E1527-05.pdf

Designation: E1527 – 05

Standard Practice for

Environmental Site Assessments: Phase I Environmental Site Assessment Process 1 This standard is issued under the fixed designation E1527; the number immediately following the designation indicates the year of original origin al adoption or, in the case of revis revision, ion, the year of last revision. revision. A number in paren parenthese thesess indicates the year of last reappr reapproval. oval. A superscript epsilon (´) indicates an editorial change since the last revision or reapproval.

1. Sco Scope pe 1.1 Purpose—The purpose of this practice is to define good commercial commer cial and customary customary pra practic cticee in the Uni United ted Sta States tes of America for conducting an environmental site assessment 2 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 this practice practice is intended to permit a user to to satisfy one of the requirements to innocent landow landowner ner , contiguous contiguous pro property perty quali qu alify fy fo forr the innocent owner , or bona fide pr prosp ospect ective ive pur purcha chaser ser limitatio limitations ns on CERCLA liabilit liability y (hereinafter, (hereinafter, the “landowner liability protections,” or “ LLPs”): that is, the pra practic cticee tha thatt con constit stitute utess “all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice” 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 environmental site of thi thiss sta standa ndard. rd. Per Person sonss con conduc ducting ting an environmental partt of an EP EPA A Bro Brownfi wnfield eldss Ass Assess essmen mentt and assessment as par Characte Char acteriza rizatio tion n Gra Grant nt awa awarde rded d und under er CERC CERCLA LA 42 U.S U.S.C. .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. agreem ent. Additionally Additionally,, an evalua evaluation tion of business envir environonmental risk associated commercial real estate associated with a parcel of commercial may nec necess essitat itatee inv invest estiga igation tion bey beyond ond that ide identifi ntified ed in this practice (see Sections 1.3 and 13 13). ). 1.1.1 Recognized Environmental Conditions —In defining a standar stan dard d of goo good d com commer mercial cial and cus custom tomary ary pra practic cticee for conducting condu cting an environment environmental al site asses assessment sment of a parcel of property, the goal of the processes established by this practice is to identify recognized environmental conditions. The term 1

This practice is under the jurisdiction of ASTM Committee E50 Committee E50 on Environmental Assessmen Assessmentt and is the direc directt respo responsibi nsibility lity of Subc Subcommitte ommitteee E50.02 on Commercial Real Estate Transactions. Current edition approved Nov. 1, 2005. Published November 2005. Originally approved in 1993. Last previous edition approved in 2000 as E1527 – 00. DOI: 10.1520/E1527-05. 2 All definitions, definitions, descr description iptionss of terms, and acron acronyms yms are define defined d in Secti Section on 3 3.. Whenever Whene ver terms define defined d in in 3.2 3.2 are used in this practice, they are in italics.

recognized environmental conditions means means the pre presen sence ce or likely lik ely pre presen sence ce of any hazardous hazardous substances or petroleum under con condit dition ionss tha thatt ind indicat icatee an products on a property under existing release, a past release, or a material threat of of a release of an any y hazardous hazardous subst substances ances or petroleum petroleum pro products ducts into structures struct ures on the property or into the ground, ground water, or surfac sur facee wat water er of the property. The term incl include udess hazardous under er con conditi ditions ons in substances or petroleum products even und compliance with laws. The term is not intended to include de minimis conditio conditions ns tha thatt gen genera erally lly do not present present a thr threat eat to human health or the environment and that generally would not be th thee su subj bjec ectt of an en enfo forc rcem emen entt ac actio tion n if br brou ough ghtt to th thee attention attentio n of appro appropriate priate gove governmen rnmental tal agenc agencies. ies. Condit Conditions ions determined to be de minimis are not recognized environmental conditions. Petroleum m Pr Produc oducts ts—Petroleum produ products cts are 1.1.2 Petroleu are in in-cluded within the scope of this practice because they are of commercial real estate concern with respect to many parcels of commercial and current custom and usage is to include an inquiry into the presence of petroleum petroleum products when doing an environmental site assess assessment ment of commercial real estate. Inclusion of petroleum products within the scope of this practice is not based upon up on th thee ap appl plica icabi bilit lity y, if an any y, of CER CERCLA CLA to petroleum products. (See X1.7 for discussion of petroleum exclusion to CERCLA liability.) 1.1.3 CERC CERCLA LA Req Requir uireme ements nts Oth Other er Tha Than n App Appro ropri priate ate Inquiry—This practice does not addre address ss whethe whetherr requir requirements ements all appropriate inquiry in addition to have been met in order to qualify for the LLPs (for example, the duties specified in 42 U.S.C. U.S .C. §96 §9607( 07(b)( b)(3)( 3)(a) a) and (b) and cite cited d in Appendix Appendix X1 X1,, including includ ing the contin continuing uing obligation obligation not to impede the integr integrity ity and effectiveness of activity 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 Oth Other er Fed Federa eral, l, Sta State, te, and Loc Local al Env Envir ironm onmenta entall Laws—Th —This is pra practic cticee doe doess not add addres resss req requir uireme ements nts of any state or local laws or of any federal laws other than the all provisions of the LLPs. Users are cau cau-appropriate inquiry provisions tioned 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

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E1527 – 05 discovered d on the property that that are not petroleum products discovere addres add ressed sed in thi thiss pra practic cticee and that may pose ris risks ks of civil and/or criminal sanctio sanctions ns for nonnon-compli compliance. ance. 1.1.5 Documentation—The scope of this practice includes research resear ch and reporting requirements requirements that suppo support rt 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 8.1.8 to 8.1.8 a and nd 12.2 12.2). ). 1.2 Objectives—Objectives guiding the development of this practicee are (1) to synthesize and put in writing good commerpractic cial and custom customary ary practice for environmental site assessments for commer facilita litate te hig high h qua quality lity,, commercia ciall re real al est estate ate, (2) to faci standardized environmental site assessments, (3) to ensure that all appropriate inquiry is practical and reasonthe standard of all able, and (4) to clarify an industry standard for all appropriate inquiry in an effort to guide legal interpretation of the LLPs. 1.3 Considerations Beyond Scope —The use of this practice is strictly limited to the scope set forth in this section. Section 13 of this pra practic cticee ide identifi ntifies, es, for inf inform ormatio ational nal pur purpos poses, es, certain environmental conditions (not an all-inclusive list) that may exist on a property that that ar aree be beyo yond nd th thee sc scop opee of th this is 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 scope of ser servic vices es sho should uld be eva evalua luated ted bas based ed upo upon, n, among other factors, factors, the nature of the 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 prior to initiation of the environmental site assessment process. process. 1.4 Organization of This Practice—This practice has thirteen sect section ionss and fou fourr app append endixes ixes.. Sect Section ion 1 is the Scope. 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 Signi Sig nific fican ance ce an and d Us Usee of th this is pr pract actice ice.. Se Secti ction on 5 provides activity and use lim limitat itation ionss. Sec discussion discus sion regar regarding ding activity Section tion 6 describes User’s Responsibilities. Sections Sections 7-12 are the main body of the Phase I Environmental Site Assessment , including evaluation and report preparation. Section 13 provides additional infor information mation regar regarding ding non-s non-scope cope consi consideratio derations ns (see 1.3). 1.3 ). 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 in understanding the user’s responsibilities under CERCLA; it also contains other important information Brownfields Amendments, an regarding regard ing CERCLA, the Brownfields and d th this is practice. Appendix practice. Appendix X2 provides the definition of the environmental professional responsible for the Phase I Environmental Site Assess Assessment ment , as required in the “ All Appropriate Inquiry” Final Fin al Rul Rulee (40 C.F.R. C.F.R. Par Partt 312 312). ). Appendix Appendix X3 provides provides an optional option al User Questionnaire Questionnaire to assist the user and and the environmental professional in gathering information from the user that that may be material to identifying recognized environmental con-

ditions. Appendix X4 provides a recommended table of conPhase I Env Envir ironm onment ental al Site tents ten ts and report form format at fo forr a Phase Assessment . standard d doe doess not purport purport to add addre ress ss all of the 1.5 This standar safe sa fety ty co conc ncern erns, s, if an anyy, as asso socia ciated ted wi with th its us use. e. It is th thee responsibility of the user of this standard to establish appro priate safety and health practices and determine the applicability of regulatory limitations prior to use. 1.6 This practice offers a set of instructions for performing one or more specific operations. This document cannot replace educati edu cation on or exp experi erienc encee and sho should uld be use used d in con conjun junctio ction n 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.

2. Referenc Referenced ed Documents 2.1 ASTM Standards: 3 E1528 Practice for Limited Environmental Due Diligence: Transaction Screen Process E2091 Guid Guidee fo forr Us Usee of Ac Acti tivi vity ty an and d Us Usee Lim Limit itati ation ons, s, Including Institutional and Engineering Controls 2.2 Federal Statutes: Comprehensi Compr ehensive ve Enviro Environmenta nmentall Respon Response, se, Compen Compensation sation,, and Liab Liabilit ility y Act of 198 1980 0 (“CE (“CERCLA RCLA”” or “Su “Super perfun fun-d”), as amended by Superfund Amendments and Reauthoriz tho rizatio ation n Act of 198 1986 6 (“S (“SARA ARA”) ”) and Sma Small ll Bus Busine iness ss Liabilit Liab ility y Reli Relief ef and Bro Brownfi wnfield eldss Rev Revital italizat ization ion Act of 2002 (“Brownfields Amendments”), 42 U.S.C. §§9601 et seq. Emergency Planning and Community Right-To-Know Right-To-Know Act of 1986 (“EPCRA”), 42 U.S.C. §§11001 et seq. Freedom of Information Act, 5 U.S.C. §552, as amended by Public Law No. 104-231, 110 Stat. 3048 Resource Conservation and Recovery Act (sometimes also referred to as the Solid Waste Disposal Act), as amended (“RCRA”), 42 U.S.C §6901 et seq. USEPA A Documents: 2.3 USEP “All Appropriate Inquiry” Final Rule, 40 C.F.R. Part 312 Chapter 1 EPA, Subchapter J-Superfund, Emergency Planning,, and Commu ning Community nity Right Right-T -To-Kn o-Know ow Prog Programs, rams, 40 C.F.R Parts 300-399 National Nation al Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Part 300 2.4 Other Federal Federal Agency Document: Document: OSHA Haza Hazard rd Comm Communic unicatio ation n Regu Regulatio lation, n, 29 29 C.F C.F.R. .R. §1910.1200

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For refere referenced nced ASTM stand standards, ards, visit the ASTM webs website, ite, www www.ast .astm.org m.org,, or contact ASTM Customer Service at [email protected]. For Annual Book of ASTM Standards volume information, refer to the standard’s Document Summary page on the ASTM website.


E1527 – 05 3. Terminology 3.1 This section provides provides definitions, descriptions descriptions of terms, and a list of acronyms for many of the words used in this practice. The terms are an integral part of this practice and are critical to an understanding of the practice and its use. 3.2 Definitions: 3.2.1 abandoned property — property that can be presumed to be deserted, or an intent to relinquish possession or control can be inferred from the general disrepair or lack of activity thereon such that a reasonable person could believe that there was an intent on the part of the current owner to surrender rights to the property. 3.2.2 activity and use limitations—legal or phys physical ical restrictions or limitations on the use of, or access to, a site or facility: reduce uce or elim elimina inate te pot potent ential ial exp exposu osure re to hazardous (1) to red substances or petroleum products in the soil or ground water on the property, or (2) to prevent activities that could interfere with the effectiveness of a response action, in order to ensure mainten main tenanc ancee of a con condit dition ion of no sig signifi nifican cantt ris risk k to pub public lic health or the environment. environment. These legal or physi physical cal restri restrictions ctions,, which may include institutional and/or engineering controls, are inte intende nded d to pre preven ventt adv advers ersee imp impacts acts to ind individ ividual ualss or populations that may be exposed to hazardous substances and petroleum products in the soil or ground water on the property.4 3.2.3 actual knowledge —the knowledge actually possessed by an individual who is a real person, rather than an entity. Actual knowledge is to be dis distin tingui guishe shed d fro from m con constr struct uctive ive knowle kno wledge dge tha thatt is kno knowle wledge dge imp imputed uted to an ind indivi ividua duall or entity. 3.2.4 adjoining properties—any real property or properties the border of which is contiguous or partially contiguous with that of the property, or that would be contiguous or partially contiguous with that of the property but for a street, road, or other publi publicc thoro thoroughf ughfare are separ separating ating them. aerial photo photograp graphs hs —ph 3.2.5 aerial —photo otogra graphs phs tak taken en fro from m an aerial platform with sufficient resolution to allow identification of de deve velo lopm pmen entt an and d ac activ tivit ities ies of ar area eass en enco comp mpas assin sing g th thee property. Aerial photographs are often available from government agencies or private collections collections unique to a local area. See 8.3.4.1 of 8.3.4.1 of this practice. 3.2.6 all appropriate inquiry—that inquiry constituting constituting “all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice” as defined in CERCLA, 42 U.S.C §9601(35)(B), that will qualify a party to a commercial real estate transaction for one of threshold criteria for satisfying the LLPs to CERCLA liabilit liab ility y (42 U.S U.S.C .C §96 §9601( 01(35) 35)(A) (A) & (B) (B),, §96 §9607( 07(b)( b)(3), 3), §9607( §96 07(q); q); and §96 §9607( 07(r)) r)),, ass assumi uming ng com compli plianc ancee wit with h oth other er elements of the defense. See Appendix See Appendix X1. X1 .

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The term AUL is taken from the ASTM Standard Guide E2091 E2091 to to include both legal (that is, institutional) and physical (that is, engineering) controls within its scope.. Other agencies, scope agencies, organ organizati izations, ons, and juris jurisdictio dictions ns may define or utiliz utilizee these terms differently (for example, EPA and California do not include physical controls within wit hin the their ir defi definit nition ionss of “institutional controls.” Dep Depart artmen mentt of Def Defens ensee and International County/City Management Association use Land Use Controls. The term land use restrictions is used but not defin defined ed in the Brownfields Amendments). 9

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3.2.7 appr approxima oximate te minim minimum um sear search ch distan distance ce—the area for which whi ch reco records rds mus mustt be obt obtaine ained d and rev reviewe iewed d pur pursua suant nt to Section 8 subject to the limitations provided in that section. This Th is ma may y in inclu clude de ar area eass ou outsi tside de th thee property and and sh shall all be measur mea sured ed fro from m the nea neares restt property boundary boundary.. This term is used in lieu of radius to include irregularly shaped properties. 3.2.8 bona fide prospective purchaser liability protection — (42 U.S.C. U.S.C. §96 §9607( 07(r)) r))—a —a per person son may qua qualify lify as a bon bonaa fide prospe pro spectiv ctivee pur purcha chaser ser if, amo among ng oth other er req requir uireme ements nts,, suc such h pers pe rson on ma made de “a “all ll ap appr prop opri riat atee in inqu quir iries ies in into to th thee pr prev evio ious us ownership and uses of the facility in accordance with generally accepted accepte d good commercial commercial and customary standards standards and practices.” Knowledge of contamination resulting from all appro priate inquiry would would not gen general erally ly pre preclu clude de thi thiss liab liabilit ility y protection. A person must make all appropriate inquiry on or befo be fore re th thee da date te of pu purc rcha hase se.. Th Thee fa facil cility ity mu must st ha have ve be been en purchased after January 11, 2002. See Appendix X1 for the other necessary requirements that are beyond the scope of this practice. 3.2.9 Brownfields Amendments—amendments to CERCLA pursuant to the Small Business Liability Relief and Brownfields fiel ds Rev Revital italizat ization ion Act, Pub Pub.. L. No. 107 107-1 -118 18 (20 (2002) 02),, 42 U.S.C. §§9601 et seq. 3.2.10 building depa —those ose records records of the department rtment rec record ordss—th property local government in which the is located indicating permiss per mission ion of the loca locall gov govern ernmen mentt to con constr struct uct,, alte alter, r, or demolish demoli sh impro improvement vementss on the property. Often building building de partment record recordss are located in the building department of a municipality or county. See 8.3.4.7 See 8.3.4.7.. 3.2.11 business environmental risk —a —a risk which can have a material environmental or environmentally-driven impact on the business associated with the current or planned use of a parcel par cel of commercial necessarily ly limi limited ted to commercial rea reall estate, not necessari those environmental issues required to be investigated in this practice. Consideration of business environmental risk issues may involve addressing one or more non-scope considerations, some of which are identified in Section 13 13.. 3.2.12 commercial real estate—any real property except a dwelling or property with no more than four dwelling units exclus exc lusive ively ly for res reside identi ntial al use (ex (excep ceptt tha thatt a dwelling or property with no more than four dwelling units exclusively for residential use is included in this term when it has a commercial function, as in the building of such dwellings for profit). This Th is ter term m in incl clud udes es bu butt is no nott lim limite ited d to un unde deve velo lope ped d re real al industrial, trial, retail, office, office, property and real property used for indus agricultural agricu ltural,, other commercial, commercial, medica medical, l, or educati educational onal purposes; property used for res reside identi ntial al pur purpos poses es tha thatt has mor moree than four residential dwelling units; and property with no more than tha n fou fourr dwelling units units fo forr re resid siden entia tiall us usee wh when en it ha hass a commercial function, as in the building of such dwellings for profit. commercial cial rea reall estate transa transaction ction—a tra 3.2.13 commer trans nsfe ferr of title to or possession of real property or receipt of a security interest in real property, except that it does not include transfer transfer of title to or possession of real property or the receipt of a security interest in real property with respect to an individual dwelling or building containing fewer than five dwelling units, nor does it include the purchase of a lot or lots to construct a


E1527 – 05 dwelling for occupancy by a purchaser, but a commercial real estate transact transaction ion doe doess inc includ ludee rea reall property purchased purchased or leased leas ed by per person sonss or ent entitie itiess in the bus busine iness ss of bui buildi lding ng or developing dwelling units.

3.2.14 Comprehensi Comprehensive ve Envir Environmen onmental tal Respo Response, nse, Comp Compenensation, and Liability Information System (CERCLIS) —the list of site sitess com compil piled ed by EP EPA A that EP EPA A has inv investi estigat gated ed or is currently investigating for potential hazardous substance conPriorities ties taminati tami nation on for pos possib sible le incl inclusi usion on on the National Priori List . 3.2.15 construction —concr ncrete, ete, bri brick, ck, asp asphal halt, t, and construction debris—co other such building materials discarded in the construction of a building or other improvement to property. contaminated ted public wells—pu 3.2.16 contamina —publi blicc wel wells ls use used d for drinki dri nking ng wate waterr that hav havee bee been n des design ignated ated by a gov govern ernmen mentt entity as contaminated by hazardous substances (for example, chlorinated solvents), or as ha havi ving ng wa wate terr un unsa safe fe to dr drin ink k without treatment. 3.2.17 contiguous property owner liability protection —(42 U.S.C. §9607(q))—a §9607(q))—a person may qualif qualify y for the contiguous property owner liability protection if, amo among ng oth other er req requir uireements, such person owns real property that is contiguous to, and that is or may be contaminated by hazardous substances from fro m oth other er rea reall property that that is no nott ow owne ned d by th that at pe pers rson on.. Furthermore, such person conducted all appropriate inquiry at the time of acquisition of the property and did not know or have ha ve re reas ason on to kn know ow th that at th thee property was was or co coul uld d be cont co ntam amin inate ated d by a re rele leas asee or th thre reate atene ned d re relea lease se fr from om th thee contiguous property. The all appr must not appropria opriate te inquir inquiryy must result res ult in kno knowled wledge ge of con contam taminat ination ion.. If it doe does, s, the then n suc such h person did “know” or “had reason to know” of contamination and would not be eligible for the contiguous property owner liability protection. See Appendix See Appendix X1 for the other necessary requirements that are beyond the scope of this practice. 3.2.18 CORRACTS list —a —a list maintained by EPA of hazardous waste treatment, storage, or disposal facilities and other RCRA-regulated facilities (due to past interim status or storage hazardous waste beyond 90 days) that have been notifie of hazardous notified d by the U.S. Environmental Protection Agency to undertake corrective action under RCRA. The CORRACTS list is is a subset of the EPA database that manages RCRA data. failuree—a failure to achieve the historical re3.2.19 data failur search objectives in 8.3.1 in 8.3.1 through through 8.3.2.2 8.3.2.2 even even after reviewing the standard historical sources in in 8.3.4.1 8.3.4.1 through through 8.3.4.8 8.3.4.8 that that reasonably ascertainable and lik are reasonably likel ely y to be us usef eful ul.. Data See 8.3.2.3.. failure is one type of data data gap . See 8.3.2.3 3.2.20 data gap —a lack of or inability to obtain information good fait faith h effor requir req uired ed by thi thiss pra practic cticee des despit pitee good efforts ts by the environmental professional to gather such information. Data gaps may result from incompleteness in any of the activities requir req uired ed by this practice, practice, inc includ luding ing,, but not limited to site reconnaissance (for example, an inability to conduct the site visit ), ), and interviews (for example, an inability to interview the key site manager , regulatory officials, etc.). See 12.7 See 12.7.. demolition on deb debris ris—co 3.2.21 demoliti —conc ncret rete, e, bri brick ck,, asp asphal halt, t, and other such building materials discarded in the demolition of a building or other improvement to property.

3.2.22 drum—a con contain tainer er (ty (typic pically ally,, but not nec necess essaril arily y, holding 55 gal (208 L) of liquid) that may be used to store hazardous substances or petroleum products. 3.2.23 dry wells—unde —undergro rground und areas where soil has been removed and replaced with pea gravel, coarse sand, or large rocks. Dry wells are used for drainage, to control storm runoff, forr th fo thee co coll llect ectio ion n of sp spill illed ed liq liqui uids ds (i (int nten entio tiona nall an and d no nonnintentional) and wastewater disposal disposal (often illegal). 3.2.24 due —thee pr proc ocess ess of in inqu quiri iring ng in into to th thee due dilige diligence nce—th environmental characteristics of a parcel of commercial real estate or ot othe herr co cond nditi ition ons, s, us usua ually lly in co conn nnect ectio ion n wi with th a commercial real estate transaction. The degree and kind of due diligence vary for different properties and differing purposes. See Appendix See Appendix X1. X1 . 3.2.25 dwelling—structure or portion thereof used for residential habitation. engineering contr controls ols (EC)—phys 3.2.26 engineering —physical ical modific modifications ations to a site or facility (for example, example, capping, slurry walls, or point of use water treatment) to reduce or eliminate the potential for exposure to hazardous substances or petroleum products in the soil or ground water on the property. Engineering controls are a type of activity and use limitation (AUL). environmental al compl compliance iance audit —the 3.2.27 environment —the invest investigative igative process to determine if the operations of an existing facility are in compliance with applic applicable able environmental environmental laws and regulations. This term should not be used to describe this practice, although an environmental compliance audit may include an environmental site assessment or, or, if prior audits are available, may be part of an environmental site assessment . environmental lien—a cha 3.2.28 environmental charg rge, e, secu security rity,, or enc encumumbrance upon title to a property to secure the payment of a cost, damage dam age,, deb debt, t, obl obliga igatio tion, n, or dut duty y ari arisin sing g out of res respon ponse se actions, cleanup, or other remediation of hazardous substances or petroleum products upon upon a property, incl includi uding ng (bu (butt not limited limi ted to) lien lienss imp impose osed d pur pursua suant nt to CERC CERCLA LA 42 U.S U.S.C. .C. §§9607(1) & 9607(r) and similar state or local laws. environmental professional—a per 3.2.29 environmental person son meeting meeting the education, training, and experience requirements as set forth in 40 CFR §312.10(b). See Appendix See Appendix X2. X2. The person may be an independent contractor or an employee of the user . 3.2.30 environmen process ss environmental tal site assess assessment ment (ESA)—the proce by which a person or entity seeks to determine if a particular parcel of real property (including improvements) is subject to option of the the user , recognized environmental conditions. At the option environmental mental site assess assessment ment may include more inquiry an environ than that constituting all appropriate inquiry or, if the user is i s not concerned about qualifying qualifying for the LLPs, less inquiry than that constituting all appropriate inquiry . An environmental site assessment is bot both h dif differ ferent ent fro from m and less rig rigoro orous us tha than n an environmental compliance audit . 3.2.31 ERNS list —EPA’s —EPA’s emergency response notification system list of reported CERCLA hazardous substance releases or spills in quantities greater than the reportable quantity, as maintain main tained ed at the Nat Nation ional al Resp Respons onsee Cen Center ter.. Not Notifica ificatio tion n requirements for such releases or spills are codified in 40 CFR Parts 302 and 355. 3.2.32 Federal Registe —public blicatio ation n of the Uni United ted Registerr, (FR)—pu States government published daily (except for federal holidays


E1527 – 05 and weekends) containing all proposed and final regulations and som somee oth other er acti activit vities ies of the fed federa erall gov govern ernmen ment. t. Whe When n regula reg ulatio tions ns bec become ome final, they are included included in the Code of Federal Regulations (CFR), as well as published in the Federal Register . fill di dirt rt —dir 3.2.33 fill — dirt, t, so soil il,, sa sand nd,, or ot othe herr ea eart rth, h, th that at is obtained off-site, that is used to fill holes or depressions, create mounds, or otherwise artificially change the grade or elevation of real property. It does not include material that is used in limited quantities for normal landscaping activities. 3.2.34 fire insurance maps —maps produced produced for private fire insurance map companies that indicate uses of properties at specified dates and that encompass the property. These maps are often available at local libraries, historical societies, private resellers, or from the map companies who produced them. 3.2.35 good faith —the absence of any intention to seek an unfair advantage or to defraud another party; an honest and sincere intention to fulfill one’s obligations in the conduct or transaction concerned. 3.2.36 hazardous substance —a substance defined as a hazardous substance pursuant to CERCLA 42 U.S.C.§9601(14), as inte interpr rpreted eted by EP EPA A reg regula ulation tionss and the cou courts: rts:““ (A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any ele elemen ment, t, com compou pound, nd, mix mixtur ture, e, sol solutio ution, n, or sub sub-stance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, (42 U.S.C. §6921) (but not including any waste the regulation of which under RCRA (42 U.S.C.§§6901 U.S.C.§§6901 et seq.) has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act (42 U.S.C. §7412), and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator (of EPA) has taken action pursuant to section 2606 of Title 15. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures mixtures of nat natura urall gas and suc such h syn synthe thetic tic gas gas).” ).” (See Appendix X1.) X1.) hazardous waste having the 3.2.37 hazardous waste —any hazardous charact cha racteri eristic sticss ide identi ntified fied und under er or list listed ed pur pursua suant nt to sec section tion 3001 30 01 of RCR RCRA, A, as am amen ende ded, d, (4 (42 2 U. U.S. S.C. C. §6 §692 921) 1) (b (but ut no nott including any waste the regulation of which under RCRA (42 U.S.C. U.S .C. §§6 §§6901 901-69 -6992k 92k)) has bee been n sus suspen pended ded by Act of Con Con-gress). RCRA is sometimes also identified as the Solid Waste Disposal Act. RCRA defines a hazardous waste , at 42 U.S.C. §6903, §69 03, as: “a sol solid id was waste, te, or com combin binatio ation n of sol solid id was wastes, tes, which whi ch bec becaus ausee of its qua quanti ntity ty,, con concen centra tration tion,, or phy physic sical, al, chemica che mical, l, or inf infecti ectious ous cha charac racter teristi istics cs may may—(A —(A)) cau cause, se, or signi sig nific fican antly tly co cont ntrib ribut utee to an in incr crea ease se in mo mort rtali ality ty or an increasee in seriou increas seriouss irreve irreversible rsible,, or incapa incapacitating citating reversible, reversible, illness; or (B) pose a substantial present or potential hazard to human hum an hea health lth or the env enviro ironme nment nt whe when n imp improp roperl erly y trea treated ted,, stored, transported, or disposed of, or otherwise managed.”

