Title: Part I: Overview of the New Phase I Environmental Site Assessment Standards
1- Part I Overview of the New Phase I
Environmental Site Assessment Standards
2Overview
- All Appropriate Inquiries (AAI) Final Rule
- New Phase I ESA Standard ASTM E 1527-05
Effective Date November 1, 2006
32002 Federal Brownfield Amendments
- The Small Business Liability Relief and
Brownfields Revitalization Act of 2002 - Innocent landowner defense (amended)
- Contiguous property owner protection
- Bona fide prospective purchaser protection
4The Brownfields Defenses
- The Innocent Landowner Defense
- Where the release or threatened release of
hazardous substances occurred before the innocent
landowner acquired the property. - The property owner must show they did not know
and had no reason to know of the contamination
prior to the purchase. - To demonstrate they did not/had no reason to
know, the owner must show that they conducted
all appropriate inquiries at the time of
purchase. - CERCLA 101(35), 107(b)(3)
5The Brownfields Defenses
- The Contiguous Property Owner Protection
- Where contamination on the persons property was
due solely to migrating contamination from a
contiguous property. - This is an exception to the normal rule under
CERCLA, which holds owners and operators
liable for contamination on their property. - Property owners seeking this protection must
demonstrate that they conducted all appropriate
inquiries at the time they acquired the
property. - CERCLA 107(q)
6The Brownfields Defenses
- Bona Fide Prospective Purchaser (BFPP)
Protection - Where a purchaser who could be considered the
owner or operator of a facility meets the
definition of a BFPP - Disposal of all hazardous materials occurred
before the person acquired the facility. - The person conducted all appropriate inquires
into the previous ownership and uses of the
facility at the time of acquisition. - CERCLA 101(40) 107(r)
7Continuing Obligations
- To maintain liability protection, a person
qualifying for a brownfields defense must - Maintain compliance with and not impede the
efficacy of all land use restrictions and
institutional controls. - Provide full cooperation and access to persons
authorized to conduct response actions. - Comply with all information requests and
subpoenas. - Provide all legally required notices regarding
releases. - Take reasonable steps regarding releases of
hazardous substances. - Common Elements Reference Sheet, U.S. EPA
8Reasonable Steps
- Reasonable steps under CERCLA with regard to
releases of hazardous substances include - Stopping any continuing releases.
- Preventing any threatened future release.
- Preventing or limiting human, environmental, or
natural resource exposure to earlier hazardous
substance releases. - Common Elements Reference Sheet, U.S. EPA
- CERCLA 101, 107
9ASTM E 1527-05s Purpose
- This practice is intended to permit a user to
satisfy one of the requirements to qualify for
the innocent landowner, contiguous property
owner, or bona fide prospective purchaser
limitations on CERCLA liability. - ASTM 1.1
10The AAI Rule and ASTM Require
- Site inspections
- Interviews
- New standard requires interviews of users and,
for abandoned properties, neighboring property
owners - Reviews of historical sources
- New standard requires review of recorded land
title records - Reviews of government records
- New standard includes more sources
- Consideration of commonly known information
- New
- Search for environmental cleanup liens
- New
- Consideration of specialized knowledge
- New
- Consideration of relationship of purchase price
to fair market value of property, if not
contaminated - New
- Consideration of degree of obviousness of
contamination
11For How Long is a Phase I Report Valid?
- Presumed valid if completed 180 days prior to the
date of acquisition of the property. - Presumed valid if completed within 1 year prior
to the date of acquisition of the property if the
following five items are updated within 180 days
of the date owner takes title - Interviews,
- Search for environmental cleanup liens,
- Review of government records,
- Site visit, and
- Declaration/signature by EP.
12For How Long is a Phase I Report Valid?
- A report more than 1 year old must be updated in
its entirety, i.e. a new Phase I Site Assessment
must be performed and new report prepared. - See ASTM 4.6 and 70 Fed. Reg. 66070, 66084
- A report prepared pursuant to ASTM E 1527-00 may
NOT be updated to meet ASTM E 1527-05. - See ASTM 4.6
- Any Phase I reports performed for acquisitions
that may occur after October 31, 2006 should be
performed pursuant to the new AAI Rule and ASTM E
1527-05.
13Timing of Phase I Reports
- The Phase I must be completed less than 180 days
before application submission. - Phase I reports older than 1 year old may not be
submitted to DCA, even if updated. - A Phase I 180 days old or more, but less than 1
year old, may be submitted to DCA if updated in
accordance with ASTM.
14Qualifications to Conduct AAI
- An Environmental Professional is defined in the
AAI rule as - A person with a PE or PG license AND 3 years
relevant experience or - A Baccalaureate (or higher) degree in engineering
or science AND 5 years relevant experience or - A license or certification by government agency
AND 3 years relevant experience or - 10 years relevant experience
15What is Relevant Experience?
- Environmental Site Assessments, other
investigations and remediation. - Involves understanding of surface and subsurface
environmental conditions. - Proven experience using professional judgment to
develop opinions regarding releases or threatened
releases of hazardous substances.
16Documentation of Qualifications
- The Phase I report must identify the
qualifications of EP and of person(s) who
conducted site reconnaissance and interviews. - The Phase I must also include the declaration
language from AAI rule that essentially states - I/We declare that I/We meet definition of EP, and
- I/We developed and performed the AAI in
conformance with the federal rule.
17Environmental Consultant Signature Pages
18Who Performs the Phase I?
- site visit
- interviews
- research
- report writing
- review of report
19Additions to the Records Review
- Certain new standard federal sources
- Engineering controls and institutional controls
records search - Tribal government records search
- Local government records search
20Additional Historical Use Information Sources
- Internet sites
- Community organizations
- Local libraries/historical societies
- Current owners/occupants of neighboring
properties and - As many standard historical sources as are
reasonably ascertainable and likely to provide
useful information to identify previous uses of
the property.
21Who is a User of a Phase I?
- User is broadly defined in ASTM as the party
seeking to use Practice E 1527 to complete an
environmental site assessment of the property. - Users can include
- Potential purchasers
- Lenders
- Property managers
- Owners
- Potential tenants
22User Responsibilities
- Review of reasonably ascertainable recorded land
title records and lien records for environmental
liens. - Communication to the EP of any specialized
knowledge of the user relevant to identifying
Recognized Environmental Conditions (RECs). - Communication to the EP of any actual knowledge
of the user relevant to identifying RECs. - Investigation into the relationship between the
actual purchase price of the property and the
fair market value of the property, if not
contaminated (if the property is being
purchased). - Communication of commonly known or reasonably
ascertainable information within the local
community relevant to identifying RECs. - Communication to the EP of the purpose for which
the user is requesting the ESA.
23User Interview Format
24Property Valuation
- What does an investigation into the relationship
between the market value and purchase price of
the property mean? - The user (and EP) must compare the purchase price
of the property to the market value of the
property. - If the purchase price is not the same as the
market value, the user and EP must then consider
the potential causes of that differential--could
the differential be due to any environmental
conditions at the property? Are there other
explanations? - The EP must address any differential and its
causes in the Phase I.
25Property Valuation for DCA Submissions
- The EP must inquire of the seller, broker, or
real estate professional associated with the
project as to the market value as compared to the
purchase price. - The actual purchase price itself need not be
included in the report, just whether a
differential exists between the market value and
the purchase price.
26Data Gaps
- A data failure has occurred if all reasonably
ascertainable sources have been reviewed, but
objectives of the records-review have not been
met. - A data gap is when, despite all good faith
efforts, there remains a lack of or inability to
obtain information required under the practice. - A Phase I must give reasons why sources were
excluded and identify any document data failures. - EP must determine
- If the data failure represents a significant data
gap AND - The impact of a data gap on ability to identify
RECs.
27What is Reasonably Ascertainable?
