Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property

Importancia y uso:

4.1 Uses—This practice is intended for use on a voluntary basis by parties who wish to assess the environmental condition of forestland or rural property taking into account commonly known and reasonably ascertainable information. While use of this practice is intended to constitute all appropriate inquiries for purposes of the LLPs, it is not intended that its use be limited to that purpose. This practice is intended primarily as an approach to conducting an inquiry designed to identify recognized environmental conditions in connection with a subject property. No implication is intended that a person shall use this practice in order to be deemed to have conducted inquiry in a commercially prudent or reasonable manner in any particular transaction. Nevertheless, this practice is intended to reflect good commercial and customary practice. (See 1.5.)

4.2 Clarifications on Use: 

4.2.1 Use Not Limited to CERCLA—This practice is designed to assist the user in developing information about the environmental condition of a subject property and as such, has utility for a wide range of persons, including those who may have no actual or potential CERCLA liability and/or may not be seeking the LLPs.

4.2.2 Residential Occupants/Lessees/Purchasers and Others—No implication is intended that it is currently customary practice for residential occupants/lessees of multifamily residential buildings, occupants/lessees of single-family homes or other residential real estate, or purchasers of dwellings for one's own residential use, to conduct an environmental site assessment in connection with these transactions. Thus, these transactions are not included in the term forestland or rural property transactions, and it is not intended to imply that such persons are obligated to conduct an environmental site assessment in connection with these transactions for purposes of all appropriate inquiries or for any other purpose.

4.2.3 Site-specific—This practice is site-specific in that it relates to the assessment of environmental conditions for a subject property comprising forestland or rural property. Consequently, this practice does not address many additional issues raised in transactions such as purchases of business entities or interests therein, or of their assets, that may well involve environmental liabilities pertaining to properties previously owned or operated or other off-site environmental liabilities.

4.3 Related Standard Practice—This practice sets forth one procedure for an environmental site assessment known as a “Phase I Environmental Site Assessment for Forestland or Rural Property,” “Phase I Environmental Site Assessment,” a “Phase I ESA,” or simply a “Phase I.” This practice is separate from and is applicable to different types of property than Practice E1527 as further described in 4.3.1. These practices are each intended to meet the standard of all appropriate inquiries necessary to qualify for the LLPs. It is essential to consider that these practices, taken together, provide for two alternative practices of all appropriate inquiries for forestland or rural property.

4.3.1 Election to Commence with This Practice—The user may commence inquiry to identify recognized environmental conditions in connection with a subject property by performing this practice when conditions identified in 1.1 are met. A primary consideration in applying this practice instead of E1527 is the nature and extent of the subject property being assessed, as the typical environmental concerns, sources for interviews and records, and the methodology used to perform the site reconnaissance may differ significantly. The subject property need not be contiguous and may contain isolated areas of non-forestland and non-rural property. This practice is intended to provide a more practical approach to assess rural property and forestland properties that are generally uniform in use.

4.3.2 Who May Conduct—Whenever a Phase I Environmental Site Assessment is conducted, it must be conducted by an environmental professional, as defined in Appendix X2 (and 40 C.F.R. 312.10(b)), to the extent specified in 7.5.1. Further, at the Phase I Environmental Site Assessment level, no practical standard can be designed to eliminate the role of judgment and the value and need for experience in the party performing the inquiry. The professional judgment of an environmental professional is, consequently, vital to conducting all appropriate inquiries at the Phase I Environmental Site Assessment level.

4.4 Additional Services—As set forth in 12.10, additional services may be contracted for between the user and the environmental professional. Such additional services may include BER issues not included within the scope of this practice, examples of which are identified in Section 13 under Non-Scope Considerations.

4.5 Principles—The following principles are an integral part of this practice and are intended to be referred to in resolving any ambiguity or exercising such discretion as is accorded the user or environmental professional in conducting an environmental site assessment or in judging whether a user or environmental professional has conducted all appropriate inquiry or has otherwise conducted an adequate environmental site assessment.

