Significance and Use
4.1 Uses—This practice is intended for use on a voluntary basis by parties who wish to assess the environmental condition of commercial real estate taking into account commonly known and reasonably ascertainable information. While use of this practice is intended to constitute all appropriate inquiries for purposes of the LLPs, it is not intended that its use be limited to that purpose. This practice is intended primarily as an approach to conducting an inquiry designed to identify recognized environmental conditions in connection with a subject property. No implication is intended that a person shall use this practice in order to be deemed to have conducted inquiry in a commercially prudent or reasonable manner in any particular transaction. Nevertheless, this practice is intended to reflect good commercial and customary practice (see 1.6).
4.2 Clarifications on Use:
4.2.1 Use Not Limited to CERCLA—This practice is designed to assist the user in developing information about the environmental condition of a subject property and as such has utility for a wide range of persons, including those who may have no actual or potential CERCLA liability and/or may not be seeking the LLPs.
4.2.2 Residential Tenants/Purchasers and Others—No implication is intended that it is currently customary practice for residential tenants of multifamily residential buildings, tenants of single-family homes or other residential real estate, or purchasers of dwellings for one’s own residential use, to conduct an environmental site assessment in connection with these transactions. Thus, these transactions are not included in the term commercial real estate transactions, and it is not intended to imply that such persons are obligated to conduct an environmental site assessment in connection with these transactions for purposes of all appropriate inquiries or for any other purpose. In addition, no implication is intended that it is currently customary practice for environmental site assessments to be conducted in other unenumerated instances (including but not limited to many commercial leasing transactions, many acquisitions of easements, and many loan transactions in which the lender has multiple remedies). On the other hand, anyone who elects to do an environmental site assessment of a subject property may, in such person’s judgment, use this practice.
Note 1: The 2018 BUILD Act amended the CERCLA definition of bona fide prospective purchaser at § 101(40) to include certain commercial tenants or lessees who acquire a leasehold interest in a property. Therefore, in certain cases, a person acquiring a leasehold interest in a commercial property may need to conduct an environmental site assessment, for the purposes of all appropriate inquiries, into the previous ownership and uses of the leased commercial property to qualify for the bona fide prospective purchaser landowner liability protection.
4.2.3 Site-Specific—This practice is site-specific in that it relates to the assessment of environmental conditions for specific commercial real estate. Consequently, this practice does not address many additional issues raised in transactions such as purchases of business entities, or interests therein, or of their assets, that may well involve environmental liabilities pertaining to properties previously owned or operated or other off-site environmental liabilities.
4.3 Who May Conduct—A Phase I Environmental Site Assessment must be performed by an environmental professional as specified in 7.5.1. No practical standard can be designed to eliminate the role of judgment and the value and need for experience in the party performing the inquiry. The professional judgment of an environmental professional is, consequently, vital to the performance of all appropriate inquiries.
4.4 Additional Services—As set forth in 12.10, additional services may be contracted for between the user and the environmental professional. Such additional services may include business environmental risk (BER) issues not included within the scope of this practice, examples of which are identified in Section 13 under Non-Scope Considerations.
4.5 Principles—The following principles are an integral part of this practice and are intended to be referred to in resolving any ambiguity or exercising such discretion as is accorded the user or environmental professional in conducting an environmental site assessment or in judging whether a user or environmental professional has conducted appropriate inquiry or has otherwise conducted an adequate environmental site assessment.
4.5.1 Uncertainty Not Eliminated—No environmental site assessment can wholly eliminate uncertainty regarding the potential for recognized environmental conditions in connection with a subject property. Performance of this practice is intended to reduce, but not eliminate, uncertainty regarding the potential for recognized environmental conditions in connection with a subject property, and this practice recognizes reasonable limits of time and cost.
4.5.2 Not Exhaustive—All appropriate inquiries does not mean an exhaustive assessment of a property. There is a point at which the cost of information obtained or the time required to gather it outweighs the usefulness of the information and, in fact, may be a material detriment to the orderly completion of transactions. One of the purposes of this practice is to identify a balance between the competing goals of limiting the costs and time demands inherent in performing an environmental site assessment and the reduction of uncertainty about unknown conditions resulting from additional information.
