Due Diligence

Real Estate: Environmental Liabilities & Assessments (Phase I & II)

Many commercial properties carry environmental liabilities. Once you buy the property, you own the liability. There are ways to prevent or minimize buying these liabilities. A thorough investigation of the property by a professional can identify and quantify possible liabilities. Furthermore, a property owner has a second layer of protection through the Innocent Land Owner Act against unidentifiable liabilities as long as one can prove a thorough investigation was conducted prior to purchasing a property. A Phase I Environmental Site Assessment conducted according to ASTM standards is considered the standard for a thorough investigation. A Phase I Investigation provides “red flags” of potential or known liabilities of a property. A Phase II Assessment investigates the legitimacy or severity of the potential liabilities flagged during the Phase I.

Phase I Environmental Site Assessment

This practice is to identify recognized environmental conditions; i.e. the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release or a material threat of a release of any hazardous substances or petroleum products into structures on the property or into the ground, groundwater, or surface water of the property.  This includes hazardous substances of petroleum products even under conditions in compliance with laws.

The ASTM Publication E1527-05, defines good commercial and customary practice in the United States of America for conducting an environmental site assessment of a parcel of commercial real estate with respect to the range of contaminants within the scope of Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. §9601) and petroleum products.  As such, this practice is intended to permit a user to satisfy one of the requirements to qualify for innocent landowner, contiguous property owner or bona fide prospective purchaser limitations on CERCLA liability (hereinafter, the landowner liability protection, or LLPs): that is, the practice that constitutes “all appropriate inquiry into previous ownership and uses of the property consistent with good commercial or customary practice as defined at 42 U.S.C. §9601(35)(B).

Ref:  Standard Practice for Environmental Site Assessments:  Phase I Environmental Site Assessment Process, ASTM Publication Designation: E1527-05 ©

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