Technical Aspects of Phase I/II Environmental Site Assessments
|Publication Date:||1 May 2015|
Scope of E1527
Before the publication of the first edition of the ASTM Standard on Phase I ESAs, the users and the EPs had to develop the ESA scope on their own. Consequently, Phase I assessments came in many variations. On one hand, the users were seeing Phase I reports without any interviews or historical research. Some reports consisted of "drive-by" photo documentation without any evidence of the EP ever setting a foot on the property. On the other hand, a Phase I assessment sometimes included issues such as radon, electromagnetic radiation, compliance issues, fire hazards, and structural evaluations of buildings, which are not CERCLA issues. In summary, the term "Phase I" or "Level 1" or "Pre-Acquisition Environmental Audit" meant different things to different people. The E1527 Standard was developed by ASTM through its Committee E50 on Environmental Assessment to establish consensus- based (agreed upon) and uniform (standardized) site assessment practices. The intent was to define some of the due diligence responsibilities of the participants (our referenced players) in a commercial real estate transaction. Through standardization, the E50 Committee made it possible for the Phase I ESA to mean the same thing to different people.
Let us examine the Scope section of the standard and see how the EPs can apply it to their work. This section of E1527 defines three essential issues: (1) the purpose of the standard, (2) the objectives of the standard, and (3) considerations beyond the scope of the standard. Let us separately look at each issue.
In the language of the standard, the purpose of E1527 is to define a practice for conducting Phase I ESAs. The EP is going to be considering only a range of contaminants covered by CERCLA as well as petroleum products (this is one area in which the E1527 is more stringent than AAI because of a "petroleum exclusion" to CERCLA liability). The Phase I standard is designed to permit the user to satisfy one of the requirements for the LLPs to CERCLA liability; that is, the practice that constitutes "all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial and customary practice" as defined at 42 U.S.C. § 9601(35)(B). The goal of the Phase I ESA is for the EP to identify recognized environmental conditions (RECs).