3.2.38 hazardous waste/contaminated sites —sites on which a release has occurr occurred, ed, or is suspected to have occur occurred, red, of any hazardous substance , hazardous waste , or petroleum products, and that release or suspected release has been reported to a government entity. historical reco recognized gnized envir environmen onmental tal condi condition tion—an 3.2.39 historical environmental condition which in the past would have been recognized environmental e nvironmental condition, but which considered consid ered a recognized recognized environmental may or may not be considered a recognized condition currently. The final decision rests with the environmentall pro menta professio fessional nal and wi will ll be in influ fluen ence ced d by th thee cu curr rren entt impact of the historical recognized environmental condition on the property. If a past release of any hazardous substances or petroleum products has occurred in connection with the property and has been remediated, with such remediation accepted by the res respon ponsib sible le reg regulat ulatory ory age agency ncy (fo (forr exa exampl mple, e, as evi evi-denc de nced ed by th thee is issu suan ance ce of a no fu furt rthe herr ac acti tion on le lett tter er or equival equ ivalent ent), ), this con conditi dition on sha shall ll be con consid sidered ered an historical recognized environmental condition and included in the findPhase I Envir Environmen onmental tal Site Assessment ingss sect ing section ion of the Phase report. repor t. The environmental professional shall provide an opinion of the current impact on the property of this historical recognized environmental condition in the opinion section of the report . If this historical recognized environmental condition is determined to be a recognized environmental condition Phase I Env Envir ironm onment ental al Sit Sitee Ass Assess essmen ment t is at th thee ti time me th thee Phase conducted, the condition shall be identified as such and listed in the conclusions section of the report . institutional controls 3.2.40 IC/EC registries—datab —databases ases of institutional or engineering controls that may be maintained by a federal, state or local environmental agency for purposes of tracking sites that may contain residual contamination and AULs. The names for these may vary from program to program and state to state, and include terms such as Declaration of Environmental Use Res Restric trictio tion n data databas basee (Ar (Arizo izona) na),, list of “de “deed ed res restri tricctions” (California), (California), envir environmen onmental tal real coven covenants ants list (Colo (Colo-rado), brownfields site list (Indiana, Missouri, Pennsylvania). 3.2.41 in (42 U .S .S. C. C. inno noce cent nt land la ndow owne nerr defe de fens nsee — (4 §§9601(35) & 9607(b)(3))—a person may qualify as one of three types of innocent landowners: (i) a person who “did not know and had no reason to know” that contamination existed on the property at the time the purchaser acquired the property; (ii) (i i) a go gove vern rnme ment nt en entit tity y wh which ich ac acqu quire ired d th thee property by escheat, or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation; and (iii) a person who “acquired the facility by inheritance or bequest.” To qualify for the first type of innocent landowner LLP, such person must have made all appropriate inquiry on or before the date of purchase. Furthermore, the all appr appropria opriate te inqui inquiry ry must not have resulted in knowledge of the contamination. If it does, then such person did “know” “know” or “ha “had d rea reason son to kno know” w” of con contami taminat nation ion and would not be eligible for the innocent landowner defense . See Appendix Appen dix X1 for the oth other er nec necess essary ary req requir uiremen ements ts tha thatt are beyond the scope of this practice. 3.2.42 institutional controls (IC) —a legal or administrative restriction restri ction (for exampl example, e, “deed restrictions,” restrictions,” restric restrictive tive covenants, easements, or zoning) on the use of, or access to, a site


E1527 – 05 or fac facilit ility y to (1) reduce reduce or elim elimina inate te pot potent ential ial exp exposu osure re to hazardous substances or petroleum petroleum products in th thee so soil il or ground water on the property, or (2) to prevent activities that could interfere with the effectiveness of a response action, in order to ensure maintenance of a condition of no significant risk to pub public lic hea health lth or the env enviro ironme nment. nt... An ins institu titutio tional nal control is a type of Activity and Use Limitation (AUL). 3.2.43 interviews—those portions of this practice that are contained in Section 10 Section 10 and and 11 11 thereof thereof and address questions to be asked of past and present owners, operators, and occupants of the property and questions to be asked of local government officials. 3.2.44 key site manager —the —the person identified by the owner or operator of of a property as having good knowledge of the uses and physical characteristics of the property. See 10.5.1 See 10.5.1.. 3.2.45 landfill—a pl plac ace, e, lo loca catio tion, n, tr tract act of lan land, d, ar area, ea, or premises used for the disposal of solid wastes as defined by state solid waste regul regulations. ations. The term is synon synonymous ymous with the term solid waste disposal site and is also known as a garbage dump, trash dump, or similar term. 3.2.46 Landowner Liability Protections (LLPs) —landowner liability protections under CERCLA; these protections include the bona fide prospective purchaser liability protection , contiguous property owner liability protection, and innocent landfrom CER CERCLA CLA lia liabil bility ity.. Se Seee 42 U. U.S.C S.C.. owner own er defe defense nse from §§9601(35)(A), 9601(40), 9607(b), 9607(q), 9607(r). 3.2.47 local government agencies—those agencies of municipal nici pal or cou county nty gov govern ernmen mentt hav having ing jur jurisd isdicti iction on ove overr the property. Municipal and county government agencies include but are not limited to cities, parishes, townships, and similar entities. local str street eet dir directo ectorie riess—di 3.2.48 local —direct rectori ories es pub publish lished ed by private (or sometimes government) sources that show ownership, shi p, occ occupa upancy ncy,, and and/or /or use of site sitess by ref refere erence nce to str street eet addresses. Often local street directories are available at libraries, or historical societies, and/or local municipal offices. See 8.3.4.6 of 8.3.4.6 of this practice. 3.2.49 LUST sites—state lists of leaking underground stor sites. RCRA gives EPA and states, under cooperative age tank sites. agreements with EPA, authority to clean up releases from UST systems or require owners and operators to do so. (42 U.S.C. §6991b). 3.2.50 major occupants —those tenants, subtenants, or other persons or entities each of which uses at least 40 % of the leasable area of the property or any anchor tenant when the property is a shopping center. materi erial al saf safety ety dat data a she sheet et (MS (MSDS) DS)—wr 3.2.51 mat —writt itten en or hazardous substance which is printed material concerning a hazardous prepared by chemical manufacturers, importers, and employers for hazardous chemicals pursuant to OSHA’s Hazard Communication Standard, 29 C.F.R. §1910.1200. 3.2.52 material threat —a —a physically observable or obvious threat which is reasonably likely to lead to a release that, in the opinion of the environmental professional, is threatening and might result in impact to public health or the environment. An example might include an aboveground storage tank system that contains a hazardous substance and which shows evidence of damage. The damage would represent a material threat if if it

is deemed serious enough that it may cause or contribute to tank integrity failure with a release of contents to the environment. 3.2.53 National Contingency Plan (NCP) —the National Oil and Hazard Hazardous ous Subst Substances ances Pollution Contingency Contingency Plan, found at 40 C.F C.F.R .R.. Pa Part rt 30 300, 0, th that at is th thee EP EPA’ A’ss bl blue uepr prin intt on ho how w hazardous substances are to be cleaned up pursuant to CERCLA. 3.2.54 Nation —listt com compil piled ed by National al Prio Prioriti rities es Lis Listt (NP (NPL) L)—lis EPA EP A pursuant to CERCLA 42 U.S.C. §9605(a)(8)(B §9605(a)(8)(B)) of prop prop-erties with the highest priority for cleanup pursuant to EPA’s Hazard Ranking System. See 40 C.F.R. Part 300. 3.2.55 obvious—that which is plain or evident; a condition or fact that could not be ignored or overlooked by a reasonable observer while visually or physically observing the property. 3.2.56 occupants—those tenants, subtenants, or other persons or entities using the property or a portion of the property. 3.2.57 operator —the — the pe pers rson on re resp spon onsi sibl blee fo forr th thee ov over erall all operation of a facility. 3.2.58 other historical sources—any source or sources other than th an th thos osee de desig signa nated ted in 8.3.4.1 through 8.3.4.8 that that ar aree credible to a reasonable person and that identify past uses of the property. The term includes, but is not limited to: miscellaneous maps, newspaper archives, internet sites, community organizations, local libraries, historical societies, current owners or occupants of neighboring properties, and records in the files and/or personal knowledge of the property owner and/or occupants. See 8.3.4.9 See 8.3.4.9.. 3.2.59 owner —gener —generally ally the fee owner of re reco cord rd of th thee property. 3.2.60 petroleum exclusion—the exclusion from CERCLA liability provided in 42 U.S.C. §9601(14), as interpreted by the courts cou rts and EP EPA: A: “Th “Thee ter term m (hazardous substance ) does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of thiss par thi paragr agraph aph,, and the ter term m doe doess not include include natu natural ral gas gas,, natura nat urall gas liqu liquids ids,, liq liquefi uefied ed nat natura urall gas gas,, or syn synthe thetic tic gas usable for fuel (or mixtures of natural gas and such synthetic gas).” 3.2.61 petroleu —those se sub substan stances ces incl included uded petroleum m prod products ucts—tho within the meaning of the petroleum exclusion to CERCLA, 42 U.S.C. §9601(14), as interpreted by the courts and EPA, that is: petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under Subparagraphs (A) through (F) of 42 U.S.C. § 9601(14), natural gas, natural gas liquids, liquefied natural gas, and synthetic gas usable for fuel (or mixtures of natural gas and such su ch sy synt nthe hetic tic ga gas) s).. (T (The he wo word rd fr fract actio ion n re refe fers rs to cer certai tain n distillates distilla tes of crude oil, includ including ing gasoline, kerosine, kerosine, diesel oil, jet fuels, and fuel oil, pursuant to Standard Definitions of Petroleum Statistics.5) 3.2.62 Phase I Environmental Site Assessment —the —the process described in this practice.

5

Standard Standa rd Defini Definitions tions of Petr Petroleum oleum Statis Statistics tics, Americ American an Petro Petroleum leum Instit Institute, ute, Fourth Edition, 1988.


E1527 – 05 3.2.63 physical setting sources—sources that provide information mati on abo about ut the geo geolog logic, ic, hyd hydrog rogeol eologi ogic, c, hyd hydrol rologi ogic, c, or topographic characteristics of a property. See 8.2.3 See 8.2.3.. lagoons ns—ma 3.2.64 pits, ponds, or lagoo —man-m n-made ade or natu natural ral depressions in a ground surface that are likely to hold liquids or sludge containing hazardous substances or petroleum products. Thee lik Th likeli eliho hood od of su such ch liq liqui uids ds or sl slud udge ge be bein ing g pr pres esen entt is determi dete rmined ned by evi eviden dence ce of fac factor torss ass associ ociated ated with the pit pit,, pond, or lagoon, including, but not limited to, discolored water, distressed vegetation, or the presence of an obvious wastewater discharge. reviewab iewable le—info 3.2.65 practically rev —information rmation that is practically reviewable means that the information is provided by the source in a manner and in a form that, upon examination, yields inform inf ormatio ation n rel releva evant nt to the property witho without ut th thee ne need ed fo forr extraor extr aordin dinary ary ana analys lysis is of irr irrelev elevant ant dat data. a. The for form m of the information shall be such that the user can can review the records for a limited geographic area. Records that cannot be feasibly retrieve retr ieved d by ref refere erence nce to the loc locatio ation n of the property or a geog ge ogra raph phic ic ar area ea in wh whic ich h th thee property is lo loca cated ted ar aree no nott generally practically rev Most st da datab tabase asess of pu publ blic ic reviewabl iewablee. Mo records are practically reviewable if they can be obtained from thee so th sour urce ce ag agen ency cy by th thee co coun unty ty,, ci city ty,, zip co code de,, or ot othe herr geographic area of the facilities listed in the record system. Records that are sorted, filed, organized, or maintained by the source agency only chronologically are not generally practically reviewable. Listings in publicly available records which do no nott ha have ve ad adeq equa uate te ad addr dres esss in info form rmat atio ion n to be lo loca cated ted geographically are not generally considered practically reviewable. For lar large ge data databas bases es wit with h num numero erous us rec record ordss (su (such ch as RCRA hazard hazardous ous waste generators generators and registered registered underground thee re reco cord rdss ar aree no nott practically storagee tanks), th storag practically rev reviewabl iewablee unless unl ess they can be obt obtain ained ed fro from m the source source age agency ncy in the smaller geographic area of zip codes. Even when information is provided by zip code for some large databases, it is common for an unmanageable number of sites to be identified within a given zip code. In these cases, it is not necessary to review the impact of all of the sites that are likely to be listed in any given zip cod codee bec becaus ausee tha thatt inf inform ormatio ation n wou would ld not be practically . In other words, when so much data is generated reviewable that th at it ca cann nnot ot be fe feasi asibl bly y re revi view ewed ed fo forr its im impa pact ct on th thee property, it is not practically reviewable.

3.2.66 property—the real property that is the subject of the described in this practice. Real environmental site assessment described includes buildings and other fixtures and impro improveve property includes ments located on the property and affixed to the land. 3.2.67 proper —thee file filess ke kept pt fo forr property tax property ty tax file filess—th purposes by the local jurisdiction where the property is located and may include records of past ownership, appraisals, maps, sketc sk etche hes, s, ph phot otos os,, or ot othe herr in info form rmati ation on th that at is reasonably See 8.3.4.3.. ascertainable and pertaining to the property. See 8.3.4.3 3.2.68 publicly —infor format mation ion tha thatt is publicly publicly avail available able—in means that the sou source rce of the inf inform ormatio ation n allo allows ws available means access to the information by anyone upon request. generators tors—th 3.2.69 RCRA genera —thos osee pe pers rson onss or en entit tities ies th that at generate hazardous wastes , as defined and regulated by RCRA.

3.2.70 RCRA — list ke kept pt by EP EPA A of th thos osee RCRA genera generators tors list —list persons or entities that generate hazardous wastes as defined and regulated by RCRA. 3.2.71 RCRA TSD facilities—those facilities on which treatment, storage, and/or disposal of hazardous hazardous wastes takes place, as defined and regulated by RCRA. 3.2.72 RCRA TSD facilities list —list —list kept by EPA of those facilit fac ilities ies on whi which ch trea treatme tment, nt, sto storag rage, e, and and/or /or dis dispos posal al of takes plac place, e, as defi defined ned and regulated regulated by hazardous hazar dous wastes takes RCRA. 3.2.73 reasonably —infor formati mation on tha thatt is (1) reasonably ascerta ascertainable inable—in publicly available, (2) obtai obtaina nabl blee fr from om its so sour urce ce wi with thin in reas re ason onab able le tim timee an and d co cost st co cons nstr train aints, ts, an and d (3) practi practically cally reviewable 3.2.74 recognized environmental conditions—the presen presence ce or likely presence of any hazardous substances or petroleum under con condit dition ionss tha thatt ind indicat icatee an products on a property under existing release, a past release, or a material threat of of a release of an any y hazardous hazardous subst substances ances or petroleum petroleum pro products ducts into structures struct ures on the property or into the ground, ground water, or surfac sur facee wat water er of the property. The term incl include udess hazardous under er con conditi ditions ons in substances or petroleum products even und compliance with laws. The term is not intended to include de minimis conditions that generally do not present a threat to human health or the environment and that generally would not be th thee su subj bjec ectt of an en enfo forc rcem emen entt ac actio tion n if br brou ough ghtt to th thee attention attentio n of appro appropriate priate gove governmen rnmental tal agenc agencies. ies. Condit Conditions ions determined to be de minimis are not recognized environmental conditions. 3.2.75 recorded land title records—recor —records ds of histor historical ical fee owners own ership hip,, whi which ch may inc includ ludee leas leases, es, lan land d con contra tracts, cts, and AULs on or of the property recorded in the place where land title tit le re reco cord rdss ar are, e, by law or cu custo stom, m, re reco cord rded ed fo forr th thee lo loca call jurisdiction in which the property is loc located ated.. (Of (Often ten suc such h records are kept by a municipal or county recorder or clerk.) Such records may be obtained from title companies or directly from the local government agency. Information about the title to the property that is recorded in a U.S. district court or any place other than where land title records are, by law or custom, record rec orded ed for the loc local al jur jurisd isdicti iction on in whi which ch the property is located, are not considered part of recorded land title records. See 8.3.4.4 See 8.3.4.4.. 3.2.76 records of emergency release notifications EPCRA— (42 U.S.C. §11004)—requires operators of facilities to notify their th eir lo local cal em emer erge genc ncy y pl plan anni ning ng co comm mmitt ittee ee (a (ass de defin fined ed in EPCRA) and state emergency response commission (as defined in EPCRA) of any release beyond the facility’s boundary of any reportable quantity of any extremely hazardous substance . Often the local fire department is the local emergency planning committ com mittee. ee. Rec Record ordss of suc such h not notific ificatio ations ns are “Rec “Record ordss of Emergency Emerg ency Release Notific Notifications ations”” (42 U.S.C. 11 11004) 004).. 3.2.77 records review—that part that is contain contained ed in Sectio Section n 8 of this practice practice add addres resses ses which records records sha shall ll or may be reviewed. 3.2.78 report —the —the written report prepared by the environmental professional and constituting part of a “ Phase I Envi,” as required by this practice. ronmental Site Assessment ,”


E1527 – 05 3.2.79 site reconnaissance—th —that at par partt tha thatt is con contain tained ed in Section 9 Section 9 of of this practice and addresses what should be done in connection with the site visit . The site reconnaissance includes, but is not limited to, the site visit done done in connection with such a Phase I Environmental Site Assessment . 3.2.80 site — the vi visit sit to th thee property during during which site vis visit it —the reconna onnaissanc issancee observ obs ervatio ations ns are mad madee con consti stituti tuting ng the site rec section of this practice. 3.2.81 solid waste disposal site—a place, location, tract of land, area, or premises used for the disposal of solid wastes as defined by state solid waste regulations. The term is synonymous with the term landfill and is also known as a garbage dump, trash dump, or similar term. 3.2.82 solvent —a —a che chemica micall com compou pound nd tha thatt is cap capabl ablee of dissolving another substance and may itself be a hazardous substance, used in a number of manufacturing/industrial processes including but not limited to the manufacture of paints and coatings for industrial and household purposes, equipment clean-up, and surface degreasing in metal fabricating industries. 3.2.83 stand standard ard envir environmen onmental tal reco record rd sour sources ces —those records specified in 8.2.1 8.2.1.. 3.2.84 standard historical sources—those sources of information about the history of uses of property specified in 8.3.4 in 8.3.4.. 3.2.85 standard current nt USGS standard physic physical al setting source—a curre 7.5 Minute Topograp Topographic hic Map (if any) showing showing the are areaa on which the property is located. See 8.2.3 See 8.2.3.. 3.2.86 standard —the he act activ iviti ities es se sett fo fort rth h in th this is standard practi practice ce—t practice. 3.2.87 standard sources—sour —sources ces of envir environmen onmental, tal, phys physiical setting, or historical records specified in Section 8 of this practice. state reg register istered ed UST USTss—s 3.2.88 state —stat tatee lis lists ts of underground storage tanks required to be registered under Subtitle I, Section 9002 of RCRA. 3.2.89 sump—a pit, cistern, cesspool, or similar receptacle where liquids drain, collect, or are stored. 3.2.90 TSD facility—treatment, storage, or disposal facility (see RCRA TSD facilities). underground und injectio injection n—t 3.2.91 undergro —the he em empl place aceme ment nt or di disschar ch arge ge of flu fluid idss in into to th thee su subs bsur urfa face ce by mea means ns of a we well, ll, improved sinkhole, sewage drain hole, subsurface fluid distribution system or other system, or groundwater point source. 3.2.92 underground storage tank (UST) —any tank, including underground piping connected to the tank, that is or has been be en us used ed to co cont ntain ain hazardous hazardous substa substances nces or petroleum products and the volume of which is 10 % or more beneath the surface of the ground. 3.2.93 user —the —the par party ty see seekin king g to use Practice Practice E15 E1527 27 to complete an environmental site assessment of the property. A user may may include, without limitation, a potential purchaser of property, a potential tenant of property property, an owner of of property, a lender, or a property manager. The user has has specific obligations for completing a successful application of this practice as outlined in Section 6 Section 6.. Topographic hic Map—th 3.2.94 USGS 7.5 Minute Topograp —thee ma map p (if any) available from or prod produced uced by the United States Geolog Geologii-

cal Survey, entitled “USGS 7.5 Minute Topographic Map ,” and showing the property. 3.2.95 visually —during a site visually and/o and/orr physic physically ally obser observed ved —during visit purs pursuan uantt to thi thiss pra practic ctice, e, this term mea means ns obs observ ervatio ations ns madee by vis mad vision ion whi while le wal walkin king g thr throug ough h a property and the structures located on it and observations made by the sense of smell, particularly observations of noxious or foul odors. The term “walking through” is not meant to imply that disabled persons who cannot physically walk may not conduct a site visit ; they may do so by the means at their disposal for moving through the property and the structures located on it. 3.2.96 wastewater —water —water that (1) is or has been used in an industrial or manufacturing process, (2) conveys or has conveyed vey ed sew sewage age,, or (3) is dir directl ectly y rel related ated to man manufa ufactu cturin ring, g, processing, or raw materials storage areas at an industrial plant. Wastewater does not include water originating on or passing through or adjacent to a site, such as stormwater flows, that has not been used in industrial or manufacturing processes, has not been be en co comb mbin ined ed wit with h se sewa wage ge,, or is no nott di dire rect ctly ly re rela lated ted to manufacturing, processing, or raw materials storage areas at an industrial plant. 3.2.97 zoning/land use records —those records of the local government in which the property is located indicating the uses permitted by the local government in particular zones within its jurisdiction. The records may consist of maps and/or written records. They are often located in the planning department of a municipality or county. See 8.3.4.8 8.3.4.8.. 3.3 Acronyms: 3.3.1 AULs—Activity and Use Limitations. 3.3.2 CERCLA—Comprehensive Environmental Response, Compen Com pensati sation on and Liability Liability Act of 198 1980 0 (as ame amende nded, d, 42 U.S.C. §§9601 et seq.). 3.3.3 CERCLIS —Comprehensive —Comprehensive Environmental Response, Compensation and Liability Information System (maintained by EPA). 3.3.4 CFR—Code of Federal Regulations. 3.3.5 CORRACTS —facilities —facilities subje subject ct to Corre Corrective ctive Action under RCRA. 3.3.6 EPA—Un —Unite ited d Sta States tes En Envir viron onmen mental tal Pr Prote otecti ction on Agency. 3.3.7 EPCRA—Emergency Planning and Community Right to Kn Know ow Act (( ((als also o kn know own n as SA SARA RA Title Title II III) I),, 42 U. U.S. S.C. C. §§11001-11050 et seq.). 3.3.8 ERNS —emergency —emergency response notification system. 3.3.9 ESA—Environmental Site Assessment (different than an environmental compliance audit , 3.2.27 3.2.27)). 3.3.10 FOIA—U.S. Freedom of Information Act (5 U.S.C. §552 as amended by Public Law No. 104-231, 110 Stat.). 3.3.11 FR—Federal Register. 3.3.12 ICs—Institutional Controls. 3.3.13 LLP—Lan —Landow downer ner Liab Liabilit ility y Pro Protect tection ionss und under er the Brownfields Amendments 3.3.14 LUST —Leaking —Leaking Underground Storage Tank. 3.3.15 MSDS —Material —Material Safety Data Sheet. 3.3.16 NCP—Nation —National al Contin Contingency gency Plan. 3.3.17 NFRAP—fo —forme rmerr CERC CERCLIS LIS site sitess whe where re no fur furthe therr remedial action is planned under CERCLA.


E1527 – 05 3.3.18 NPDES —National —National Polluta Pollutant nt Discha Discharge rge Elimina Elimination tion System. 3.3.19 NPL—Nation —National al Prior Priorities ities List. 3.3.20 PCBs—polychlorinated biphenyls. 3.3.21 PRP—Po —Poten tential tially ly Resp Respons onsibl iblee Par Party ty (pu (pursu rsuant ant to CERCLA 42 U.S.C. §9607(a)). 3.3.22 RCRA—Resou —Resource rce Conser Conservation vation and Recove Recovery ry Act (as amended, 42 U.S.C.§§6901 et seq.). 3.3.23 SARA—Supe —Superfund rfund Amendments Amendments and Reauth Reauthorizaorization Act of 1986 (amendment to CERCLA). 3.3.24 TSDF —hazardous waste treatment, treatment, storage or disposal facility. 3.3.25 USC —United —United States Code. 3.3.26 USGS —United —United States Geological Survey. 3.3.27 UST —Underground —Underground Storage Tank. 4. Signi Significan ficance ce 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 inquiry for purposes of the LLPs, it is not intended that its use be limited to that purpose. This practice is intended primarily as an app approa roach ch to con conduc ductin ting g an inq inquir uiry y des design igned ed to iden identify tify recognize reco gnized d envir environmen onmental tal condi conditions tions in co conn nnect ectio ion n wi with th a property. No implication is intended that a person must 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 a commercially commer cially prudent and reason reasonable able inquir inquiry y. (See Section 1.6..) 1.6 4.2 Clarifications on Use : Limited ited to CER CERCLA CLA—Th 4.2.1 Use Not Lim —This is pra practic cticee is designed to assist the user in developing information about the environmental condition of a property and as such has utility for a wide range of persons, including those who may have no actua act uall or po pote tent ntial ial CE CERCL RCLA A lia liabi bilit lity y an and/ d/or or ma may y no nott 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 sin single gle-fa -family mily homes or oth other er res reside identia ntiall rea reall esta estate, te, or purchasers purch asers of dwellings for for on one’ e’ss ow own n re resi side dent ntial ial us use, e, to conduct an environmental site assessment in connection with these transactions. Thus, these transactions are not included in the ter term m commercia transactio ctions, ns, and it is not commerciall rea reall estate transa intended to imply that such persons are obligated to conduct an environmental site assessment in in connection with these transactions for purposes of all appropriate inquiry or for any other purp pu rpos ose. e. In ad addi ditio tion, n, no im impl plica icatio tion n is in inten tende ded d th that at it is environmental tal site assess assess-currently curren tly custom customary ary practic practicee for environmen conduc ducted ted in oth other er une unenum numera erated ted ins instanc tances es (in (in-ments to be con cluding but not limited to many commercial leasing transactions tio ns,, ma many ny acq acqui uisit sitio ions ns of ea easem semen ents, ts, an and d ma many ny lo loan an transactions in which the lender has multiple remedies). On the environmental site othe ot herr ha hand nd,, an anyo yone ne wh who o el elect ectss to do an environmental

assessment of any property or portion of a property may, in such person’s judgment, use this practice.

