Environmental Site Assessment Phase 1: Fundamentals, Guidelines, and Regulations - Chapter 3 ppt

Whereas one client may express unclear requirements in terms of a “normal” site assessment, another will have a well‑defined scope of work.. Prior to answering their most important conce

A Proper Beginning

Introduction

A complete understanding of the client’s needs and a systematic plan of

attack are vital to expedite an assessment and avoid confusion The paper

shuffle can easily end in a maze whereby the beginning is not obvious and

the end may seem to be somewhere in Never‑Never Land

First, the client’s needs must be assessed Whereas one client may express

unclear requirements in terms of a “normal” site assessment, another will

have a well‑defined scope of work Others will know they want an All

Appropriate Inquiries assessment but may not have considered other con‑

cerns that could result in a poor property investment decision Client needs

and defined requirements are highly variable

Second, with an understanding of the client’s needs, you can create a struc‑

tured framework to help you organize and maintain control over the process

This step is easy to ignore, particularly by those who have performed numer‑

ous surveys and think they have the routine committed to memory On the

other hand, a survey can become particularly confusing when an individual

or team of people is working on different site assessments at the same time,

and each participant is assigned a single task, part of the whole Consistency

may be sacrificed, and information may be reported piecemeal

Third, support agencies and other sources of information must be con‑

tacted immediately Although some may respond over the telephone, many

will require a letter of request and two to six weeks’ lead time Your job gets

placed on the production line, and you must wait your turn Some sources

offer assistance, then forget the request or lose it within their own paper

shuffle They may take a little longer than anticipated, and sometimes they

may require a gentle reminder The paper shuffle will have the greatest

impact on the time required to complete the investigation

Finally, develop a sketch of the property This last step, although not required,

can be helpful and aid the investigator to visually review the situation

All four steps are discussed in depth within this chapter The methodol‑

ogy is not set in stone It is only a start, and one of many approaches that can

be developed These basic steps are a guide to give you direction and help

you to begin to organize the information necessary to determine whether

hazardous substances will affect the property under investigation

Clients generally make their initial contact by telephone They always ask

for price and completion time requirements Some will ask what is involved,

whereas others will know exactly what they require Prior to answering their

most important concerns, however, you may want to determine purpose,

scope of work, and known property information You may then advise them

about the efficacy of going beyond the basic requirements of the All Appro‑

priate Inquiries Rule

Purpose of the Site Assessment

The purpose of a Phase I site assessment depends on the client’s association

with the property As discussed in the previous chapter, the client may be

a: (1) seller; (2) buyer; (3) lender; (4) lessor/lessee; (5) broker representing a

buyer or seller; or (6) corporate shareholder

They all seek to determine the probability that the property is or can become

a liability due to hazardous substances on and/or associated with the prop‑

erty, and some may seek to be informed as to environmental factors that could

restrict land use and development Yet, each has a different vested interest

Most site assessments are initiated by a buyer or lender Both the buyer

and lender stand to lose their investment and to incur unexpected liabili‑

ties if there is a preexisting condition They want to avoid or minimize the

chances of making a bad investment

Many repossessed properties also are assessed Prior to its dissolution

on December 31, 1996, the Resolution Trust Corporation (RTC) served that

function Now, the Federal Deposit Insurance Corporation (FDIC) man‑

ages the assets previously managed by the RTC The purpose of their site

assessments is the same as that of the seller They want to know of any

preexisting conditions that might impact the sale of owned or repossessed

properties When they prepare to sell, a last‑minute disclosure as to factors

that devalue the property may bring about a change in plans More impor‑

tant, however, the seller may avoid liability for a preexisting condition if

disclosure is made prior to a sale and the responsible parties are identi‑

fied The seller’s purpose is to avoid last‑minute surprises and forfeiture of

defense in a liability suit Small corporations and individuals rarely seek

an environmental site assessment

A lessor may be held responsible for a lessee’s misuse of property The

broker has a duty to advise a client as to the risk potential A shareholder

involved in the decision making of a corporation that is operating, buying, or

selling property may be held liable, beyond the corporate veil

An understanding of purpose will give the consultant a point of depar‑

ture, a means for communicating effectively with the client concerning the

required scope of work Some clients need to be educated Knowing the cli‑

ent’s intent is important

An environmental site assessment may also be referred to as an environ‑

mental audit, environmental evaluation, pre‑acquisition site assessment, real

estate environmental study, environmental impairment risk assessment, or

any variation thereof The client may request an assessment under another

term, or the client may be requesting something altogether different, such as

a dedicated endangered species environmental impact study On the other

hand, the client may need only an All Appropriate Inquiries assessment

Seek clarification!

