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Written By: Robert E. Sheriff, MS, CIH, CSP, President
February 17, 2020
What is a Phase I Environmental Site Assessment (Phase I ESA)?
Identifies Potential or Existing Environmental Contamination Liabilities for a Commercial Property
Real Estate Transactions
A Phase I Environmental Site Assessment, commonly referred to as an ESA, or Phase I ESA, is completed prior to the closure of a real estate transaction can be used to satisfy the requirements of CERCLA’s (Comprehensive Environmental Response, Compensation and Liability Act) innocent landowner defense under All Appropriate Inquiries (AAI).
Mostly Commercial Properties
Phase I Environmental Site Assessment reports can be completed on all types of properties including vacant land, agriculture, multi-family residential, commercial, and industrial uses; however, all Phase I ESA reports are completed to comply with ASTM E1527-13 (exceptions are made for properties comprised of large, primarily underdeveloped land, which can be researched under ASTM E2247-16).
What It Includes To Know What Liabilities Exist
A Phase I ESA typically includes the following:
- A site visit to observe current and past conditions and uses of the property and adjacent properties;
- A review of federal, state, tribal, and local regulatory databases including, but not limited to, underground storage tanks (USTs), aboveground storage tanks (ASTs), known or suspected release cases, the storage of hazardous substances and disposal of hazardous wastes including petroleum products, and institutional and engineering controls;
- A review of historical records, such as historical aerial photographs, fire insurance maps (Sanborn Maps), historical city directories, and historical topographic maps;
- A review of state and local agency records; including, but not limited to, state environmental agencies, Building Departments, Fire Departments, and Health Departments.
- Interviews with current and past property owners, operators, and occupants, or others familiar with the property.
- Interviews with the Report User for title or judicial records for environmental liens and activity and use limitations (AULs); specialized knowledge or experience; actual knowledge; commonly known or reasonably ascertainable information; the reason for a significantly lower purchase price; and the reason for the preparation of the Phase I ESA. It is the User’s responsibility to provide this information to qualify for the innocent landowner defense.
Due Diligence By A Knowledgeable Person
This research is evaluated by the Environmental Professional (EP) to identify potential environmental risks to the property such as current or historic operations that are known or suspected to have used hazardous substances or petroleum products during on-site operations. Some very common uses of concern are dry cleaners, gas stations, auto/vehicle repair, printing operations, and manufacturing. In addition to potential soil and groundwater contamination, ASTM E1527-13 addresses the concerns associated with contamination in soil vapor and the potential for vapor migration to pose a threat to on-site and off-site tenants. Such a thorough process is necessary for the “Due Diligence” requirement to protect the involved parties from present and future liabilities.
What Does The Investigation Include?
While not part of ASTM requirements, Phase I ESA reports typically include a discussion of observed suspect asbestos-containing materials (ACM), potential lead-based paint (LBP), and mold growth; as well as the potential for lead in drinking water and radon. Sampling for these non-ASTM concerns is beyond the scope of a standard Phase I ESA but can be included upon request.
ASTM E1527-13 provides the guidelines for a Phase I ESA report to meet the industry standards, but there are other factors to consider when ordering a report. Projects associated with Fannie Mae, Freddie Mac, U.S. Department of Housing and Urban Development (HUD), and the Small Business Association (SBA) each have their own report requirements. This is also true of other lending institutions.
Identifies Liabilities And What To Do About Them
Once a Phase I ESA is complete, the Environmental Professional will summarize what concerns were identified on the property and make recommendations about what actions if any are needed to address these concerns. A recognized environmental condition (REC) indicates known contamination or the potential for the subsurface to have been impacted by contamination (either from the subject property or possibly from an off-site source).
A controlled recognized environmental condition (CREC) identifies that the property has been impacted by contamination which has been investigated and remediated; however, contamination remains and would require additional work if redeveloped. A historical recognized environmental condition (HREC) identifies a release impacted the subject property which has been investigated and remediated meeting unrestricted use criteria.
The identification of a REC will often include a recommendation for a Phase II Environmental Site Assessment to collect soil, groundwater, and/or soil vapor samples from the subsurface to analyze for the presence of contamination.
How Long Does It Take?
The usual length of time to do a Phase I ESA is about 3 to 4 weeks. It includes a site visit, database search, inquiries from local, county, state and federal sources. The site visit is often 1 day. The database search is a few days, the report usually takes 3 to 5 days. MOST OF THE TIME IS SPENT WAITING FOR A RESPONSE FROM THE INFO REQUESTS and the follow-ups to potential liabilities that need more information. Don’t expect a proper Phase I ESA to be done in a few days.
For more information contact Atlantic Environmental.
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