So far, in the Periconi, LLC Environmental Law Blog, we've discussed what to do before you purchase a contaminated property (see here) and what to do after you've purchased a contaminated property (see here), but there is a step that often takes place in between - i.e., between contract signing the closing on the purchase - that may be triggered by the results of your Phase I Environmental Site Assessment ("ESA"): the invasive Phase II ESA investigation.
In this blog post, we'll summarize what a Phase II ESA is, when it is needed, and we'll highlight recent changes made to the ASTM standards that guide Phase II.
Beyond the performance of the Phase I ESA as absolutely required, with very specific requirements in both the ASTM standard and in the EPA "all appropriate inquiries" standard, environmental professionals have had somewhat different approaches as to what the next step should be as part of "due diligence" - do you do a first-cut "subsurface investigation" that gives you some more information but is often insufficient to determine the full scope of remediation required, or do you undertake a Phase II ESA, which might (or might not) provide more than a subsurface investigation?
What is a Phase II Environmental Site Assessment?
A Phase II ESA is a more extensive investigation that results from the finding of "recognized environmental conditions" in the Phase I ESA. It involves "invasive" work on the property, typically, and as appropriate, soil, groundwater and surface water sampling. While not specifically required under the EPA's "all appropriate inquiry" requirement, a Phase II is useful to a prospective purchaser or property owner to delineate the amount of contamination on the property, if any, and to understand what type of continuing obligations for which he will be responsible.
The Phase II ESA should not typically be performed before first undertaking a Phase I ESA because the purpose is to further investigate the areas of potential environmental concern (i.e., "recognized environmental conditions") identified in the Phase I ESA. Without having obtained at least an oral report of a Phase I ESA - typically as quickly as 10 days from the start of the Phase I ESA - the Phase II will lack sufficient direction, or, more typically perhaps, it may focus on only a single problem that "everybody knows" is there, missing the other issues that only a Phase I ESA will uncover: the persons undertaking the Phase II ESA may well fail to investigate problems requiring an investigation, and, therefore, the resulting Phase II ESA may not be a reliable document.
Before beginning the Phase II ESA, a scope of work will need to be prepared in consideration of the "recognized environmental conditions" set forth in the Phase I ESA written report (or, at least, as noted, provided orally).
Where there are recognized environmental conditions on a property, the only way to truly assess potential liabilities (i.e., whether on-site contamination is due to on-site or off-site sources) is to undertake the invasive sampling in a Phase II ESA.
The fact that intrusive sampling is expensive further defines the reason why problems arise if a Phase II is performed without first undertaking a Phase I ESA. Without the results of the Phase I ESA, you may not have adequately defined the scope of the problems. For example, there will be added costs if the Phase II investigator misses installing one necessary well - and will have to "remobilize" a drilling rig - or if an unnecessary well is installed.
Revised Phase II ESA Standards
Like it did for Phase I ESAs and Continuing Obligations for contaminated properties, ASTM International (formerly, the American Society for Testing and Materials, or ASTM) has promulgated standards for the Phase II ESA. The ASTM Phase II ESA standards indicate that the scope of the Phase II may include:
- preliminary subsurface investigation: soil or groundwater sampling in areas of suspected contamination;
- groundwater monitoring wells; and
- sometimes, to avoid unnecessary invasive work, a preliminary noninvasive screening method will be used, e.g., metal detectors to identify buried metal storage tanks, or a PID (photo-ionization-detector) meter, which is a volatile organic analyzer that can "smell" gases that are volatilizing or evaporating in the field, rather than require sample-taking and a 5-10 day wait to obtain laboratory results.
In 2011, ASTM revised its "Standard Practice for the Phase II Environmental Site Assessment Process" (E1903-11).
The new Phase II ESA Standards require the purchaser and the environmental consultant to agree upon a written statement of objectives that sets the scope of the investigation; thus, the new Standards contemplate an open communication between the purchaser and the environmental consultant, allowing for revisions during the Phase II, based on sampling results. A number of factors, including costs and objectives, will guide whether the Phase II ESA should be thorough enough as the sole means to determine what kind of remediation is needed at a particular site.
At Periconi, LLC, we work closely with environmental consultants to ensure that all of the necessary requirements are met so that owners of contaminated properties are fully protected from liability. Contact us if you need help choosing or working with an environmental consultant for a contaminated property, one who knows has to develop an investigation that will receive quick approval from the government because it meets the highest standards of reliability in results.