1. Environmental Considerations prior to purchasing Properties
Sabine E. Martin, Ph.D., P.G.
Center for Hazardous Substance Research
Kansas State University
April 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
A key step in redevelopment of brownfields properties is the site assessment. The American Society for Testing and Materials standards are widely used for commercial and industrial real estate transactions. Environmental assessments are part of the due diligence process, to either :
avoid taking ownership of contaminated property,
avoid responsibility for cleanup under CERCLA as an “innocent landowner” (i.e., the buyer made a reasonable attempt to identify contamination before taking ownership, did not find any, and therefore should not be held responsible for future environmental cleanup, assuming that no contamination occurs during ownership, or
evaluate whether environmental risks are worth accepting in a case where contamination is discovered.

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

4. Types of ESA’s Phase I ESA – non-intrusive Phase II ESA – intrusive
Phase III ESA – intrusive
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
For a records review, standard historical sources include: aerial photos, fire insurance maps, property tax files, recorded land title records, USGS 7.5 minute topographic maps, local street directories, and building department records.
The site reconnaissance is a site visit where property uses and conditions that are visually and physically observed are noted. Uses and conditions may not be easily determined visually, but may be identified through interviews with current and past property owners or occupants. Local government officials, like the fire department or local health agency, may provide useful information through an interview.
A written report is prepared that summarizes findings and includes key historical exhibits. The report is to provide the credentials and signature of the environmental professional involved in conducting the Phase I ESA.

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

7. Phase I Env. Site Assessment
All Appropriate Inquiry

8. All Appropriate Inquiry What’s that?
Federal standard for conducting environmental site assessments
Refers to the requirements for assessing environmental conditions of a property prior to its 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 E 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
Develop and understand what contaminants are on site, where they are located, and at what levels

18. Phase II ESA cont. (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. Contaminants are rarely distributed evenly
Neither horizontally, nor vertically
Assessment estimates between available sample points
>500 ppm
ppm 10
100
1010
500
150
500
1500
1600
“Clean”
<100 ppm 40 90
1000
110
410 40
100 70
200
200 30 10 60 90 30 30 10 10 10 70 30
150 70 20 20 90 60 70 20 90 70 50 90 20 60 70 20 30
150 10 10
“Cleaned Up”
to 0 ppm 70 30

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 ESA Results 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. Phase III ESA Also known as “Site Characterization”
Obtain more and detailed data regarding the contaminants and the impacted media
More sampling
Pump tests/slug tests
Detailed geologic cross sections

24. Phase III ESA Results 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)

31. TAB Contacts
Dr. Sabine Martin (Program Coordinator) Dr. Frank Beck Web site: