Significance and Use
4.1 Uses—This practice sets forth a procedure for conducting limited environmental due diligence. This practice is intended for use on a voluntary basis by parties who wish to assess the environmental condition of a subject property where a Phase I Environmental Site Assessment is, initially, deemed to be unnecessary by the user and the parties do not seek CERCLA LLPs. This practice is intended primarily as a commercially prudent or reasonable approach to conducting an inquiry designed to identify potential environmental concerns in connection with a subject property.
4.2 Clarifications on Use:
4.2.1 Use Not Intended for CERCLA Liability Protection—This document is not intended to permit a user to satisfy CERCLA LLPs, that is, the practices that constitute all appropriate inquiries into the previous ownership and uses of the subject property consistent with “generally accepted good commercial and customary standards and practices” as defined in 42 U.S.C. §9601(35)(B).
4.2.2 Transaction Screen Does Not Identify Recognized Environmental Conditions—This practice does not define a scope of assessment sufficient to identify recognized environmental conditions as defined in Practice E1527 and Practice E2247.
4.2.3 Residential Tenants/Purchasers and Others—Although this practice is not intended for residential purposes, it may be used at the user’s discretion for residential tenants of multifamily residential buildings, tenants of single-family homes or other residential real estate, or purchasers of dwellings for residential use to conduct a transaction screen in connection with these transactions.
4.2.4 Site-Specific—This practice is site-specific in that it relates to assessment of environmental conditions at a subject property. 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—The transaction screen process may be conducted by the user, or some other person, including environmental consultants, lenders, brokers, appraisers, corporations, lawyers, government agencies (civilian and military), or any other party looking to screen environmental property risk. The transaction screen process can be performed by but does not require the judgment of an environmental professional. If an environmental professional is contracted to prepare a transaction screen questionnaire, nothing in this practice requires the professional to develop opinions and conclusions. Some government programs permit use of this practice when combined with an additional requirement for professional opinions or conclusions or both. Nothing in this practice precludes a user from contracting with any person identified herein for mutually agreed upon additional services.
4.4 Inquiry Beyond the Transaction Screen Process—If further inquiry is needed after performance of the transaction screen process, the user should determine, in the exercise of the user’s reasonable business judgment, whether further inquiry may be limited to those specific issues identified as of concern or should proceed to further inquiry (see 5.9).
4.5 No transaction screen can wholly eliminate uncertainty regarding potential environmental concerns in connection with a subject property.
4.5.1 Not every property will warrant the use of a limited environmental assessment such as the transaction screen. The appropriate use of the transaction screen will be guided by the type of property subject to assessment, the expertise and risk tolerance of the user , and the information developed in the course of the inquiry.
4.5.2 Transaction screens 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 or transaction screens 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.
4.6 Continued Viability of Transaction Screen—A transaction screen meeting or exceeding this practice and completed more than 180 days previously may be used to the extent allowed by 4.6.1 and 4.6.2.
4.6.1 Subject to 4.6.2, a prior transaction screen or other due diligence may be used in its entirety or as an information source if, in the reasonable judgment of the user, the prior transaction screen or other due diligence meets or exceeds the requirements of this practice and the conditions at the subject property likely to affect potential environmental concerns in connection with the subject property are not likely to have changed materially since the last transaction screen or other due diligence was conducted. In making this judgment, the user should consider the type of property assessed and the conditions in the area surrounding the subject property.
Note 2: Some government programs and some lenders allow the use of a transaction screen completed within the prior 12 months.
4.6.2 If the user, or any other preparer conducting a transaction screen has actual knowledge that the information being used from a prior transaction screen is no longer accurate or if it is obvious, based on other information obtained by means of the transaction screen or known to the person conducting the transaction screen, that the information being used is not accurate at the time of the current transaction screen, such information from a prior transaction screen may not be used.
4.7 The contractual and legal obligations between a preparer and a user (and other parties, if any) are beyond the scope of this practice.