For the client who seems to be lost in a fog of uncertainty, explain the dif‑

ferent phases of a site assessment and limitations to the scope of work that is

being requested The scope of work may be redefined once this information

is clear to the client This will, once again, affect the anticipated amount of

time and the cost

Clarification

The understood scope of work must be clear and concise Similar to institu‑

tions, individual clients have differing requirements and perceived needs

Some may even require guidance The only information the client may

have is that a lender mandated that an environmental site assessment be

completed prior to real estate closing Find out which lending institution is

involved and what, if any, special requirements they have in addition to the

All Appropriate Inquiries assessment

Client requirements vary from “go look and see” to “a five‑pound manual

of procedures and checklists to be completed.” The requirements will sig‑

nificantly affect the time required to perform a survey

Some clients will be very specific and provide a detailed checklist of items

to be included in the survey; others may only know the purpose of avoiding

liability or keeping a loan officer happy

An assessment that is performed to placate a loan officer can be difficult

to negotiate if the loan officer has failed to clarify the requirement In these

cases, clients want the least expensive product they can get They see their

money drawn into a vacuum for no understandable reason, while the con‑

sultant tallies up the liability issues Cheap and thorough are not compat‑

ible An All Appropriate Inquiries investigation requires more than a token

drive‑by

The Rule, however, does not cover petroleum or petroleum products, and

failure to identify preexisting petroleum contamination on property may

result in costly cleanup for the unwary buyer Thus, the acceptable level of

risk versus cost must be clarified

For example, past experience dictates that what appears to be raw land

may harbor a sleeping liability Industrial properties in urban environments

are not the only ones that present risk; pristine rural properties may have

had dumping on or around the premises at some time in the past

Once the risk has been explained, if the client still insists on a minimum

scope of work, the consultant may opt to either back out of the deal or clar‑

ify in writing the client’s desires and that the client has been duly warned

Even in the latter scenario, the consultant’s insurance carrier could still end

up paying legal fees for defense Thus, a consultant may opt not to perform

assessments that are less than that required by law as protection from liabil‑

ity—under the Superfund Law

Some consultants say they can guarantee “no hazardous substances on

the property.” This is the fool’s folly! There are no 100% guarantees that a

site is clean—unless every inch of the property has been sampled, which is

an absurd situation Never offer a guarantee! Those people who do probably

don’t have anything to lose—money or reputation

According to the All Appropriate Inquiries Rule (the Rule), an assessment

should include at least: (1) a records review; (2) a site and area reconnais‑

sance; and (3) interviews The Rule does not detail how to go about it It only

mandates what must be included and by whom

The ASTM E 1527‑05 does, however, provide details where the Rule leaves

off The ASTM Standard also recommends a petroleum and petroleum prod‑

uct search, which is not included in the Rule

The detailed components for an ASTM assessment, with comments

regarding the Rule, include:

Physical setting (Not mandated by the Rule)

Topography Geology Hydrogeology Hydrology

Historic usage of the property (Mandated by the Rule back to first property

usage; recommended by ASTM back to first developed or to 0, whichever

is earlier)

Title search Aerial photographs Fire insurance maps Local street directories Property tax records Zoning records Building permits

Government agency records review (ASTM: federal and state records [dis‑

cretionary: local]; the Rule: federal, state, tribal, and local)

NPL CERCLIS RCRA lists ERNS State hazardous waste site (e.g., Superfund) lists Solid waste disposal sites

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Underground storage tank (UST) list—Not mandated by the Rule Leaking UST (LUST) list—Not mandated by the Rule

Property and area reconnaissance (With limited exceptions, mandated by the

Rule to include adjoining properties; observations only of the adjoining properties)

Current use Prior use Hazardous substances present Signs of property misuse Effluence and air emissions Waste disposal techniques Surface water

Transformers Surrounding area use Interviews

Owners—Mandated by the Rule Past owners and occupants—Mandated by the Rule; as needed to

obtain information pertinent to the site

Site residents Site personnel (e.g., commercial and industrial)

