Overview of Phase I Environmental Site Assessment (ESA) & Due Diligence Audits

Shalin Verma

20 Jan, 2023

Phase I Environmental Site Assessment, also called Environmental Due Diligence Audit (EDDA/DDA), is meant to evaluate the environment-related risks and liabilities of a property or a project and is part of the due diligence process. A Phase I ESA is a comprehensive research report of a property’s historical and current land uses in search of any possible environmental liabilities, liens and concerns at the time of a real estate transaction/ disposal. This assessment is based on ASTM standards or the American Society for Testing and Materials standards, which serves industries, such as construction, metals, petroleum, consumer products etc. Areas where toxic and hazardous substances exist at levels and conditions that can pose imminent threats to health or the surrounding environment frequently pose complex health and environmental issues to society. They can harm the natural atmosphere, especially surface waters, soils, and groundwater, and can bring attention to toxic substances knowingly or unknowingly. Some common causes of concern during land disposal are industries that generate hazardous waste, gas stations, auto/vehicle repair, printing operations, and units manufacturing some specific items. To illustrate the components of a Phase 1 ESA, the following items are included.

• Job Site Visit or Site Reconnaissance.
• Historical Property Information Compilation.
• In-Person Regulatory Agency File Reviews.
• Environmental Compliance Inspections.
• Database Reports and Government Record Audits.
• Vapor Intrusion Risk Modeling.
• Analysis of the Site Geology and Hydrogeology
• Researching Environmental Liens and Activity Use Limitations.
• Conclusions and Recommendations by Professional Geologists

Need For Phase I Environmental Site Assessment

ASTM standards require Phase 1 Environmental Site Assessment to have certification by registered environmental professionals, geologists and engineers. Manufacturing areas, landfills, dumps, waste storage and treatment sites, mine tailings sites, spill sites, chemical waste handlers and storage sites are all examples of contaminated sites. These sites could be in an urban, residential, rural, agricultural, commercial, recreational, industrial, or wilderness setting. As such situations are also applicable in the Indian context, the need for such site assessment is gaining popularity.

The Phase I Environmental Site Assessment process uses multiple sources of information extensively and comprises strategic environmental compliance audits. The standard practice is to identify any violation of environmental compliance, whether historical or concurrent. And the. This assessment will typically provide a non-invasive, visual analysis of the land and enhancements to ascertain the following:

• The surface water quality.
• The groundwater quality.
• The existence of possible soil contamination.

Components in Phase 1 Environmental Assessment

The Phase I ESA t is the gold benchmark for assessing the environmental liability associated with any commercial real estate asset. The main components of a Phase I ESA include a review of regulatory records, interviews, review of client-provided information, review of historical documents and report preparation. The steps involved in the assessment include

• Reviews of the Report
• Site reconnaissance
• Interviews
• Reports

Elements of Phase I Environmental Site Assessment

ESA or EDD is the process of inquiring into environmental characteristics or other relevant topographic conditions prior to the trade of the property and is usually in done in connection with a commercial estate transaction. The degree of ESA / EDD may vary for different properties and purposes. A Phase I Environmental Site Assessment^[1] typically includes the following:

• A site inspection to witness current and historical circumstances and uses of the land and nearby properties;
• An evaluation of national, state, tribal, and local government records including, but not restricted to, underground storage tanks (USTs), aboveground storage tanks (ASTs), identified or suspected release cases, the storage and handling of hazardous substances and disposal of toxic wastes along with petroleum products, and institutional and engineering controls.
• Conversations with current and former property owners, operators, occupants, and others with knowledge of the property.
• Conversations with the Report User to obtain title or judicial records for environmental liens and activity and use limitations (AULs), specialised knowledge or experience, actual knowledge, generally recognised or reasonably ascertainable information, the rationale for a considerably lower purchase price and the reason for the Phase I ESA preparation.

The collection and evaluation of physical samples, such as water and soil samples, is not included in Phase I ESA as these are a part of the Phase II Environmental Site Assessment Report (Phase II Report), which is completed if contamination is suspected or the previous use of the property requires it.

Importance of Phase I Environmental Site Assessment

 Once a Phase I ESA is complete, the Environmental Professional summarises what concerns were identified on the property and make recommendations about what actions, if any, are needed to address these concerns. . It is so because the presence of such concerns has the potential to change the landscape and have an impact on the area’s ecosystem A recognised environmental condition (REC) will indicate the known contamination or their potential to be impacted by any type of contamination (either from the subject property or possibly from an offsite source). The Phase I Environmental Site Assessment (ESA) & Due Diligence Audits can help the proponent in the following ways.

• Identify properties that may have recognised environmental conditions as early in the disposal process as possible.
• Determine if the requirements for the storage, release, or disposal of hazardous substances are met and must be included in the contract or deed (conveyance)document.
• Ensure compliance with legal requirements for the identification of uncontaminated properties.
• Provide documentation of the property condition at the time of the transaction to establish baseline conditions in the event hazardous substances and/or petroleum products are found or conditions change after a property has been conveyed.
• Assist in developing contracts and other documents that allocate environmental liability risks, such as indemnifications, warranties, covenants, or other requirements.
• Determine the requirements for disclosure of solid waste, petroleum products, physical hazards, or any other issues that could affect the use of the property or impose liability on the project proponent.

Conclusion

Buying a commercial property requires plenty of research and due diligence on the buyer’s part. They want to know everything about the property before they invest their hard-earned money into it. As Phase I Environmental Site Assessment is evaluated by the Environmental Professional (EP) to identify potential environmental risks to the property, a commercial property, no matter what it will be used for, must go for such assessment as they will be affected by the environment around them.

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