Phase I Environmental Site Assessment

The purpose of a Phase I ESA is to identify, to the extent feasible, recognized environmental concerns in connection with the property. This assessment included a site reconnaissance as well as research and interviews with representatives of the public, property management, and regulatory agencies.

From Wikipedia:

A Phase I Environmental Site Assessment is a report prepared for a real estate holding which identifies potential or existing environmental contamination liabilities. The analysis, often called a Phase I ESA, typically addresses both the underlying land as well as physical improvements to the property; however, techniques applied in a Phase I ESA never include actual collection of physical samples or chemical analyses of any kind. Scrutiny of the land includes examination of potential soil contamination, groundwater quality, surface water quality and sometimes issues related to hazardous substance uptake by biota. The examination of a site may include: definition of any chemical residues within structures; identification of possible asbestos containing building materials; inventory of hazardous substances stored or used on site; assessment of mold and mildew; and evaluation of other indoor air quality parameters^[1].

Actual sampling of soil, air, groundwater and/or building materials is typically not conducted during a Phase I ESA. The Phase I ESA is generally considered the first step in the process of environmental Due Diligence.

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WHAT IS “ALL APPROPRIATE INQUIRY?”

All appropriate inquiry refers to the requirements for assessing the environmental conditions of a property prior to its acquisition.

EPA PUBLISHED FINAL RULE ON ALL APPROPRIATE INQUIRIES

The Environmental Protection Agency published a final rule setting federal standards for the conduct of all appropriate inquiries. The rule was published in the Federal Register on November 1, 2005. The final rule and preamble is available below.The final rule establishes specific regulatory requirements for conducting all appropriate inquiries into the previous ownership, uses, and environmental conditions of a property for the purposes of qualifying for certain landowner liability protections under CERCLA. The final rule went into effect on November 1, 2006, one year following the date of publication. As of November 1, 2006, parties must comply with the requirements of the All Appropriate Inquiries Final Rule, or follow the standards set forth in the ASTM E1527-05 Phase I Environmental Site Assessment Process, to satisfy the statutory requirements for conducting all appropriate inquiries. All appropriate inquiries must be conducted in compliance with either of these standards to obtain protection from potential liability under CERCLA as an innocent landowner, a contiguous property owner, or a bona fide prospective purchaser.

Federal Register Notice[ HTML (323K) PDF (500K) 45 Pages]November 1, 2005
Fact Sheet on All Appropriate Inquiries Final Rule[ HTML (19K) PDF (113K) 2 Pages ]Publication Number: EPA 560-F-05-240November 2005

En EspañolPDF (302K) 2 Pages ]Publication Number: EPA 560-F-07-209June 2007
Fact Sheet on Lender Liability and Applicability of AAI[ HTML (15.4K) PDF (29.8K) 2 Pages ]Publication Number: EPA 560-F-07-234April 2007

Fact Sheet on Definition of Environmental Professional included in the Final Rule[ HTML (19K) PDF (106K) 2 Pages ]Publication Number: EPA 560-F-05-2401November 2005

En EspañolPDF (296K) 2 Pages ]Publication Number: EPA 560-F-07-210June 2007
Fact Sheet on Guidelines for Hiring an Environmental Professional[ PDF (38K) 2 Pages ]Publication Number: EPA-560-F-06-243October 2006
Fact Sheet on AAI Reporting Requirements[ PDF (46K) 4 Pages ]Publication Number: EPA 560- F-06-244October 2006

Response to Public Comments
The preamble to the final rule setting federal standards for the conduct of all appropriate inquiries includes a summary of the public comments received in response to the proposed rule, which was published on August 26, 2004 (see below for information on the proposed rule). The preamble to the final rule also includes a summary of EPA’s responses to many of the issues raised in public comments. Specific responses to individual comments are provided in the document “Response to Comment Document,” October 2005.

Response to Comment DocumentPart 1 [ PDF (1.9MB) 380 Pages ]Part 2 [ PDF (1.4MB) 321 Pages ]Part 3 [ PDF (584K) 120 Pages ]October 2005

Comparison of Final Rule to Interim Standard (ASTM E1527-00)
The new final regulation is not significantly different from the interim standard established by Congress in the Brownfields Amendments to CERCLA. The interim standard was the ASTM E1527-00 Phase I Environmental Site Assessment Process. The final rule differs in such areas as the definition of environmental professional, certain interviewing requirements, and the documentation of data gaps that may affect an environmental professional’s ability to render an opinion regarding the environmental conditions of a property. A comparison of the requirements established in the final rule and the requirements of the interim standard are provided in a document titled “Comparison of the Final All Appropriate Inquiries Standard and the ASTM E1527-00 Environmental Site Assessment Standard.”

Comparison of the Final All Appropriate Inquiries Standard and the ASTM E1527-00 Environmental Site Assessment Standard[ HTML (70K) PDF (227K) 14 Pages ]Publication Number: EPA 560-F-05-242November 2005

Background

The Small Business Liability Relief and Revitalization Act (the Brownfields Amendments) clarifies CERCLA liability provisions for certain landowners and potential property owners. The Brownfields Amendments provide liability protections for certain property owners, if the property owners comply with specific provisions outlined in the statute, including conducting all appropriate inquiries into present and past uses of the property and the potential presence of environmental contamination on the property. The Brownfields Amendments amend Section 101(35)(B) of CERCLA and require EPA to promulgate regulations that establish federal standards and practices for conducting all appropriate inquiries. The all appropriate inquiries standards and practices are relevant to:

the innocent landowner defense to CERCLA liability (§101 (35));
the contiguous property exemption to CERCLA liability (§107 (q));
the bona fide prospective purchaser exemption to CERCLA liability (§107 (r)(1) and (§101 (40)); and
the brownfields site characterization and assessment grant programs (§104 (k)(2)).
All Appropriate Inquiries Statutory Language from the Small Business Liability Relief and Revitalization Act
[ HTML (16K) PDF (54K) 2 Pages ]January 2002
All Appropriate Inquiries Criteria Analysis/Comparison to State, Federal, and Commercial Assessment Approaches
[ HTML (451K) PDF (935k) 168 Pages ]Publication Number: EPA-500-F-03-229June 10, 2003

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A Phase I Environmental Site Assessment is a report prepared for a real estate holding which identifies potential or existing environmental contamination liabilities. The analysis, often called a Phase I ESA, typically addresses both the underlying land as well as physical improvements to the property; however, techniques applied in a Phase I ESA never include actual collection of physical samples or chemical analyses of any kind. Scrutiny of the land includes examination of potential soil contamination, groundwater quality, surface water quality and sometimes issues related to hazardous substance uptake by biota. The examination of a site may include: definition of any chemical residues within structures; identification of possible asbestos containing building materials; inventory of hazardous substances stored or used on site; assessment of mold and mildew; and evaluation of other indoor air quality parameters[1].

Actual sampling of soil, air, groundwater and/or building materials is typically not conducted during a Phase I ESA. The Phase I ESA is generally considered the first step in the process of environmental Due Diligence. This type of study is alternatively called a Level I Environmental Site Assessment. Standards for performing a Phase I site assessment have been promulgated by the US EPA[2] and are based in part on ASTM in Standard E1527-05.[3] If a site is considered contaminated, a Phase II Environmental Site Assessment may be conducted, ASTM test E1903, a more detailed investigation involving chemical analysis for hazardous substances and/or petroleum hydrocarbons.

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