In this post, we tackle a few commonly asked questions regarding the ASTM Phase I Environmental Site Assessment, a key component of the real estate due diligence process.
Have a question that isn't addressed below? Email us anytime at contact@excelsiorflorida.com or call 855-720-2333.
1. Who decides how a Phase I ESA is performed?
Environmental Professionals (EPs) follow good commercial and customary practices as detailed in the American Society of Testing & Materials (ASTM) E1527 Standard Practice for Phase I Environmental Site Assessment Process. This standard is updated by the ASTM Committee based on recommendations from the United States Environmental Protection Agency (USEPA), steering committees, and stakeholders. It is important for the Environmental Professional to keep up to date on the most current version of the ASTM standard in order for the User to qualify for landowner liability protections. This practice is intended to permit the User to qualify for one of the requirements of the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations on CERCLA liability (also referred to as Landowner Liability Protections’ or ‘LLPs’. Qualifying for LLP enables the landowner to be afforded cleanup funding assistance related to hazardous substances and/or petroleum product contamination on the property.
2. The seller has disclosed a history of contamination onsite. Can we go straight to soil and groundwater sampling?
Soil and groundwater sampling are typically conducted under the framework of a Phase II Environmental Site Assessment, following the investigative results of the Phase I ESA. A Phase I ESA is necessary to qualify for Landowner Liability Protections under CERCLA. Ideally, the Phase I ESA is completed just prior to the start of the Phase II ESA to ensure that all the Recognized Environmental Conditions (RECs) identified during the Phase I ESA are addressed.
Excelsior's typical turnaround time for a Phase I ESA is 12-16 days, although expedited reporting may be possible. In some cases, property transaction deadlines may require a Phase II ESA to be conducted simultaneously with the Phase I ESA. Time constraints should be communicated to us before starting the Phase I ESA process so that the we can accommodate your transaction deadline.
3. My bank said I don’t need an environmental assessment for this purchase. Am I protected from liability?
Florida commercial real estate law follows the legal doctrine of caveat emptor or "buyer beware" which means the buyer is obligated to investigate what they are buying. Although the bank may not require a Phase I ESA for the purchase, a Phase I ESA conducted in accordance with the requirements of ASTM E1527 by an Environmental Professional is necessary to qualify for Landowner Liability Protections under CERCLA.
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