4.2.3 Site-Specific—This practice is site-specific in that it relates to assessment of environmental conditions on a specific parcel of 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 the ir ass assets, ets, tha thatt may wel welll inv involv olvee env enviro ironme nmental ntal liab liabilit ilities ies pertaining pertain ing to prope properties rties previously previously owned or opera operated ted or other off-site environmental liabilities. 4.3 Who —A Phase Who Ma Mayy Co Cond nduc uct t —A Phase I Env Envir ironm onment ental al Site Assessment must be performed by an environmental professional as specified in Section 7.5.1 Section 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 environmental professional is, profes pro fessio sional nal jud judgme gment nt of an environmental appropria opriate te conseq con sequen uently tly,, vita vitall to the per perfor forman mance ce of all appr inquiry. 4.4 Additional —Ass set forth forth in 12.9, 12.9, additional Additional Service Servicess—A servic ser vices es may be con contra tracted cted for bet betwee ween n the user and and th thee environmental professional. Such additional services may include business environmental risk issues not included within the scope of this practice, examples of which are identified in Section 13 13 under Non-Scope Considerations. 4.5 Principles—Th —Thee fol follow lowing ing pri princi nciples ples are an inte integra grall part of th part this is pr pract actice ice an and d ar aree in inten tende ded d to be re refe ferr rred ed to in resolv res olving ing any amb ambigu iguity ity or exe exerci rcisin sing g suc such h dis discre cretio tion n as is accorded the user or or environmental professional in performing an environmental site assessment or or in judging whether a user or environmental professional has condu conducted cted appro appropriate priate inquiry or has otherwise conducted an adequate environmental site assessment . Uncertainty Not Elimin Eliminated ated —No environmental mental site 4.5.1 Uncertainty —No environ assessment can who wholly lly elim elimina inate te unc uncerta ertaint inty y reg regard arding ing the potential for recognized environmental conditions in connection with a property. Performance of this practice is intended to reduce, but not eliminate, uncertainty regarding the potential for recognized environmental conditions in connection with a recognizes reasonable reasonable limits of time property, and this practice recognizes and cost.

4.5.2 Not does not Not Exhau Exhaustive stive— All approp appropriate riate inquiry does mean an exhaustive assessment of a clean 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 inherent in perfo performing rming an environ and the reduction of uncertainty about mental site assessment and 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 commer com mercial cial or cus custom tomary ary pra practic ctice, e, the app approp ropriat riatee lev level el of environmen envir onmental tal site assess assessment ment will be guided by the type of


E1527 – 05 property subject to assessment, the expertise and risk tolerance of the user , and the information developed in the course of the inquiry. 4.5.4 Comparison Comparison with Subse Subsequent quent Inquiry—It should not be concluded or assumed that an inquiry was not all appropriate inqui inquiry ry merely because the inquiry did not identify recognized environmental conditions in connection with a 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 dar ds to jud judge ge the app approp ropriat riatene eness ss of any pri prior or ass assess essmen mentt based on hindsight, new information, use of developing technology or analytical techniques, or other factors. 4.6 Continued Viability Viability of Environmental Site Assessment — Subject Sub ject to Sec Section tion 4.8 4.8,, an environmen environmental tal site assess assessment ment meeting or exceeding this practice and completed less than 180 days prior to the date of acquisition 6 of the property or (for trans tra nsact actio ions ns no nott in invo volv lvin ing g an ac acqu quisi isitio tion) n) th thee da date te of th thee 7 intended transaction is presumed to be valid. If within this period the assessment will be used by a different user than than the user for who whom m the ass assess essmen mentt was ori origin ginally ally prepared prepared,, the subsequent user must must also satisfy the User’s Responsibilities in Section 6 Section 6.. Subject to Section 4.8 Section 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 the date of acq acquis uisitio ition n of the property or (fo (forr tran transact saction ionss not involving an acquisition) the date of the intended transaction may be used provided that the following components of the inquiries were conducted or updated within 180 days of the date of purchase or the date of the intended transaction: (i) interviews with owners, operators, and occupants; (ii) searches for recorded environmental cleanup liens; (iii) reviews of federal, tribal, state, and local government records; (iv)) vis (iv visual ual ins inspec pectio tions ns of the property and and of adjoining properties; and (v) the declaration by the environmental professional responsible for the assessment or update. 4.7 Prior Assessment Usage —This practice recog recognizes nizes that environmental site assessments performed in accordance with this practice will include infor information mation that subse subsequent quent 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 mo re th than an on onee ye year ar pr prio iorr to th thee da date te of acq acqui uisit sitio ion n of th thee property or (for transactions not involving an acquisition) the date of the intended transaction. The system of prior assessment usage is based on the following principles that should be

6

Under Und er “ All Appropriate Inquiry” 40 C.F.R. Part 312 312,, EP EPA A defi defines nes date of acquisition as the date on which a person acquires title to the property. 7 Subject to meeting the other requirements set forth in this section, for purpose of the LLPs, information collected in an assessment conducted prior to the effective date of the federal regulations for All Appropriate Inquiry or this practice can be used if the information was generated as a result of procedures that meet or exceed the requirements of the E1527-97 or -00 standards.

adhered adhere d to in add additio ition n to the spe specific cific procedur procedures es set for forth th elsewhere in this practice: Use of Pri Prior or Inf Inform ormatio ation n—Su 4.7.1 Use —Subje bject ct to the req requir uireement me ntss se sett fo fort rth h in Se Sect ctio ion n 4.6 4.6,, users and environmental professionals may use information in prior environmental site assessments provid provided ed suc such h inf inform ormatio ation n was gen genera erated ted as a result of procedures that meet or exceed the requirements of thiss pra thi practic ctice. e. How Howeve ever, r, suc such h inf inform ormatio ation n sha shall ll not be use used d withou wit houtt cur curren rentt inv investi estigat gation ion of con condit dition ionss like likely ly to af affec fectt connec nection tion with the recognized environmental conditions in con property. Ad Addi ditio tiona nall ta task skss may be ne nece cess ssar ary y to do docu cume ment nt conditions that may have changed materially since the prior environmental site assessment was conducted. Contrac tractual tual Issu Issues es Rega Regard rding ing Prio Priorr Asse Assessme ssment nt 4.7.2 Con Usage—The contractual and legal obligations between prior and subse subsequent quent users of environmen environmental tal site assess assessments ments or environmental professionals who con between environmental conduc ducted ted pri prior or 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 Know Knowledge ledge Exception—If the user or environmental professional(s) conducting environmental tal site asconducting an environmen sessment has has actual knowledge that the information being used from a prior environmental site assessment is is not accurate or if it is obvious, based on other information obtained by means of environmental tal site assess assessment ment or kn the environmen know own n to th thee pe pers rson on 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 —The contractual and legal obligations between an environmental professional and a user (and (and other parties, if any) are outside the scope of this practice. No specific legal relationship between the environmental professional and the user is nec necess essary ary for the user to me meet et th thee requirements of this practice. 5. Signi Significanc ficancee of Activity Activity and Use Limitations Limitations Activity and Use Lim Limitat itation ionss (AU (AULs) Ls)—AU 5.1 Activity —AULs Ls are one indication indica tion of a past or present release of a hazardous substance or petroleum products. AULs are an explicit recognition by a federal, tribal, state, or local regulatory agency that residual levels of hazardous hazardous substances or petroleum products may be present on a property, and that unrestricted use of the property may not be acceptable. AULs are important to both the user and the environmental professional . Specifically, the environmentall pro menta professio fessional nal can rev review iew age agency ncy reco records rds and IC/EC fo for r the th e pres pr esen ence ce of AUL AULs s on the th e property to registries determine if a recognized environmental condition is present on the subjec subjectt property (see Section 8.2.1 Section 8.2.1,, 8.2.2 8.2.2,, and and 11.5.1.4 11.5.1.4). ). The user must comply with AULs to maintain the LLP (see Appendix X1) X1 ). 5.2 Different Terms for AULs—The term AUL is taken taken from Guide E2091 to include both legal (that is, institutional) and physical physi cal (that is, engin engineering eering)) contr controls ols within its scope scope.. Agencies, organizations, and jurisdictions may define or utilize these terms ter ms dif differ ferent ently ly (fo (forr exa exampl mple, e, Dep Departm artment ent of Def Defens ensee and International City/County Management Association use “Land Use Controls” and the term “land use restrictions” is used but not defined in the Brownfields Amendments).


E1527 – 05 5.3 Informat —Thee AUL sho should uld Information ion Pr Provi ovided ded by the AUL—Th provide information on the chemical(s) of concern, the potential exposure pathway(s) that the AUL is intended to control, the env enviro ironme nmenta ntall med medium ium tha thatt is bein being g con contro trolled lled,, and the expected performance objective(s) of the AUL. AULs may be used to provide access to monitoring wells, sampling locations, or remedi remediation ation equipm equipment. ent. 5.4 Where AULs Can Be Found —AULs —AULs are often recorded in lan land d titl titlee rec record ords. s. AUL inf inform ormatio ation n is con contain tained ed in the restrictions of record on the title, rather than a typical chain of title. titl e. Cha Chain in of titl titlee wil willl not pro provid videe inf inform ormatio ation n reg regard arding ing restrictions on title such as restrictive covenants, easements, or other types of AULs. Some AULs are maintained on a state IC or EC Registry and may not be recorded in land title records. While some states maintain readily accessible IC/EC registries, other oth er sta states tes do not not.. The environmental environmental professional is cautioned tion ed to det determ ermine ine whe whethe therr AUL AULss are con consid sidere ered d rea readily dily available records in the state in which the property is located. Some AULs may only exist in project documentation, which may not be readil readily y available to the environmental professional. This may be the case in states where project files are archived after a period of years and access to the archives is restricted. AULs imposed upon some properties by local agencies with limited environmental oversight may not be recorded in the land title records, particularly where a local agency has been delegated regulatory authority over environmental programs. 6. User’s Responsibilities Responsibilities 6.1 Scope—The purpose of this section is to describe tasks to be pe perf rfor orme med d by th thee user that that wi will ll he help lp id iden entif tify y th thee possibility possib ility of recognized environmental conditions in connection with the property. These tasks do not require the technical expertise of an environmental professional and are generally environmental professionals performing not per perfor formed med by environmental performing a Phase I Environmental Site Assessment . Appendix X3 provides X3 provides an optio optional nal User Questio Questionna nnaire ire to ass assist ist the user and th thee environmental professional in gathering information from the user that may be material to identifying recognized environmental conditions. Judicial al Recor Records ds for Envir Environmen onmental tal 6.2 Review Title and Judici Liens or Activity and Use Limitations (AULs)— Reasonably ascertainable recorded land title records and lien records that are filed und under er fed federa eral, l, trib tribal, al, sta state, te, or loc local al law should should be reviewed to identify environmental environmental liens or activity and use any y, th that at ar aree cu curr rren ently tly re reco cord rded ed ag agai ains nstt th thee limitations, if an property. Environmental liens and activity and use limitations that are imposed by judicial authorities may be recorded or filed in judicial records, and, where applicable, such records should be reviewed. Any environmental liens or activity and use limitations so identified shall be reported to the environmental professional conducting a Phase I Environmental Site Assessment . Unless added by a change in the scope of work to be performed by the environmental professional, this practice does not impose on the environmental professional the respon recorded land title records and sibility to undertake a review of recorded judicial records for environmental environmental liens or activity activity and use limitations. The user should should either (1) engage a title company or tit title le pr prof ofes essi sion onal al to un unde dert rtak akee a re revi view ew of reasonably ascertainable recorded land title records and lien records for

environmental liens or activity and use limitations currently recorded against or relating to the property, or (2) negotiate such an engagement of a title company or title professional as an ad addi ditio tion n to th thee sc scop opee of wo work rk to be pe perf rfor orme med d by th thee environmental professional. 6.2.1 Reasonably Ascertainable—Except to the extent that applicable federal, state, local or tribal statutes, or regulations recorded land title reco records rds for specif spe cify y any place oth other er tha than n recorded environ environmental mental liens act activit ivity y and use record rec ording ing or filin filing g or limitations or specify records to be reviewed to identify the environmental al liens or activit activityy and use existen exi stence ce of suc such h environment limitations, environmental liens or activity and use limitations that are recorded or filed any place other than recorded land title records are not considered to be reasonably ascertainable . 6.3 Specialized Knowledge or Experience of the User —If —If the user is is aware of any specialized knowledge or experience that th at is ma mater terial ial to recognized recognized envir environmen onmental tal condit conditions ions in connection with the property, it is the user’s responsibility to comm co mmun unica icate te an any y inf infor orma matio tion n ba based sed on su such ch sp speci eciali alize zed d knowle kno wledge dge or exp experi erienc encee to the environmental environmental professional. The user should do so before the environmental professional conducts condu cts the site reconnaissance. 6.4 Actual Knowledge of the User —If —If the user has actual knowledge of any environmental environmental lien or AULs encumbering property the or in connection with the property, it is the user’s responsibility to communicate such information to the environ should do so before the environmental professional. The user should mental professional conducts the site reconnaissance. Significantly cantly Lower Pur Purchase chase Price—In a 6.5 Reason for Signifi transaction involving the purchase of a parcel of commercial reall estate, the user shall rea shall con consid sider er the rel relatio ationsh nship ip of the purchase price of the property to the fair market value of the property if the property was not affected by hazardous hazardous substances or petroleum products. The user should should try to identify an explanation for a lower price which does not reasonably reflect fair market value if the property were not contaminated, and make a wri written tten record record of suc such h exp explan lanatio ation. n. Among Among the factors to consider will be the information that becomes known to th thee user purs pursua uant nt to th thee Phase Phase I Env Envir ironm onment ental al Site Assessment . This standard does not require that a real estate appraisal be obtained in order to ascertain fair market value of the property. Common monly ly Kno Known wn or Reas Reasona onably bly Asce Ascertai rtainab nable le 6.6 Com Information—If the user is is aware of any commonly known or reasonably ascertainable information within the local community about the property that is material to recognized environmentall condit menta conditions ions in connection with the property, it is the user’s responsibility to communicate such information to the environmental professional. The user should should do so before the environmental professional conducts the site reconnaissance. 6.7 Other —Either —Either the user shall make known to the environmental professional the reason why the user wants wants to have the Phase I Environmental Site Assessment performed performed or, if the does not identify the purpose of the Phase I Environmenuser does tal Site Assessment , the environmental professional shall assume the purpose purpose is to qualify for an LLP to CERCLA liabilit liability y and state this in the report . In addition to satisfying one of the requir req uiremen ements ts to qua qualif lify y for an LLP to CERC CERCLA LA liability liability,,


E1527 – 05 another reason for performing a Phase I Environmental Site Assessment might might inc includ ludee the nee need d to und unders erstan tand d pot potent ential ial enviro env ironme nmenta ntall con condit dition ionss tha thatt cou could ld mat materia erially lly imp impact act the operation of the business associated with the parcel of commercial mer cial rea reall estate. The user and the environmental environmental professional may also nee need d to mod modify ify the sco scope pe of ser servic vices es per per-formed under this practice for special circumstances, including, but not limited to, operating industrial facilities or large tracts of land (large areas or corridors). 7. Phas Phasee I Envi Environ ronment mental al Site Assessme Assessment nt 7.1 Objective—The purpose of this Phase I Environmental Site Assessment is is to identify, to the extent feasible pursuant to recognized environmental the pro proces cesses ses pre prescr scribed ibed her herein ein,, recognized (See 1.1.1..) conditions in connection with the property. (See 1.1.1 7.2 Four Components —A Phase I Environmental Site Assessment shall shall have four components, as described as follows: 7.2.1 Records Review—Review of records; see Section 8, Reconnaissa aissance nce—A visit 7.2.2 Site Reconn visit to th thee property; se seee Section 9 Section 9,, 7.2.3 Interviews: 7.2.3.1 Interviews with present and past owners, operators, and occupants of the property; see Section 10 10,, and 7.2.3.2 Interviews with local government officials; see Section 11 11,, and 7.2.4 Report —Evaluation —Evaluation and report ; see Section 12 12.. 7.3 Coordination of Parts : Parts ts Us Used ed in Co Conc ncert ert —The records records revie review w, site 7.3.1 Par reconnaissance, an and d interviews are are in inten tende ded d to be us used ed in conc co ncer ertt wi with th ea each ch ot othe herr. If in info form rmat atio ion n fr from om on onee so sour urce ce indicates the need for more information, other sources may be available to provide information. For example, if a previous use of the property as a gasoline station is identified through records rev review iew, bu the records butt th thee pr pres esen entt owner and occupants interviewed report no knowledge of an underground storage tank , the person conducting the site reconnaissance should be alert for signs of the presence of an underground storage tank . User’s Obligations—The environmental professional 7.3.2 User’s shall note in the report whether whether or not the user has has reported to the environmental professional information pursuant to Section 6. 7.4 No Sampling —This practice does not include any testing or sam sampli pling ng of mat materia erials ls (fo (forr exa exampl mple, e, soi soil, l, wat water er,, air air,, building materials). 7.5 Who May Conduct a Phase I : Environmentall Pro Profession fessional’s al’s Duties—The environ7.5.1 Environmenta must must be performed by the environmenmental site asses assessment sment conducted cted under the super supervision vision or respo responntal professional or condu sible charge of the environmental professional. The interviews and site rec shall be pe perf rfor orme med d by a pe pers rson on reconna onnaissanc issancee shall possess pos sessing ing suf suffficie icient nt trai trainin ning g and exp experi erienc encee nec necess essary ary to conduct the site reconnaissance and interviews in accordance with this pra practic ctice, e, and having having the abi ability lity to ide identif ntify y issu issues es relevantt to recognized environmental conditions in connection relevan with the property. At a minimum, the environmental professional must be involved in planning the site reconnaissance and interviews. Review and interpretation of information upon which the report is based shall be performed by the environmental professional.

7.5.2 Information Obtained From Others —Information for records rev review iew need Phasee I the records needed ed fo forr co comp mplet letio ion n of a Phas Environmental Site Assessment may may be provided by a number of parties including government agencies, third-party vendors, the user , and present and past owners and occupants of the property, provided that the information is obtained by or under the supervision of an environmental professional or is obtained by a third-party vendor specializing in retrieval of the information mati on spe specifie cified d in Sec Section tion 8. Prior Prior ass assess essmen ments ts may als also o contain con tain informat information ion tha thatt wil willl be app approp ropriat riatee for usage in a current environmental site assessment provided provided the prior usage procedures set forth in Sections 8 Sections 8,, 9 9,, and 10 are followed. The environmental professional(s) responsible for the report shall review all of the information provided. 7.5.2.1 Reliance—An environmental professional is not required quire d to verif verify y indepe independent ndently ly the information provided provided but may rely on information provided unless he or she has actual knowledge that certain information is incorrect or unless it is obvious that cer certain tain informati information on is inc incorr orrect ect bas based ed on oth other er information obtained in the Phase I Environmental Site Assessment or otherwise actually known to the environmental pro fessional. 8. Reco Records rds Review Review 8.1 Introduction: records review is to 8.1.1 Objective—The purpose of the records obtain and review records that will help identify recognized environmental conditions in connection with the property. Approxim oximate ate Mini Minimum mum Sea Searc rch h Dis Distan tance ce—Some 8.1.2 Appr records to be reviewed pertain not just to the property but also approximate minipertain to properties within an additional approximate mum search distance in order to help assess the likelihood of problems from migrating hazardous substances or petroleum products. When the term approxima approximate te minimu minimum m sear search ch distance includes areas outside the property, it shall be measured from fro m the nea neares restt property boundary boundary.. The term approximate minimum search distance is used in lieu of radius in order to include irregularly shaped properties. 8.1.2.1 Adju Adjustme stment nt to App Appro roxima ximate te Mini Minimum mum Sea Searc rch h Distance—When allowed by 8.2.1 by 8.2.1,, t the he approximate minimum search distance for a particular record may be adjusted in the discretion of the environmental professional. Factors to consider in adjusting the approximate minimum search distance include: (1) the density (for example, urban, rural, or suburban) of the setting in which the property is located; (2) the distance that the hazardous substances or petroleum products are likely to mig migrat ratee bas based ed on loca locall geo geolog logic ic or hyd hydrog rogeol eologi ogicc con condiditions; (3) the property type, (4) exis existin ting g or pa past st us uses es of surrounding properties, and (5) other reasonable factors. The justification for each adjustment and the approximate minimum search distance actually used for any particular record shall be approximate minimum search se arch explained in the report . If the approximate distance is specified as “ property only,” then the search shall be limited limi ted to the property and may not be red reduce uced d unl unless ess the particular record is not reasonably ascertainable. 8.1.3 Accura —Accur curacy acy and com com-Accuracy cy and Co Compl mpleten eteness ess—Ac pleten ple teness ess of rec record ord inf inform ormatio ation n var varies ies amo among ng inf inform ormatio ation n sources, including governmental sources. Record information is often inaccurate or incomplete. The user or environmental


E1527 – 05 obliga igated ted to ide identi ntify fy mis mistake takess or ins insuf ufffi professional is not obl ciencies in information provided. However, the environmental professional reviewing records shall make a reasonable effort to compensate for mistakes or insufficiencies in the information reviewed that are obvious in light of other information of which the environmental professional has actual knowledge. Reasona onably bly Asce Ascertain rtainable able/Sta /Standa ndard rd Sou Source rcess — 8.1.4 Reas Avail vailabi ability lity of rec record ord inf inform ormatio ation n var varies ies fro from m inf inform ormatio ation n source to information source, including governmental jurisdictions. The user or or environmental professional is not obligated to identify, obtain, or review every possible record that might exist with respect to a property. Instead Instead,, this practice identifies reco re cord rd in info form rmati ation on th that at sh shall all be re revi view ewed ed fr from om standard sources, and the user or or environmental professional is required to review only record information that is reasonably ascertainable from those standard sources. Record information that is reasonably ascertainable means (1) information that is publicly availa available ble, (2) inform informatio ation n tha thatt is obt obtain ainable able fro from m its source sou rce wit within hin rea reason sonabl ablee time and cos costt con constr strain aints, ts, and (3) information that is practically reviewable. Publicly Av Available ailable—In 8.1.4.1 Publicly —Infor formati mation on that is publicly means that the sou source rce of the inf inform ormatio ation n allo allows ws available means access to the information by anyone upon request. 8.1.4.2 Reas —Informati mation on that is Reasona onable ble Time and Cos Cost t —Infor obtainable within reasonable time and cost constraints means that the information will be provided by the source within 20 calendar days of receiving a written, telephone, or in-person request at no more than a nominal cost intended to cover the source sou rce’s ’s cos costt of ret retriev rieving ing and dup duplica licatin ting g the inf inform ormatio ation. n. Information that can only be reviewed by a visit to the source reasonably ascertainable if th is reasonably thee vi visit sit is pe perm rmit itted ted by th thee source within 20 days of request. 8.1.4.3 Practically Reviewable—Information that is practically reviewable means that the information is provided by the source in a manner and in a form that, upon examination, yields inform inf ormatio ation n rel releva evant nt to the property witho without ut th thee ne need ed fo forr extraor extr aordin dinary ary ana analys lysis is of irr irrele elevan vantt data data.. The for form m of the information shall be such that the user can can review the records for a limited geographic area. Records that cannot be feasibly retrieve retr ieved d by ref refere erence nce to the loc locatio ation n of the property or a geog ge ogra raph phic ic ar area ea in wh which ich th thee property is lo loca cated ted ar aree no nott generally practically rev Most st da datab tabas ases es of pu publ blic ic reviewabl iewablee. Mo records are practically reviewable if they can be obtained from thee so th sour urce ce ag agen ency cy by th thee co coun unty ty,, ci city ty,, zip co code de,, or ot othe herr geographic area of the facilities listed in the record system. Records that are sorted, filed, organized, or maintained by the source agency only chronologically are not generally practically reviewable. Listings in publicly available records which do no nott ha have ve ad adeq equa uate te ad addr dres esss in info form rmat atio ion n to be lo loca cated ted geographically are not generally considered practically reviewdatabases wit with h num numero erous us rec record ordss (su (such ch as able. For large databases RCRA generators and reg registe istered red UST USTs), s), the rec record ordss are not practically reviewable unless they can be obtained from the source sou rce agency in the smaller geograph geographic ic are areaa of zip codes. Even when information is provided by zip code for some large databases, it is common for an unmanageable number of sites to be identified within a given zip code. In these cases, it is not necessary to review the impact of all of the sites that are likely

to be listed in any given zip code because that information would not be practically reviewable. In other words, when so much data is generated that it cannot be feasibly reviewed for its impact on the property, it is not required to be reviewed. 8.1.5 Alternatives to Standard Sources —Alternative sources may be used instead of standard sources if they are of similar or better reliability and detail, or if a standard source is not reasonably ascertainable. 8.1.6 Coordination—If records records are not reasonably reasonably ascertainable from standard standard sour sources ces or alte alterna rnative tive sou source rces, s, the environmental professional shal shalll at attem tempt pt to ob obtai tain n th thee re re-quested information by other means specified in this practice, such as questions posed to the current owner or or occupant(s) of the property or appropriate persons available at the source at the time of the request. Sourcess of Stand Standard ard Sour Source ce Inform Information ation—Standard 8.1.7 Source source information or other record information from governmentt age men agenci ncies es may be obt obtain ained ed dir directl ectly y fro from m app approp ropria riate te government gover nment agencies or from commercial services. Gover Governnment information obtained from nongovernmental sources may be considered current if the source updates the information at leastt eve leas every ry 90 day dayss or or,, for informat information ion that is upd updated ated less frequently than quarterly by the government agency, within 90 days of the date the government agency makes the information available to the public. 8.1.8 Documentation of Sources Checked —The —The report shall shall document each source that was used, even if a source revealed no findings. Sources shall be sufficiently documented, including name, date request for information was filled, date information provided was last updated by source, date information was last updated by original source (if provided other than by original origin al sourc source; e; see see 8.1.7 8.1.7). ). Suppo Supporting rting documentation documentation shall be included in the report or adequately referenced to facilita facilitate te reconstruction of the assessment by an environmental professional other environmental professional who con other than the environmental con-ducted it. 8.1.9 Significance—If a sta stand ndard ard env enviro ironme nmenta ntall rec record ord source (or other sources in the course of conducting the Phase I Environmental Site Assessment ) ide identi ntifies fies the property or another site within the approximate minimum search distance , the report shall shall include the environmental professional’s judgment about the significance of the listing to the analysis of recognized environmental conditions in con connec nection tion with the 8.2,, additional property (based on the data retrieved pursuant to 8.2 information from the government source, or other sources of information infor mation). ). In doing so, the environmental professional may make statements applicable to multiple sites (for example, a statement to the effect that none of the sites listed is likely to have a negative impact on the property except ...). 8.2 Environmental Information: Standard d Envir Environmen onmental tal Recor Record d Sour Sources ces—Th 8.2.1 Standar —Thee fol fol-lowing standard shall be re re-standard envir environmen onmental tal reco record rd sour sources ces shall viewed, subject to the conditions of 8.1.1 of 8.1.1 through 8.1.7 8.1.7.. The approximate minimum search distance may be reduced, purstandard environmental suan su antt to 8.1.2.1, 8.1.2.1, for an any y of th thes esee standard record recor d sources except the Federal NPL site list and Federal RCRA TSD list.