4.5.3 Level of Inquiry is Variable—Not every property will warrant the same level of assessment. Consistent with good commercial and customary standards and practices as defined at 42 U.S.C. § 9601(35)(B), the appropriate level of environmental site assessment will be guided by the type of property subject to assessment, the expertise and risk tolerance of the user, future intended uses of the subject property disclosed to the environmental professional, and the information developed in the course of the inquiry.
4.5.4 Comparison with Subsequent Inquiry—It should not be concluded or assumed that an inquiry was not all appropriate inquiries merely because the inquiry did not identify recognized environmental conditions in connection with a subject property. Environmental site assessments must be evaluated based on the reasonableness of judgments made at the time and under the circumstances in which they were made. Subsequent environmental site assessments should not be considered valid standards to judge the appropriateness of any prior assessment based on hindsight, new information, use of developing technology or analytical techniques, or other factors.
4.5.5 Point in Time—The environmental site assessment is based upon conditions at the time of completion of the individual environmental site assessment elements (see 7.2).
4.6 Continued Viability of Environmental Site Assessment:
4.6.1 Presumed Viability—Subject to 4.8 and the user’s responsibilities set forth in Section 6, an environmental site assessment meeting or exceeding this practice is presumed to be viable when it is conducted within 180 days prior to the date of acquisition9 of the subject property (or, for transactions not involving an acquisition such as a lease or refinance, the date of the intended transaction). The dates of the components presented in 4.6.2(i), (iii), (iv), and (v) for interviews, review of government records, visual inspections, and declaration by environmental professional, shall be identified in the report. Completion of searches for recorded environmental cleanup liens (4.6.2(ii)) is a user responsibility; however, if the user has engaged the environmental professional to conduct these searches, then that date shall also be identified in the report.
4.6.2 Updating of Certain Components—Subject to 4.8 and the user’s responsibilities set forth in Section 6, an environmental site assessment meeting or exceeding this practice and for which the information was collected or updated within one year prior to the date of acquisition of the subject property (or, for transactions not involving an acquisition such as a lease or refinance, the date of the intended transaction) may be used provided that the following components of the inquiries were updated within 180 days prior to the date of purchase or the date of the intended transaction. All of the following components must be conducted or updated within 180 days prior to the date of acquisition or prior to the date of the transaction:
(i) interviews with owners, operators, and occupants;
(ii) searches for recorded environmental cleanup liens (a user responsibility, see Section 6);
(iii) reviews of federal, tribal, state, and local government records;
(iv) visual inspections of the subject property and of adjoining properties; and
(v) the declaration by the environmental professional responsible for the assessment or update.
4.6.3 Compliance with All Appropriate Inquiries—To qualify for one of the threshold criteria for satisfying the LLPs to CERCLA liability, the all appropriate inquiries components listed in 4.6.2 must be conducted or updated within 180 days of and prior to the date of acquisition of the subject property, and all other components of all appropriate inquiries must be conducted within one year prior to the date of acquisition of the subject property. The date of the report generally does not represent the date the individual components of all appropriate inquiries were completed and should not be used when evaluating compliance with the 180-day or 1-year all appropriate inquiries requirements.
4.6.4 User’s Responsibilities—If, within this period, the environmental site assessment will be used by a user different than the user for whom the environmental site assessment was originally prepared, the subsequent user must also satisfy the user’s responsibilities in Section 6.