- Information that is
- Publicly available
- Obtainable within reasonable time and cost
constraints - Practically reviewable
- What does that mean in the real world?
28- Part II Review of the Revised DCA Environmental
Manual
29Environmental Manual Table of Contents
30- Section A DCA Specifications Regarding Phase I
Requirements Within the ASTM Scope
31Reliance for Phase I and Phase II Reports
- The following parties must be listed as users
of the Phase I Report and interviewed for the
user interview portion - Entity that has title or will take title
- Project development partners
- Equity partners for the project
- Any other party meeting the definition of user
under ASTM. - Any Phase I or Phase II Report must state that
DCA and GHFA may rely upon it.
32Environmental Assessment Requirements
- Phase I Format is dictated by the manual, and has
been made very specific. - Subsections may not be added.
- Additional appendices may be added.
- A site map conforming to DCA specifications must
be included. - The Phase I must conform to ASTM E 1527-05, or
any updated version. - Where the DCA regulations are more stringent,
they are to be considered controlling.
33Phase I Format
34Purpose of the Phase I
- The EP shall ask the Applicant what the
Applicants purpose is for having the Phase I
perfomed and must include the purpose in the
Report. - The purpose may be to qualify for one of the
three Brownfields protections, for bond issuance,
for tax credits, or for loans. - The Phase I Report must also state that the
purpose is to determine whether the property is
suitable for construction of multi-family housing.
35Environmental ProfessionalResponsibilities
Qualifications
- The definition of EP for DCA purposes matches
that of ASTM. - Resumes for personnel involved in the Phase I
assessment must be included in the Report. - The EP is not required to perform the site
reconnaissance, but must supervise and review the
Phase I Report. - The EP must sign the Environmental Consultant
Signature Page.
36Comprehensive Historical Review
- The EP must hire a title company or title
professional to research recorded land title
records, records of environmental liens, and
records of activity and use limitations, unless
these records have already been provided by a
user. - The report from the title company or title
professional must be included in the Report, as
well as any records discovered for any
environmental liens or activity and use
limitations.
37Summary, Conclusions, and Recommendations
- The Phase I must set forth the EPs findings,
clearly written conclusions, and recommendations. - The Report must identify and comment upon
- Supporting data and test results.
- Data gaps
- Including the good faith efforts made to gather
the information that could not be obtained. - Commonly known and reasonably ascertainable
information available to the user or to the EP.
38Professional OpinionPhase I Reports
- The EP must provide an opinion as to
- The existence or non-existence of RECs
- Whether the property has any known or is at risk
of contamination - Whether further assessment activities are
necessary - Whether AAI was conducted.
- Whether the review of pertinent information in
Sections 4.0 and 5.0 indicates or does not
indicate RECs.
39Ways to Address Regulatory Record Sources
(Section 4.1)
40Ways to Address Regulatory Record Sources
(Section 4.1)
41- Section B Non-Scope Issues for Phase I Reports
42Issues For Which Requirements Have Not Changed
Significantly
- Lead In Drinking Water
- Phase I must include the most current
documentation regarding compliance with EPA
standards. - Buildings more than 25 years old must be tested.
- PCBs
- Phase I must include documentation regarding
potential PCB-containing equipment both on-site
and off-site. - Photographs
- The photographs must be dated and labeled with a
description of the view presented - Other Hazards
- The EP must provide documentation that water and
sewer services is available to the property (a
record of a phone call by the EP to the local
authority or copy of letter sent to the Applicant
by local authority is sufficient).
43Water Leaks, Mold, Fungi, Microbial Growth
- For multi-family units, the EP must evaluate
water leaks, mold, fungi, and microbial growth
for every unit in which the EP also is assessing
lead based paint, radon, or asbestos. - The EP must visually examine the following areas
in the selected units where readily accessible - Ventilation systems
- Areas behind walls, under floors and above
ceilings.