E1527 – 05 Standard Environmental Record Sources (where available) Federal NPL Federal NPL site list Federal Delisted NPL Delisted NPL site list Federal CERCLIS list Federal CERCLIS NFRAP site list Fede Fe dera rall RC RCRA RA CO CORR RRAC ACTS TS fa faci cili liti ties es li list st Federal RCRA non-CORRACTS TSD facilities list Federal RCRA generators list Federal institutional control/engineering control registries Federal ERNS list State and tribal lists of hazardous of hazardous waste sites identified for investigation or remediation: State- and tribal-equivalent NPL tribal-equivalent NPL Stat St atee- an and d tr trib ibal al-e -equ quiv ival alen entt CE CERC RCLI LIS S State and tribal landfill tribal landfill and/or and/or solid waste disposal site lists lists State and tribal leaking storage tank lists State and tribal registered registered storag storage e tank lists State and tribal institutional control/ engineering control registries Stat St ate e an and d tr trib ibal al vo volu lunt ntar ary y cl clea eanu nup p si site tes s State and tribal Brownfield sites

Approximate Minimum Search Distance miles (kilometres) 1.0 (1.6) 0.5 (0.8) 0.5 (0.8) 0.5 (0.8) 1.0 1. 0 (1 (1.6 .6)) 0.5 (0.8) property and adjoining properties property only only property only

1.0 (1.6) 0.5 0. 5 (0 (0.8 .8)) 0.5 (0.8) 0.5 (0.8) property and and adjoining properties property only only 0.5 0. 5 (0.8 (0.8)) 0.5 (0.8)

8.2.2 Additional —To o enAdditional Envir Environmen onmental tal Recor Record d Sour Sources ces—T hancee an hanc and d su supp pplem lemen entt th thee standard standard envir environmen onmental tal reco record rd sources i in n 8.2.1 8.2.1,, local records and/or additional state or tribal reco re cord rdss sh shal alll be ch chec ecke ked d wh when en,, in th thee ju judg dgme ment nt of th thee environmental professional, suc such h add additio itional nal rec record ordss (1) are reasonably ascertainable, (2) are sufficiently useful, accurate, and complete in light of the objective of the records review (see 8.1.1), 8.1.1 ), and (3) are generally obtained, pursuant to local good commercial or customary practice, in initial environmental site assessments in the type of commercial real estate transaction involved. To the extent additional sources are used to supplement me nt th thee sa same me re reco cord rd ty type pess li list sted ed in 8.2.1, 8.2.1, approximate should ld no nott be le less ss th than an th thos osee minimum minimu m sear search ch distan distances ces shou specifie spe cified d abo above ve (ad (adjus justed ted as pro provid vided ed in 8.2.1 and 8.1.2.1). 8.1.2.1). Some types of records and sources that may be useful include: Types of Records Local Brownfield Lists Local Lists of of Landfill/Solid Waste Disposal Sites Local Lists of of Hazardous waste/Contaminated Sites Local Lists of Registered Storage Tanks Local Land Records (for activity (for activity and use limitations ) Records of Emergency Release Reports (42 U.S.C. 11004) Records of Contaminated public wells Sources Department of Health/Environmental Division Fire Department Planning Department Building Permit/Inspection Department Local/Regional Pollution Control Agency Local/Regional Water Quality Agency Local Electric Utility Utility Compan Companies ies (for record records s relati relating ng to PCBs)

8.2.3 Physical Setting Sources—A cur curren rentt USGS 7.5 Minute Topographic Map (or equivalent) showing the area on which the property is lo loca cated ted sh shall all be re revi view ewed ed,, pr prov ovid ided ed it is the onl nly y standard reasonably ascertainable. It is the standard physi physical cal setting sour source ce and physical setting sour source ce that and th thee on only ly physical that is required to be obtained (and only if it is reasonably ascertain-

able). One or more additional physical setting sources may be obtained in the discretion of the environmental professional. Because such sourc sources es prov provide ide information about the geolo geologic, gic, hydrogeolo hydr ogeologic, gic, hydr hydrologic ologic,, or topog topographic raphic characteristics characteristics of a phys physical ical setting sources sour ces site, discret discretionar ionary y shall shall be sou sought ght when (1) conditions have been identified in which hazardous substances or petroleum products are likely to migrate to the property or from or within the property into the ground water or soil and (2) more information than is provided in the current USGS 7.5 Minute Topographic Map (or equivalent) is generally obtained, pursuant to local good commercial or customary practicee in initial environmental site assessments in the type of practic commercial real estate transaction involved , in order to assess recognized environmental thee im th impa pact ct of su such ch mi migr grati ation on on recognized conditions in connection with the property. Mandatory Standard Physical Setting Source Mandatory USGS—Current 7.5 Minute Topographic Map (or equivalent) Discretionary and Non-Standard Non-Standard Physical Setting Sources USGS and/or State Geological Survey—Groundwater Maps USGS and/or State Geological Survey—Bedrock Geology Maps USGS and/or State Geological Survey—Surficial Geology Maps Soil Conservation Service—Soil Maps Other Physical Setting Sources that are reasonably credible Other (as well as as reasonably ascertainable )

8.3 Historical Use Information: 8.3.1 Objective—Th —Thee ob objec jectiv tivee of co consu nsulti lting ng his histor torica icall source sou rcess is to dev develo elop p a his histor tory y of the pre previo vious us uses of the property and surrounding area, in order to help identify the likelihood of past uses having led to recognized environmental conditions in connection with the property. 8.3.2 Uses of the Property—All obvious uses of the property shall be identified from the present, back to the property’s first developed use, or back to 1940, whichever is earlier. This task requires reviewing only as many of the standard historical sources in 8.3.4.1 through 8.3.4.8 as are necessary and both reasonably ascertainable and likely to be useful (as described 8.3.2.3). ). For example, if the property under Data Failure in 8.3.2.3 was developed in the 1700s, it might be feasible to identify uses us es ba back ck to th thee ear early ly 19 1900 00s, s, us usin ing g so sour urces ces su such ch as fire insurance maps or USGS topographic maps (or equivalent). Althou Alt hough gh oth other er sou source rcess suc such h as recorde recorded d land title reco records rds might go back to the 1700s, it would not be required to review them th em un unles lesss th they ey we were re bo both th rea reasona sonably bly ascerta ascertainable inable and likely to be useful. As another example, if the property was reportedly not developed until 1960, it would still be necessary to attempt to confirm that it was undeveloped back to 1940. Such confirmation may come from one or more of the standard in 8.3.4.1 through through 8.3.4.8 8.3.4.8,, or it may historical sources specified in 8.3.4.1 historical ical sour sources ces (such come from other histor (such as som someon eonee wit with h personal perso nal knowledge of the property; see 8.3.4.9). 8.3.4.9). Howev However er,, checking other historical sources (see (see 8.3.4.9 8.3.4.9)) is not required. For pur purpos poses es of of 8.3.2, 8.3.2, the ter term m “de “devel velope oped d use use”” inc includ ludes es agricultural uses and placement of fill dirt . The report shall describe all identified uses, justify the earliest date identified (for example, records showed no development of the property prior to the specific date), and explain the reason for any gaps in the history of use (for example, data failure).


E1527 – 05 8.3.2.1 Intervals—Review of standard standard historical sources at less than approximately five year intervals is not required by this practice (for example, if the property had one use in 1950 and another use in 1955, it is not required to check for a third use in the intervening period). If the specific use of the property appearss unchanged over a perio appear period d longer than five years, then it is not required by this practice to research the use during that period per iod (fo (forr exa exampl mple, e, if fire insurance maps show the same apar ap artme tment nt bu build ildin ing g in 19 1940 40 an and d 19 1960 60,, th then en th thee pe peri riod od in between need not be researched). 8.3.2.2 General Type of Use —In identifying previous uses, more specific information about uses is more helpful than less specific information, but it is sufficient, for purposes of 8.3.2 of 8.3.2,, to identify the general type of use (for example: office, retail, and residential) unless it is obvious from the source(s) consulted that the use may be more specifically identified. However, if the general type of use is industrial or manufacturing (for example, zoning/land use records show industrial zoning), then additional standard historical sources should be reviewed if th they ey ar aree lik likely ely to id iden enti tify fy a mo more re sp speci ecific fic us usee an and d ar aree reasonably ascertainable, sub subject ject to the constrain constraints ts of data (see 8.3.2.3 8.3.2.3)). failure (see 8.3.2.3 Data Failur Failuree—The historical research is complete when either: (1) the obj objecti ectives ves in 8.3.1 through 8.3.2.2 are data a fai failur luree is encou failuree achieve ach ieved; d; or (2) dat encountered ntered.. Data failur standard histor historical ical sour sources ces that occurs when all of the standard that are reasonably ascertainable and likely likely to be use useful ful have been revi re view ewed ed an and d ye yett th thee ob objec jectiv tives es ha have ve no nott be been en me met. t. Data failure is not uncommon in trying to identify the use of the fivee ye year ar in inte terv rval alss ba back ck to fir first st us usee or 19 1940 40 property at fiv (whichever is earlier). Notwithstanding a data failure, standard historical sources may be excluded if: (1) the sources are not reasonably ascertainable, or (2) if past experience indicates that the sources are not likely to be sufficiently useful, accurate, or co comp mplet letee in ter terms ms of sa satis tisfy fyin ing g th thee ob objec jectiv tives es.. Other historical sources specified in 8.3.4.9 in 8.3.4.9 may be used to satisfy thee ob th objec jectiv tives es,, bu butt ar aree no nott re requ quir ired ed to co comp mply ly wi with th th this is practice. If data failure is encountered, the report shall document the failure and, if any of the standard historical sources were excluded, give the reasons for their exclusion. If the data represents ts a sig signifi nifican cantt data failure represen data ga gap p, the report shall comment on the impact of the data gap on the ability of the environmental professional to identify recognized environmen (see 12.7 12.7). ). tal condit conditions ions (see 8.3.3 Uses of Properties in Surrounding Area —Uses in the area surrounding the property shall be identified in the report , but this task is required only to the extent that this information is revealed in the course of researching the property itself (for example, an aerial photograph or fire insurance map of the property will will us usua ually lly sh show ow th thee su surr rrou ound ndin ing g ar area) ea).. If th thee environmental professional uses sources that include the surroundi rou nding ng are area, a, sur surrou roundi nding ng use usess sho should uld be ide identifi ntified ed to a distanc dis tancee det determ ermined ined at the dis discre cretio tion n of the environmental professional (for example, if an aerial photo shows the area surrounding the property, then the environmental professional shall determine determine how far out from the property the photo should be analyz analyzed). ed). Factors to consid consider er in making this determination determination include, but are not limited to: the extent to which information

is reasonably thee ti time me an and d co cost st in invo volv lved ed in reasonably ascertainable; th reviewi rev iewing ng sur surrou roundi nding ng use usess (fo (forr exa exampl mple, e, ana analyzi lyzing ng aerial relativ tively ely qui quick, ck, but rev review iewing ing property photographs is rela property tax files for adjacent properties or reviewing local street directories for more than the few streets that surround the site is typically too time-consuming); the extent to which information is useful, accurate, and complete in light of the purpose of the records review (see 8.1.1); 8.1.1); the like likelih lihood ood of the inf inform ormatio ation n bei being ng significant to recognized environmental conditions in connection with the property; the extent to which potential concerns are obvious; know known n hydro hydrogeolo geologic/geo gic/geologic logic condit conditions ions that may indicate a high probability of hazardous hazardous substances or petroleum products migration to the property; how recently local development development has taken place; information information obtained from interviews and other sources; and local good commercial or customary practice. 8.3.4 Standard Historical Sources: 8.3.4.1 Aerial Photog —The he te term rm “aeri Photographs raphs—T aerial al pho phototographs” means photographs taken from an aerial platform with sufficient resolution to allow identification of development and activities activiti es of areas encom encompassin passing g the property. Aerial photographs are often available from government agencies or private collections unique to a local area. 8.3.4.2 Fire Insurance Maps —The term fire insurance maps means maps produced for private fire insurance map companies that indicate uses of properties at specified dates and that encompass encom pass the property. Th Thes esee map mapss ar aree of ofte ten n av avai ailab lable le at local libraries, historical societies, private resellers, or from the map companies who produced them. Property Tax Files—Th 8.3.4.3 Property —Thee term property tax file filess means the files kept for property tax purposes purposes by the local jurisdiction where the property is located and includes records of past owner ownership, ship, appraisals, appraisals, maps, sketches, photos, or other information that is reasonably ascertainable and pertaining to the property.

8.3.4.4 Recorded Recorded Land Ti Title tle Recor Records ds—The term recorded land title records means records of historical fee ownership, which may include leases, land contracts and AULs on or of the property recorded in the place where land title records are, by law or custom, recorded for the local jurisdiction in which the property is lo loca cated ted (often (often su such ch re reco cord rdss ar aree ke kept pt by a municipal or county recorder or clerk). Such records may be obtai ob taine ned d fr from om tit title le co comp mpan anies ies or di dire rectl ctly y fr from om th thee lo loca call government agency. Information about the title to the property that is recorded in a U.S. district court or any place other than where land title records are, by law or custom, recorded recorded for the local loc al jur jurisd isdicti iction on in whi which ch the property is lo locat cated ed,, ar aree no nott considered part of recorded land title records , because often this th is so sour urce ce wi will ll pr prov ovid idee on only ly na name mess of pr prev evio ious us owners, lessees less ees,, eas easemen ementt hol holder ders, s, etc. and litt little le or no inf inform ormatio ation n about uses or occupancies of the property, but when employed in combination with another source recorded land title records may provide helpful information about uses of the property. This source cannot be the sole historical source consulted. If this th is so sour urce ce is co cons nsul ulted ted,, at lea least st on onee ad addi ditio tiona nall st stan anda dard rd historical source must also be consulted.


E1527 – 05 8.3.4.5 USGS Topographic Maps —The term USGS Topographic Maps means maps available from or produced by the United States Geological Survey (7.5 minute topographic maps are preferred). 8.3.4.6 Local Street Directories—The term local street directories means directories published by private (or sometimes govern gov ernmen ment) t) sou source rcess and sho showin wing g own owners ership hip and and/or /or use of local str street eet sites sit es by re refe fere renc ncee to str stree eett ad addr dres esse ses. s. Of Often ten local directories are ava availab ilable le at lib librar raries ies of loc local al gov govern ernmen ments, ts, colleges or universities, or historical societies. Department tment Recor Records ds—The term building 8.3.4.7 Building Depar department records means those records of the local government in which the property is located indicating permission of the local government to construct, alter, or demolish improvements on the property. Often building department records are located in the building department of a municipality or county. Zoning/Land Use Recor Records ds—Th 8.3.4.8 Zoning/Land —Thee ter term m zoning/land use records means those records of the local government in which the property is located indicating the uses permitted by the local government in particular zones within its jurisdiction. The records may consist of maps and/or written records. They are often located in the planning department of a municipality or county. 8.3.4.9 Other Historical Sources—The term other historical sources means any source or sources other than those designated in 8.3.4.1 in 8.3.4.1 through through 8.3.4.8 8.3.4.8 that that are credible to a reasonable person and that identify past uses of the property. This category includes, includ es, but is not limited to: miscella miscellaneous neous maps, newspaper archives, archiv es, intern internet et sites, community organizations, organizations, local libraries, histor historical ical societi societies, es, curren currentt owners or occupants of neighbori bo ring ng pr prop oper ertie ties, s, or re reco cord rdss in th thee fil files es an and/ d/or or pe pers rson onal al knowledge of the property owner and/or occupants. 8.4 Prior Assessm Assessment ent Usage—Stand Standard ard histor historical ical sour sources ces reviewed as part of a prior environmental site assessment do not need to be searched for or reviewed again, but uses of the property since the prior environmental site assessment should standard histor historical ical sour sources ces (as be iden identifie tified d eith either er thr throug ough h standard standard histor historical ical specifie spe cified d in 8.3 8.3)) or by alt alter erna nativ tives es to standard sources, to the extent such information is reasonably reasonably ascertainable. (See 4.7 4.7.) .) 9. Site Reconnais Reconnaissance sance 9.1 Objective—The objective of the site reconnaissance is to obtain information indicating the likelihood of identifying connec nectio tion n with the recognized environmental conditions in con property. 9.2 Observation—On a visit to the property (the site visit ), ), the property shall be visually and/or physically observed and any str structu ucture( re(s) s) loc located ated on the property to th thee ex exte tent nt no nott obstru obs tructed cted by bod bodies ies of wat water er,, adj adjacen acentt bui buildin ldings, gs, or oth other er obstacles shall be observed. 9.2.1 Exterior —The — The pe peri riph pher ery y of th thee property shall shall be visually and/or physically observed , as well as the periphery of all str struct ucture uress on the property, an and d th thee property should should be viewed view ed fro from m all adj adjacen acentt pub public lic tho thorou roughf ghfare ares. s. If roa roads ds or paths with no apparent outlet are observed on the property, the usee of th us thee ro road ad or pa path th sh shou ould ld be id iden enti tifie fied d to de dete term rmin inee whet wh ethe herr it wa wass li like kely ly to ha have ve be been en us used ed as an av aven enue ue fo forr disposal of hazardous hazardous substances or petroleum products.

9.2.2 Interior —On —On the interior of structures on the property, accessible common areas expected to be used by occupants or the public (such as lobbies, hallways, utility rooms, recreation areas, are as, etc. etc.), ), main maintena tenance nce and rep repair air are areas, as, incl includi uding ng boi boiler ler rooms, and a representative sample of occupant spaces, should be visually and/or physically observed . It is not necessary to look under floors, above ceilings, or behind walls. environmental professional shall 9.2.3 Methodology—The environmental document, in the report , the method used (for example, grid patterns or other systematic approaches used for large properties, which spaces for owner or occupants were observed) to observe obser ve the property. 9.2.4 Limitations—The environmental environmental pro profession fessional al shall docume doc ument, nt, in the report , ge gene nera rall lim limit itati ation onss an and d ba basis sis of review, including limitations imposed by physical obstructions such as adjacent buildings, bodies of water, asphalt, or other paved areas, and limiting conditions (for example, snow, rain). 9.2.5 Frequency—It is not expecte expected d that more than one visit to the property shall be made in connection with a Phase I Environmental Site Assessment . The one visit constituting part of the Phase I Environmental Site Assessment may may be referred to as the site visit . 9.3 Prior Assessment Usage—The information supplied in connec con nection tion with the site rec portion on of a pr prio iorr reconnai onnaissanc ssancee porti environmental site assessment may may be used for guidance but shall not be relied upon without determining through a new site reconnaissance whether whether any con conditi ditions ons tha thatt are mat materia eriall to recognized environmental conditions in con connec nection tion with the have ch chan ange ged d si sinc ncee th thee pr prio iorr environmen property have environmental tal site assessment . 9.4 Uses and Conditions —The uses and conditions specified in 9.4.1 through 9.4.4.7 should should be not noted ed to the extent visually and/or physically observed during during the site visit . The uses and conditions specified in 9.4.4 through 9.4.4.7 should also be the subject of questions asked as part of interviews of owners, operators, and occupants (see Section 10 10)). Uses and conditions to be noted shall be recorded in field notes but are only on ly re requ quire ired d to be de desc scri ribe bed d in th thee report to th thee ex exten tentt environmental professpecified in in 9.4.1 through 9.4.4.7 9.4.4.7.. The sional(s) performing the Phase I Environmental Site Assessment are are obligated to identify uses and conditions only to the extent that they may be visually and/or physically observed on on a site visit , as described in this practice, or to the extent that they are identified by the interviews (see Sections 10 Sections 10 and and 11 11)) or record reco rd rev review iew (see Sec Section tion 8) pr proc oces esses ses de desc scrib ribed ed in th this is practice. 9.4.1 General Site Setting: 9.4.1.1 Current Use(s) of the Property—The current use(s) of the property shall be identified in the report . Any current uses likely to involve the use, treatment, storage, disposal, or hazardous substances or petroleum petroleum products generation gener ation of hazardous shall be identified in the report . Unoccupied occupant spaces should be noted. In identifying current uses of the property, moree spe mor specific cific inf inform ormatio ation n is mor moree help helpful ful tha than n les lesss spe specific cific information. (For example, it is more useful to identify uses such as a hardware store, a grocery store, or a bakery rather than simply retail use.)


E1527 – 05 9.4.1.2 Past —To o th thee ex exten tentt th that at Past Us Use( e(s) s) of th thee Pr Prop opert ertyy—T and/or r indicat ind ication ionss of pas pastt use usess of the property are visually and/o physically observed on the site visit , or are identified in the they ey sh shall all be id iden entifi tified ed in th thee interviews or record record review, th report , and past uses so identified shall be described in the report if they are likely to have involved the use, treatment, storag sto rage, e, dis dispos posal, al, or gen genera eratio tion n of hazardous hazardous substances or petroleum products. (For example, there may be signs indicating a past use or a structure indicating a past use.) 9.4.1.3 Current Uses of Adjoining Properties Properties—To the extent that current uses of adjoining properties are visually and/or physically observable on the site visit , or are identified in the interviews or records records review, they shall be identified in the report , and current uses so identified shall be described in the report if they are likely to indicate recognized environmental conditions in connection with the adjoining properties or the property. Properties—T 9.4.1.4 Past Uses of Adjoining Properties —To o the extent adjoining properties are visually that indications of past uses of adjoining on the site visit , or are identified in and/or physically observed on the interviews or record review, they shall be noted and past uses so identified shall be described in the report if they are likel lik ely y to in indi dicat catee recognized recognized envir environmen onmental tal condit conditions ions in connection with the adjoining properties or the property. 9.4.1.5 Current or Past Uses in the Surrounding Area —To the extent that the general type of current or past uses (for exampl exa mple, e, res reside identi ntial, al, com commer mercial cial,, ind indust ustria rial) l) of pro proper perties ties visually and/o and/orr physic physically ally obsurroundin surro unding g the property are visually on the site visit or or going to or from the property for the served on site visit , or are identified in the interviews or record review, they shall be noted and uses so identified shall be described in the report if if they are likely to indicate recognized environmental condit conditions ions in connection with the property. Geologic, Hydr Hydrogeol ogeologic, ogic, Hydr Hydrologi ologic, c, and Topo9.4.1.6 Geologic, graphic Conditions—The topographic conditions of the propshall be no note ted d to th thee ex exte tent nt visually erty shall visually and/o and/orr physic physically ally observed or or determined from interviews, as well as the general topography of the area surrounding the property that is visually from the periphery of the property. and/or physically observed from If an any y in info form rmati ation on ob obtai taine ned d sh show owss th ther eree ar aree lik likely ely to be hazardous substances or petroleum products on the property or on ne near arby by pr prop oper erti ties es an and d th thos osee hazardous hazardous substa substances nces or petroleum products are of a type that may migrate, topographic observation obser vationss shall be analyz analyzed ed in connec connection tion with geolo geologic, gic, hydrogeolog hydro geologic, ic, hydr hydrologic ologic,, and topog topographic raphic infor information mation obtained pursuant to records review (see (see 8.2.3 8.2.3)) and interviews to evaluate whether hazardous substances or petroleum products are likely to migrate to the property, or within or from the property, into ground water or soil. 9.4.1.7 General Description of Structures—The report shall shall generally describe the structures or other improvements on the property, for example: number of buildings, number of stories each,, app each approx roxima imate te age of bui buildin ldings, gs, anc ancilla illary ry str struct ucture uress (if any), etc. 9.4.1.8 Roads—Public thoroughfares adjoining the property shall sha ll be iden identifie tified d in the report and any roa roads, ds, str streets eets,, and parkin par king g fac facilit ilities ies on the property shall shall be des descri cribed bed in the report .

9.4.1.9 Potable Water Supply—The source of potable water for the property shall be identified in the report . 9.4.1.10 Sewage —Thee sew sewage age dis dispos posal al Sewage Dis Dispos posal al Sys System tem—Th system for the property shall be identified in the report . Inquiry shall be made as to the age of the system as part of the process under Sections 8, 10 10,, or or 11 11.. 9.4.2 Interior and Exterior Observations: 9.4.2.1 Current Use(s) of the Property—The current use(s) of the property shall be identified in the report . Any current uses likely to involve the use, treatment, storage, disposal, or generation gener ation of hazardous hazardous substances or petroleum petroleum products shall be identified in the report . Unoccupied occupant spaces should be noted. In identifying current uses of the property, moree spe mor specific cific inf inform ormatio ation n is mor moree help helpful ful tha than n les lesss spe specific cific information. (For example, it is more useful to identify uses such as a hardware store, a grocery store, or a bakery rather than simply retail use.) 9.4.2.2 Past —To o th thee ex exte tent nt th that at Past Use Use(s) (s) of the Pr Prope operty rty—T and/or r indicat ind ication ionss of pas pastt use usess of the property are visually and/o physically observed on the site visit , or are identified in the interviews or records records review, they shall be identified in the report , and past uses so identified shall be described in the report if they are likely to have involved the use, treatment, storage, storag e, dispo disposal, sal, or gener generation ation of hazardous hazardous substances or petroleum products. (For example, there may be signs indicating a past use or a structure indicating a past use.) Hazardous Subs Substances tances and Petr Petroleum oleum Pro Products ducts in 9.4.2.3 Hazardous Connection Conn ection with Ident Identified ified Uses —To the extent that present uses are identified that use, treat, store, dispose of, or generate hazardous substances and petroleum products on the property: (1) the hazardous substances and petroleum products shall be identified or indicated as unidentified in the report , and (2) the approximate quantities involved, types of containers (if any) and storage conditions shall be described in the report . To the extent that past uses are identified that used, treated, stored, disposed of, or generated hazardous substances and petroleum products on the property, the information shall be identified to the extent it is visually and/or physically observed during during the site visit or or identified from the interviews or the records review. Storage Tanks—Ab 9.4.2.4 Storage —Above ove gro ground und sto storag ragee tan tanks, ks, or underground storage tanks or vent pipes, fill pipes or access ways indicating underground storage tanks shall be identified (for example, content, capacity, and age) to the extent visually and/orr physic and/o physically ally obser observed ved during the site visit or identified from the interviews or records review. 9.4.2.5 Odors—Strong, pungent, or noxious odors shall be described in the report and their sources shall be identified in the report to to the extent visually and/o or and/orr physic physically ally observ observed ed or identified from the interviews or records review. 9.4.2.6 Pools —Standing ing sur surfac facee wate waterr sha shall ll be Pools of Liq Liquid uid —Stand noted. Pools or sumps containing liquids likely to be hazardous substances or petroleum products shall shall be des descri cribed bed in the thee ex exten tentt visually report to th visually and/o and/orr physic physically ally obser observed ved or identified from the interviews or records review. visually and/o and/orr physic physically ally 9.4.2.7 Drums—T —To o the ext extent ent visually observed or identified from the interviews or records review, drums shall be described in the report , whether or not they are leaking, unless it is known that their contents are not hazardous