4.5.1 Uncertainty Not Eliminated—No environmental site assessment can wholly eliminate uncertainty regarding the potential for recognized environmental conditions in connection with a subject property. Performance of this practice is intended to reduce, but not eliminate, uncertainty regarding the potential for recognized environmental conditions in connection with a subject property, and this practice recognizes reasonable limits of time and cost.

4.5.2 Not Exhaustive—All appropriate inquiries does not mean an exhaustive assessment of a property. There is a point at which the cost of information obtained or the time required to gather it outweighs the usefulness of the information and, in fact, may be a material detriment to the orderly completion of transactions. One of the purposes of this practice is to identify a balance between the competing goals of limiting the costs and time demands inherent in conducting an environmental site assessment and the reduction of uncertainty about unknown conditions resulting from additional information.

4.5.3 Level of Inquiry Is Variable—Not every property will warrant the same level of assessment. Consistent with good commercial or customary standards and practices as defined at 42 U.S.C. § 9601(35)(B), the appropriate level of environmental site assessment will be guided by the type of property subject to assessment, the expertise and risk tolerance of the user, future intended uses of the subject property disclosed to the environmental professional, and the information developed in the course of the inquiry. This practice is no less stringent than Practice E1527; however, the means by which this practice intends to satisfy that level of all appropriate inquiries within reasonable time and cost constraints are different than under Practice E1527. Site reconnaissance of isolated areas of the property that include activities outside the definition of forestland or rural property should be addressed using methodologies such as those provided in E1527. See also section 1.1.1.

4.5.4 Comparison with Subsequent Inquiry—It should not be concluded or assumed that an inquiry was not all appropriate inquiries merely because the inquiry did not identify recognized environmental conditions in connection with a subject property. Environmental site assessments must be evaluated based on the reasonableness of judgments made at the time and under the circumstances in which they were made. Subsequent environmental site assessments should not be considered valid standards to judge the appropriateness of any prior assessment based on hindsight, new information, use of developing technology or analytical techniques, or other factors.

4.5.5 Point in Time—The environmental site assessment is based upon conditions at the time of completion of the individual environmental site assessment elements (see 7.2).

4.6 Continued Viability of Environmental Site Assessment: 

4.6.1 Presumed Viability—Subject to 4.8 and the user’s responsibilities set forth in Section 6, an environmental site assessment meeting or exceeding this practice is presumed to be viable when it is completed less than 180 days prior to the date of acquisition of the subject property (or, for transactions not involving an acquisition, the date of the intended transaction). The completion dates of the components presented in 4.6.2(i), (iii), (iv), and (v) for interviews, review of government records, visual inspections, and declaration by environmental professional, shall be identified in the report. Completion of searches for recorded environmental cleanup liens (4.6.2(ii)) is a user responsibility; however, if the user has engaged the environmental professional to conduct these searches, then that date shall also be identified in the report.

4.6.2 Updating of Certain Components—Subject to 4.8 and the user’s responsibilities set forth in Section 6, an environmental site assessment meeting or exceeding this practice, and for which the information was collected within one year prior to the date of acquisition of the subject property, may be used provided that the following components of the inquiries were updated within 180 days of the date of purchase or the date of the intended transaction; the 180-day period shall commence from the completion of any of these components, whichever is first:

(i) interviews with owners, operators, and occupants;

(ii) searches for recorded environmental cleanup liens (a user responsibility, see Section 6);

(iii) searches of federal, tribal, state, and local government records;

(iv) visual inspections of the subject property and of adjoining properties; and

(v) the declaration by the environmental professional responsible for the assessment or update.

4.6.3 Compliance with All Appropriate Inquiries—To qualify for one of the threshold criteria for satisfying the LLPs to CERCLA liability, the all appropriate inquiries components listed in 4.6.2 must be conducted or updated within 180 days of and prior to the date of acquisition of the subject property, and all other components of all appropriate inquiries must be conducted within one year prior to the date of acquisition of the subject property. The date of the report generally does not represent the date the individual components of all appropriate inquiries were completed and should not be used when evaluating compliance with the 180-day or 1-year all appropriate inquiries requirements.