4.7 Prior Assessment Usage—This practice recognizes that environmental site assessments performed in accordance with this practice will include information that subsequent users may want to use to avoid undertaking duplicative assessment procedures. Therefore, this practice describes procedures to be followed to assist users in determining the appropriateness of using information in environmental site assessments performed more than one year prior to the date of acquisition of the subject property (or for transactions not involving an acquisition such as a lease or refinance, the date of the intended transaction). The system of prior assessment usage is based on the following principles that should be adhered to in addition to the specific procedures set forth elsewhere in this practice:
4.7.1 Use of Prior Information—Subject to the requirements set forth in 4.6, users and environmental professionals may use information in prior environmental site assessments provided such information was generated as a result of procedures that meet or exceed the requirements of this practice. However, such information shall not be used without current investigation of conditions likely to affect recognized environmental conditions in connection with the subject property. Additional tasks may be necessary to document conditions that may have changed materially since the prior environmental site assessment was conducted. Nothing in this practice is intended to convey a right to use or to rely upon resources, information, findings, or opinions provided in prior assessments.
4.7.2 Contractual Issues Regarding Prior Assessment Usage—The contractual and legal obligations between prior and subsequent users of environmental site assessments or between environmental professionals who conducted prior environmental site assessments and those who would like to use such prior environmental site assessments are beyond the scope of this practice.
4.8 Actual Knowledge Exception—If the user or environmental professional(s) conducting an environmental site assessment has actual knowledge that the information being used from a prior environmental site assessment is not accurate or if it is obvious, based on other information obtained by means of the environmental site assessment or known to the person conducting the environmental site assessment, that the information being used is not accurate, such information from a prior environmental site assessment may not be used.
4.9 Rules of Engagement—The contractual and legal obligations between an environmental professional and a user (and other parties, if any) are outside the scope of this practice. No specific legal relationship between the environmental professional and the user is necessary for the user to meet the requirements of this practice.
4.10 Organization of This Practice—This practice has thirteen sections and six appendixes. Section 1 is the Scope. Section 2 is Referenced Documents. Section 3, Terminology, has definitions of terms not unique to this practice, descriptions of terms unique to this practice, and acronyms. Section 4 is Significance and Use of this practice. Section 5 provides discussion regarding activity and use limitations. Section 6 describes User’s Responsibilities. Sections 7 – 12 are the main body of the Phase I Environmental Site Assessment, including evaluation and report preparation. Section 13 provides additional information regarding non-scope considerations (see 1.4). The appendixes are included for information and are not part of the procedures prescribed in this practice. Appendix X1 explains the liability and defense provisions of CERCLA that will assist the user in understanding the user’s responsibilities under CERCLA; it also contains other important information regarding CERCLA, the Brownfields Amendments, and this practice. Appendix X2 provides the definition of the environmental professional responsible for the Phase I Environmental Site Assessment, as required in the “All Appropriate Inquiries” Final Rule (40 C.F.R. Part 312). Appendix X3 provides an optional User Questionnaire to assist the user and the environmental professional in gathering information from the user that may be material to identifying recognized environmental conditions. Appendix X4 offers an additional examination of the recognized environmental condition definition. Appendix X5 provides a suggested table of contents and report format for a Phase I Environmental Site Assessment. Appendix X6 summarizes non-scope considerations that persons may want to assess.
Scope
1.1 Purpose—The purpose of this practice is to define good commercial and customary practice in the United States of America for conducting an environmental site assessment2 of a parcel of commercial real estate with respect to the range of contaminants within the scope of the 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 the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations on CERCLA liability (hereinafter, the “landowner liability protections,” or “LLPs”): that is, the practice that constitutes all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial and customary standards and practices as defined at 42 U.S.C. § 9601(35)(B). (See Appendix X1 for an outline of CERCLA’s liability and defense provisions.) Controlled substances are not included within the scope of this practice. Persons conducting an environmental site assessment as part of an EPA Brownfields Assessment and Characterization Grant awarded under CERCLA 42 U.S.C. § 9604(k)(2)(B) must include controlled substances as defined in the Controlled Substances Act (21 U.S.C. § 802) within the scope of the assessment investigations to the extent directed in the terms and conditions of the specific grant or cooperative agreement. Additionally, an evaluation of business environmental risk (BER) associated with a parcel of commercial real estate may necessitate investigation beyond that identified in this practice (see 1.4 and Section 13).
