If you’re considering purchasing real property, caveat emptor. A Phase 1 site assessment can help protect you.
The Superfund Amendments and Reauthorization Act of 1986 and 2002 “Brownfields Amendments” significantly changed landowner liability with regard to real property transactions. The “innocent landowner defense” protects from liability owners that can show they had no reason to believe their property was contaminated.
The rules apply to commercial and industrial property, but also residential real estate. Performing a professional assessment up front can minimize risk of acquiring liability along with the property. In fact, most lenders require at least the Phase I Environmental Site Assessment (ESA) portion of an “all appropriate inquiry.”
The point of a Phase 1 site assessment is to determine existence of:
- Recognized Environmental Conditions (REC), indicating Phase II investigation is needed.
- De minimis Conditions, minor issues such as asbestos, lead paint or mold.
- Historical Recognized Environmental Conditions (HREC), previously known but not addressed.
A Phase I site assessment follows this process:
- Site investigation, a visual inspection performed by a qualified individual or firm to determine actual or potential concerns relating to hazardous substance storage, handling or disposal.
- Historical search of public and private databases including local, state, federal agency records, reverse phone directories, fire insurance maps, etc., interviews with property owners or representatives and tenants and review of federal, state, county and municipal documentation regarding known existence or problems with hazardous substances at the property.
- Geological examination, to determine the property’s expected ambient conditions based on aerial photos, private databases, subsurface or hydrogeological background data and limited scope surveys for lead-containing paint or possible friable asbestos-containing materials.
- Review and evaluation of information gathered with recommendations that either identify additional needed research such as a Phase II ESA or indicate the property is free of environmental liability, in which case the pending real estate transaction is protected under SARA.
Phase I site assessments are relatively low-cost to perform, they provide early identification of potentially expensive problems such as underground storage tanks or prior usage concerns, and you don’t have to report findings to any regulatory authority. However the process can take two or three weeks and it’s not designed to cover every possible contingency.
Most important, although Phase 1 work can be performed by an uncertified investigator, hiring an experienced professional engineering firm will ensure your Phase 1 results are beyond question. Anything less could leave you at risk.