Phase I Environmental Site Assessments

FAQs

  • How long does a Phase I usually take?
  • How much does a Phase I typically cost?
  • What is a Phase I Environmental Site Assessment (“Phase I”)?
  • What is All Appropriate Inquiries (AAI)?
  • Do I have to do an AAI-compliant Phase I?
  • Why should I perform an AAI-compliant Phase I before I purchase?
  • Who is qualified to perform an AAI-compliant Phase I?
  • What are the User’s responsibilities for an AAI-compliant Phase I?
  • What is the shelf life of an AAI-compliant Phase I?
  • What if I already have a previous Phase I?
  • What isn’t in a Phase I?
  • What is the regulatory background of AAI?
  • How is the current ASTM Standard (E1527-13) different than the previous standard (E1527-05)?
  • Why do the standards keep changing?

How long does a Phase I usually take?

A Phase I will typically take three weeks to complete and produce a written report.  ReadyEarth has completed Phase I reports in as fast as one week.  The timing is ultimately dependent on the availability of information (questionnaire response times, office hours of government offices, etc.), access to the property, size and complexity of the property, and User requirements for the report.

How much does a Phase I typically cost?

A typical Phase I costs between $1,500 and $2,100 depending on timing, complexity, or other User requirements. 

What is a Phase I Environmental Site Assessment (“Phase I”)?

A Phase I is a compilation of research into the potential for a site to be contaminated.  The American Society for Testing and Materials (ASTM) has developed standards for Phase Is in order to identify recognized environmental conditions (RECs).  A REC is the presence or likely presence of any hazardous substance or petroleum product in, on, or at a property: (1) due to any release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment.


A Phase I does not include any sampling and is made up of the following components:

  • historical records review back to the first developed use
  • site reconnaissance of the interior and exteriors of the site and observation of adjoining properties
  • interviews with owners, operators, occupants, government officials and any other party considered to have material knowledge of the property usage
  • written report describing the findings, opinions, and conclusions of the assessment.

What is All Appropriate Inquiries (AAI)?

All Appropriate Inquiries (AAI) was established by the Environmental Protection Agency (EPA), and provides due diligence standards and practices to determine prior uses and ownership of a property and assess conditions at a property that may be indicative of releases or threatened releases of hazardous substances.  AAI is required to preserve landowner liability protections (LLPs) through the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).


An important aspect of the AAI rule is that it specifically provides that the current ASTM E1527-13 standard may be used to meet AAI.

Do I have to do an AAI-compliant Phase I?

No.  If the user is not concerned about qualifying for the LLPs through CERCLA and is not an applicant for EPA grants, then compliance with AAI is not required and the Phase I services may be tailored to User requirements.  Further, there are less costly options such as transaction screen assessments.Lender requirements should be considered in scope determinations.


The ASTM standard includes commercial real estate and is not intended to apply to tenants of residential real estate or purchasers of dwellings for one’s own residential use.

Why should I perform an AAI-compliant Phase I before I purchase?

Under federal law, AAI allows a party to claim protection from CERCLA liability as an innocent landowner, a bona fide prospective purchaser (BFPP), or a contiguous property owner.  A BFPP may purchase property with knowledge of contamination or potential contamination after performing AAI and still maintain CERCLA liability defense.


While not to be interpreted as a legal opinion, the liability defenses under Wisconsin law are less defined.  The DNR interpretation of Wisconsin law has been if you bought it you own it.  Wisconsin law (sections 292.11 and 292.31, Wis. Stats.) places responsibility on one who causes, possesses or controls contamination (i.e. purchases or owns a contaminated property).  For that reason, it is important to do a Phase I prior to a property transaction in order to identify any issues for which liabilities or pricing need to be negotiated.

Who is qualified to perform an AAI-compliant Phase I?

While the term Environmental Professional (EP) is defined in 40 CFR §312.10(b), your EP should generally be a Professional Engineer (PE) or Professional Geologist (PG) with at least and 3 years of experience.


Your EP should have relevant experience in conducting AAI, and should have performed varied environmental site assessments so they can recognize evidence of actual or threatened releases to a site.


Jason Bartley, President of ReadyEarth, meets all of the requirements as an EP per 40 CFR §312.10(b) and ASTM E1527-13.  Mr. Bartley is registered as a Wisconsin-licensed PG, meets the requirements of hydrogeologist per NR 712.03 Wis. Adm. Code, and has been providing professional consulting services since 1995. 

What are the User’s responsibilities for an AAI-compliant Phase I?

There are specific User responsibilities that are beyond typical responsibilities of the environmental professional:

  • review title and judicial records for environmental liens and AULs
  • provide any specialized knowledge or experience to the EP
  • provide any actual knowledge to the EP
  • inform the EP if the User believes that the purchase price is lower than the fair market value due to environmental issues
  • provide any commonly known or reasonably ascertainable information within the local community to the EP
  • Consider the degree of obviousness for the property to be contaminated
  • provide the purpose of the report to the EP

What is the shelf life of an AAI-compliant Phase I?