Neighboring or nearby property owners or occupants—Man‑

dated by the Rule at abandoned properties

Local government officials Remember, the Rule is mandated, and the ASTM is recommended There has

also been a trend toward the review of hazardous building materials (e.g.,

asbestos) and special resources The depth of coverage in each topic varies,

and requirements continue to evolve

Some institutions mandating a site assessment will group surveys by

category in order to aid in the decision‑making process as to the required

depth of an assessment Categories may include undeveloped land, resi‑

dential property, commercial property, and industrial property On the

other hand, incongruous notions that undeveloped land must be evaluated

for asbestos in building materials or that developed land must be evalu‑

ated for endangered species are included in some institutions’ required

protocols Others clarify different property types and specific procedures

on property category

Special resource concerns generally involve raw land, but they may include

developed land as well (e.g., an historic building that cannot be altered or

destroyed, or an archaeological site associated with a building that cannot

be expanded onto the site) If the client requires the inclusion of a special

resources evaluation, seek clarification as to which issues must be addressed

lists many of the special resources investigations that may be requested

under varying circumstances

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Table.3.1. Recommended Components of a Phase I Environmental Site

Assessment, According to Property Category

Raw Land Residential Commercial Industrial

Physical setting

Historic usage of the property

Regulatory agency listing

Underground storage tanks

(USTs)

Site reconnaissance

Interviews

A Phase I environmental site assessment (ESA) is the initial research phase

for assessing a property It is where historic information and documenta‑

tion is compiled and analyzed This is the speculative stage in which all the

information gathered may contain only one piece of information that could

generate questions or other avenues requiring further investigation Feelers

are sent in many directions, keeping in mind that anything and everything

is possible Possibilities are subjected to speculation, based on experience,

common sense, and logic Probability for property contamination—high,

medium, or low—is the end result Although sampling is rarely performed

in this phase, some clients require some sampling for asbestos, a token sam‑

pling of the groundwater, air samples for radon in buildings, and/or lead

sampling of the drinking water

A Phase II ESA involves more detailed research and/or speculative sam‑

pling During the Phase I ESA, an investigation may disclose a moderate to

high probability that there is preexisting contamination on the property or

that development may have an impact on the environment At this point, it is

only a probability Further investigation and/or sampling are indicated This

requires greater time and cost expenditures

Additional research and information gathering, not normal in a Phase I

ESA, may involve the aid of a private investigator to track suspicious activi‑

ties, or it may involve a time‑consuming, in‑depth audit of the administrative

management records Where special resources have been researched, a Phase

II ESA may also require the aid of a nature biologist to study the habitat

Sampling may range from collecting water samples from within a small,

easily accessed pond to groundwater sampling It may consist of composting

the top 6 inches of surface solid to core drilling down to uncontaminated

geological substrates An asbestos building evaluation is generally included

in a Phase II survey, but the clients might require an abbreviated asbestos

evaluation during a Phase I ESA This should be ascertained during the

scope of work clarification

In short, a Phase II ESA involves more time and money expenditures than the

speculative Phase I Its principal intent is to “confirm or deny suspicions.”

Table.3.2. Special Resources Threatened and endangered species Critical and unique habitats Buildings/structures of historic value Archaeological resources

Wetlands Wild and scenic rivers Coastal dunes and beaches Various sources

A Phase III ESA follows on the heels of a Phase II after suspicions have

been confirmed The problem has been identified—the contaminant is

known Now, the questions remain: How bad is it? and How much will it

cost to clean it up? Extensive sampling is indicated Keep in mind, the con‑

taminant may have come from an adjacent property, down a river, or through

ground migration from one area to another The possibilities are infinite, and

sampling may go well beyond the property boundaries Generally, once this

stage is reached, a plan of action to reduce the liability is developed Cleanup

is the best alternative, but containment and ongoing monitoring could mini‑

mize the cost and control the liability All factors are considered

A Phase III may require extensive soil sampling to determine the extent

of contamination Groundwater monitoring may also be indicated where

migration has been extensive Sampling of ponds and sediment may be

required, or vegetation sampling may be indicated where an airborne con‑

taminant may have entered the food chain (e.g., fluorine contamination in

grazing pastures)

Many Phase III assessments become part and parcel of a cleanup For

instance, formaldehyde contamination of the soil has been confirmed on the

premises of a cosmetics manufacturing plant The property is 100 feet above

a major aquifer that supplies water to more than seven hundred thousand

people The soils are porous and geology fractured, serving as a recharge

zone for the aquifer The potential that the formaldehyde will contaminate

the aquifer is high The owners may opt to put in a groundwater monitoring

well to determine if the aquifer has been compromised; if it has not, removal

is begun immediately, avoiding costly core sampling They will take samples

during the cleanup to confirm or deny completion

The differences between the various phases are not black and white

Because the extent of coverage completed during Phase I ESAs varies from

one to the next, the same applies to the other phases In most cases, however,

an investigation is terminated upon completion of the Phase I assessment

A Phase I may also be referred to as a Level 1, Category 1, or preliminary

survey Roman numerals and Arabic numbers are sometimes interchange‑

able, but the investigative involvement is consistently “one.”