4.6.4 User’s Responsibilities—If, within the period described above, the environmental site assessment will be used by a user different than the user for whom the environmental site assessment was originally prepared, the subsequent user must also satisfy the user’s responsibilities in Section 6.

4.7 Prior Assessment Usage—This practice recognizes that environmental site assessments conducted in accordance with this practice will include information that subsequent users may want to use to avoid undertaking duplicative assessment procedures. Therefore, this practice describes procedures to be followed to assist users in determining the appropriateness of using information in environmental site assessments performed more than one year prior to the date of acquisition of the subject property (or for transactions not involving an acquisition such as a lease or refinance, the date of the intended transaction). The system of prior assessment usage is based on the following principles that should be adhered to in addition to the specific procedures set forth elsewhere in this practice:

4.7.1 Use of Prior Information—Subject to the requirements set forth in 4.6, users and environmental professionals may use information in prior environmental site assessments provided such information was generated as a result of procedures that meet or exceed the requirements of this practice. However, such information shall not be used without current investigation of conditions likely to affect recognized environmental conditions in connection with the subject property. Additional tasks may be necessary to document conditions that may have changed materially since the prior environmental site assessment was conducted. Nothing in this practice is intended to convey a right to use or rely upon resources, information, findings, or opinions provided in prior assessments.

4.7.2 Contractual Issues Regarding Prior Assessment Usage—The contractual and legal obligations between prior and subsequent users of environmental site assessments or between environmental professionals who conducted prior environmental site assessments and those who would like to use such prior environmental site assessments are beyond the scope of this practice.

4.8 Actual Knowledge Exception—If the user or environmental professional conducting an environmental site assessment has actual knowledge that the information being used from a prior environmental site assessment is not accurate or if it is obvious , based on other information obtained by means of the environmental site assessment or known to the person conducting the environmental site assessment, that the information being used is not accurate, such information from a prior environmental site assessment may not be used.

4.9 Rules of Engagement—The contractual and legal obligations between an environmental professional and a user (and other parties, if any) are outside the scope of this practice. No specific legal relationship between the environmental professional and the user is necessary for the user to meet the requirements of this practice.

4.10 Organization of This Practice—This practice has thirteen sections and six appendices. Section 1 is the Scope. Section 2 is Referenced Documents. Section 3, Terminology, has definitions of terms not unique to this practice, descriptions of terms unique to this practice, and acronyms. Section 4 is Significance and Use of this practice. Section 5 provides discussion regarding activity and use limitations. Section 6 describes User’s Responsibilities. Sections 7 – 12 are the main body of the Phase I Environmental Site Assessment, including evaluation and report preparation. Section 13 provides additional information regarding non-scope considerations (see 1.4). The appendices are included for information and are not part of the procedures prescribed in this practice. Appendix X1 explains the liability and defense provisions of CERCLA that will assist the user in understanding the user’s responsibilities under CERCLA; it also contains other important information regarding CERCLA, the Brownfields Amendments, and this practice. Appendix X2 provides the definition of the environmental professional responsible for the Phase I Environmental Site Assessment, as required in the “All Appropriate Inquiries” Final Rule (40 C.F.R. Part 312). Appendix X3 provides an optional User Questionnaire to assist the user and the environmental professional in gathering information from the user that may be material to identifying recognized environmental conditions. Appendix X4 offers an additional examination of the recognized environmental condition definition. Appendix X5 provides a suggested table of contents and report format for a Phase I Environmental Site Assessment. Appendix X6 summarizes non-scope considerations that persons may want to assess.

Subcomité:

E50.02

Referida por:

E3033-16, E1903-19, E2091-24, E1903-19, E1528-22, D5746-24, E2137-22, E3358-23A, E2790-20, D6008-22, E1527-21, E1527-21, E2790-20

Volúmen:

11.05

Número ICS:

13.020.10 (Environmental management)

Palabras clave:

commercial real estate; contaminants; environmental site assessment; Phase I;