4.7.1 The contractual and legal obligations between prior and subsequent users of transaction screens or between those who conducted prior transaction screens and those who would like to use such prior transaction screens are beyond the scope of this practice.
4.8 If the user is aware of any specialized knowledge or experience that is material to potential environmental concerns in connection with the subject property, and the preparer is not the user, it is the user’s responsibility to communicate any information based on such specialized knowledge or experience to the preparer. The user should do so before the preparer conducts the site visit.
Scope
1.1 Purpose—The purpose of this practice is to define a good practice in the United States of America for conducting a transaction screen2 for a subject property where the user wishes to conduct limited environmental due diligence (that is, less than a Phase I Environmental Site Assessment). If the driving force behind the environmental due diligence is a desire to qualify for one of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Landowner Liability Protections (LLPs), this practice should not be applied. Instead, the ASTM E1527: Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process or ASTM E2247: Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property may be used.
1.1.1 This practice will not satisfy the requirement to conduct all appropriate inquiries into the previous ownership and uses of the subject property consistent with “generally accepted good commercial and customary standards and practices” as defined in 42 U.S.C. §9601(35)(B) to qualify for one of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Landowner Liability Protections (LLPs). Users who desire to conduct environmental due diligence to qualify for one of the CERCLA LLPs should conduct assessment activities in conformity with “Standards and Practices for All Appropriate Inquiries,” 40 C.F.R. Part 312; ASTM E1527: Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process or ASTM E2247: Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property.
1.2 An evaluation of business environmental risk associated with a parcel of commercial real estate may necessitate investigation beyond that identified in this practice. See Sections 1.4 and 9.
1.2.1 Potential Environmental Concerns—The goal of conducting a transaction screen is to identify potential environmental concerns as defined in 3.2.36.
1.2.2 Other Federal, State, and Local Environmental Laws—This practice does not address requirements of any state or local laws or of any federal laws. Users are cautioned that federal, state, and local laws may impose environmental assessment obligations that are beyond the scope of this practice. In some cases, government agencies permit the use of this practice in connection with their programs but sometimes impose additional requirements going beyond this practice. Users should also be aware that there are likely to be other legal obligations with regard to chemicals of concern discovered on property that are not addressed in this practice and may pose risks of civil or criminal sanctions or both for non-compliance.
1.3 Objective—The objective guiding the development of this practice is to facilitate standardized transaction screens.
1.3.1 Note of Caution—The user should be cautious in applying this practice to properties with known current or historical handling of chemicals of concern. See Note 1.
1.3.2 Potentially Appropriate Uses—This practice may be especially appropriate for properties in rural, non-industrial, or undeveloped locations or, subject to the criteria of a lending institution, in connection with a financing of properties that are expected to have few environmental concerns.
Note 1: In general, a transaction screen assessment is not suitable for purposes of evaluating environmental conditions of a property having activities that use, handle, store, or dispose of large volumes of chemicals, either currently or in the past. Such activities include, but are not limited to, manufacturing, vehicle fueling, dry cleaning, metal plating and finishing, circuit board manufacturing, junkyard, and landfill activities which would prompt the need for further inquiry. Refuting the presumption of a potential environmental concern on such properties normally requires the specialized knowledge and experience of an environmental professional completing a detailed environmental assessment such as a Phase I Environmental Site Assessment.
1.4 Considerations Beyond the Scope—The use of this practice is strictly limited to the scope set forth in this section. Section 9 of this practice identifies, for informational purposes, certain environmental conditions (not an all-inclusive list) that may exist on 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 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 as additional services beyond the scope of this practice prior to initiation of the Transaction Screen Process.
1.5 Organization of This Practice—This practice has several parts and one appendix. Section 1 is the Scope. Section 2 refers to other ASTM standards in the 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 is the Introduction to the Transaction Screen Process. Section 6 sets forth the Transaction Screen Questionnaire itself. Sections 7 and 8 contain the Guide to the Transaction Screen Questionnaire and its various parts. Section 9 provides additional information regarding non-scope considerations. See 1.4.
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.