44Radon Gas
- Renovation or use of existing structure
- A radon test must be performed unless an EPA
approved test has been performed in the lowest
areas within the last 6 months demonstrating
levels at or below 4 pci/l. - New construction
- The Phase I report must indicate that the
buildings will be constructed in accordance with
EPA requirements.
45Asbestos
- An asbestos survey must be performed on all
buildings scheduled for demolition or renovation. - The EP must assume that there is ACM in all
buildings constructed before 1980. - Representative sampling must be performed, unless
a comprehensive asbestos survey was performed on
or after January 1, 1986. - Friable ACM must be remediated by removal or
encapsulation. - An OM Plan must be included for all non-friable
ACM and/or encapsulated friable ACM.
46Lead Based Paint
- Where any current or former structure was
constructed before 1979 - If such structures are not planned for
demolition, sampling must be performed on the
interior and exterior of the building. - If such structures are planned for demolition,
soil sampling is required, with some exceptions - Prior to conducting any soil sampling, Applicants
are encouraged to submit a proposed scope of work
in the same manner as a proposal for a Phase II.
47Wetlands
- No project will be accepted for DCA funding or
tax credits if it disturbs more than 1/10 acre of
wetlands. - If wetlands will be filled or impacted and the
project involves HOME funds or other HUD funding
sources, the HOME and HUD Environmental
Questionnaire must demonstrate compliance with
the wetland management 8-step process. - This process may be found at 55 Fed. Reg. 396,
403 (January 4, 1990).
48Wetland Management 8-Step Process
- Determine whether proposed action is located in a
wetland. - If so, notify the public.
- Identify and evaluate practicable alternatives to
construction in the wetland. - Identify potential direct and indirect impacts
associated with the modification of the wetland. - Design or modify the proposed action to minimize
potential effects on the wetland. - Reevaluate proposed action to determine whether
a. It is practicable b. any potential
alternatives are viable. - Publish final notice regarding action in the
wetland. - Implement the proposed action, and fulfill
continuing responsibility to ensure mitigation
measures are also implemented.
49State Waters
- The EP must identify any potential state waters
and applicable buffer areas and show them on the
Site Map. - If a project will disturb any buffer areas, the
Applicant must apply for, receive and document
any necessary variances, or the project will not
be accepted.
50Floodplains/Floodways
- The FEMA map for the property must be included,
even if the property is not within the 100-year
floodplain. - If any buildings will be within the 100-year
floodplain - Tax credit rehab projectsthe Phase I must
include evidence that the lowest existing floor
is 6 above the floodplain elevation. - Tax credit new construction--the project will not
be accepted unless the property will be
reclassified out of the floodplain prior to
completion and certain documentation is included.
- HOME projects which are in the floodplain require
additional documentation, including compliance
with the Floodplain Management 8-Step Process, 24
C.F.R. 55.20.
51Noise
- The EP must determine if the property is within
- 5 miles of a civil airport
- 15 miles of a military airport
- 1000 feet of a major highway or busy road
(greater than 10,000 average daily count) - 3000 feet of a railroad or rail line.
- If so, the EP must complete a noise assessment
for the property using 10 year projections for
traffic, aircraft, and railway noise. - Where not available for traffic noise, estimate
3 yearly growth to determine the projection. - Where not available for aircraft or railway
noise, use currently-available data.
52Major Highway or Busy Road
53Noise (continued)
- New Construction Projects, Rehabilitation
Projects, and Tax Credit Allocations - If the assessment indicates any part of the
project is over 65 decibels (dB), but less than
75 dB, the Phase I must - Include a noise attenuation plan completed in
accordance with HUD guidelines which demonstrates
exterior attenuation to below 65 dB and interior
attenuation to below 45 dB.
54Noise (continued)
- If the assessment indicates any part of the
project is over 75 dB, the project will NOT be
accepted by DCA unless - The project incorporates noise attenuation and
- The project addresses other important public
policy considerations. - Where interior noise levels exceed 45 dB,
projects must include a letter from the project
architect discussing the sound transmission class
of construction materials and the estimated
interior noise level should be included.
