To minimize liability under federal or state law, or if the results of the screening tool mentioned above demonstrate a need to do so, the developer may consider performing a Phase I Environmental Site Assessment consistent with ASTM Standard E 1527-05 - "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process."
Several major federal statues impose liability with respect to contaminated lands and waters, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Oil Pollution Act (OPA).
The ASTM Phase I ESA standard is a voluntary, non-intrusive investigation into historical uses of the site and visible evidence of environmental conditions based on publicly available records and sources of information.
The ASTM Phase I Environmental Site Assessment (ESA) standard is a voluntary, non-intrusive investigation into historical uses of the site and visible evidence of environmental conditions based on publicly available records and sources of information. A Phase I ESA involves no physical testing of environmental media at the site. Generally, it consists of a site inspection, interviews of the site owner(s), review of available documents and databases (including prior ESA reports), and some consideration of potential impacts from adjacent properties. ASTM Phase I ESAs must be performed by an Environmental Professional meeting the qualifications of the ASTM standard.
The objective of the ASTM Phase I ESA is to determine if an actual or potential "recognized environmental condition" (REC) exists at the property. A REC is the (non-de minimis) presence or likely presence of any hazardous substances or petroleum on a property under conditions that indicate an existing release, a past release, or a material threat of release has occurred. Such release may be into the structures on the property, onto the ground or into the groundwater or surface water of the property. A REC may even involve events or circumstances that were in compliance with then-current laws. Any report meeting the ASTM Phase I standard will contain the opinion of the assessor as to whether there is evidence of a REC at the site.
The ASTM Phase I ESA standard satisfies a federal regulation to perform "all appropriate inquiries" (AAI) into the prior ownership and use of a property to be eligible for certain defenses from liability. Even if a developer makes a business decision not to perform a detailed site assessment prior to property acquisition, such an assessment will typically be required by lenders prior to financing. Section 6.6 provides a more detailed discussion of issues relating to liability for contaminated property.
Also, the scope of the ASTM Phase I ESA is limited. It does not, for example, address matters such as whether a site complies with applicable environmental or health and safety laws, nor does it cover whether asbestos or lead paint may exist in older buildings, establish whether radon may exist at the property, whether there are wetlands within the site boundaries that may affect where structures can be placed, whether there are ecological resources or endangered species which could affect site approvals and development objectives, or the presence of mycotoxins (molds). If a developer wishes to have these non-scope items included in a Phase I site assessment, the developer must specifically contract with the consultant performing such work to include these elements.
The scope of the ASTM Phase I ESA is limited. If a developer wishes to have non-scope items included in a Phase I site assessment, the developer must specifically contract with the consultant performing such work to include these elements.
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