In order to remain valid, the Phase I components must be completed within 180 days prior to the date of acquisition.


If the User changes within 180 days prior to the date of acquisition, the Phase I may still be used provided that the User satisfies the User responsibilities discussed earlier.   AAI-compliant Phase I components completed within one year of the acquisition date may still be used provided that the following components are updated within 180 days of the acquisition date:

  • interviews with owners, operators, and occupants
  • searches for recorded environmental cleanup liens
  • review of federal, tribal, state, and local government records
  • visual inspection of the property and adjoining properties
  • a declaration by the EP responsible for the assessment or update

What if I already have a previous Phase I?

That information should be provided to the EP so they may be able to evaluate whether the information remains valid in order to avoid duplicative work.


If the User changes within 180 days prior to the date of acquisition, the Phase I may still be used provided that the User satisfies the User responsibilities discussed earlier.


A compliant Phase I prepared within one year of the acquisition date may still be used provided that it is appropriately updated within 180 days of the acquisition date. 

What isn’t in a Phase I?

A Phase I does not include the physical collection of samples; the compilation of detailed maps; the performance of subsurface investigations; or the inquiry into asbestos-containing materials, biological agents, cultural and historic resources, ecological resources, endangered species, health and safety, indoor air quality, industrial hygiene, lead-based paint, lead in drinking water, mold, radon, regulatory compliance, and wetlands.


In some events, the findings of the Phase I warrant additional evaluation through Phase II sampling. The additional sampling may also be required to preserve LLPs through CERCLA.


ReadyEarth has all the experience necessary to complete your project turnkey from the Phase I and Phase II through the negotiations with the DNR and closure activities. 

What is the regulatory background of AAI?

CERCLA was created in 1980 and imposed liability for hazardous substance release cleanup on owners and operators of real property. CERCLA included some defenses to owners and operators that did not cause the contamination, but the defenses did not extend to purchasers.


In 1986, a CERCLA amendment created an “innocent purchaser” defense for purchasers who conducted “all appropriate inquiries” into the past usage of the property prior to acquisition. Although “all appropriate inquiries” was not defined at that point, the purchaser had a liability defense in the event that hazardous substances were identified after the purchase. However, if the Phase I identified issues, the purchaser had the choice to either walk away from the purchase or accept CERCLA liability as an owner/operator after the closing.


In 1993, ASTM developed its first standard for Phase Is (E1527-93). ASTM subsequently amended the standard in 1997 and 2000.


In 2002, the Small Business Liability Relief and Brownfield Revitalization Act (“Brownfield Act”) again amended CERCLA to require the EPA to promulgate its own rules establishing standards and practices for conducting AAI. The Brownfields Act also created the BFPP and contiguous property owner defenses. A new ASTM version was created to meet the AAI requirements (E1527-05). The newest ASTM standard (E1527-13) has been in effect since November 2014. ASTM E1527-13 requires more extensive agency records review and evaluation of additional items such as vapor intrusion.


An important aspect of the AAI rule is that it specifically provides that the current ASTM E1527-13 standard may be used to meet AAI. 

How is the current ASTM Standard (E1527-13) different than the previous standard (E1527-05)?

The ASTM standard remains substantially the same as the previous standard (E1527-05). Significant changes include the following:

  • Revision to the term recognized environmental condition (REC): The definition has been focused toward releases to the environment.
  • Revision to the term historical recognized condition (HREC): An HREC is limited to past releases that have been addressed to the satisfaction of the appropriate regulatory agency to meet an unrestricted use (i.e. residential use). The HREC designation does not allow for any required controls for the site and may change along with changes in regulatory criteria. The environmental professional must use the current regulatory criteria in the determination between a REC and a HREC. The term must be recognized in the report, but it is not recognized as a REC.
  • Creation of the term controlled recognized environmental condition (CREC): A CREC is a REC that has been addressed to the satisfaction of the appropriate regulatory agency with contamination remaining in place subject to required controls (i.e. cap, venting, land use restrictions, etc.). A CREC is considered a REC because it involves continuing obligations by the owner.
  • Vapor migration: The term migration now expressly includes subsurface vapor migration. Phase I assessments under the new standard must include the vapor migration pathway if there is known or suspected contamination at or near the site. Vapor intrusion (i.e. sampling) is still outside of a Phase I scope.
  • Agency File Reviews: If a property, or an adjoining property, is identified in the federal, state or tribal records, the environmental professional within their discretion must review pertinent files and/or records associated with the listing or explain why the review is not warranted. 

Why do the standards keep changing?

ASTM standards have a maximum shelf life of 8 years, at which point the standard needs to be discontinued or re-issued either unchanged or with revisions. Further, revisions are periodically necessary to be consistent with changes in federal law and changes in industry standards.