55- Section C Requirements for Phase II Reports
56When a Phase II is Recommended in the Phase I
Report
- Must submit a draft or final Phase I report (text
only), a draft of the Phase II scope of work, and
a site map no fewer than 60 days before
Application submission. - If the Applicant does not do so, DCA may require
additional actions by the Applicant (e.g. testing
or remediation). - DCA will issue its concurrence or ask for
additional scope items. - If DCA does not respond by 15 days prior to
Application submission, the Applicant should
proceed with the Phase II work. - DCA may, at its sole discretion, require
additional actions by the Applicant
57Phase II Reports
- If the Phase I investigation documents an REC,
suspected environmental concern, or non-scope
issue, the Phase II investigation must be
completed as part of the Application submission. - The Phase II Scope of Services must be included
in Appendix E of the Phase I, but the final Phase
II Report may be submitted separately. - An EP must supervise, review, and sign the Phase
II Report using the Environmental Consultant
Signature Page.
58Professional OpinionPhase II Reports
- The EP must provide an opinion as to
- Whether the property is contaminated.
- Whether any identified contamination is from
on-site or off-site sources. - Whether any reporting or cleanup obligations are
triggered. - Whether the property is likely to be listed on
the HSI.
59- Part III Submission Requirements
60Required Documentation for Phase I Reports
- Environmental Consultant Signature Page (as seen
above) - Environmental Certification
- Owner Environmental Questionnaire Disclosure
Statement - Property Log and Information Checklist
- HOME and HUD Environmental Questionnaire (where
required) - Proof of Insurance
- Letters of Reference for the Consulting Firm
61Environmental Certification
62Owner Environmental Questionnaire Disclosure
Statement
63Property Log and Information Checklist
64HOME and HUD Environmental Questionnaire
65Insurance
- Insurance coverage amounts are dictated in the
DCA manual and have changed. - DCA and GHFA must be named as an additional
insured on the commercial general liability
insurance policies. - Proof of insurance must be included in the Phase
I Report in Appendix K.
66- Part IV Common Omissions and Errors
67Common Omissions
- Report Date (not included on the cover).
- Environmental Certification Form.
- Signature of the EP on the Environmental
Certification. - Signature of the Applicant on the Environmental
Certification. - Environmental Professionals resume,
qualifications, letters of reference. - Proof of insurance in specified amounts GHFA and
DCA listed on the certificate as a certificate
holder and as an additional insured for
commercial general liability policy. - Owner Environmental Questionnaire Disclosure
Statement. - Property Log.
- HOME and HUD Environmental Questionnaire.
- Professional Opinion, conclusions, and
recommendations in the Executive Summary and in
Sections 4.0 and 5.0. - Date of Site Reconnaissance.
- Comprehensive historical review in accordance
with ASTM requirements and DCA standards. - Interviews names and titles of interviewees
documentation of all interviews and attempts to
interview in the Appendices.
68Common Omissions (cont.)
- Geological investigation.
- Floodplain investigation and map.
- Wetlands investigation, including wetlands maps.
- Location map indicating groundwater flow.
- Discussion of each property identified in the
environmental regulatory database(s) and
rationale(s) for determining whether or not each
property presents an REC to the subject property. - Photographs dates and description of view
presented. - Noise Assessment Report and professional opinion
(including NAG when noise levels exceed HUD
limitations). - Radon site classification for new construction
Radon testing in buildings for rehabilitation. - Survey of mold conditions in buildings for
rehabilitation. - Lead in Drinking Water documentation.
- Asbestos sampling/survey.
- Lead Based Paint sampling.
- Map locating all sites identified in Regulatory
Review.
69Common Errors
- Report Date (outdated).
- Noise Assessment Report and professional opinion
(not including 10 year traffic projections). - Use of disclaimer language inconsistent with
requirements of these Environmental Guidelines. - Site reconnaissance observations not sufficiently
discussed. - Photographs observations and potential
environmental impacts not sufficiently discussed. - Not following the DCA format.