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In the field of environmental due diligence, three generally distinct, yet interrelated evaluations are currently utilized to determine the potential for past, present, and future con-tamination on a property: environmental assessments, en-vironmental compliance audits, and enen-vironmental risk assessment surveys. Although this chapter focuses on en-vironmental assessments, all three types are briefly de-scribed below:

䡲 The environmental assessment is generally performed to provide the property owner, purchaser, or lender with documentation relative to the ‘‘Innocent Buyer (Landowner)’’ provision of CERCLA.

䡲 The environmental compliance Audit, which deals with a company’s policies, procedures and operations, is conducted to determine sources of potential environ-mental liabilities and areas of noncompliance.

䡲 The environmental risk assessment survey is util-ized to reduce future environmental liabilities that

could result from a company’s operations and materials management.

The environmental assessment is an integral part of site feasibility and is critical in minimizing a client’s environ-mental liability exposure. Since both the environenviron-mental compliance audit and the risk assessment survey are asso-ciated with management and operation of ongoing business activities, more specific discussions will not be considered in this chapter.

Due to the impacts on the environment, federal and state governments have enacted legislation requiring the cleanup of conditions that pose a risk, or threat of risk, to human health or the environment. These laws have been promul-gated to prosecute any party deemed to be a potentially responsible party (PRP). This has far-reaching implications because the definition of a PRP is not limited to those par-ties responsible for the actual contamination, but also in-cludes owners: past, present, or subsequent; lessors, managers; lienholders, transporters; and other parties hav-ing ownership or management responsibility. Furthermore, there is no standard rule of assigning responsibility for a liability.

PHASE I ESA

Other federal, state, and local environmental laws may im-pose environmental assessment obligations that are beyond the scope of a Phase I ESA. In addition, there are likely to be other legal obligations concerning hazardous substances or petroleum products discovered on property that are not addressed in this practice and may pose risks of civil and / or criminal sanctions for noncompliance. There are many assessments that are called ESAs with different scopes of work. Currently, the standard of care in the industry is the American Society for Testing and Materials (ASTM) Stan-dard E-1527-2000, StanStan-dard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.

The objective of a Phase I environmental site assessment study is to identify, to the extent feasible, recognized envi-ronmental conditions in connection with the property. ‘‘Rec-ognized environmental conditions,’’ as defined by ASTM, means ‘‘the presence or likely presence of any hazardous substances or petroleum products on a property under con-ditions that indicate an existing release, a past release, or a material threat of release of any hazardous substances or petroleum products into structures on the property, or into the ground, groundwater, or surface water of the property’’

(ASTM E-1527-2000). The term is not intended to include conditions that generally do not present a material risk of harm to human health or the environment and would not be the subject of an enforcement action if they were brought to the attention of the appropriate governmental agencies.

Phase I ESAs, which are performed as part of commercial real estate transactions, are very common. These site as-sessments are prepared to demonstrate due diligence in evaluating the property using good commercial and cus-tomary practice for environmental site assessments for

com-mercial real estate. This practice is intended to allow an owner to satisfy one of the requirements in order to qualify for the innocent landowner defense to CERCLA liability. An environmental site assessment should be performed very early in the development planning stage to avoid stoppage of work or delays associated with environmental conditions at the property. Environmental professionals with the proper training and experience should perform these as-sessments. ASTM provides guidance to assist users in the preparation for, and selection of, an environmental profes-sional to conduct a Phase I ESA. The technical competence of the environmental professional and the firm’s quality assurance / quality control program, internal risk manage-ment program, experience, standard terms and conditions, and errors and omissions liability insurance policy should be evaluated prior to retaining the services.

Once a property is identified for which obtaining a Phase I ESA is being considered, certain information should be collected, if available, prior to the selection of an environ-mental professional. This information should be provided to the environmental professional selected to conduct the Phase I ESA.

䡲 Why the Phase I ESA is required 䡲 Type of property

䡲 Type of transaction 䡲 Complete address

䡲 Activity and use limitations (liens, deed restrictions, etc.)

䡲 Property value relative to comparable properties (reduction due to environmental conditions)

䡲 Desired scope of services (standard Phase I ESA or services beyond requirements in ASTM Practice E 1527)

䡲 Parties relying on Phase I ESA report 䡲 Site contact

䡲 Special terms and conditions

䡲 Knowledge of or experience with the property per-tinent to environmental conditions

A Phase I ESA has four components: records review, site reconnaissance, interviews, and report. The record review is performed to obtain and review records that will help identify recognized environmental conditions in connection with the property. This includes review of records for haz-ardous substances and petroleum products for areas outside the property that are likely to migrate onto the property.

