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Environmental Considerations prior to purchasing Properties

This article discusses the importance of conducting environmental site assessments before purchasing properties to avoid liability for contaminated land and to evaluate environmental risks. It also explains the All Appropriate Inquiry (AAI) standards and the process of Phase I and Phase II Environmental Site Assessments (ESA).

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Environmental Considerations prior to purchasing Properties

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  1. Environmental Considerations prior to purchasing Properties Sabine E. Martin, Ph.D., P.G. Center for Hazardous Substance Research Kansas State University May 2010

  2. Purpose of Site Assessments Identification of Environmental Risk • avoid taking ownership of contaminated property • avoid responsibility for cleanup under CERCLA as an “innocent landowner” • evaluate whether environmental risks are worth accepting in a case where contamination is discovered

  3. Acronym Alert !!! ESA stands for Environmental Site Assessment

  4. Types of ESA’s Phase I ESA – non-intrusive Phase II ESA – intrusive Extended Phase II – intrusive Phase IIIESA Site Characterization

  5. Phase I ESA(non-intrusive) Identifies potential environmental concerns Also called recognized environmental conditions • Research on historical and current uses and activities of the site and surrounding area • Records review • Site reconnaissance • Interviews

  6. Records Review • Surrounding area of subject site • Search radius varies: between 1/8 mile and 1 mile • Site specific

  7. Phase I Env. Site Assessment All Appropriate Inquiry

  8. All Appropriate InquiryWhat’s that? • Federal standard for conducting environmental site assessments • Refers to the requirements for assessing environmental conditions of a property prior toits acquisition

  9. Why AAI? • AAI provides protection against liability for bona fide prospective purchasers of properties with actual or threatened environmental contamination as well as contiguous landowners • Clarifies the requirements necessary to establish the innocent landowner defense under CERCLA

  10. All Appropriate Inquiry, cont. • Rule was published in the Federal Registry November 1, 2005 • The final rule was effective as of November 1, 2006

  11. AAI Compliance • AAI final rule standards (effective as of 11-01-06 OR • follow the standards set forth in ASTM E1527-05 Phase I Env. Site Assessment Process

  12. AAI Requirements, cont. • AAI applicable to commercial real estate, residential used for commercial purposes, residential under gov. ownership • Identify releases or threatened releases of hazardous substances on subject property • AAI report valid for 1 year, after that it becomes invalid • AAI must be conducted within 1 year prior to purchase of the property with certain aspects conducted or updated within 180 days of purchase date (i.e. site inspection, interviews, local records search, EPs declaration).

  13. AAI Requirements • Inquiry to be conducted by an “Environmental Professional” • Interviews with past and present owners, operators, occupants of the facility/site • Review of historical records since the property was first developed • Searches for recorded env. clean-up liens against the facility/site filed under federal, tribal, state, or local law

  14. AAI Requirements, cont. • Reviews of federal, tribal, state, or local government records • Review of waste disposal records; UST records; haz. waste handling, generation, treatment, disposal records; spill records • Visual inspection of site plus adjoining properties • Interview adjoining property owners mandatory if subject property is abandoned

  15. AAI Requirements, cont. • Responsibility for searching records of engineering and institutional controls falls to the EP (if sources are reasonably ascertainable) – requirement • Requires written opinion by EP addressing the thoroughness and reliability of the gathered data • Requires statement re. the EPs credentials and qualifications

  16. AAI Requirements, cont. • Extensive documentation of data gaps; describe efforts to resolve them; EP is required to issue an opinion about the impact of the data gaps on his/her ability to identify conditions indicative of releases or threatened releases of hazardous substances at the subject site • Places extensive reliance on the EPs professional judgment

  17. Phase II ESA evaluates the recognized environmental conditions identified in the Phase I ESA

  18. Phase II ESAcont.(intrusive) Components: Sampling and chemical analyses of impacted media (i.e. soil, groundwater, surface water, air, etc.) Identification of horizontal and vertical extent of contamination – if present

  19. Contaminantsare rarely distributed evenly • Neither horizontally, nor vertically • Assessment estimates between available sample points >500 ppm 100 - 500 ppm 0 500 1010 100 10 0 150 1500 1600 500 40 110 “Clean” <100 ppm 0 1000 410 90 40 200 70 100 0 30 0 0 200 0 0 10 60 0 90 30 10 10 30 10 70 150 30 20 20 70 70 60 90 0 20 90 70 50 20 20 70 90 60 30 150 10 0 10 0 “Cleaned Up” to 0 ppm 70 0 30 0 0 0 0 0 0 0

  20. Phase II ESA cont. Stepwise Approach: • Development of scope of work • Assessment activities • Interpretation of results • Presentation of findings and conclusions

  21. Phase II ESA Results • Identified contaminants • Identified lateral and vertical distribution • Identified concentrations of contaminants present • Identified potential receptors • Identified potential for off-site migration • Produced detailed report, incl. detailed maps • Recommendations for further action, i.e. is remediation necessary

  22. Phase II ESAResults Results may show: • Hazardous substances have not been disposed or released • Environmental condition does exist and information can assist the user in making informed business decisions

  23. Extended Phase II ESA • Obtain more and detailed data regarding the contaminants and the impacted media • More sampling • Pump tests/slug tests • Detailed geologic cross sections

  24. Extended Phase II ESAResults • Identification of source(s) of contaminants • Identification of migration pattern • Identification of receptors • Identification of full extent of contamination • Identification of subsurface conditions • Recommendation of suitable remedial options • Detailed report

  25. Presentation of Findings Describe the work performed • Provide documentation of the data • Provide evaluation that • Constitutes the factual findings • Supports the conclusions • Facilitates decisions about the transaction • Documents the basis for decision whether further assessment is warranted

  26. Assessment Activities • Field screening/field analytical methods • Environmental media sampling (soil, water, air)

  27. TAB Contacts Dr. Sabine Martin (Program Coordinator) 1-800-798-7796785-532-6519smartin1@k-state.edu Beth Grigsby 317-579-4069beth.grigsby@atcassociates.com Web site: http://www.engg.ksu.edu/chsr/outreach

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