The Environmental Site Assessment Process

By Lee Blodgett, R.E.P.A.

The Environmental Site Assessment process is conducted to assist in the evaluation of the environmental condition of a property prior to purchase. The process consists of several phases that are designed to provide adequate information for the environmental professional to render an opinion of the condition of the property that the user can rely upon in making an informed buying decision.

The specific purpose of an Environmental Site Assessment (ESA) is to permit the user to satisfy one of the requirements necessary to qualify for the innocent landowner defense to CERCLA liability for environmental clean up; that is, the practice that constitutes "all appropriate inquiry into the previous ownership and uses of the property."

The initial step to fulfilling a purchaser's (or other user's) due diligence is to have a Phase I ESA or a Transaction Screen conducted.

The Transaction Screen is a less in depth investigation into prior uses of the site than a Phase I ESA. However, a Transaction Screen may satisfy the appropriate inquiry requirement if there is reputable knowledge that previous uses of the site did not include uses of hazardous substances. If the results of the Transaction Screen indicate otherwise, the investigation will need to be expanded to a Phase I ESA, involving more extensive research, in order to satisfy the appropriate inquiry standard.

Phase II of an ESA is conducted if it is necessary to further evaluate identified potential areas of environmental impact, for the purpose of providing sufficient information to verify or negate the existence of a potential contamination. Phase II work typically includes soil and/or groundwater testing or more extensive research to obtain sufficient information to assist the user in making informed business decisions about the property.

At the completion of Phase II of an ESA, the environmental professional should be able to conclude that either a) the ESA has provided sufficient information to render a professional opinion that there is no reasonable basis to suspect the presence of hazardous substances or petroleum products, or b) the ESA has confirmed that hazardous substances or petroleum products have impacted the site.

If significant impact to the site is discovered in the ESA, there are options as to how a purchaser may want to proceed, including options for cleaning up the site and/or conducting a Baseline Environmental Assessment (BEA). We will discuss what a BEA is and when it is prudent to do one in our next newsletter.

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