The information for the record research is typically obtained through a variety of public and other database sources. The site reconnaissance is performed to observe visually and physically the site and adjoining properties for evidence of recognized environmental conditions. If the property has

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FI G U R E 8 . 1 Recommended outline for a typical Phase I ESA.

buildings or structures, the interiors of the buildings are also observed. The interviews conducted as part of the as-sessment are performed to gather information about the property from those who are most familiar with the current and past uses of the property. Finally, the Phase I ESA report is prepared to document the work performed, findings, opinions, and conclusions. The report format recom-mended by ASTM is provided in Figure 8.1. An example of a site plan identifying key environmental features is pre-sented in Figure 8.2.

The typical Phase I ESA usually does not include per-forming environmental testing or evaluations for the follow-ing considerations unless specifically requested by the organization paying for the assessment:

䡲 Asbestos

䡲 Lead-based paint 䡲 Lead in drinking water 䡲 Radon

䡲 Wetlands

Because the laws regarding legal responsibility for envi-ronmental contamination have had insufficient time for le-gal precedents to be established, limited safety is available to a buyer, lender, or insurer. In addition, there are no stan-dards, beyond the guidelines outlined by ASTM E-1527, or absolutes for environmental inspections (assessments).

Technical guidelines exist on how to perform certain inves-tigative actions; however, no approved or standard level of investigation has been required or adopted in a legal code sense. Subsequently, there is no numerical definition of what is legally considered an acceptable level of environ-mental risk, only comparative standards (i.e., drinking wa-ter standards, risk-based concentration calculations, etc.).

The general cost of typical Phase I ESAs ranges from

$1500 to $3500, depending on size, location, and type of property. Industrial properties and large parcels of land with numerous recognized environmental conditions could cost significantly more than the ‘‘typical’’ ESA. A third party, composed of quality professionals, should perform these assessments. Oftentimes, lending institutions have lists of approved professionals who perform this work. Regulators may also maintain a list of qualified professionals. Although an environmental site assessment can be technical, a pur-chaser, developer, and / or lender should be familiar with the evaluation’s findings and conclusions. The ESA report is the proof that a due diligence study was performed to deter-mine the status of the property and therefore should be kept on record.

If environmental concerns are identified in the initial ESA, they are likely to require further investigation, typi-cally referred to as a Phase II ESA. Various environmental testing methods exist that can be used to analyze for the wide variety of contaminants, as required under specific

regulations. Since each potentially contaminated property is unique, a detailed environmental sampling and analysis plan should be developed for each property. For more in-formation on the ASTM environmental site assessment pro-cess, visit their website at www.astm.org.

PHASE II ESA

A Phase II ESA is performed to investigate further the ab-sence or preab-sence of a suspected contaminant or whether a known release of a contaminant or regulated substance oc-curred on the property. Additionally, a Phase II ESA may be required in situations other than real estate transactions. For example, if an existing property owner has a known release of a contaminant or regulated substance, that owner is re-sponsible for the release and must take corrective action to assess and mitigate the situation, as necessary.

In contrast to the defined scope and relatively low cost of a Phase I ESA, the scope for a Phase II ESA is highly unpredictable, based on the variety of scenarios associated with the release of a contaminant. For example, a Phase II ESA may only require a few samples to be collected from the soil surface to determine if a petroleum product was spilled or released at a specific location. On the other hand, a hazardous waste may have been released with potential impact on the groundwater, air, or surface water, requiring extensive sampling protocol, including the installation of groundwater monitoring wells.

The purpose of a Phase II ESA is to determine the ab-sence or preab-sence of a contaminant. This generally requires environmental sampling. The protocol for collecting and analyzing environmental samples is based on the suspect contaminant, the media, data quality objectives, and the regulatory program requiring the site assessment. The Phase II ESA report addresses the additional research performed, provides a description of the field investigation (including sampling procedures and methodologies and sample loca-tions), and reports the analytical results. If the presence of the suspect contaminant(s) is confirmed, the report pro-vides recommendations for any further actions.

The time frame and cost of Phase II ESAs vary consid-erably, from a few thousand dollars and a one-month turn-around time to tens of thousands of dollars and a time frame of more than a year. Extreme cases can cost millions of dollars to investigate over a period of several years.

If an environmental testing program is warranted, there are limitations and risks associated with environmental test-ing that all involved parties must be aware of. In fact, if testing done as part of a Phase II ESA detects contamina-tion, the results of that test have to be reported to federal, state, and / or local agencies. On the other hand, inadequate studies and testing can expose all of the involved parties to legal liability due to negligence.

The main objective of a Phase II ESA is to determine if the suspect contaminant is present on the property. The type(s) and amount of contaminant(s), as well as the prop-erty location / site characteristics, all play a role in

determin-8 䡲 ENVIRONMENTALS^ITEA^SSESSMENTS 145

FI G U R E 8 . 2 Typical site plan showing key site features and recognized environmental conditions at and adjacent to site.

FI G U R E 8 . 3 Removal of leaking underground storage tank.

ing the scope of work for the Phase II ESA. The following list of plans is typically prepared prior to performing a Phase II environmental site assessment for regulatory com-pliance, worker safety, and quality assurance.

Work Plan

This plan specifies the performance standards, chemicals of concern, sampling and analytical methods required, field procedures, reporting requirements, and schedule. Devel-oping a work plan requires a thorough understanding of the purpose and objective of the assessment, the regulatory requirements, the contaminants of concern, and the sam-pling methodologies and laboratory analysis appropriate for the assessment.

Health and Safety Plan

In order to identify the hazards and appropriate safety and health controls, the potential hazards on a property must be evaluated prior to entry onto the property. A health and safety plan is required to identify chemical, physical, bio-logical, radiation, flammable / explosive, and confined space hazards to the personnel engaged in operations relating to the site investigation. The plan should be prepared in ac-cordance with applicable Occupational Safety and Health Administration (OSHA) Standard guidelines. In addition,

the personnel performing the work should be trained, as required by OSHA, for certification under 29 CFR 1910.120, Hazardous Waste Operations and Emergency Re-sponse Training.

Quality Assurance Project Plan

The integrity of the sampling and analysis performed as part of the ESA is critical to the proper characterization of the contaminants on the property. Since the analytical data are used to determine corrective action alternatives, handling and disposal requirements, and health and safety proce-dures outlined in the health and safety plan, the analysis must be performed properly and in a timely manner. The quality assurance project plan addresses the specific sam-pling protocol and analytical procedures required to meet the data quality objectives for a specific project.

PHASE III ESA

Typically, a Phase III ESA is the most expensive phase of environmental site assessments. Once a contaminant is con-firmed (Phase I) and suspected to be significant enough to require corrective action (Phase II), a Phase III ESA is per-formed to determined the extent of contamination and, if required, remedial alternatives. In cases where remediation is required, the Phase II and Phase III ESAs are blended

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FI G U R E 8 . 4 Environmental sampling of subsurface soil.

together. Therefore, the plans as previously prepared for the Phase II ESA will also apply for the Phase III ESA.

The cost and time frame to remediate a site can range from tens of thousands of dollars over several months to several million dollars over several years. The factors that influence cost and time include the type of contaminant, quantity of the release, the media that is impacted, and the location of the release. Because of the high variability of scenarios for Phase III ESAs, they are typically handled on a case by case basis.

As discussed previously, the primary purpose of environ-mental regulations is to protect human health and the en-vironment. Therefore, the potential exposure scenarios play an important role in the requirements that have been es-tablished for corrective action and remediation. Regulators may require periodic monitoring to ensure the conditions do not worsen and present a threat to potential receptors.

In other scenarios, regulators may require immediate and thorough remediation to clean up impacted media to re-move the immediate threat to receptors. For example, a regulatory agency may require groundwater remediation where less than 50 gallons of gasoline were released on one site and require only groundwater monitoring at another site where over 1000 gallons of gasoline were released. This scenario may apply where the site with the 50-gallon release impacted the groundwater and the 1000-gallon release had no impact to the groundwater and there was no recognized threat to human health or the environment.

There are many different remediation methods and treat-ment technologies available today, ranging all the way from physical removal and transportation of the contaminant to a treatment facility so that it can undergo incineration (or

chemical treatment) to the in-situ (in-place) biological treat-ment of the contaminant. Whatever method is determined to be the most suitable, it is wise to identify several methods in case your main option does not produce the desired re-sults. Similarly, pilot tests should be conducted for each method before a commitment is made to one particular method. This will likely require the services of an expert in site remediation. Additionally, it is recommended that you confer with the appropriate regulatory entities and get their buy-off on the remedial efforts. Do not forget that contam-inated soil may be recyclable or that some facilities may even buy contaminated waste. Hazardous waste site reme-diation is a very expensive effort. Weigh your options. On-site treatment is rapidly becoming more popular as in situ treatment technologies become more available and cost ef-fective.