Environmental Phase Surveys
The latest federal codes require Environmental Phase surveys and the addition of vapor investigation and the availability of Vapor Encroachment Screening, if necessary. Unsafe levels of contamination can travel as vapor through soil and groundwater from a contamination source on site or off site within ASTM Standard search distances. This is true even when contamination has been mitigated and only negligible levels of liquid or solid contamination remain. In recognition of this reality at least 32 states so far are now reopening all old NFA cases and where vapor contamination is found the current owner becomes liable for remediation costs.
According to the most recent guidance on federal environmental liability protections, solid, liquid and vapor are all forms of release of hazardous substances that must be addressed to fulfill requirements of all appropriate inquiry as defined by federal statute to qualify user for federal environmental liability protection i.e. innocent landowner or innocent purchaser defense 42 U.S.C. §§ 9607(b)(3) and 42 U.S.C. §§ 9601(35), contiguous property owner liability protection 42 U.S.C. § 96079(q) and for Brownfields properties, to qualify prospective purchaser for bona fide prospective purchaser liability protection 42 U.S.C. § 9607(r) pursuant to the Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. No. 107-118 (2002), 42 U.S.C. §§ 9601 et. seq.
Since at least 2008 EPA has consistently held that vapor encroachment investigation is necessary and applications for liability protections have been denied for lack of vapor encroachment investigation
Environmental Phase I Surveys without a vapor investigation component does not meet the ASTM 1527-05 Standard and does not satisfy the requirements of all appropriate inquiry (AAI) to qualify user for federal environmental liability protections. The level and methodology of vapor encroachment investigation is not specified however, if a vapor encroachment situation from on-site or off-site contamination exists the only recognized standard for vapor encroachment investigation is ASTM E-2600-10 Standard Guide for Vapor Encroachment Screening on Property Involved in Real Estate Transactions.
The environmental industry is still ramping up for Vapor Encroachment Screening and at the present time our consultant is one of a few hundred U.S. qualified VES providers to complete ASTM E 2600 Vapor Encroachment Screening training and receive a certificate from the Vapor Encroachment Screening Personnel Certification Program. No provider without VES specific ASTM training is qualified to offer ASTM E 2600-10 Vapor Encroachment Screening. (ASTM E 2600-10 is the only published vapor encroachment screening methodology)
In the best interest of our clients we no longer offer Environmental phase survey I as a stand-alone product. Our price is for ASTM E 1527-13 Phase I Environmental Assessment including ASTM E 2600-10 Vapor Encroachment Screening.
Liability Protection For Landowners
The federal government recognizes the environmental risk that is inherent in every property transaction. Even if a site has never had an environmentally sensitive use on it, it is a virtual certainty that some property within 1/4 mile, 1/2 mile or even farther away had, has or will have an environmental incident, and the contamination plume on that site can travel underground to your property.
Real estate investors and lenders require Environmental Phase I & II surveys as a condition of loan approval. Undetected environmental contamination can render a property useless and the potentially high cost of environmental cleanup and personal illness and injury claims can be financially devastating.
Since enactment of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) in 1980, the commercial real estate industry has had to deal with the harsh reality that a current owner or operator of a contaminated property could be held responsible for cleanup of the contamination regardless of whether the owner or operator knew of or caused the contamination.
Congress enacted the Superfund and Reauthorization Act (SARA) amendments to CERCLA in 1986 to provide liability protection to innocent landowners who unwittingly purchased contaminated property. Real estate purchasers can now be insulated from liability by one or more of the provisions of the Comprehensive Environmental Response Compensation and Liability Act. CERCLA offers the following protections:
- Bona fide Purchaser Liability Protection
- Innocent Landowner Defense
- Contiguous Property Owner Liability Protection
Environmental Phase I Survey or Assessment is intended to permit the user of the report to satisfy the All Appropriate Inquiry (AAI) requirement to qualify for CERCLA liability protections should it ever become necessary to do so.
Due to ambiguous wording in the ASTM and AAI standard which are being revised, Phase I Environmental Assessment rarely considered the presence or likely presence of Chemicals of Concern (COC) vapors from contaminated soil or groundwater on or near the target site. Meanwhile, when COC vapors were found to be the source of vapor intrusion into buildings, applications for liability protections were systematically denied on the basis that COC vapors would have been discovered if a vapor investigation was part of the original Phase I Environmental Assessment.