Who is qualified to perform Phase I ESAs? The all appropriate inquiries is the process of evaluating a property’s conditions and assessing potential liability for any contamination. Effective November 1, 2006, the EPA issued new regulations defining the qualifications of the person assessing real property for its environmental integrity.
Effective November 1, 2006, no organization alone, including the American Association of Professional Landmen (AAPL), can “certify” a person as qualified to perform assessments- they either meet the new standards or they don’t. While these groups may be good for continuing education or information, only those people meeting the Standards as outlined in 40 CFR 312 are qualified to perform environmental assessments. The final rule defines the environmental professional as someone who possesses sufficient specific education, training and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases of hazardous substances on, at, in, or to a property, sufficient to meet the objectives and performance factors of the rule.
The 2002 Brownfields Amendments to CERCLA required the EPA to develop regulations establishing and practices for conducting environmental due diligence or the “all appropriate inquiries” (AAI). The AAI is the process of evaluating a property’s environmental conditions and assessing potential liability for any contamination.
On November 1, 2005, the EPA released 40 CFR Part 312 that defines the final rules for the AAI standards and practices. These rules and regulations will be effective November 1, 2006, and must be followed for an AAI qualified Phase I report for a 1) innocent landowner’s defense 2) contiguous property owner protection and 3) bona fide prospective purchaser protection.
Here is a summary of some of the more prominent changes in the new rules regarding environmental assessments:
Who is Qualified ?
Probably the single most important issue regarding the new rules and regulations is the definition of the “environmental professional” (EP). The new rules defines the environmental professional as someone who possesses sufficient specific education, training and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of releases or threatened releases of hazardous substances on, at, in, or to a property, sufficient to meet the objectives and performance factors of the rule. In addition, an environmental professional must have:
- A state or tribal issued certification or license and three years of relevant full-time work experience; or
- A professional engineering or geologist license and three years of relevant full-time work experience; or
- A Baccalaureate degree or higher in science or engineering and five years of relevant full-time work experience; or
- Ten years of relevant full-time work experience.
The final rules do not recognize, or reference, any private organization’s certification program (including the AAPL’s ESA certification program) within the context of the regulatory language.
The subject property and adjoining properties of a Phase I investigation must be visually and physically observed by the AAI qualified EP. Extensive interviews must be performed if past owners, operators and occupants are likely to have material information about the property and is not duplicative of information gleaned from other sources.
No more “Real Estate Transaction Screens”:
The Transaction Screen (for example, form ASTM E 1528), will no longer hope to qualify for CERCLA liability. Any such screening tool will be a low–risk tool for such properties with minimal potential for environmental concerns.
Phase I Shelf Life:
A Phase I report older than one year from the property’s date of purchase may not be used in its entirety without being updated by a qualified EP.
IMPORTANT FINAL NOTE
Ray L. McKim, III CPL/ESA and Telecom SiteServices does not perform Phase II or Phase III services, limiting consulting to only the Phase I ESA, NEPA/SHPO/Indian notifications, plus SBA and Real Estate Transactions Screens.
This means that Telecom Site Services has nothing to gain when recognizing a problem that may suggest the need for further investigation, such as soil testing or soil remediation. Unfortunately, there are too many horror stories of unnecessary testing and “cleanups”.
Many environmental firms use the Phase I ESA to “fish” for costly additional testing and Phase II and Phase III remedial work. Since Telecom Site Services does not perform these services, this removes any conflict of interest to find problems that don’t exist. If a problem is found during the screen or Phase I, Telecom Site Services’ investigation is brought to a halt. After testing or other cleanup actions which may be initiated by a third party qualified to do so, and upon satisfactory cleanup of the problem, the Phase I investigation will continue and be completed.