Roaring Brook Consultants, Inc.

Engineering a Better Future

CURRENT NEWS AND TIMELY TIPS

Environmental Site Assessments

One of the reasons for having an Environmental Site Assessment (ESA) performed is to try to qualify for the innocent landowner defense to CERCLA liability. The American Society for Testing and Materials (ASTM) has established standards which guide the environmental professional in the performance of these assessments. The ASTM standards provide a benchmark standard for measuring whether an assessment is "consistent with good commercial and customary practice".

The minimum assessment is a Transaction Screen, guided by ASTM E 1528. This standard calls for the search of some, but not all, federal and state databases for reported spills or other significant activities. A site visit, interview of owners/tenants and completion of a Transaction Screen Questionnaire is required as part of this process. The screening process is a fact gathering step, which may uncover facts or indicators of potential problems, but the analysis of the data is left up to the owner. Keeping in mind that the ASTM standard is considered as a minimum guide the owner may request the environmental professional to evaluate the data and make recommendations.

If a potential problem is found with a property during the transaction screening process a Phase 1 Environmental Site Assessment or possibly a Phase 2 Site Assessment may be needed. A Phase 1 ESA is also a fact gathering task but analysis and recommendations are an expected part of the final product. A Phase 1 ESA does not include any testing where a Phase 2 ESA does include testing. Phase 2 ESA's will not be discussed here.

The Phase 1 ESA is guided by Standard Practice E-1527. Materials that should be included are:

• 1. Search of an expanded list of federal and state databases

• 2. Site inspection

• 3. Interviews of owner, major tenants and anyone else having knowledge of past or current use of the property

• 4. Research into the property usage history back to 1940 or to its first developed use.

• 5. Current and past usage of abutting properties

• 6. Review and analysis of the data collected

• 7. Study presented as a formal report

Typically the request for an ESA comes from a bank or a property buyer who wants to make an informed decision about buying or financing a property. The type of study requested or needed is a function of the property. If you know or strongly suspect that spills have occurred at the property you may want to start with a Phase 2 ESA. If you have a residential property that will be converted to a commercial use you may want to start with a Transaction Screen.

Neither Maine nor New Hampshire have specific standards regulating the performance of an ESA, but the purpose of having one done is to minimize the potential for environmental surprises. Likewise there is no requirement to follow the ASTM standards, but it will be difficult to demonstrate an innocent landowner position if these minimum guidelines are not met. We therefore recommend the following:

• DO require ESA's be done to an ASTM specification.

• DO have the federal and state databases searched.

• DO have a complete report prepared.

• DON'T rely on conclusions which are not supported by a complete search and analysis.

• DON'T buy the assessment a step at a time, conclusions should be made based on all the information in a complete report.

• DO expect the environmental professional to closely examine the database report and compare it with files reviewed at the state reporting office. As with all computer generated information it is only as good as the data going in.

• DON'T use the report for the wrong purpose. A transaction screen will provide you with data that you must interpret.

• DO expect an ESA report to provide the information you need to help you to minimize your environmental liability when contemplating real estate transactions.

• DON'T believe a guarantee that there is no environmental risks associated with a property. The environmental professional performing the work cannot analyze every part of your property and know everything that has occurred in the past.