1.1.1 Recognized Environmental Conditions—The goal of the processes established by this practice is to identify recognized environmental conditions. The term recognized environmental condition means (1) the presence of hazardous substances or petroleum products in, on, or at the subject property due to a release to the environment; (2) the likely presence of hazardous substances or petroleum products in, on, or at the subject property due to a release or likely release to the environment; or (3) the presence of hazardous substances or petroleum products in, on, or at the subject property under conditions that pose a material threat of a future release to the environment. A de minimis condition is not a recognized environmental condition.
1.1.2 Petroleum Products—Petroleum products are included within the scope of this practice because they are of concern with respect to commercial real estate and current custom and usage is to include an inquiry into the presence of petroleum products when doing an environmental site assessment of commercial real estate. Inclusion of petroleum products within the scope of this practice is not based upon the applicability, if any, of CERCLA to petroleum products.
1.1.3 CERCLA Requirements Other Than Appropriate Inquiries—This practice does not address whether requirements in addition to all appropriate inquiries have been met in order to qualify for the LLPs (for example, the duties specified in 42 U.S.C. §§ 9607(b)(3)(a) and (b) and cited in Appendix X1, including the continuing obligation not to impede the integrity and effectiveness of activity and use limitations [AULs], or the duty to take reasonable steps to prevent releases, or the duty to comply with legally required release reporting obligations).
1.1.4 Other Federal, State, and Local Environmental Laws—This practice does not address requirements of any state or local laws or of any federal laws other than the all appropriate inquiries provisions of the LLPs. Users are cautioned that federal, state, and local laws may impose environmental assessment obligations that are beyond the scope of this practice. Users should also be aware that there are likely to be other legal obligations with regard to hazardous substances or petroleum products discovered in, on, or at the subject property that are not addressed in this practice and that may pose risks of civil and/or criminal sanctions for noncompliance.3
1.1.5 Documentation—The scope of this practice includes research and reporting requirements that support the user’s ability to qualify for the LLPs. As such, sufficient documentation of all sources, records, and resources utilized in conducting the inquiry required by this practice must be provided in the written report (refer to 8.1.9 and 12.2).
1.2 Objectives—Objectives guiding the development of this practice are (1) to synthesize and put in writing good commercial and customary practice for environmental site assessments for commercial real estate; (2) to facilitate high quality, standardized environmental site assessments; (3) to provide a practical and reasonable standard practice for conducting all appropriate inquiries; and (4) to clarify an industry standard for all appropriate inquiries in an effort to guide legal interpretation of the LLPs.
1.3 Units—The values stated in inch-pound units are to be regarded as the standard. The values given in parentheses are mathematical conversions to SI units that are provided for information only and are not considered standard.
1.4 Considerations beyond Scope—The use of this practice is strictly limited to the scope set forth in this section. Section 13 of this practice identifies, for informational purposes, certain environmental conditions (not an all-inclusive list) that may exist at a subject property that are beyond the scope of this practice, but may warrant consideration by parties to a commercial real estate transaction. The need to include an investigation of any such conditions in the environmental professional’s scope of services should be evaluated based upon, among other factors, the nature of the subject property and the reasons for performing the assessment (for example, a more comprehensive evaluation of business environmental risk) and should be agreed upon between the user and environmental professional as additional services beyond the scope of this practice before initiation of the environmental site assessment process.
1.5 This practice offers a set of instructions for performing one or more specific operations. This document cannot replace education or experience and should be used in conjunction with professional judgment. Not all aspects of this practice may be applicable in all circumstances. This ASTM standard is not intended to represent or replace the standard of care by which the adequacy of a given professional service must be judged, nor should this document be applied without consideration of a project’s many unique aspects. The word “Standard” in the title means only that the document has been approved through the ASTM consensus process.
1.6 This standard does not purport to address all of the safety concerns, if any, associated with its use. It is the responsibility of the user of this standard to establish appropriate safety, health, and environmental practices and determine the applicability of regulatory limitations prior to use.
1.7 This international standard was developed in accordance with internationally recognized principles on standardization established in the Decision on Principles for the Development of International Standards, Guides and Recommendations issued by the World Trade Organization Technical Barriers to Trade (TBT) Committee.