E1527 – 05 substances or petroleum products (in that case the contents should be described in the report ). ). Drums often hold 55 gal (208 L) of liquid, but containers containers as small as 5 gal (19 L) should also be described. 9.4.2.8 Hazardous Substance and Petroleum Products Containers (Not Necessarily in Connection With Identified Uses)— When containers identified as containing hazardous substances and/orr physic physically ally obser observed ved or petroleum products are visually and/o on the property and are or might be a recognized environmental condition: the hazardous substances or petroleum products shall be identified or indicated as unidentified in the report , and the approximate quantities involved, types of containers, and storage conditions shall be described in the report . 9.4.2.9 Unidentified Substance Containers —When open or damaged damage d contai containers ners contai containing ning unide unidentified ntified substances suspected of being hazardous substances or petroleum products visually and/o and/orr physic physically ally obser observed ved on the property, the are visually approx app roxima imate te qua quantit ntities ies inv involv olved, ed, typ types es of con contain tainers ers,, and storage conditions shall be described in the report . 9.4.2.10 PCBs—Electri —Electrical cal or hydr hydraulic aulic equip equipment ment known to contain PCBs or likely to contain PCBs shall be describ described ed in the report to to the extent visually and/or physically observed or or identified from the interviews or records records review. Fluorescent light ballast likely to contain PCBs does not need to be noted. 9.4.3 Interior Observations: 9.4.3.1 Heating/Cooling—The means of heating and cooling the buildings on the property, including the fuel source for heati he ating ng an and d co cool olin ing, g, sh shall all be id iden entifi tified ed in th thee report (for example, heating oil, gas, electric, radiators from steam boiler fueled by gas). 9.4.3.2 Stains or Corrosion —To the extent visually and/or or identified from the interviews, stains or physically observed or corrosion on floors, walls, or ceilings shall be described in the report , except for staining from water. Sumpss —To the extent visually and/o and/or r 9.4.3.3 Drains and Sump identi ntified fied fro from m the interviews, flo floor or physically observed or ide drains and sumps shall be described in the report . 9.4.4 Exterior Observations: 9.4.4.1 Pits, —To o the ext extent ent visually Pits, Pon Ponds, ds, or Lag Lagoon oonss —T and/or physically observed or or identified from the interviews or recordss review, pits, ponds, or lagoons on the property shall be record described in the report , particularly if they have been used in connection with waste disposal or waste treatment. Pits, ponds, or lag lagoon oonss on pro proper perties ties adj adjoin oining ing the property shall shall be described in the report to the extent they are visually and/or physically observed from from the property or id iden entifi tified ed in th thee interviews or records review. Stained Soi Soill or Pav Paveme ement nt —To 9.4.4.2 Stained —To the extent visually and/or physically observed or identified from the interviews, areass of stained area stained soi soill or pavement pavement sha shall ll be des descri cribed bed in the report . 9.4.4.3 Stressed Vegetation—To the extent visually and/or physically observed or or identified from the interviews, areas of stressed stresse d vegeta vegetation tion (from something other than insuf insuffficient water) shall be described in the report . visually and/o and/orr physi9.4.4.4 Solid Waste—T —To o the extent visually identifi ntified ed fro from m the interviews or records cally observ observed ed or ide review, areas that are apparently filled or graded by non-natural

causes (or filled by fill of unknown origin) suggesting trash construction constr uction debris, demolition demolition debris, or other solid waste disposal, or mounds or depressions suggesting trash or other solid waste disposal, shall be described in the report . 9.4.4.5 Waste Water —To —To the extent visually and/or physically obser observed ved or iden identifie tified d fro from m the interviews or records review, waste water or other liquid (including storm water) or any discharge into a drain, ditch, underground injection system, or stream on or adjacent to the property shall be described in the report . 9.4.4.6 Wells—To the extent visually and/or physically ob or identified from the interviews or records review, all served or wells (inclu (including ding dry wel irriga igatio tion n well wells, s, inj injecti ection on wel wells, ls, wells ls, irr abando aba ndoned ned wells, or oth other er well wells) s) sha shall ll be des descri cribed bed in the report . 9.4.4.7 Septic Systems—To the extent visually and/or physically obser observed ved or iden identifie tified d fro from m the interviews or records indi dicat catio ions ns of on on-s -sit itee se sept ptic ic sy syst stems ems or ce cess sspo pool olss review, in should be described in the report . 10. Interview Interviewss With Past and Pre Present sent Owners and Occupants 10.1 Objective—Th —Thee obj objecti ective ve of interviews is to ob obtai tain n information indicating recognized environmental conditions in connection with the property. 10.2 Content — Interviews with with pa past st an and d pr pres esen entt owners, operators, and occupants of the property, consist of questions to be asked in the manner and of persons as described in this section. The content of questions to be asked shall attempt to obtain information about uses and conditions as described in Section 9, as well as information described in 10.8 and and 10.9 10.9.. 10.3 Medium—Questions to be asked pursuant to this section may be asked in person, by telephone, or in writing, in the discretion of the environmental professional. 10.4 Timing—Except as specified in 10.8 and and 10.9 10.9,, it is in the discretion of the environmental professional whether to ask visit t described questio que stions ns bef before ore,, dur during ing,, or afte afterr the site visi described in Section 9, or in some combination thereof. 10.5 Who Should be Interviewed : 10.5.1 Key Site Manager —Prior —Prior to the site visit , the owner should be asked to identify a person with good knowledge of the uses and physical characteristics of the property (the key site manager ). ). Often the key site manager will will be the property manager, the chief physical plant supervisor, or head maintenance person. (If the user is the current property owner , the user has has an obligation to identify a key site manager , even if it is th thee user hims himself elf or he hers rsel elf. f.)) If a key site man manage ager r is identified, the person conducting the site visit shall make at least one reasonable attempt (in writing or by telephone) to arrange a mutually convenient appointment for the site visit when the key site manager agrees agrees to be there. If the attempt is site te ma mana nage ger r shall successful, succes sful, the key si shall be in inte terv rvie iewe wed d in conjunction with the site visit . If such an attempt is unsuccessful, when conducting the site visit , the environmental professional shall inquire whether an identified key site manager (if (if any) an y) or if a pe pers rson on with go good od knowle knowledg dgee of th thee us uses es an and d physic phy sical al cha charac racteri teristic sticss of the property is av avai aila labl blee to be interviewed at that time; if so, that person shall be interviewed. In any case, it is within the discretion of the environmental


E1527 – 05 professional to decide which questions to ask before, during, or after the site visit or or in some combination thereof.

10.5.2 Occupants—A reasonable attempt shall be made to interview a reasonable number of occupants of the property. Multi-Family Pro Properties perties—Fo 10.5.2.1 Multi-Family —Forr mul multi-f ti-fami amily ly res resiidential prop properties, erties, reside residential ntial occupants do not not ne need ed to be interviewed, but if the property has nonresidential uses, interviews should be held with the nonresidential occupants based on criteria specified in 10.5.2.2 10.5.2.2.. 10.5.2.2 Major Occupants—Excep —Exceptt as specifi specified ed in 10.5.2.1 in 10.5.2.1,, if the property has five or fewer current occupants, a reasonable attempt shall be made to interview a representative of each one of them. If there are more than five current occupants, a reaso re asona nabl blee att attem empt pt sh shal alll be mad madee to in inter tervi view ew th thee maj major or occupant(s) and those other occupants whose operations are recognized envir environmen onmental tal condit conditions ions in likel lik ely y to in indi dicat catee recognized connection with the property. Reasonable le Attemp Attempts ts to Interv Interview iew—Examp 10.5.2.3 Reasonab —Examples les of reasonable attempts to interview those occupants specified in 10.5.2.2 include 10.5.2.2 include (but are not limited to) an attempt to interview visit t or call such occupants when making the site visi calling ing suc such h occupants by telephone. In any case, when there are several occupants to interview, it is not expected that the site visit must must be scheduled at a time when they will all be available to be interviewed. 10.5.2.4 Occupant Identification—The report shall shall identify the occupants interviewed and the duration of their occupancy. Prior Assess Assessment ment Usag Usagee—Pe 10.5.3 Prior —Perso rsons ns inte intervi rviewe ewed d as part of a prior Phase I Environmental Site Assessment consis consistent with this practice do not need to be questi questioned oned again about the content of answers they provided at that time. However, they should be questioned about any new information learned since that time, or others should be questioned about conditions since the prior Phase I Environmental Site Assessment consis consistent with this practice. Past st Ow Owne ners rs,, Op Oper erat ator ors, s, an and d Oc Occu cupa pant ntss — 10.5.4 Pa Interviews with past owners, operators, and occupants of the property who are likely to have material information regarding the potential for contamination at the property shall be conducted to the extent that they have been identified and that the information likely to be obtained is not duplicative of information already obtained from other sources. erv ie ie w R eq equire me ment s f or or A ba bandoned 10.5.5 Int er Properties—In the case of inquiries conducted at abandoned properties prope rties where there is eviden evidence ce of potential unauthorized unauthorized uses of the abandoned property or evidence of uncontrolled access to the abandoned property , interviews with one or more owners or occupants of neighboring or nearby properties shall be conducted. 10.6 Quality of Answers—The person(s) interviewed should be asked to be as specific as reasonably feasible in answering ques qu estio tions ns.. Th Thee pe pers rson on(s (s)) in inter tervi view ewed ed sh shou ould ld be as aske ked d to answer in good faith and to the extent of their knowledge. 10.7 Incomplete Answers—While the person conducting the inter in tervi view ew(s (s)) ha hass an ob oblig ligat atio ion n to as ask k qu ques estio tions ns,, in ma many ny instances the persons to whom the questions are addressed will have no obligation to answer them.

10.7.1 User —If —If the person to be interviewed is the user (the (the Phase I Env Envir ironm onment ental al Site pers pe rson on on wh whos osee be beha half lf th thee Phase Assessment is is being conducted), the user has has an obligation to answ an swer er al alll qu ques estio tions ns po pose sed d by th thee pe pers rson on co cond nduc uctin ting g th thee interview interv iew,, in good faith, to the extent of his or her actual knowledge or to designate a key site man manage ager r to do so. If answerss to questions are unkn answer unknown own or partial partially ly unknown to the user or such key site manager , this interview section of the Phase I Envir Environmen onmental tal Site Assessment shall not thereby be deemed incomplete. 10.7.2 Non-user —If —If the perso person n condu conducting cting the interv interview(s) iew(s) asks as ks qu ques estio tions ns of a pe pers rson on ot othe herr th than an a user but does not receive answers or receives partial answers, this section of the Phase I Envir Environmen onmental tal Site Assessment shall not thereby be deemed incomplete, provided that (1) the questions have been asked (or attempted to be asked) in person, by electronic mail, or by tele telepho phone ne and written written rec record ordss hav havee bee been n kep keptt of the person per son to who whom m the que questio stions ns wer weree add addres ressed sed and the responses, or (2) the questions have been asked in writing sent by first class mail or by private, commercial carrier and no answer or inc incomp omplete lete answers answers hav havee bee been n obt obtain ained ed and at lea least st one reasonable follow up (telephone call or written request) was made again asking for responses. 10.8 Questions About Helpful Documents —Prior to the site (if any is identified), visit , the property owner , key site manager (if and user (if (if different from the property owner ) shall be asked if they know whether any of the documents listed in 10.8.1 exist and, if so, whether copies can and will be provided to the environmental professional within within rea reason sonabl ablee time and cos costt constraints. Even partial information provided may be useful. If so, the environmental professional conducting the site visit shal sh alll re revi view ew th thee av avai aila labl blee do docu cume ment ntss pr prio iorr to or at th thee beginning of the site visit . 10.8.1 Helpful Documents: 10.8.1.1 10.8. 1.1 Enviro Environment nment site assessm assessment ent reports, 10.8.1.2 10.8. 1.2 Enviro Environment nment compliance compliance audit reports, 10.8.1.3 10.8. 1.3 Enviro Environmenta nmentall permits (for example, solid waste hazardous waste disposal permits, wastewadisposal permits, ter permits, permits, NPDES permits, underground injection permits), 10.8.1.4 10.8. 1.4 Registr Registrations ations for under undergrou ground nd and above above-gro -ground und storage tanks, 10.8.1.5 10.8. 1.5 Registr Registrations ations for underground injection systems, 10.8.1.6 Material safety data sheets, 10.8.1.7 10.8. 1.7 Commun Community ity rightright-to-kn to-know ow plan, 10.8.1.8 10.8. 1.8 Safety plans; preparedness preparedness and prevention plans; spill prevention, countermeasure, and control plans; etc., 10.8.1.9 Reports regarding hydrogeologic conditions on the property or surrounding area, 10.8.1.10 10.8. 1.10 Notice Noticess or other corre correspond spondence ence from any governm er nmen entt ag agen ency cy re relat latin ing g to pa past st or cu curr rren entt vi viol olati ation onss of environmental laws with respect to the property or relating to environmental liens encumbering the property, 10.8.1.11 Hazardous waste generator notices or reports, 10.8.1.12 10.8. 1.12 Geotec Geotechnical hnical studies, 10.8.1.13 10.8. 1.13 Risk assessments, assessments, and 10.8.1.14 10.8. 1.14 Record Recorded ed AULs.


E1527 – 05 10.9 Proceedings Involving the Property—Prior to the site visit , the property owner , key site manager (if (if any is identified), and user (if (if different from the property owner ) shall be asked whether they know of: (1) any pending, pending, threate threatened, ned, or past litigation litigatio n releva relevant nt to hazardous substances or petroleum products in, on, or from the property; (2) any pending, threatened, or past administrative proceedings relevant to hazardous substances or petroleum products in, on or from the property; and (3) any notices from any governmental entity regarding any possible violation of environmental laws or possible liability relating to hazardous substances or petroleum products. 11. Interviews With With State and/or Local Government Officials 11.1 Objective—T —The he ob objec jectiv tivee of interviews with with sta state te and/or loc and/or local al gov govern ernmen mentt of offficia icials ls is to obt obtain ain inf inform ormatio ation n indicating recognized environmental conditions in connection with the property. 11.2 Content — Interviews with stat statee and and/or /or loca locall gov govern ern-ment officials consist of questions to be asked in the manner and of per person sonss as des descri cribed bed in this section. section. The con conten tentt of questions to be asked shall be decided in the discretion of the environmental professional(s) conducting the Phase I Environprov ovid ided ed th that at th thee qu ques estio tions ns sh shall all mental men tal Sit Sitee Ass Assess essmen ment t , pr generally be directed towards identifying recognized environmental conditions in connection with the property. 11.3 Medium—Q —Que uest stio ions ns to be as aske ked d ma may y be as aske ked d in person or by telephone, in the discretion of the environmental professional. 11.4 Timing—I —Itt is in th thee di disc scre retio tion n of th thee environmental professional whether to ask questions before or after the site visit described described in Section 9, or in some combination thereof. 11.5 Who Should Be Interviewed : and/orr Local Agency Of Offıci fıcials als—A reasonable 11.5.1 State and/o attempt shall be made to interview at least one staff member of any one of the following types of state and/or local government agencies: 11.5.1.1 11 .5.1.1 Local fire department department that serves the property, 11.5.1.2 11 .5.1.2 State and/or local health agency or local/r local/regiona egionall offfice of stat of statee hea health lth agency serving serving the are areaa in whi which ch the property is located, 11.5.1.3 State and/or local agency or local/regional office office of state agency having jurisdiction over hazardous waste disposal or ot othe herr en envi viro ronm nmen ental tal mat matter terss in th thee ar area ea in wh which ich th thee property is located, or 11.5 1.5.1. .1.4 4 Local age agencie nciess res respon ponsib sible le for the iss issuan uance ce of building permits or groundwater use permits that document the presence of AULs which may identify a recognized environmental condition in the area in which the property is located. 11.6 Prior Assessment Usage—Perso —Persons ns interv interviewed iewed as part of a prior Phase I Environmental Site Assessment consistent with this practice do not need to be questioned again about the content of answers they provided at that time. However, they should be questioned about any new information learned since that time, or others should be questioned about conditions since the pri prior or Phase I Envir Environmen onmental tal Site Assessment consistent with this practice. 11.7 Quality of Answers —The person(s) interviewed should be asked to be as specific as reasonably feasible in answering

questio ques tions ns.. Th Thee pe pers rson on(s (s)) in inte terv rview iewed ed sh shou ould ld be as aske ked d to answer in good faith and to the extent of their knowledge. 11.8 Incomplete Answers—While the person conducting the inter in tervi view ew(s (s)) ha hass an ob oblig ligati ation on to as ask k qu ques estio tions ns,, in ma many ny instances the persons to whom the questions are addressed will have no obligation to answer them. If the person conducting the interview(s) asks questions but does not receive answers or receiv rec eives es par partial tial ans answer wers, s, thi thiss sect section ion sha shall ll not the thereb reby y be deemed incomplete, provided that questions have been asked (orr at (o attem tempt pted ed to be ask asked ed)) in pe pers rson on or by tel telep epho hone ne an and d written wri tten records records have bee been n kep keptt of the person person to who whom m the questions were addressed and their responses. 12. Eval Evaluati uation on and Report Preparatio Preparation n 12.1 Report Format —The —The report for the Phase I Environmental Site Assess mental Assessment ment should should gen genera erally lly fol follow low the rec recomommended report format attached as Appendix as Appendix X4 unless otherwise required by the user . 12.2 Documentation—The findings, opinions and conclu conclu-sions in the Phase I Environmental Site Assessment report shall shall be supported by documentation. If the environmental professional has chosen to exclude certain documentation from the report , the environmental environmental professional shall shall ide identif ntify y in the report the reasons for doing so (for example, a confidentiality agreement). Supporting documentation shall be included in the report or adequately referenced to facilitate reconstruction of the assessment assessment by an environmental professional other than the environmental professional who con conduc ducted ted it. Sou Source rcess tha thatt revealed no findings also shall be documented. 12.3 Content —The report shall inc includ ludee tho those se Contentss of Rep Report ort —The matte ma tters rs re requ quir ired ed to be in inclu clude ded d in th thee report pursuant pursuant to variou var iouss pro provis vision ionss of thi thiss pra practic ctice. e. The report shall shall als also o identify the environmental professional and the person(s) who conducted the site reconnaissance and interviews. In addition, the report shall shall state whether the user reported reported to the environinform ormatio ation n pur pursua suant nt to the user’s mental professional any inf responsibil respo nsibilities ities descri described bed in Sectio Section n 6 of thi thiss pra practic cticee (fo (forr environmental tal lien or AUL enc exampl exa mple, e, an environmen encumb umberi ering ng the property or any relevant specialized knowledge or experience of the user ). ). 12.4 Scope of Services—The report shall describe all services performed in sufficient detail to permit another party to reconstruct the work performed. 12.5 Findings—The report shall shall hav havee a find finding ingss sect section ion which identifies known or suspect recognized environmental conditions, an historical rec recogniz ognized ed envir environmen onmental tal condi condi-and d historical , and de minimis conditions. tions 12.6 Opinion—The report shall include the environmental professional’s opini opinion on(s (s)) of th thee imp impact act on th thee property of conditi con ditions ons iden identifie tified d in the find finding ingss sect section ion.. The log logic ic and reasoning used by the environmental professional in evaluating information infor mation collected during the cours coursee of the inves investigatio tigation n related to such conditions shall be discussed. Frequently, items initially initiall y suspe suspected cted to be a recog recognized nized environmental environmental condition are subsequently determined, upon further evaluation, to not be considered a recognized environmental condition. The opinion shall specifically include the environmental professional’s rationale for concluding that a condition is or is not currently a recognized environmental condition. Conditions identified by


E1527 – 05 the environmental professional as recognized environmental conditions currently shall be listed in the conclusions section of the report . 12.6.1 Additional Investigation—The environmental professional should provide an opinion regarding additional appro hazardous priate investigation, investigation, if any any,, to detect the presence of hazardous substances or petroleum products. This opinion should only be provided provi ded in the unusual circumstance circumstance when greater certainty is required requir ed regar regarding ding the identi identified fied recogn recognized ized envir environmen onmental tal conditions. A Phase I Environmental Site Assessment which include incl udess suc such h an opi opinio nion n by the environmental professional does not rende renderr the assessm assessment ent incomplete. incomplete. This opinio opinion n is not intende inte nded d to con constit stitute ute a req requir uireme ement nt tha thatt the environmental professional includ includee any rec recomm ommend endatio ations ns for Phase II or other assess assessment ment activiti activities. es. 12.7 Data Gaps —The report shall shall identify and comment on significant data gaps that affect the ability of the EP to identify recognized environmental conditions and identify the sources of information that were consulted to address the data gaps . A data gap by itself is not inherently significant. For example, if a property’s hist histor oric ical al us usee is no nott id iden entifi tified ed ba back ck to 19 1940 40 failuree (see 8.3.2.3), because of data failur 8.3.2.3), but the earliest source shows that the property was undev undeveloped eloped,, this data gap by itself would not be significant. A data gap is only significant if other information and/or professional experience raises reasonable con concer cerns ns inv involv olving ing the data Forr ex exam ampl ple, e, if a data gap. Fo building on the property is inaccessible during the site visit , and the environmental professional’s experience indicates that such a building often involves activity that leads to a recognized nize d env enviro ironme nmental ntal con condit dition ion,, the ina inabil bility ity to ins inspec pectt the building buildi ng would be a signifi significant cant data gap warranting comment. 12.8 Conclusions—The report shall include a conclusions recognized environmental condisection that summarizes all recognized tions connected with the property. The report shall shall include one of the following statements: 12.8.1 12.8. 1 “W “Wee have perfo performed rmed a Phase I Environmental Site Assessment in in conformance with the scope and limitations of ASTM Practice E1527 of [insert address or legal description], the property. Any exceptions exceptions to, or deletio deletions ns from, this practice aree descr ar describ ibed ed in Secti Section on [ ] of this this report . This assessment has revealed no evidence of recognized environmental conditions in connection with the property,” or 12.8.2 12.8. 2 “W “Wee have perfo performed rmed a Phase I Environmental Site Assessment in in conformance with the scope and limitations of ASTM Practice E1527 of [insert address or legal description], the property. Any exceptions exceptions to, or deletio deletions ns from, this practice aree descr ar describ ibed ed in Secti Section on [ ] of this this report . This assessment has revealed no evidence of recognized environmental conditions in connection with the property except for the following: (list).” 12.9 Additiona —Any y add additio itional nal ser service vicess con con-Additionall Services—An tracted for between the user and and the environmental professional(s), including a broader scope of assessment, more detailed conclusions conclu sions,, liabilit liability/risk y/risk evalua evaluations, tions, recomm recommendati endation on for Phase II testing, remediation techniques, etc., are beyond the scope of this practice, and should only be included in the report if so specified in the terms of engagement between the user and and the environmental professional .

12.10 Deviations—Al —Alll del deletio etions ns and dev deviati iations ons fro from m thi thiss practic pra cticee (if any any)) sha shall ll be list listed ed ind indivi ividua dually lly and in deta detail, il, including client-imposed constraints, and all additions should be listed. 12.11 References—The report shall shall inc includ ludee a ref refere erence ncess section to identif identify y publis published hed referenced referenced sourc sources es relied upon in preparing prepa ring the Phase I Envir Environmen onmental tal Site Assessment . Each referenced refer enced source shall be adequately annotated to facilita facilitate te retrieval by another party. 12.12 Signature—The environmental environmental profe professional(s ssional(s)) responsible spons ible for the Phase I Environmental Site Assessment shall shall sign the report . 12.13 Environmental Professional Statement —As —As required by 40 CFR 312.21(d), the report shall include the following statements of the environmental professional(s) responsible for conducting condu cting the Phase Phase I Envir Environmen onmental tal Site Assessment and preparation of the report . 12.1 12 .13. 3.1 1 “[ “[I, I, We] de decla clare re th that at,, to th thee be best st of [m [my y, ou our] r] professional knowledge and belief, [I, we] meet the definition Environmental professional as defined in §312.10 of 40 CFR of Environmental 312” and 12.13.2 12.13 .2 “[I, We] We] have the specific qualifications qualifications based on education, training, and experience to assess a property of the nature, history, and setting of the subject property. [I, We] have develo dev eloped ped and per perfor formed med the all app approp ropriat riatee inq inquir uiries ies in conformance with the standards and practices set forth in 40 CFR Part 312.” 12.14 Appendices—The report shall incl include ude an app append endix ix section containing supporting documentation and the qualifications of the environmental professional and the qualifications reconnais nnaissance sance and of th thee pe pers rson onne nell co cond nduc uctin ting g th thee site reco interviews if condu conducted cted by someo someone ne other than an environmental professional. 13. Non-Scope Considerations Considerations 13.1 General: 13.1.1 Additional Issues—There may be environmental issues or conditions at a property that parties may wish to assess in connection with commercial real estate that are outside the scope of this practice (the non-scope considerations). As noted by the legal analysis in Appendix X1 of this practice, some substan sub stances ces may be pre presen sentt on a property in qua quantit ntities ies and unde un derr co cond ndit itio ions ns th that at ma may y lea lead d to co cont ntam amin inat atio ion n of th thee near arby by pr prop oper ertie tiess bu butt ar aree no nott in inclu clude ded d in property or of ne CERCLA’ CERC LA’ss defi definit nition ion of hazardous U.S.C. .C. hazardous substances (42 U.S §9601( §96 01(14) 14))) or do not oth otherw erwise ise pre presen sentt pot potent ential ial CERC CERCLA LA liability. In any case, they are beyond the scope of this practice. 13.1.2 Outside Standard Practices —Whether or not a user elects to inquire into non-scope considerations in connection with this practice or any other environmental site assessment , no assessment of such non-scope considerations is required for appropriate inquiry as defined by this practice. 13.1.3 Other Standards —There may be standards or protocols for assessment of potential hazards and conditions associated with non-scope conditions developed by governmental entities, professional organizations, or other private entities. 13.1.4 Compliance With AULs—Parties who wish to qualify for one of the LLPs will need to know whether they are in compli com plianc ancee wit with h AUL AULs, s, inc includ luding ing lan land d use res restric trictio tions ns that


E1527 – 05 were rel were relied ied upo upon n in con connec nection tion with a res respon ponse se act action ion.. A determination determi nation of compliance compliance with AULs is beyond the scope of this practic practice. e. 13.1.5 Lis —Follo llowin wing g are sev severa erall Listt of Add Additio itional nal Iss Issues ues—Fo non-scope considerations that persons may want to assess in commerciall rea reall estate. No imp connection connec tion with commercia implic licati ation on is intende inte nded d as to the relative relative imp import ortanc ancee of inq inquir uiry y int into o suc such h non-scope considerations, and this list of non-scope considerations is not intended to be all-inclusive: 13.1.5.1 13.1. 5.1 Asbes Asbestos-Co tos-Containi ntaining ng Buildin Building g Materi Materials, als, 13.1.5.2 13.1. 5.2 Radon Radon,, 13.1.5.3 13.1. 5.3 Lead-B Lead-Based ased Paint,

13.1.5.4 Lead in Drink 13.1.5.4 Drinking ing Water Water,, 13.1.5.5 Wetlands, 13.1.5.6 13.1. 5.6 Regulat Regulatory ory compliance, 13.1.5.7 13.1. 5.7 Cultur Cultural al and historic resources, resources, 13.1.5.8 13.1. 5.8 Indus Industrial trial hygiene, 13.1.5.9 13.1. 5.9 Health and safety, safety, 13.1.5.10 13.1. 5.10 Ecolog Ecological ical resou resources, rces, 13.1.5.1 13.1. 5.11 1 Endan Endangered gered species, 13.1.5.12 13.1. 5.12 Indo Indoor or air quality quality,, 13.1.5.13 13.1. 5.13 Biolog Biological ical agents, and 13.1.5.14 13.1. 5.14 Mold.

APPENDIXES (Nonmandatory Information) X1. LEGAL BACKGROUND TO FEDERAL LAW LAW AND THE PRACTICES ON ENVIRONMEN ENVIRONMENT TAL ASSESSMENTS ASSESSMENTS IN COMMERCIAL REAL ESTATE ESTATE TRANSAC TRANSACTIONS TIONS INTRODUCTION

The Legal Task Group of Subcommittee E50.02 on Environmental Assessments In Commercial Real Est Estate ate Tr Trans ansacti actions ons pro provid vides es the fol follow lowing ing bac backgr kgroun ound d to the “all appr appropria opriate te inquir inquiryy” obligation oblig ation under the Compre Comprehensiv hensivee Envir Environmen onmental tal Respon Response, se, Compe Compensation nsation,, and Liabilit Liability y Act (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996 (the “Lender Liability Liabili ty Amendments”), Amendments”), and the Small Business Liabilit Liability y Relief and Brown Brownfields fields Revitalization Revitalization Act of 2001 (the “ Brownfields Amendments ”). This background to CERCLA, (also commonly known as the Superfund law), outlines the parties’ potential liability for the cleanup of hazardous substances under und er CERC CERCLA, LA, pot potenti entially ally ava availab ilable le pro protect tection ionss fro from m suc such h liab liabilit ility y, the req requir uireme ement nt for “all appropriate inquiry” under CERCLA, the statutory definition of hazardous hazardous substances, petroleum products and petroleum petroleum exclusion to CERCLA, and reasons why certain constituents of potential environmental concern are excluded from the scope of CERCLA and this practice. The Legal Task Group also notes that, with the changes to CERCLA brought about by the Brownfields Amendments and the implementation of said amendments by EPA, the Environmental Transaction Screen Practice (E1528 E1528)), alth althoug ough h stil stilll a use useful ful tra transa nsactio ctional nal env enviro ironme nmental ntal scr screen eening ing too tool, l, no lon longer ger meet meetss the requirement for “all appropriate inquiry” which is key to establishing CERCLA’s landowner liability protections, or LLPs. Practice E1527 has been developed to define “ all appropriate inquiry” for purposes of establishing any of the three LLPs available under CERCLA as amended by the Brownfields Amendments. This Legal Leg al App Append endix ix mak makes es inf inform ormatio ational nal ref refere erence nce to the oth other er crit criteri eria, a, bey beyond ond the “all appropriate inquiry” criterion, that are necessary for successfully asserting any of the three LLPs. This practice and Legal Appendix do not address other business risk issues, such as the presence of other constituents of potential environmental environmental concer concern n (such as asbest asbestos, os, radon and mold/fungi). mold/fungi). Finally Finally,, this Legal Appendix is intended for informational purposes only and is not intended to be nor interpreted as legal advice. The specter specter of stri strict, ct, joi joint nt and several several liab liabilit ility y und under er the Federa Fed erall Sup Superf erfund und law law,, and ana analog logous ous stat statee env enviro ironme nmenta ntall laws, has been a primary driver of Environmental Assessments

in Com Commer mercia ciall Rea Reall Est Estate ate Tr Trans ansacti actions ons.. A kno knowled wledge ge of


E1527 – 05 CERCLA, and esp CERCLA, especia ecially lly its pot potent ential ial landowner landowner liabil liability ity protections, or LLPs, is crucial to understanding and applying Practice E1527 E1527.. X1.1 CERC CERCLA LA Liability Liability8 X1.1.1 Each of the follow X1.1.1 following ing elements must be established by a plaintiff (that is, government or private party) before a defendant may be found liable under CERCLA for response costs at a site:9 X1.1.1 X1.1 .1.1 .1 The si site te is a fa facil cility ity,, as de defin fined ed at 42 U. U.S. S.C. C. 10 §9601(9); X1.1.1.2 X1.1.1 .2 A rele release ase or thr threate eatened ned rel release ease of a haz hazard ardous ous substa sub stance nce fro from m the site occ occurr urred ed (§9 (§9607 607(a) (a)(4) (4))) (re (releas leasee is spilling, g, leakin leaking, g, pump pumping, ing, defin de fined ed at §9 §960 601( 1(22 22)) as an any y “ spillin pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment (including the abandonment or discarding of barrels, containers and other closed receptacles containing any hazardous substance, or pol polluta lutant nt or con contam tamina inant) nt)”); “Ha “Hazar zardou douss sub substan stance” ce” is defined at §9601(14) and is discussed in section X1.6 X1.6 (Statu (Statutory Definition of Hazardous Substance); X1.1.1.3 A release or threatened release caused the incurX1.1.1.3 rence of response costs. Response costs are indirectly defined at §9601(25) to mean costs related to both removal actions (§9601(23)) and remedial actions (§9601(24)); and X1.1.1.4 X1.1.1 .4 Defendan Defendants ts fal falll with within in at leas leastt one of the four classes of potentially responsible parties identified in §9607(a). These classes include:

X1.1.1.5 X1.1.1 .5 The (curren (current) t) owner and operator 11 of a facility; X1.1.1.6 X1.1.1 .6 Any person person who at the time of dis dispos posal al of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of; X1.1.1.7 Any person who by contract, agreement, X1.1.1.7 agreement, or other other-wise arranged for disposal or treatment or transport of hazardous substances; and X1.1.1.8 Any person who accepts or accepted any hazardX1.1.1.8 ous substances for transport to a disposal or treatment facility selected by such person. X1.1.1.9 The CERCLA X1.1.1.9 CERCLA contiguous property owner liability protection excludes from the definition of “ owner ” or “operator ” a person who owns real property that is “contiguous” to, and that is or may be contaminated by hazardous substances from other real property that is not owned by that person but “solely by reason of the contamination.” X1.1.1.10 When it promu X1.1.1.10 promulgated lgated CERCLA and the amend amend-ments thereto, Congr Congress ess recog recognized nized potential hards hardships hips that CERCLA liability could place on holders of security interests in property (for example, lenders) where those parties were not respon res ponsib sible le for acts or omi omissio ssions ns of oth others ers tha thatt cau caused sed or contributed to property contamination. In an effort to ease these burden bur dens, s, Con Congre gress ss cre created ated the soso-call called ed “se “secur cured ed cre credit ditor” or” exemption exemp tion within the definit definition ion of “owner or or operator ” which, in very brief terms, exempts persons holding an “indicia of ownership primarily to protect his security interest” so long as the person did not participate in the management of the facility. Numero Num erous us cou courts rts and sta state te leg legisla islatur tures es hav havee rec recogn ognized ized the

11

8

42 U.S.C. §9607(a). (All statutory references are to Title 42 of the United States Code, unless otherwise specified.) 9 See United States v. Aceto Agric. Chems Corp ., 872 F.2d 1373 (8th Cir. 1989). Privat Pri vatee pla plaint intif iffs, fs, as wel welll as the gov govern ernmen ment, t, may see seek k res respon ponse se cos costs ts und under er Superfund Super fund from defen defendants dants.. While many users of these ASTM practices or other private parties may think in terms of how to defend against Superfund liability, they should be aware of the alternative option of conducting a cleanup and then seeking response costs from other responsible parties. 10 42 U.S.C. §9601(9) defines the term “facility” to mean “(A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publi publicly cly owned treatm treatment ent works), well, pit, pond, lagoon, impoundment, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.”

42 U.S.C. §9601(20)(A) defines “owner or or operator ” as any person owning or operating a facili operating facility ty or the person who owned owned,, opera operated ted or other otherwise wise controlled controlled activities at a facility immediately prior to such facility’s transfer to a unit of state or local government due to bankruptcy, foreclosure, tax delinquency, abandonment or similar means. The term owner or operator does not include a person, who, without participating in the management of a facility, holds indicia of ownership primarily to protect his security interest in the facility (this exemption is commonly referred to as the secured creditor exemption) See 42 U.S.C.§9601(E). Persons who have been found liable as owners include: bankruptcy estates ( In re Duplan Corp., 212 F.3d 144 (2d Cir. 2000)), trustees ( Briggs & Stratton Corp. v. Concrete Sales & Servs., Inc., 20 F. Supp. 2d 1356 (M.D. Ga. 1998)), passive landlords ( Nurad, Inc. v. William E. Hooper & Sons Co ., 966 F.2d 837 (4th Cir. 1992); United States. v. A & N Clean Cleaners ers & Launde Launderer rers, s, Inc., 788 F. Supp. 1317 (S.D (S.D.N.Y .N.Y. 1992)), parent corporations (United States. v. Kayser-Roth, Corp ., 910 F.2d 24 (1st Cir. 1990)), easement holders (United States v. Union Gas Co., 35 ERC (BNA) 1750 (E.D. Pa. 1992)), and franchisors (Shell Oil Co. v. Meyers, No. 79504-9801-CV-043, 1998 Ind. Lexis 755 (Ind. Sup. Ct. Jan. 18, 1998)). Some courts have also sought to expand liability to former owners and operators of facilities that did not own or hazardous operate the facility at the time of actual disposition and/or release of hazardous substances, but during whose tenure passive migration of hazardous hazardous substances was occurring. Briggs & Stratton Corp. v. Concrete Sales & Servs., Inc., 20 F. Supp. 2d 1356 (M.D. Ga. 1998). It appears that the majority of courts however, require that the past owner or operator actively disposed of the hazardous substances . ABB Indus. Sys., Inc. v. Prime Tech, Inc., 120 F.2d 1351 (2d Cir. 1997).


E1527 – 05 secured credit secured creditor or exempt exemption ion12 an and d in 19 1992 92 EP EPA A so soug ught ht to further clarify the scope of the exemption through its “Lender Liability” Liabilit y” rule.13 X1.1.1 X1. 1.1.1 .11 1 In 199 1994, 4, the Len Lender der Liab Liabilit ility y rul rulee was str struck uck down (see Kelley v. EPA, 15 F.3d 1100 (D.C. Cir), reh’g denied 25 F.3d 1088 (D.C. Cir. 1994)). Subsequently, in September 1996, 199 6, Con Congre gress ss pas passed sed the Len Lender der Liab Liabilit ility y Ame Amendm ndments ents14 which amended CERCLA sections 101 and 107 to clarify the scope sco pe of th thee se secu cure red d cr cred edito itorr ex exem empt ptio ion n (a (ass we well ll as th thee 15 fiduciary fiducia ry liability exemption ). X1.1.1.12 X1.1. 1.12 The Lender Liability Amendments Amendments to CERCLA make it clear that a secured creditor or lender will not fall within the definition of “owner or or operator ” (and therefore be potent pot entiall ially y liab liable le und under er CERC CERCLA) LA) whe where re the len lender der mer merely ely holds an indicia of ownership and acts primarily to protect its security securit y intere interest st in a facility (for example, through foreclosure foreclosure or po post st fo fore reclo closu sure re ac acts ts)) bu butt do does es no nott pa part rtici icipa pate te in th thee management of the facility. (See 42 U.S.C. §9601(20)(E-G)). 16 X1.1.1.13 X1.1. 1.13 The Lender Liability Amendme Amendments nts clarify that (i) the ter term m “pa “parti rticipa cipate te in man manage agemen ment” t” --( --(I) I) mea means ns actu actually ally partici par ticipati pating ng in the man manage agemen mentt or ope operat ration ional al af affai fairs rs of a vessel or facility; and (II) does not include merely having the capacity to influence, or the unexercised right to control, vessel or facility operations; and (ii) a person that is a lender and that holds hol ds ind indicia icia of own owners ership hip pri primar marily ily to pro protect tect a secu security rity interest in a vessel or facility shall be considered to participate in management only if, while the borrower is still in possession of the vessel or facility encumbered by the security interest, the person --(I) exercises decision making control over the environmental compliance related to the vessel or facility, such that the per person son has und undert ertake aken n res respon ponsib sibilit ility y for the hazardous substance handling or disposal practices related to the vessel or facility; or (II) exercises control at a level comparable to that of a manager of the vessel or facility, such that the person has assumed assu med or man manife ifested sted res respon ponsib sibilit ility y --( --(aa) aa) for the ove overal ralll management of the vessel or facility encompassing day-to-day decision making with respect to environmental compliance. 42 U.S.C. §9601(20)(F)(i)(I),(ii)(I-II)(aa). X1.1.2 X1. 1.2 In ord order er to rec recove overr res respon ponse se cos costs, ts, a gov govern ernmen mentt plaintiff must prove that the costs were not inconsistent with the National Oil and Hazardous Substances Pollution Contingency Plan (commonly referred to as the National Contingency

Plan or NCP), 40 C.F.R. Part 300. 17 A private plaintiff must prove its costs were necessary costs of response consistent with the NCP. 42 U.S.C. §9607 (a)(4). 18 X1.1.3 If there is a releas releasee or threatened release release of hazard hazardous substances on a site, private parties, even if they are not PRPs, may decide to incur response costs and seek recovery from fro m oth other er pri privat vatee par parties ties,, and PRP PRPss may seek contribut contribution ion from other PRPs. X1.1.4 There is an impor important tant differenc differencee between the governmen ern ment’s t’s bur burden den to sho show w that its res respon ponse se cos costs ts are “no “nott inconsistent with the NCP” and the burden a private party bears to show that its response costs are “consistent with the NCP .” See §96 §9607( 07(a)( a)(4)( 4)(A) A) and (B) (B).. Cou Courts rts hav havee int interp erpret reted ed thi thiss statutory difference to give the government a rebuttable presumption that its response costs are consistent with the NCP, whereas a private party who incurs response costs and seeks recovery from responsible parties bears the burden of proving its response costs were consistent with the NCP.19 The 1990 amendments amend ments to the NCP provide provide that priva private te plainti plaintifffs only have to demonstrate “substantial compliance” with the NCP rather than strict technical compliance as long as a CERCLAquality qua lity clea cleanup nup is ach achiev ieved. ed. The NCP requir requireme ements nts for a priv pr ivate ate pa party rty res respo pons nsee-act actio ion n ar aree se sett fo forth rth at 40 C.F C.F.R. .R. §300.700. Some cases have held that cleanup costs incurred purs pu rsua uant nt to a co cons nsen entt de decr cree ee wi will ll be pr pres esum umed ed to be in 20 compliance with the NCP.

X1.2 Defe Defenses nses to CERC CERCLA LA Liability Liability X1.2.1 Assum Assuming ing all the elements of liability exist (and (and no specific exclusion to liability applies), a party may still avoid CERCLA liability by meeting one of the so-called affirmative defenses listed in §9607(b). These listed affirmative defenses are exclusive of other common law defenses that a defendant could assert.21 Section 9607(b) provides that a party shall not be liable under under 42 U.S.C. U.S.C. §96 §9607( 07(a) a) if it can esta establi blish sh by a preponderance of the evidence [the lowest evidentiary standard available, meaning more probable than not] that the release or threat of release of a hazardous hazardous substance and the damages resulting result ing therefrom were caused solely by— (1) an act of God; (2) an act of war; (3) the third party defense. The so-called

17

12

See In re: Bergsoe Metal Corp ., 910 F.2d 668 (9th Cir. 1990); Guidice v. BFG Electroplating and Mfg. Co., 732 F. Supp. 556 (W.D. Pa. 1989); United States v. Mirabile, 23 ERC (BNA) 1511 (E.D. Pa. 1985). But see United States v. Fleet Factors Corp., 901 F.2d 1550 (11th Cir. 1990); United States v. Maryland Bank and Trust Co., 632 F. Supp. 573 (D. Md. 1986). 13 See 57 Fed. Reg. 18344 (Apr. 29, 1992). 14 Pub. L. No. 104-208, §§2501-2505, 110 Stat. 3009 (Sept. 30, 1996). 15 A discussion of the Superfund liability exemptions applicable to fiduciaries such as trustees, receivers and conservators as a result of the 1996 Lender Liability Amendm Ame ndment entss is pre presen sented ted in “Fi “Fiduc duciar iary y Lia Liabil bility ity:: A New Saf Safee Har Harbor bor Und Under er CERCLA,” CERC LA,” Lawrence J. Horan III, Envir Environment onmental al Regul Regulation ation and Permi Permitting, tting, Spring 1997, John Wiley & Sons. See also Canadyne-Georgia, Corp. v. Bank of Am., 174 F. Supp. 2d 1360 (M.D. Ga. 2001) wherein a bank acting in the capacity of a co-tru cotruste steee of a tru trust st who whose se ass assets ets included included a gen genera erall par partne tnersh rship ip int intere erest st in a contaminated property was found exempt from Superfund liability. 16 See, for example, Monarch Tile, Inc. v. City of Florence , 212 F.3d 1219, 1222 (11th Cir. 2000), and United States v. Marvin Pesses, et al. (No. 90-0654 (W.D. Pa. May 6, 1998). United States v. Pesses , No. 90-CV-0654, 1998 U.S. Dist. Lexis 7902 (W.D. Pa. May 6, 1998).

The National Contingency Plan is the federal government’s blueprint on how hazardous substances are to be cleaned up pursuant to CERCLA. See 42 U.S.C. §9605; 40 C.F.R. Part 300. 18 See Dedham Water Co. v. Cumberland Farms Dairy, Inc ., 889 F.2d 1146 (1st Energy, and Environmental Cir. 1989); other cases cited at ABA, Natural Resources, Energy, Law: 1989 The Ye Year ar In Review, p. 215, n. 155. 19 Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 794 (D. N.J. 1989); Artesian Water Co. v. New Castle County , 659 F. Supp. 1269, 1291 (D. Del. 1987); United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823 (W.D. Mo. 1984), aff’d in part, rev’d on other grounds, 810 F.2d 726 (8th Cir. 1986), cert. denied , 484 U.S. 848 (1987). 20 United States v. Western Processing Co ., 1991 U.S. Dist. LEXIS 16021 (W.D. Wash. July 31, 1991). 21 United States v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373 (8th Cir. 1989). But see United States v. Marisol, Inc., 725 F. Supp. 833 (M.D. Pa. 1989) (equitable defenses under Superfund may be available after the development of a factuall record factua record). ). The equita equitable ble defenses may be considered considered by the Court when resolving resol ving or apport apportioning ioning contribution contribution claim claimss under 42 U.S. U.S.C. C. §9613( §9613(f). f). AT&T Global Info. Solutions Co. v. Union Tank Car Co ., 1997 U.S. Dist. LEXIS 6090 (S.D. Ohio March 31, 1997).


E1527 – 05 CERCLA innocent sub bse sett of th thee innocent lando landowner wner defens defensee is a su CERCLA third party defense in 42 U.S.C. §9607(b)(3). See 42 U.S.C. §9601(35). X1.2.2 X1. 2.2 In the context context of a commercial real estate transaction, wh wheth ether er th thee 96 9607 07(b (b)( )(3) 3) th thir ird d pa part rty y de defe fens nsee wi will ll be available turns on the meaning of “contractual relationship.” By stat statuto utory ry defi definit nition ion,, the term “co “contr ntractu actual al rela relatio tionsh nship” ip” includes land contracts, deeds and other instruments transferring title or possession and, therefore would preclude use of the third party defense. Congress, however, in defining the term contractual contra ctual relatio relationship nship (see 42 U.S.C. §9601(35)(A) §9601(35)(A)), ), provided vid ed for the innocent thee ass asser ertio tion n of innocent lando landowner wner defens defensee , th which requires requires that the release or threate threatened ned release of hazard hazardous substance(s) occurred on the property prior to the defendant acquiring the property and the defendant “did not know and had no reason to know of the hazardous substance ” with respect to the property. Sectio Section n 9601 9601(35)( (35)(B) B) then clarifie clarifiess that “all appropriate inquiry” must be undertaken by the defendant in order to establish that the defendant “did not know and had no reason to know of the hazardous substance .” X1.2.2.1 X1.2. 2.1 The 1986 SARA Amendments Amendments modified CERCLA’s definition of “contractual relationship” in §9601(35)(A). As a result, a contractual relationship specifically “includes, but is not limited to, land contracts, deeds, easements, leases or other oth er ins instru trumen ments ts tra transf nsferr erring ing titl titlee or pos posses sessio sion n ...” The presence presen ce of such contr contractual actual relationships relationships with third parties would act to negate the §9607(b)(3) §9607(b)(3) third party defen defense se unles unlesss the real property on which the facility is located was acquired by the defendant after disposal or placement of the hazardous substance ... and one or more of the following circumstances is also established by the defendant by a preponderance of the evidence: eviden ce: (i) At the time the defendant defendant acquired the facilit facility y the defendant did not know and had no reason to know that any hazardous substance which which is th thee su subj bject ect of th thee re relea lease se or threatened release was disposed of on, in, or at the facility; (ii) Thee de Th defe fend ndan antt is th thee go gove vern rnme ment nt . . .; (i (iii) ii) The de defe fend ndan antt acquired the facility by inheritance or bequest.” X1.2.3 X1.2. 3 Thus, the key elements necessary necessary to qualify for the CERCLA §9607(b)(3) third party defense include the following: X1.2 X1 .2.3 .3.1 .1 The re rele lease ase or th thre reat at of re rele leas asee of hazardous substance was caused solely by a third party, X1.2.3.2 X1.2. 3.2 The third party is not an employee employee or agent of the defendant, or the acts or omissions of the third party did not occu oc curr in co conn nnec ectio tion n wi with th a di dire rect ct or in indi dire rect ct co cont ntra ractu ctual al relatio rela tionsh nship ip to the def defend endant ant,, or if ther theree was a con contra tractua ctuall relationship, the defendant acquired the property after disposal or placement of the hazardous substance , and at the time the defendant acquired the facility the defendant did not know [emphasis sis add added] ed] tha thatt any and an d ha had d no rea easo son n to kn know ow [empha that is th thee su subj bjec ectt of th thee re rele leas asee or hazardous hazar dous subst substance ance that threatened threate ned release was disposed of on, in, or at the facility facility,, and

X1.2.3.3 The defendant X1.2.3.3 defendant exerc exercised ised due care with respect to the hazardous substances , and X1.2.3.4 Too Took k precautions against foreseeable acts or omissions of the third party.22 X1.2.4 X1. 2.4 The SAR SARA A Amendmen Amendments ts clar clarify ify the mean meaning ing of §9601(35)(B)’s “had no reason to know” and provide guidance as to the meaning of “ all appropriate inquiry ” by stating: “To estab es tablis lish h th that at th thee de defe fend ndan antt ha had d no re reas ason on to kn know ow of th thee matter described in subparagraph §9601(35)(A)(i), the defendant must demonstrate to a court that: (i) on or before the date on whi which ch the def defend endant ant acq acquir uired ed the fac facilit ility y, the def defend endant ant carried out all appropriate inquiries, as provided in clauses (ii) and (iv), into the previ previous ous ownership ownership and uses of the facilit facility y in accorda acco rdance nce with gen genera erally lly acce accepte pted d goo good d com commer mercial cial and customary custom ary standards and practic practices; es; and (II) the defen defendant dant took reasonable steps to (aa) stop any continuing release; and (bb) prevent preve nt any futur futuree threate threatened ned release; and (cc) prevent or limit any human, environmental, or natural resources exposure to any previ previously ously released hazardous substance .” X1.2.4 X1. 2.4.1 .1 To fur further ther clarify clarify the scope of “ all appr appropria opriate te inquiry,” the Brownfields Amendments mandate that the U.S. Environmental Protection Agency promulgate regulatory standards and practices “for the purpose of satisfying the requiremen me nt to ca carr rry y ou outt al alll ap appr pro opr pria iate te in inqu quir irie iess un und der §9601(35)(B)(i).” 42 U.S.C. §9601(35)(B)(ii). X1.2.4.2 X1.2.4 .2 To guide EPA EPA in meeting this mandate, Congress specified ten criteria to be included in the regulatory standards and an d pr prac actic tices es to be es estab tablis lishe hed d by EP EPA. A. Th Thee ten cr crite iteri riaa inclu in clude de:: (i (i)) th thee re resu sult ltss of an in inqu quir iry y by an environmental professional; (i (ii) i) interviews with with pas pastt and present present owners, operators, and occupants of the fac facilit ility y for the pur purpos posee of gathering information regarding the potential for contamination at the facility; (iii) reviews of historical sources, such as chain-of-title documents, aerial photographs , building department records, and land use records, to determine previous uses and occupancies of the real property since the property was firstt dev firs develop eloped; ed; (iv (iv)) sear searche chess for rec record orded ed env enviro ironme nmenta ntall cleanup liens against the facility that are filed under Federal, State, Sta te, or local law; (v) rev review iewss of Federal, Federal, Sta State te and local governmenta gover nmentall record records, s, waste dispo disposal sal recor records, ds, underground records, and hazardous waste handling, treatment, storage tank records, disposal and spill records, concerning contamination at or near thee fa th facil cility ity;; (v (vi) i) vi visu sual al in insp spect ectio ions ns of th thee fa facil cility ity an and d of (vii) i) spe special cialized ized kno knowle wledge dge or exp experi eri-adjoining properties; (vi ence on the part of the defendant; (viii) the relationship of the purchase price to the value of the property, if the property was not contaminated; contaminated; (ix) commonly known or reasonably ascertainable information about the property; and (x) the degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect contamination by appropriate investigation. 42 U.S.C. §9601(35)(B)(iii).

22

United States v. A&N Cleaners & Launderers, Inc., 854 F. Supp. 229, 239 (S.D.N.Y. 1994). (S.D.N.Y.


E1527 – 05 X1.3 Interim Interim Standards and Prac Practice ticess Unti Untill EP EPA A Regulatory Standards and Practices are Established X1.3.1 Congr X1.3.1 Congress, ess, recognizing recognizing the need for immediate clarificat fic atio ion n of th thee “all app incl clud uded ed in th thee appro ropri priate ate inq inquir uiryy” in Brownfields Amendments specific interim standards to clarify “all appropriate inquiry” in commercial real estate transacuntil su such ch ti time me as EP EPA A sh shou ould ld es estab tablis lish h re regu gula lato tory ry tions until standards standa rds and practic practices. es. 42 U.S.C. §9601(35)(B)( §9601(35)(B)(iv). iv). X1.3.2 X1.3. 2 Congr Congress ess promulgated promulgated two separate sets of interim standards and practices through the Brownfields Amendments (i) a standard and practice applicable to property purchased befo be fore re Ma May y 31 31,, 19 1997 97;; an and d (i (ii) i) a st stan anda dard rd an and d pr prac actic ticee fo forr commercial real estate transactions occurring on or after May 31, 1997. X1.3.3 X1. 3.3 The int interi erim m Stan Standar dard d and Pra Practic cticee app applica licable ble to commercial properties purchased prior to May 31, 1997 sets forth five elements to be considered by a court in determining whether a defendant conducted “ all appropriate inquiry”: (i) any specialized knowledge or experience on the part of the defend def endant ant;; (ii (ii)) the rela relatio tionsh nship ip of the pur purcha chase se pri price ce to the value of the property if the property were not contaminated; (iii) commonly known or reasonably ascertainable information about the property; (iv) the obviousness obviousness of the prese presence nce or likely presence of contamination at the property; and (v) the ability of the defendant to detect the contamination by appropriate inspection. These criteria are essentially unchanged from the statutory provisions pre-existing the Brownfields Amendments which rely upon case law for clarification. X1.3.4 X1. 3.4 The int interi erim m Stan Standar dard d and Pra Practic cticee app applica licable ble to commercial properties purchased on or after May 31, 1997 sets forth a single criteria for meeting “all appropriate inquiry” and states: “the procedures procedures of the Americ American an Society for Testing Testing and Materials, including the document known as standard E152797, entitled ‘Standard ‘Standard Practic Practicee for Environmental Environmental Site Assessment: Phase I Environmental Site Assessment Process’ shall satisfy the requirements” for “all appropriate inquiry.” Notably, the wording of this provision appears to be expansive in that it cites “the procedures of the American Society for Testing Testing and Materials” and then goes on to include Practice E1527-97. E1527-97. EPA subsequently clarified that Practice E1527-00 satisfied the appropria opriate te inquir inquiryy” interim inte rim Stan Standar dard d and Practice Practice for “ all appr (See 68 FR 24888, May 9, 2003). X1.3.5 X1. 3.5 While While not app applica licable ble to com commer mercial cial real res restate tate transactions, the Brownfields Amendments also provide a separate and red reduce uced d stan standar dard d for meeting meeting “all appr appropria opriate te inquiry” app applica licable ble to pro proper perties ties for res reside identia ntiall use or oth other er similar use purchased by a nongovernmental or noncommercial entity enti ty.. Und Under er thi thiss red reduce uced d stan standar dard, d, the per perfor forman mance ce of a facility inspection and title search which does not reveal a basis appropriat opriatee infor fur furthe therr inv invest estigat igation ion wou would ld sat satisf isfy y “ all appr quiry” (See 42 U.S.C. §9601(35)(B)(v)). X1.4 Case Law Inter Interpre pretatio tation n of “All Appropr Appropriate iate Inquiry” in Commercial Real Estate Transactions X1.4.1 X1. 4.1 While While the Brownfields outline and Brownfields Amend Amendments ments outline direct EPA to promulgate regulations and/or guidance identiappro ropri priate ate infying fyi ng req requir uiremen ements ts nec necess essary ary to mee meett “all app quiry,” it is premature to conclude what those requirements

may actually be. However, in promulgating its interim provisions, Congress made clear what will satisfy, during the interim appropria opriate te inquir inquiryy.” Fo period per iod,, “all appr Forr property transactions occurring occur ring prior to May 31, 1997, CERCLA will require a court to consider a party’s specialized knowledge or experience and furt fu rthe herr ma mand ndate atess a co cour urtt to co cons nsid ider er:: wh what at is “reasonably ascertainable information about the property,” what contamination is obviously present, and the party’s “ability to detect such contamination”. contamination”. These requi requirement rementss are essent essentially ially the same sa me as th thos osee pr pred edati ating ng th thee Brownfields Brownfields Amendments and inherently rely on case law interpretation. The continued use of terms “appropriate” and “reasonably” and “specialized knowledgee and exp edg experi erienc ence” e” and “ab “abilit ility” y” in con conjun junctio ction n wit with h the specifi spe cificc per person son atte attempt mpting ing to uti utilize lize the LLPs signifies signifies that Congress did not intend the appropriateness of the inquiry be judged by a bright line standard. In contrast, Congress has set forth a far more explicit interim standard for property transactions occurring on or after May 31, 1997 by specifying that ASTM AST M pro protoco tocols ls (in (inclu cludin ding g Pra Practic cticee E15 E152727-97) 97) meet the requirements of “all appropriate inquiry.” X1.4.2 Court Interpretation Interpretationss of The Appropriate Appropriate Level of Inquiry: X1.4.2.1 X1.4. 2.1 As suggested above, above, case law contin continues ues to define thee pa th para rame meter terss fo forr “all appr leas astt fo forr appropria opriate te inqui inquiry ry,” at le commercial cial rea reall estate transa transactions ctions. A pre-Ma pre -May y 31, 199 1997 7 commer revi re view ew of th this is cas casee la law w re reve veals als th that at th thee re requ quir irem emen ents ts fo forr meeting “all appropriate inquiry ” to achieve the LLPs can vary depending upon the nature of the property and transaction. As articulated articu lated by one court, “[w]h “[w]hat at consti constitutes tutes appropriate appropriate inquiry is a mixed question of law and fact and will depend on the totality of the circumstances.” Advance Technology Corp. v. Eliskim, Inc. 87 F. Supp. 2d 780, 785 (N.D. Ohio 2000). The statutory statuto ry langua language, ge, includ including ing the Brownfields Brownfields Amendments, Congressional history, and common sense, support this conclusion with case law describing what constitutes “ all appro priate inquiry.”23 X1.4.2.2 X1.4.2 .2 While not specifically specifically stated in CERCLA, the duty to make inquiry under this provision shall be judged as of the timee of ac tim acqu quis isiti ition on.. De Defe fend ndan ants ts sh shall all be he held ld to a hi high gher er standard as public awareness of the hazards associated with hazardous hazard ous releases has grown, as reflected by this Act, the 1980 Act [CERCLA] and other Federal and State statutes. Moreover, good commercial or customary practice with respect to inquiry in an effort to minimize liability shall mean that a reasonable inquiry must have been made in all circumstances, in light of best business and land transfer principles. Those engaged in 23

See, for example, United States v. Serafini , 706 F. Supp. 346 (M.D. Pa. 1988), 791 F. Supp. 107 (M.D. Pa. 1990) (By entertaining entertaining disputed facts as to the custo custom m and practice of viewing land prior to purchase, the court implied that appropriate inquiry necessarily varies on a site-by-site basis); United States v. Pacific Hide and Fur Depot, Inc., 716 F. Supp. 1341 (D. Idaho 1989) (No inquiry was required by those who received an ownership interest in property via corporate stock transfer and warranty deed under the facts of this case); International Clinical Laboratories, Inc. v. Stevens, 199 1990 0 U.S U.S.. Dis Dist. t. LEX LEXIS IS 368 3685’ 5’ 30 ERC 2066, 2066, 20 ELR 20,560 20,560 (E.D.N.Y. 1990) (Despite a long history of toxic wastewater disposal disposal and presence of the site on the state’s hazardous waste disposal site list, the purchaser was able to establish the innocent landowner defense since there were no visible environmentall proble menta problems ms at the site, the defen defendant dant had no knowledge of enviro environmenta nmentall problems at the site and the purchase price did not reflect a reduction on account of the problem).


E1527 – 05 commercial transactions should, however, be held to a higher standar stan dard d tha than n tho those se who are eng engage aged d in pri privat vatee res reside identia ntiall 24 transactions. X1.4.3 The Minimum Inquiries to Satisfy “All Appropriate Inquiry”: X1.4.3.1 X1.4. 3.1 Recogn Recognizing izing that the extent of inquiry inquiry is not static and may change with the underlying circumstances, the next question is what specific level of inquiry, if any, is required to meet any of the three LLPs? X1.4.3.2 X1.4. 3.2 The interim standards standards set forth in the Brownfields Amendments outline outline the bas basic ic lev level el of inq inquir uiry y nec necess essary ary to support the LLPs. However, it is important to understand that additional inquiry ultimately may be necessary depending upon the outcome of base-level inquiry. For instance, the outcome of initial inquiry may indicate the necessity for additional subsurface fa ce in inve vesti stiga gatio tion n (c (com ommo monl nly y re refe ferr rred ed to as a “P “Pha hase se II II”” environmental investigation) and in some arenas such subsurface inv investi estigat gation ion has bec become ome rou routine tine in commercial commercial rea reall estate transactions. It is important to note, however, that even a sub subsur surfac facee inv investi estigat gation ion has its limi limitati tations ons sin since ce one can always dig down one foot deeper, take one more sample, or conduc con ductt one more test test.. The problem problem of how much inq inquir uiry y should be conducted, or at what level a party should begin, in one sense involves proving proving a negati negative, ve, that is, that no contami25 nation is present. Since, according to the statute, inquiries should be judged by the circumstances existing at the time of acquisition, then there could be some properties and parties to real estate transactions where it may be appropriate to begin the inquiry with an intrusive subsurface investigation in order to support the particular LLP. X1.4 X1 .4.3 .3.3 .3 At th thee ot othe herr ex extr trem eme, e, th thee mi mini nimu mum m lev level el of inquiry that a party would be expected to conduct is found by looking at the least environmentally obtrusive class of property property and party from a CERCLA perspectiv perspective. e. This transa transaction ction likely involves the lay buyer of a residence. Assuming these parties meet the other prerequisites for establishing an LLP, what level of environmental inquiry must they conduct to avoid CERCLA liability?? Prior to the Brownfields Amendments, the answer was liability probab pro bably ly non none, e, unl unless ess a par particu ticular lar res reside identi ntial al pur purcha chaser ser or renter has some specialized knowledge knowledge about or experi experience ence with wit h th thee property in qu ques estio tion n th that at wo woul uld d le lead ad a co cour urtt to conclude that the purchaser should have made some inquiries about abo ut the env enviro ironme nmenta ntall con conditi ditions ons of the property. Po Post st

24 reprinted at 1986 H.R.. Rep H.R Rep.. No. 962, 99t 99th h Con Cong., g., 2d Ses Sess. s. 187 (1986), (1986), reprinted U.S.C.C.A.N. 3276, 3280. 25 The inability to prove a negative creates a dilemma for the potential defendant. If the party’s inquiry discovers contamination, then under the statute, the party will not be able to avail itself of either the Contiguous Property Owner protection or innocent landowner defense. If the inquiry does not discover contamination, EPA or anothe ano therr pri privat vatee par party ty can argue in a res respon ponse se act action ion that the inquiry inquiry was not “appropriate” and, if concurred by the court, the defendant would not qualify for protection protec tion provided by these LLPs. Thi Thiss dil dilemm emmaa is exp explic licitl itly y rec recogn ognize ized d by Subcommitte Subco mmitteee E50.0 E50.02 2 as beyond any reaso reasonable nable interpretation interpretation of Congre Congression ssional al intent. The scope of the E50.02 Standard Practice resolves the party’s dilemma in the only reasonable way by stating: “It should not be concluded or assumed that the inquiry was not appropriate inquiry merely because the inquiry did not identify recognized envir environmen onmental tal condit conditions ions in con existing recognized connec nectio tion n wit with h a property. Environmental site assessments must be evaluated based on the reasonableness of the judgments made at the time and under the circumstances in which they were made.” See 4.5.4 See 4.5.4..

Brownfields Amendments , it is clear that the statute requires at least an onsite inspection and a title search for non commercial residential properties.26 Even so, it seems unlikely that Congress intends to change its position and begin tasking residential owners with investigation and cleanup obligations. EPA EPA has previo pre viousl usly y est establi ablishe shed d its pos positio ition n in its 199 1991 1 stat statemen ementt of enforcement policy to the effect that it will not generally pursue owners of sin single gle fam family ily res reside idence ncess pur pursua suant nt to CERC CERCLA. LA.27 Therefore, for some properties and purchasers of real estate for reside res identi ntial al pur purpos poses, es, it is app approp ropria riate te to con conduc ductt min minima imall enviro env ironme nmenta ntall inq inquir uiry y in ord order er to qua qualify lify for an LLP. The language of the recent Brownfields Amendments indicates that even purchasers purchasers of property for res reside identia ntiall use usess mus mustt now conduct an inspection and title search to meet its “ all approobligation. tion.28 priate inquiry” obliga X1.4.3.4 X1.4.3 .4 The minimum level of appropriate appropriate inqui inquiry ry under CERCLA, therefore, may range from little or no inquiry (such as a private party purchasing real estate for its own residential use) to condu conducting cting an intrus intrusive ive subsurface investigation. investigation. Even so, commercial and customary practices and best business and land transfer principles, do not always dictate that environmental site assessments be conducted, particularly those real estate transa tra nsactio ctions ns inv involv olving ing sma smaller ller pro proper perties ties,, vac vacant ant land land,, or transa tra nsactio ctions ns of low mon monetar etary y val value. ue. Thi Thiss pra practic cticee and the minimum level of inquiry set forth under this practice, therefore, actually raises the average level of inquiry that should be performed, especially in these more limited types of transacappropria opriate te tions tio ns,, wh wher eree th thee pa part rties ies wa want nt to es esta tabl blish ish all appr inquiry to qualify for one or more of the LLPs. X1.4.3.5 The burden of proof proof is on the defendant defendant to show by a preponderance of the evidence that the defendant qualifies for any LLP or other defense to CERCLA liability.29 This is the least onerous burden of proof available to a party in litigation. The def defend endant ant mus mustt sho show w onl only y tha thatt the evi eviden dence ce of offer fered ed to supp su ppor ortt th thee lev level el of in inqu quir iry y th that at wa wass tak taken en at th thee tim timee of acquisition is of greater weight or more convincing than the evid ev iden ence ce of offe fere red d in op oppo posit sitio ion n to it. In ot othe herr wo word rds, s, th thee evidence on the inquiry issue taken as a whole shows that the fact sought to be proved is more probable than not. There may be tec techni hnical cal or bus busine iness ss jud judgme gments nts on whe whether ther the inq inquir uiry y conducted or any other fact in a particular case is sufficient to meet me et th thee ne need edss or co conc ncer erns ns of a pa part rty y to th thee re real al es esta tate te transaction. The bottom line, however, is that the judgment on whether the specific facts of a case, in light of the statutory language, are sufficient to produce liability or a viable defense to liability is a legal one, and such judgments constitute the practice of law. X1.4.3.6 X1.4. 3.6 The Legal Task Group notes that, although Practice E1528 (Transa (Transaction ction Screen) was origi originally nally intended to satisfy the initial level of inquiry for the innocent landowner defense, as a result of the Brownfields Brownfields Amendments and the criteri cri teriaa man mandat dated ed to be fol follow lowed ed by EP EPA A to esta establis blish h “all

26

42 U.S.C. 9601(35)(B)(v). Policy Towar owards ds Owner Ownerss of Resi Residentia dentiall Pr Propert opertyy at Super Superfund fund Sites, EPA, Policy OSWER Directive No. 9834.6, July 3, 1991. 28 42 U.S.C. 9601(35)(B)(v). 29 United States v. Domenic Lombardi Realty, Inc., 290 F. Supp. 2d 198 (D.R.I. 2003). 27


E1527 – 05 E1528, unless appropriate inquiry,” it appears that Practice E1528, modified mod ified,, lik likely ely will no longe longerr meet the thr thresh eshold old for “all appropriate inquiry.” X1.5 Landowner Liability Liability Protections Protections under the Brownfields Amendments X1.5.1 X1.5. 1 On January 11, 11, 2002, the Brownfields Amendments became law and amende amended d CERCLA §9607 by adding two new subsections providing protection from CERCLA liability: (i) The Contiguous Property Owner liability protection pursuant Prospectiv spectivee to 42 U.S U.S.C. .C. §96 §9607( 07(q); q); and (ii) the Bona Fide Pro Purchaser liability protection pursuant to 42 U.S.C. §9607(r), innocent lando landowner wner defens defensee. 42 U. and an d am amen ende ded d th thee innocent U.S. S.C. C. §9601(35)(B)(i)(II). Contig tiguou uouss Pr Prope operty rty Own Owner er (CP (CPO) O) Lia Liabil bility ity X1.5.2 The Con U.S.C. .C. §96 §9607( 07(q) q) exc exclud ludes es fro from m owner or Protection—42 U.S operator statu statuss “a pe pers rson on th that at ow owns ns re real al property that that is contiguous to or otherwise similarly situated with respect to, and that is or may be contaminated by a release or threatened hazardous substance from, real property that is not release of hazardous owned by that person solely by reason of the contamination if: (i) th thee pe pers rson on di did d no nott ca caus use, e, co cont ntrib ribut ute, e, or co cons nsen entt to th thee rele re leas asee or th thre reat aten ened ed re rele leas ase; e; (i (ii) i) th thee pe pers rson on is no not: t: (a (a)) potent pot entiall ially y liab liable, le, or af afffilia iliated ted wit with h any oth other er per person son tha thatt is potentially liable, for response costs at a facility through any direct dir ect or ind indire irect ct fam familia iliall rel relatio ationsh nship ip or any con contra tractu ctual, al, corporate, or financial relationship (other than a contractual, corporate, or financial relationship that is created by a contract forr th fo thee sa sale le of go good odss or se serv rvic ices es), ), or (b (b)) th thee re resu sult lt of a reorganization of a business entity that was potentially liable; (iii) the person takes reasonable steps to: (a) stop any continuing release, (b) prevent any threatened future release, and (c) preven pre ventt or lim limit it hum human, an, env enviro ironme nmenta ntal, l, or nat natura urall res resour ource ce hazardous substance releas exposu exp osure re to any hazardous released ed on or fr from om property owned by that person; (iv) the person provides full cooperation, assistance, and access to persons that are authorized to conduct response actions or natural resource restoration at the vessel or facility from which there has been a release or thr threate eatened ned rel release ease (in (inclu cludin ding g the coo cooper peratio ation n and acce access ss necessary for the installation, integrity, operation, and maintenance of any complete or partial response action or natural resource restoration at the vessel or facility); (v) the person: (a) is in compliance with any land use restrictions established or relied on in connection with the response action at the facility, and (b) does not impede the effectiveness or integrity of any institutional control employed in connection with a response action; (vi) the person is in compliance with any request for information or administrative subpoena issued by the President under this Act; (vii) the person provides all legally required noti no tice cess wi with th re resp spec ectt to th thee di disc scov over ery y or re rele leas asee of an any y hazardous substances at the facility; and (viii) at the time at whic wh ich h th thee pe pers rson on ac acqu quir ired ed th thee property, th thee pe pers rson on;; (a (a)) conducted all appropriate inquiry within the meaning of 42 U.S.C. §9601(35)(B) with respect to the property, and (b) did not know or have reason to know that the property was or could be contaminated by a release or threatened release of one or more hazardous hazardous substances from other real property not owned or operated by the person.”

X1.5.2.1 The Brownfields X1.5.2.1 indicate ate th that at,, to Brownfields Amend Amendments ments indic qualify for the CPO liability protection, a person must establish by a pre prepon ponder deranc ancee of the evidence evidence tha thatt the condition conditionss in clauses (i) throu through gh (viii) of subpa subparagrap ragraph h §960 §9607(q)( 7(q)(1)(A) 1)(A) (see above) have been met. X1.5.3 The Bonafide Prospective Purchaser (BFPP) Liability Protection—The second protection from CERCLA liability is the BFPP liability protection pursuant to 42 U.S.C. §9607(r) which whi ch pro provid vides es for a limi limitati tation on on §96 §9607( 07(a)( a)(1) 1) liab liabilit ility y for person per sonss meet meeting ing the defi definiti nition on of a BFP BFPP P who whose se pot potent ential ial liability for a release or threatened release is based solely on the purchaser’s being considered to be an owner or or operator of of a facility. The exclusion apparently requires that the BFPP does not impede the performance of a response action or natural resource restoration. X1.5.3 X1. 5.3.1 .1 The statutory statutory text ind indicat icates es tha that, t, in ord order er to tak takee advantage advanta ge of the BFP BFPP P liab liabilit ility y pro protect tection ion,, the pot potent entiall ially y resp re spon onsi sibl blee pa part rty y mu must st me meet et th thee de defin finiti ition on of a BFP BFPP P. As defined at 42 U.S.C. §9601(40), the term BFPP means a person (or a tenant of a person) that acquires ownership of a facility after the date of enactment [that is, January 11, 2002] and that establishes each of the following by a preponderance of the hazardous substances at the facilit evidence: (i) all disposal of hazardous facility y occurred before the person acquired the facility; (ii) the person made “all appropriate inquiries” into the previous ownership and uses of the facility in accordance with generally accepted good goo d com commer mercial cial and cus custom tomary ary sta standa ndards rds and pra practic ctices es in accorda acco rdance nce with the sta standa ndards rds and pra practic ctices es ref referr erred ed to in clauses clau ses (ii) and (iv) of par paragr agraph aph (35)(B) (35)(B) or in the case of property in re resid siden entia tiall or ot othe herr si simi milar lar us usee at th thee tim timee of purchase purch ase by a nongo nongovernm vernmental ental or nonco noncommercia mmerciall entity entity,, a facilit fac ility y ins inspec pectio tion n and title sea search rch that rev reveal eal no bas basis is for further furth er inves investigatio tigation n shall be consid considered ered to satisfy the requi requirerements of this subparagraph; (iii) the person provides all legally required requi red notices with respe respect ct to the discovery or release of any hazardous substances at the facility; (iv) the person exercises appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to (a) stop any continuing release, (b) prevent any threatened future release; and (c) preven pre ventt or limi limitt hum human, an, env enviro ironme nmental ntal,, or natu natural ral res resour ource ce exposure to any previously released hazardous substance ; (v) the person provides full cooperation, assistance, and access to person per sonss tha thatt are aut author horized ized to con conduc ductt res respon ponse se acti actions ons or natural resource restoration at a vessel or facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response actionss or natural resource restoration action restoration at the vessel or facilit facility); y); (vi) (v i) th thee pe pers rson on (a (a)) is in co comp mpli lian ance ce wi with th an any y la land nd us usee restri res trictio ctions ns esta establis blished hed or rel relied ied on in con connec nectio tion n wit with h the response action at a vessel or facility, and (b) does not impede institutional contr control ol thee ef th effe fecti ctive vene ness ss or in integ tegri rity ty of an any y institutional employed at the vessel or facility in connection with a response action; (vii) the person complies with any request for information or administrative subpoena issued by the President under this th is Ac Act; t; (v (viii iii)) th thee pe pers rson on is no nott (a (a)) po pote tent ntial ially ly lia liabl ble, e, or affiliated with any other person that is potentially liable, for response costs at a facility through (xx) any direct or indirect familia fam iliall rela relatio tionsh nship; ip; or (yy (yy)) any con contra tractu ctual, al, cor corpor porate, ate, or


E1527 – 05 financial relationship (other than a contractual, corporate, or financi fina ncial al rela relatio tionsh nship ip tha thatt is cre created ated by the ins instru trumen ments ts by whic wh ich h tit title le to th thee fa facil cilit ity y is co conv nvey eyed ed or fin finan ance ced d or by a contract for the sale of goods or services); or (b) the result of a reorganization of a business entity that was potentially liable. X1.5.4 X1. 5.4 On March 6, 200 2003, 3, the EPA EPA issued issued the “Common “Common Elements” Interim Guidance Memorandum regarding criteria landown land owners ers mus mustt meet to ach achiev ievee and main maintain tain LLPs. The Guidan Gui dance ce onl only y cov covere ered d the crit criteri eriaa “co “commo mmon” n” to all thr three ee LLPs. These common elements include two threshold criteria: appropria opriate te inquir inquiryy” and “no “all appr “no-af -afffilia iliation tion”” with a liab liable le party; and five continuing obligations: (1) complying with land use restrictions and institutional controls; (2) taking reasonable steps with respect to hazardous substance releases; (3) providing full cooperation, assistance, and access to persons that are authori auth orized zed to con conduc ductt res respon ponse se acti actions ons or nat natura urall res resour ource ce restoration; (4) comply complying ing wit with h inf inform ormatio ation n req reques uests ts and administrativ adminis trativee subpo subpoenas; enas; and (5) providing legally required notices. X1.5.4.1 X1.5. 4.1 The no-aff no-affiliation threshold threshold questi question on refer referss to the “affiliation” language in the BFPP and CPO provisions. See 42 U.S.C. §960 §9601(40 1(40)(H), )(H), and 42 U.S.C. §9607(q)(1)( §9607(q)(1)(A)(ii) A)(ii),, respectively. X1.5.4.2 X1.5. 4.2 The Innocent Landowner defense does not include this “af “afffiliation iliation”” langu language age but requir requires es that no “contr “contractual actual relationship” exist between the landowner and the third party causing hazardous substance contamination. X1.5.4.3 X1.5. 4.3 The “contin “continuing uing obliga obligations” tions” common element elementss are beyond the scope of this standard and Legal Appendix. X1.6 CERC CERCLA LA Definition Definition of Haza Hazardous rdous Substance Substance X1.6.1 CERCLA defines X1.6.1 defines hazardous substance by referring to five other statutes as well as to a separate grant of authority in CERCLA to designate hazardous substances . See 42 U.S.C. §§9601(14)(A)-(F), 9602(a). The following is a description of the relevant portions of these statutory provisions: X1.6.1.1 X1.6. 1.1 42 U.S.C. §960 §9601(14 1(14)(A): )(A): “[A]ny substance substance designated pursuant to section 1321(b)(2)(A) of Title 33.” Title 33 U.S.C. §1321 is a section of the Clean Water Act and refers to, among other things, hazardous substance liability. 33 U.S.C. §1321(b)(2)(A) states that the EPA shall develop, “as may be appropriate, appro priate, regul regulations ations design designating ating as hazardous substances , other than oil as defined in this section, such elements and compou com pounds nds whi which, ch, whe when n dis discha charg rged ed in any qua quanti ntity ty into or upon” the navigable waters of the United States ..., present an immin imm inen entt an and d su subs bsta tant ntial ial da dang nger er to th thee pu publ blic ic he healt alth h or welfare, including, but not limited to, fish, shellfish, wildlife, shorelines, shore lines, and beache beaches.” s.” X1.6.1 X1. 6.1.2 .2 42 U.S U.S.C. .C. §96 §9601( 01(14) 14)(B) (B):: “[A “[A]ny ]ny elem element ent,, com com-pound, mixture, solution, or substance designated pursuant to sectio sec tion n 96 9602 02 of th this is tit title le.” .” Se Secti ction on 96 9602 02 gi give vess EP EPA A th thee authority to designate as a hazardous substance , in addition to those substances covered by the statutes cross-referenced in 42 U.S.C. §9601(14), “such elements, compounds, mixtures, solutions, lution s, and substances substances which, when released into the environment may present substantial danger to the public health or welfare or the environment....” X1.6.1.3 X1.6. 1.3 42 U.S.C. §9601 §9601(14)( (14)(C): C): “[A]ny hazardous waste having the charac characteristic teristicss identi identified fied under or listed pursu pursuant ant to

section 3001 of the Solid Waste Disposal Act [also known as the Reso Resourc urcee Con Conser servat vation ion and Reco Recover very y Act (RCR (RCRA), A), 42 U.S.C. §6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C. §§6901 et seq.] has been suspended by Act of Congress).” The Solid Waste Disposal Act Amendments of 1980 amended RCRA. 42 U.S. U. S.C. C. §6 §692 921 1 of RCR RCRA A pr prov ovid ides es au auth thor ority ity to th thee EP EPA A to develop develo p criteri criteriaa for identi identifying fying characteristics characteristics of hazard hazardous ous waste and for listing particular hazardous wastes within the meanin mea ning g of 42 U.S U.S.C. .C. §69 §6903( 03(5). 5). RCRA defines defines haz hazard ardous ous waste to mean “a solid waste, or combination of solid wastes, which whi ch bec becaus ausee of its qua quanti ntity ty,, con concen centrat tration ion,, or phy physica sical, l, chemica che mical, l, or inf infecti ectious ous cha charac racteri teristic sticss may may—(A —(A)) cau cause, se, or sign si gnific ifican antly tly co cont ntri ribu bute te to an in incr creas easee in mo mort rtal ality ity or an increase increa se in seriou seriouss irrev irreversible ersible,, or incapa incapacitating citating reversible, reversible, illness; or (B) pose a substantial present or potential hazard to human hum an hea health lth or the env enviro ironme nment nt whe when n imp improp roperl erly y tre treated ated,, stored,, transp stored transported, orted, or dispo disposed sed of, or otherwise managed.” managed.” 42 U.S.C. §6903(5). For the identification and listing of hazardous wastes under RCRA, see 40 C.F.R. Part 261. X1.6.1.4 42 U.S.C. §9601(14)(D) X1.6.1.4 §9601(14)(D):: “[A]n “[A]ny y toxic pollutant listed under Section 1317(a) of Title 33.” Section 1317(a) of Title Ti tle 33 ref refers ers to tox toxic ic and pre pretre treatme atment nt ef effflue luent nt stan standar dards ds under the Clean Water Water Act. The EP EPA A is charg charged ed in this section with publishing and revising from time to time a list of toxic pollut pol lutant ants, s, taki taking ng “in “into to acc accoun ountt tox toxicit icity y of the pol polluta lutant, nt, its persistence, degradability, the usual or potential presence of the affe af fect cted ed or orga gani nism smss in an any y wa water ters, s, th thee imp impor orta tanc ncee of th thee affected organisms, and the nature and extent of the effect of the toxic pollutant on such organisms.” Each toxic pollutant listed list ed acco accordi rding ng to this section section sha shall ll be sub subject ject to ef effflue luent nt limitations. For toxic pollutant effluent standards, see 40 C.F.R. §§129.1 et seq. X1.6.1 X1. 6.1.5 .5 42 U.S U.S.C. .C. §96 §9601( 01(14) 14)(E) (E):: “[A “[A]ny ]ny haz hazard ardous ous air pollutant listed under Section 112 of the Clean Air Act [42 U.S.C. U.S .C. §74 §7412] 12].” .” Tha Thatt sec sectio tion n dea deals ls with nati nationa onall emis emissio sion n standards for hazardous air pollutants. The EPA EPA is charged here with publishing and revising from time to time “a list which includes each hazardous air pollutant for which [it] intends to establish an emission standard under this section.” The term “hazardous air pollutant” means an air pollutant that in EPA’s judgment “causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness.” For emission standards for hazardous pollutants, see 40 C.F.R. §§61.01 et seq. X1.6.1.6 X1.6.1 .6 42 U.S.C. §9601(14)( §9601(14)(F): F): “[A]ny immine imminently ntly hazardous chemical substance or mixture with respect to which the [EPA] has taken action pursuant to Section 2606 of Title 15.” Section 2606 of Title 15 deals with imminent hazards under the Toxic Substances Control Act (TSCA). The EPA is authorized under und er 15 U.S U.S.C. .C. §26 §2606 06 to seiz seizee an imm imminen inently tly haz hazard ardous ous chemica che micall sub substan stance ce or mix mixtur turee or see seek k oth other er rel relief ief,, suc such h as requiring notice to users of the chemical substance or public notice of the risk associated with the substance or mixture. The term “imminently hazardous chemical substance or mixture” means mea ns a che chemica micall sub substan stance ce or mix mixtur turee whi which ch pre presen sents ts an


