Phase I/II ESA

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Make sure you aren’t inheriting someone’s environmental liability by conducting an Environmental Site Assessment before you buy the property.

 

An environmental site assessment is a report prepared for a real estate holding that identifies potential or existing environmental contamination liabilities. The analysis typically addresses both the underlying land as well as physical improvements to the property.

The Phase I ESA is generally considered the first step in the process of environmental due diligence. Standards for performing a Phase I site assessment have been promulgated by the US EPA and are based in part on ASTM Standard E1527-13.

Interpreting the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), the U.S. courts have held that a buyer, lessor, or lender may be held responsible for remediation of hazardous substance residues, even if a prior owner caused the contamination. Performance of a Phase I Environmental Site Assessment, according to the courts’ reasoning, creates a safe harbor, known as the ‘Innocent Landowner Defense’.

Access can prepare your ESA in compliance with EPA regulations and the ASTM Standard to head off any environmental headaches. The typical scope includes:

  • Performance of an on-site visit to view present conditions (chemical spill residue, die-back of vegetation, etc.); hazardous substances or petroleum products usage (presence of above ground or underground storage tanks, storage of acids, etc.); and evaluate any likely environmentally hazardous site history.
  • Evaluation of risks of neighboring properties upon the subject property
  • Review of Federal, State, Local and Tribal Records out to distances specified by the ASTM 1528 and AAI Standards (ranging from 1/8 to 1 mile depending on the database)
  • Interview of persons knowledgeable regarding the property history (past owners, present owner, key site manager, present tenants, neighbors).
  • Examine municipal or county planning files to check prior land usage and permits granted
  • Conduct file searches with public agencies (State water board, fire department, county health department, etc.) having oversight relative to water quality and soil contamination issues.
  • Examine historic aerial photography of the vicinity.
  • Examine current USGS maps to scrutinize drainage patterns and topography.
  • Examine chain-of-title for Environmental Liens and/or Activity and Land Use Limitations (AULs).