediation of the contaminated areas began soon after the discovery.

One year earlier, the site changed ownership. A Phase I Environmental Site Assessment (ESA) was conducted prior to the sale and no “Recognized Environmental Conditions” were identified. The consultants that performed the ESA did not review the regulatory file. Had it been reviewed, the consultants would have learned that 25 years earlier PCBs were detected in the soil and water on-site and in standing water in the ditch. They also would have learned that transformers were filled with PCB-containing dielectric fluids at the facility until 1977.  Our forensic investigations revealed that spills, leaks and waste disposal of transformer fluid contaminated the on-site soils. Erosion via wind and rain then resulted in the off-site transport and deposition of PCB contaminated dust particles and conveyance of PCB contaminated soil.  A timely state regulatory file review would have uncovered the contamination and likely have had an impact on the real estate transaction as well as on remediation of the PCB contamination.

The case of the PCB hydraulic fluid

Recently, PCBs were discovered in soils at a die cast facility when excavated soil was tested for hazardous substances. Additional sampling uncovered high levels of PCBs (> 1,000 ppm) under the pavement at the facility. Further investigations revealed the presence of PCBs in unexpected places, such as in the soil and groundwater under the facility, in an off-site drainage ditch and in the yards of residents living nearby.  On-site and off-site soils with PCBs exceeding federal limits were excavated shortly after discovery.

About ten years prior, a Phase I Environmental Site Assessment (ESA) was performed to identify any “Recognized Environmental Conditions” (RECs) either on-site or at adjacent properties.  The consultants indicated the ESA was conducted in conformance with the scope of ASTM E1527-00. Though the regulatory databases were reviewed, the regulatory files were not. Another ESA was conducted a few years later. This time the consultants identified a REC for the potential presence of PCBs under a paved area, but no recommendation for further investigation was made and again the regulatory files were not reviewed. 

A year before the discovery of PCBs, another ESA was performed.  The consultants reiterated the REC finding and again made no recommendation for follow up and did not conduct a review of the regulatory files. Had the regulatory files been reviewed when the ESAs were performed, the consultants would have learned that in the early 1980s the facility had over 40 drums or roughly 3000 gallons of PCB-contaminated hydraulic fluid on-site requiring proper disposal. They also would have learned the facility had historically used PCB-containing hydraulic fluid in its die-cast machines until 1971. Our forensic investigations revealed that the PCBs found in a number of locations on-site resulted from spills, leaks and waste disposal of PCB containing hydraulic fluid. Similar to the other case study, erosion of contaminated soils by rain and wind resulted in the off-site migration of PCBs. A timely file review may have resulted in remediation of the PCB contaminated areas a decade sooner.

Regulatory History Solves the Mystery

We have written previously that PCBs are unique because they are an “out of sight, out of mind” contaminant; showing up unexpectedly unless one is knowledgeable about their history. From our experience a review of the regulatory files is valuable when performing an ESA because the files preserve that history that may have been lost, discarded, or forgotten. The information presented above was obtained from regulatory files and documents during our involvement in cases concerning property damage and personal injury from PCBs. In both cases we were retained because our specialized knowledge and experience provided insight into both the cause of and the delayed discovery of the widespread PCB contamination.  We know of other sites where PCBs were discovered years after the site changed owners, and likely there are other sites that have yet to be uncovered. Thus, it is for this chemical in particular, Section 8.2.2 of the new ASTM standard is so important.

Submitted by Wendy N. Pearson, President