Limitations

A comprehensive Phase I environmental site assessment is limited to the

availability and completeness of historic data and to physical obstructions

that mask visual clues Activities performed on the sly are not subject to

historic discovery Eyewitnesses may not be willing to talk, or they may not

be accessible An inability to properly interpret the collected data may also

be a limitation Tracking the past becomes more difficult with the passage of

time Evidence disappears Stories become distorted Records are destroyed

or lost

A building or other such ground cover (e.g., asphalt roads, surface water,

or a shed) may conceal an area that has signs of contamination For instance,

a shed may have been built on top of sinking ground cover as a disguise to

what really is hidden below In such cases, only damage to the property and

invasive sampling would identify a problem, and neither is feasible without

other indicators

A partial Phase I environmental site assessment will be limited accord‑

ingly Many times, just one little obscure piece of information may cause the

consultant to embark down a few more trails, not originally anticipated, in

order to discover an unknown The chances for such a discovery are mini‑

mized with an abbreviated scope of work

Details about the Property

Where is the property? Get the city and address, if there is an address Zip

code information, if not given by the client, will have to be obtained at a later

date, when initiating a regulatory agency records review Some clients may

give a generalized description They may provide street coordinates, land‑

marks, or survey lot and block descriptions The latter information can be

used to locate the property on a plat Others will even offer a legal property

description These may or may not be helpful Figure 3.1 is a sample legal

description, created in the late 1800s, that has yet to be located by the owners

or taxed by the county tax assessor

What type of property is it? It may be raw land, farmland, or grazing land

Or it may be zoned residential, commercial, or industrial

What is the present use of the property? It may be property with no appar‑

ent use It may be used for cattle ranching, or it may be used as the site of a

dry cleaning operation Alarm bells are warranted particularly where there

are industrial activities An assessment of a manufacturing operation may

also involve an extensive chemical or process audit

What is the number and size of buildings on the property? Where were

they constructed, and what structural materials were used? An old steel stor‑

Figure 3.1  Legal description of a plot of land that has yet to be located by the pres‑

ent owner (A vara is an old Texas unit of measure that is equivalent to 33.3 inches, a

little less than a yard.)

age shed on a concrete foundation is easier to assess than an industrial com‑

plex with three‑ and four‑story buildings, all constructed at different times

and of different materials

The client’s responses to the preceding questions are vital, along with

the purpose and scope of work, to ascertain how much time the job will

take Consultants generally have a set hourly fee for investigation and report

preparation time With the time projection, hourly rate, and research fees, the

consultant may determine project costs

Once the terms have been agreed upon, reconfirm the property location

Get the names of contacts in order to gain access to the property and the

buildings on the property Request pertinent records and reports, and ask

for disclosure of whatever details and information the client may be privy to

that may impact the outcome of the investigation

Plan and Organize

Once there is an understanding of purpose and scope of work, an investi‑

gative checklist of components should be created and a method developed

for keeping the information together The checklist evolves; each time an

assessment is performed, the checklist gets larger An observation regarding

items not mentioned on a checklist, something previously not considered, is

a good investigator’s stock‑in‑trade

A properly organized management plan will help you avoid endless hours

of searching all recesses of the office, home, and automobile Such a scenario

is like driving a car that will go only in reverse It is not impossible to move

forward without a plan, but things can be distracting and difficult without a

systematic approach and diligence The latter will improve with the passage

of time and with experience

A Tailored Checklist

A checklist should serve as a tool to keep track of (1) that which has been

completed; (2) that which must be completed; (3) assigned component tasks;

and (4) deadlines It is to be used as a guide If there is more than one person

performing the job, all participants should receive their own checklist from

a designated, singular “team leader.”

An Organized Management Plan

Once the checklist has been developed, the investigation could turn up

mountains of documents, data, sketches, and notes Organize a method for

keeping track of these A common, single resting place for all the information

may consist of a three‑ring binder, organizer expansion file, or paper file box

Be sure to clearly label the name of the property if you are performing more

than one assessment at a time If a map or plat is too large to be placed in the