E1527 – 05 imminentt and unr imminen unreaso easonab nable le ris risk k of ser seriou iouss or wid widesp esprea read d inju in jury ry to he heal alth th or th thee en envi viro ronm nmen ent.” t.” TS TSCA CA,, 15 U. U.S. S.C. C. §2606(f). X1.6.2 X1. 6.2 Aft After er Sub Subsect section ionss A–F A–F,, out outlin lined ed abo above, ve, the CERCLA definition of “hazardous substance” goes goes on to state: “The term does not include petroleum, including crude oil or any fractio fra ction n the thereo reoff whi which ch is not oth otherw erwise ise spe specifi cificall cally y list listed ed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natu na tura rall ga gas, s, na natu tura rall ga gass liq liqui uids ds,, liq lique uefie fied d na natu tura rall ga gas, s, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).” 42 U.S.C. §9601(14). X1.6.3 X1.6. 3 The EPA EPA has collected a list of “thos “thosee substances in thee sta th statu tutes tes re refe ferr rred ed to in se secti ction on 10 101( 1(14 14)) of th thee Ac Act” t” [4 [42 2 U.S.C. §9601(14)]” 40 C.F.R. §302.1 (See “List of Hazardous Substances Substa nces and Repor Reportable table Quantities,” 40 C.F C.F.R. .R. Part 302, Tab able le 30 302) 2).. Th This is lis listt ch chan ange gess wi with th no notic tices es in th thee Federal Register . Also, any time a new hazardous waste is listed under hazardous subRCRA,, the was RCRA waste te aut automa omatica tically lly bec become omess a hazardous stance. X1.7 Petrole Petroleum um Products Products petroleum exclusi exclusion on of CER X1.7.1 Under the petroleum X1.7.1 CERCLA CLA (42 U.S.C. §9601(14)), petroleum and crude oil have been explichazardous substa substances nces itly itl y ex excl clud uded ed fr from om th thee de defin finiti ition on of hazardous petroleum pr products oducts are under CERCLA. Nevert Nevertheless, heless, petroleum are in in-cluded within the scope of this practice and the Legal Appendix because they are of concern in many commercial real estate transactions and current custom and usage is to include an inquiry into the presence of petroleum products in an environmental site assessment . Inclusion of petroleum petroleum products within the scope of this practice is not based upon the applicability, if any, of CERCLA to petroleum products. X1.7.2 X1.7. 2 One reason reason to include petroleum products within the scope of this practice is because to do so reflects custom and usage: usa ge: whe when n env enviro ironme nmenta ntall ass assess essmen ments ts are con conduc ducted ted in commercial cial rea reall estate trans transaction actionss, th connection connec tion with commer they ey customarily include an assessment of the presence or likely presence of petroleum petroleum products under conditions that may lead to contam contaminatio ination. n. For exampl example, e, enviro environmenta nmentall assess assessments ments ordinarily ordin arily seek to assess whether there may be underground underground or above abo vegr grou ound nd sto storag ragee tan tank k sy syste stems ms th that at may be lea leaki king ng,, whetherr those tanks contai whethe contain n petroleum products or some other product. X1.7.3 X1.7. 3 In addition, although although CERCLA may exclude petroleum products, other laws require cleanup of releases or spills of petroleum petroleum products. For example, petroleum products sometimes (for example, when they cannot be reclaimed from soil) hazardous wastes subject become hazardous subject to RCRA Subtitl Subtitlee C (42 U.S.C §6921 et seq.), must be cle cleane aned d up if rele release ased d fro from m underground storage tanks pursuant to RCRA Subtitle I (42 U.S.C. §6991 et seq.), must be cleaned up pursuant to the Oil Pollution Polluti on Act of 1990 (33 U.S.C. §§13 §§1321 21 et seq.), and must be cleaned up if released into the navigable waters of the United States pursuant to the Clean Water Act (33 U.S.C. §§1251 et seq.). X1.7.4 X1.7. 4 Moreo Moreover ver,, case law and EPA interpret interpretations ations of the petroleum exclusion require an analysis of the facts of each case to determine whether a particular petroleum product is

included in CERCLA’s petroleum exclusion. The exclusion has been be en br broa oadl dly y in inte terp rpre reted ted to ex excl clud udee ga gaso solin linee an and d le lead aded ed gasoline from CERCLA’s definition of hazardous substances regardless regar dless of the fact that gasoline and leaded gasoli gasoline ne contain certain cer tain ind indige igenou nouss com compon ponent entss and add additiv itives es whi which ch hav havee themse the mselves lves bee been n des design ignated ated as haz hazard ardous ous pur pursua suant nt to CERCLA. See Wilshire Westwood Associates v. Atlantic Richfield Corp., 881 F.2d 801 (9th Cir. 1989). This interpretation was narr na rrow owed ed wh when en a ju judi dicia ciall di dist stin incti ction on wa wass ma made de be betw twee een n petrol pet roleum eum fra fractio ctions ns pro produc duced ed by dis distill tillatio ation n pro proces cesses ses and waste was te pro produc ducts ts res resulti ulting ng fro from m con contam tamina inated ted tank sca scale. le. See 761 1 F. Su Supp pp.. 71 713 3 United States v. Western Processing Processing Co., 76 (W.D. (W .D. Wash. 1991 1991). ). Anoth Another er decisio decision n narro narrowly wly interp interpreted reted petroleum exclus exclusion ion to be in CERCLA’s petroleum inap appl plica icabl blee to oi oillrelated wastes contai containing ning hazardous because the hazardous substances because primary purpose of the exclusion is to remove “spills or other releases strictly of oil” from the scope of CERCLA response and liability (not releases of hazardous hazardous substances mixed with oil). See City of New York v. Exxon Corp ., 744 F. Supp. 474 (S.D.N.Y. 1990). One recent decision has potentially expanded the petroleum inclu clude de bo both th un unus used ed an and d us used ed petroleum exclusi exclusion on to in petroleum products as well as hazardous substances inherent in or add added ed to unu unused sed petr petroleu oleum m dur during ing the refi refinin ning g pro proces cess. s. Organic Chemical Site PRP Group v. Total Petroleum, Inc ., 58 F. Su Supp pp.. 2d 75 755 5 (W (W.D .D.. Mi Mich ch.. 19 1999 99). ). Mo More re re rece cent ntly ly,, th thee petroleum exclusion was held not applicabl applicablee in an ins instan tance ce where petroleum had commingled with hazardous substances Tosco o Cor Corp. p. v. Koc Koch h in the sub subsur surfac facee ben beneath eath a refi refiner nery y. Tosc Industries, Inc. 216 F3d 886 (10th Cir. 2000). For additional discussion, discus sion, see EP EPA A Memorandum Memorandum entitled entitled,, “The Petrol Petroleum eum Exclusion Under the Comprehensive Environmental Response Compensation Compen sation and Liabili Liability ty Act,” issued by EP EPA’s A’s General Counsel, Francis S. Blake, July 31, 1987. X1.8 Exclusion Exclusion of Cert Certain ain Constituents Constituents of Pote Potential ntial Environmental Concern from CERCLA X1.8.1 X1.8. 1 The information information that follows is provided to explain why the fol follow lowing ing con constit stituen uents ts of pot potent ential ial env enviro ironme nmental ntal concern are not necessarily covered by CERCLA’s “ all appro priate inquiry” obligation thereunder: X1.8.2 X1.8. 2 As a preliminary matter, matter, it shou should ld be noted that an that does not address substances environmental site assessment that exclud exc luded ed fro from m CERC CERCLA LA (wh (wheth ether er tho those se sub substa stance ncess are excluded clu ded bec becaus ausee the they y are petroleum products or by virtue of other characteristics) characteristics) but that otherwise constitutes constitutes “all appro priate inquiry into into the previous previous ownershi ownership p and uses of the consistent with good commercial or customary prac property tice” should nevertheless entitle the user to to the LLPs, assuming that other requirements of the provisions are met. X1.8.3 Radon: X1.8.3.1 X1.8.3 .1 A case discussing CERCLA and radon is Amoco Oil Co. v. Borden, Inc ., 889 F.2d 664 (5th Cir. 1989). This case dealt with a private cost recovery action by the buyer of a site against the seller for response costs relating to radiation from phosphogypsum wastes left on the site. Radon emanated from these radioactive wastes. The case points out that the “EPA has hazardous subst substances ances under designated desig nated radio radionuclid nuclides es as hazardous §9602(a) of CERCLA... . Additionally, the ... EPA under §112 of the Clean Air Act ... lists radionuclides as a hazardous air


E1527 – 05 pollutant. pollut ant. Rad Radon on and its dau daught ghter er pro produc ducts ts are con consid sidere ered d radion rad ionucli uclides des,, whi which ch are defi defined ned as ’an ’any y nuc nuclid lidee tha thatt emit emitss radiation.’” Id. at 668 668-69 -69.. The Theref refore ore,, rad radon on is a CERC CERCLA LA hazardous substance . Also, when discussing what constitutes a release of a hazardous substance under the statute, the statute is plain that there is no quantitative requirement and that a release, broadly defined at 42 U.S.C. §9601(22), of any amount constitutes a CERCLA release. X1.8.3.2 X1.8. 3.2 Liabili Liability ty under CERCLA depends depends on severa severall factors, as noted in X1.1 in X1.1.. Only one of four factors is the release or threatened release of a hazardous substance . The other three factors are (1) the site is a facility, (2) the defendant falls within at least one of four classes of potentially responsible parties (PRPs), and (3) the release or threatened release caused the plaintiff (that can be the government or another private party) to incur response costs. Further, response costs must not be inconsistent with the National Contingency Plan (NCP) , and must not be limited by 42 U.S.C.§9604(a)(3). And, of course, there is no need to raise the LLPs and their all appropriate inquiry requirements unless the elements of liability will be met. X1.8.3.3 X1.8. 3.3 Where radon radon from any source occurs in a building, three of the liability elements elements under CERCLA are met. There is a release of a hazardous substance , the building is a facility, and we can assume the defendant is a PRP. However, under 42 U.S.C. §9604(a)(3)(A), “[r]emedial actions taken in response to hazardous substances as they occur naturally are specifically excluded exclud ed from the NCP and are theref therefore ore not recov recoverable. erable.”” 30 Amoco Oil Co. v. Borden, Inc., 889 F.2d at 570. X1.8.3.4 X1.8. 3.4 Theref Therefore, ore, no liability liability under CERCLA attache attachess for naturally occurring radon. If a party to a real estate transaction wants to look for radon within a building, no amount of radon investi inv estigat gation ion will hav havee any bea bearin ring g on one one’s ’s LLPs under CERCLA. Investigation of naturally occurring radon would be include incl uded, d, if at all, in the portion portion of the practice practice and Leg Legal al Appendix that deals with non-scope issues. X1.8.4 Asbestos: X1.8.4.1 The analysis of asbestos is similar to that involving radon. Before considering appropriate inquiry responsibilities, the four elements of CERCLA liability liability must be satisfie satisfied. d. Once again, as with radon, they are not met. X1.8.4.2 X1.8. 4.2 42 U.S.C. §9604(a)(3)( §9604(a)(3)(B) B) prohi prohibits bits respo response nse actions involving a release or threat of release “from products which are part of the structure of, and result in exposure within, residential residen tial build buildings ings or busin business ess or commu community nity structures.” structures.” There are a number of cases dealing with asbestos that interpret

30

42 U.S U.S.C. .C. §9604(a) §9604(a)(3) (3) and (4) sta state te “(3 “(3)) Lim Limita itatio tions ns on res respon ponse se - The President shall not provide for a removal or remedial action under this section in response to a release or threat of release—(A) of a naturally occurring substance in its una unalte ltered red form form,, or alt altere ered d sol solely ely thr throug ough h nat natura urally lly occ occurri urring ng pro proces cesses ses or phenomena, from a location where it is naturally found; (B) from products which are part of the structure of, and resul resultt in exposure within, residential residential buildings or business busine ss or commun community ity structures; structures; or (C) into public or private drinking water supplies due to deterioration of the system through ordinary use. “(4) EXCEPTION TO LIMITATIONS—Notwithstanding paragraph 3 of this subsection, to the extent authorized by this section, the President may respond to any release or threat of release if in the President’s discretion, it constitutes a public health or environmental emergency and no other person with the authority and capability to respond to the emergency will do so in a timely manner.” (Emphasis added).

this statutory language. One such case is First United Methodist Church of Hyattsville v. United States Gypsum Co ., 882 F.2d 862 (4th Cir. 1989), that cites to other relevant cases. X1.8.4.3 X1.8.4 .3 In First United the the church brought a private cost recove rec overy ry acti action on aga agains instt the man manufa ufactur cturer er of asb asbesto estosscontaining contai ning acoustical plaster. plaster. In holding that the action was barred by a state statute of repose (a certain time allowed by statu st atute te fo forr br brin ingi ging ng lit litig igat atio ion) n) an and d th that at CER CERCLA CLA di did d no nott preem pr eempt pt th thee sta state te sta statu tute te of re repo pose, se, th thee co cour urtt st state ated d th that at §9604( §96 04(a)( a)(3)( 3)(B) B) of CERC CERCLA LA “re “repre presen sents ts muc much h mor moree tha than n a proc pr oced edur ural al lim limita itatio tion n on th thee Pr Pres esid iden ent’ t’ss au auth thor ority ity;; it is a substan sub stantive tive limi limitati tation on of the bre breadt adth h of CERC CERCLA LA itse itself.” lf.”31 Theref The refore ore,, the limi limitati tations ons of §96 §9604( 04(a)( a)(3) 3) app apply ly to pri private vate parties as well. X1.8.4.4 X1.8.4 .4 Citing to the legisla legislative tive history, history, the First United court concluded, “[i]n view of this clear expression of Congressional gress ional intent, we wil[l] not expand CERCLA to encompass asbest asb estosos-rem remova ovall acti actions ons.” .” 882 882.F .F.2d .2d at 868 868.. The cou court rt als also o 32 stated: “we not notee tha thatt thi thiss int interp erpret retatio ation n of CERC CERCLA LA fully compor com ports ts wit with h the mos mostt fu funda ndamen mental tal gui guide de to sta statut tutor ory y constr con structi uction— on—com common mon sen sense. se. To exte extend nd CERC CERCLA’ LA’ss str strict ict liabilit liab ility y sch scheme eme to all pas pastt and present present owners of buildings containing asbestos as well as to all persons who manufactured, transported, and installed asbestos products into buildings, would be to shift literally billions of dollars of removal costt liab cos liabilit ility y bas based ed on not nothin hing g mor moree tha than n an imp improv rovide ident nt interpretation of a statute that Congress never intended to apply in this context. [FN12 33] ... Certainly, if Congress had intended for CERCLA to address the monumental asbestos problem, it would have said so more directly when it passed SARA. X1.8.4.5 X1.8.4 .5 Since asbestos asbestos that is a part of the structure of, of, and results in exposure within, residential buildings or business or community structures is excluded from CERCLA liability, it should not be investigated pursuant to a party’s “ all appropriate inquiry“ obligation in order to establish one of the LLPs. Likee nat Lik natura urally lly occ occurr urring ing rad radon, on, inv investi estigat gation ion of asb asbesto estosscontaining materials that are part of the structure of buildings should be included, if at all, in the portion of this practice that deals dea ls wit with h non non-sc -scope ope iss issues ues.. Not Note, e, how howeve ever, r, if asb asbesto estoss is disposed of on a site and, therefore, is no longer part of the structure of a building, the cleanup of the disposed asbestos is subjectt to CERCLA respo subjec response nse actions. Likewise, Likewise, if a building is sold with the knowledge that it will be demolished, one court 31

One such case is First United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d 862 (4th Cir. 1989), that cites to other relevant cases. 32 The same at 869; See also 3550 Stevens Creek Associates v. Barclays Bank of California, 915 F.2d 1355 (9th Cir. 1990). 33 FN12—It is for this reason, that Congress simply did not intend for CERCLA to remedy the asbestos-removal problem, that we decline to follow the reasoning of Prudential, Prude ntial, Knox and Coval Covalt t in rejec rejecting ting First United’s preem preemption ption argument. Instead of recognizing the fact that CERCLA is out of context in this situation, these courts rejected similar attempts to invoke the statute by construing CERCLA’s key terms in a way to exclude asbestos-removal actions. Covalt , 860 F.2d [1434] at 1438-39 (defining“ environment” to exclude the interior of a workplace); Knox , 690 F. Supp at 756-57 (defining “release” in terms of “spills” or “disposal”); Prudential, [711 F. Supp 1244] at 1254-55 (defining “disposal” to exclude the sale of a product for consumer use). We find this analysis unsatisfactory because it runs the risk of unnecessarily restricting the scope of CERCLA merely to dispose of claims that the statute was never intended to encompass in the first place. It is far better to simply acknowledge the inapplicability of CERCLA to asbestos-removal claims than to restrict its operative terms.”


E1527 – 05 ruled that the sale constitutes a disposal falling under CERCLA’s liability provisions.34 Drinki nking ng Wate ater r —Lead X1.8.5 Lead in Dri —Lead in dri drinki nking ng wat water er can be ev eval alua uated ted in ter terms ms of th thee ex excl clus usio ions ns of 42 U. U.S. S.C. C. §9604(a)(3)(B) and (C), in an analysis similar to the analysis applied above to radon and asbestos. While there is no reported case law on lead in drinking water as related to CERCLA, the statutory language seems clear that these environmental hazards are not encompassed by CERCLA’s appropriate inquiry responsibilities. Lead-Based Paint —LeadX1.8.6 Lead-Based —Lead-bas based ed pai paint nt haz hazard ardss can be ev eval alua uate ted d in te term rmss of th thee ex excl clus usio ions ns of 42 U. U.S. S.C. C. §9604(a)(3)(B) and (C), in an analysis similar to the analysis 34

CP Holdings, Inc. v. Goldberg-Zoino & Associates, Inc ., 769 F. Supp. 432 (D.N.H. 1991).

applied above to radon and asbestos. While no reported case law was found on the presence or use of lead-based paint as related to CERCLA, the statutory language seems clear that lead-based paint hazards are not encompassed by CERCLA’s appropriate inquiry responsibilities. Note, however, like asbestos, where there is a disposal of these substances on the site or in a facility, CERCLA liability may arise. Mold,, Fun Fungi gi and Micr Microbi obial al Gr Growt owth h in Bui Buildin lding g X1.8.7 Mold Structures—These hazards can be evaluated in terms of the exclusion of 42 U.S.C. §9604(a)(3)(A), in an analysis similar to the ana analys lysis is app applied lied above to rad radon on and asbestos. asbestos. While there is no reported case law on these environmental issues as they relate to CERCLA, the statutory language seems clear that these environmental hazards are not encompassed by CERCLA’s appropriate inquiry responsibilities.

X2. DEFINITION OF ENVIRONME ENVIRONMENT NTAL AL PROFESSIONAL AND RELEVANT RELEVANT EXPERIENCE THERETO, PURSUANT TO 40 CFR.10

X2.1 Environme Environmental ntal Professional Professional X2.1.1 Environmental Professional means: (1) a person who possesses sufficient specific education, trainin trai ning, g, and exp experie erience nce nec necess essary ary to exe exercis rcisee pro profes fessio sional nal judgment to develop opinions and conclusions regarding conditio dit ions ns in indi dicat cativ ivee of re relea lease sess or th thre reate atene ned d re relea leases ses (s (see ee §312.1(c)) on, at, in, or to a property, sufficient to meet the objectives and performance factors in §312.20(e) and (f). (2) Such Such a per person son must: (i) hold a cur curren rentt Pro Profes fessio sional nal Engineer’s or Professional Geologist’s license or registration from a state, tribe, or U.S. territory (or the Commonwealth of Puerto Pue rto Rico) and hav havee the equivalen equivalentt of thr three ee (3) years of full-time relevant experience; or (ii) be licensed or certified by the federal government, a state, tribe, or U.S. territory (or the Common Com monweal wealth th of Pue Puerto rto Rico Rico)) to per perfor form m env enviro ironme nmenta ntall inquiries as defined in §312.21 and have the equivalent of three (3)) ye (3 year arss of fu fullll-tim timee re rele leva vant nt ex expe peri rien ence; ce; or (i (iii) ii) ha have ve a Baccalaureate or higher degree from an accredited institution of higher education in a discipline of engineering or science and an d th thee eq equi uiva vale lent nt of fiv fivee (5 (5)) ye year arss of fu fullll-tim timee re rele leva vant nt experience; or (iv) have the equivalent of ten (10) years of full-time relevant experience. (3) An environmental professional should remain current in his or her field through participation in continuing education or other activit activities. ies.

(4) The definition of environmental professional provided above does not preempt state professional licensing or registration requirements such as those for a professional geologist, engineer, or site remediation professional. Before commencing work, wor k, a per person son sho should uld det determ ermine ine the app applica licabil bility ity of sta state te professional licensing or registration laws to the activities to be undertaken as part of the inquiry identified in §312.21(b). (5) A person who does not qualify as an environmental professional under the foregoing definition may assist in the conduct of all appropriate inquiries in accordance with this part if such person is under the supervision or responsible charge of a per person son mee meeting ting the defi definiti nition on of an env enviro ironme nmenta ntall pro profes fes-sional provided above when conducting such activities.

X2.2 Relevant Experience X2.2.1 Relevant experie used ed in th thee de defin finiti ition on of experience nce, as us environmental professional in this section, means: participation in the performance of all appropriate inquiries investigations, environmental site assessments, or other site investigations that may include environmental analyses, investigations, and remediation which involve the understanding of surface and subsurface surfa ce enviro environmenta nmentall condi conditions tions and the processes used to evaluate these conditions and for which professional judgment was used to develop opinions regarding conditions indicative of releases or threate threatened ned releases (see §312.1(c)) §312.1(c)) to the subject property.


E1527 – 05 X3. USER QUESTIONNAIRE QUESTIONNAIRE INTRODUCTION

In order to qualify for one of the Landowner Liability Protections (LLPs)35 offered by the Small Busine Bus iness ss Lia Liabili bility ty Reli Relief ef and Bro Brownfi wnfields elds Rev Revital italizat ization ion Act of 200 2001 1 (th (thee “ Brownfields Amend36 ments”), the user must must pro provid videe the fol follow lowing ing inf inform ormatio ation n (if ava availab ilable) le) to the environmental professional. Failure to provide this information could result in a determination that “ all appropriate inquiry” is not complete. (1.) Environmental cleanup liens that are filed or recorded against the site (40 CFR 312.25). Are you aware of any environmental cleanup liens against the property the property that that are filed or recorded under federal, tribal, state or local law?

(2.) Activity and land use limitations that are in place on the site or that have been filed or recorded in a registry (40 CFR 312.26). Are you aware of any AULs, such as as engineering controls , land use restrictions or or institutional controls that that are in place at the site and/or have been filed or recorded in a registry under federal, tribal, state or local law?

(3.) Specialized knowledge or experience of the person seeking to qualify for the LLP (40 CFR 312.28). As the user the user of of this ESA this ESA do you have any specialized knowledge or experience related to the property the property or or nearby properties? For example, are you involved in the same line of business as the current or former occupants former occupants of of the property the property or or an adjoining property adjoining property so so that you would have specialized knowledge of the chemicals and processes used by this type of business?

(4.) Relationship of the purchase price to the fair market value of the property if if it were not contaminated (40 CFR 312.29). Does the purchase price being paid for this property this property reasonably reasonably reflect the fair market value of the property the property ? If you conclude that there is a difference, have you considered whether the lower purchase price is because contamination is known or believed to be present at the property the property ?

(5.) Commonly known or reasonably ascertainable information about the property (40 (40 CFR 312.30). Are you aware of commonly known or or reasonably ascertainable information about the property the property that that would help the the environmental professional to identify conditions indicative of releases or threatened releases? For example, as user as user , (a.) Do you know the past uses of the property the property ? (b.) Do you know of specific chemicals that are present or once were present at the property the property ? (c.) Do you know of spills or other chemical releases that have taken place at the property the property ? (d.) Do you know of any environmental cleanups that have taken place at the property the property ? (6.) The degree of obviousness of the presence of likely presence of contamination at the property , and the ability to detect the contamination by appropriate investigation investigation (40 CFR 312.31). As the user the user of of this ESA this ESA,, based on your knowledge and experience related to the property the property are are there any obvious any obvious indicators indicators that point to the presence or likely presence of contamination at the property the property ?

35

Landowner Liability Protections, or LLPs, is the term used to describe the three types of potential defenses to Superfund liability in EPA’s Interim Guidance Regarding Criteria Landowners Must Meet in Order to Qualify for Bona Fide Prospective Purchaser, Contiguous Property Owner, or Innocent Landowner Limitations on CERCLA Liability (“ Common Elements” Guide) issued on March 6, 2003. 36 P.L. 107-118.

X3.1 In addition, addition, certain informa information tion should should be collected, collected, if envir environmental onmental professional avail av ailab able, le, an and d pr prov ovid ided ed to th thee selected to conduct the Phase I. This infor information mation is intended to assist assi st the environmental necess essaril arily y environmental professional but is not nec requ re quire ired d to qu qual alif ify y fo forr on onee of th thee LLPs. The inf inform ormatio ation n includes: (a) the reason why the Phase I is required, (b) the type of property property and type of property property transaction, for example, sale, purchase, exchange, etc.,

(c) the complete and correct address for the property (a map or other documentation documentation showing property location location and boundaries is helpful), (d) the scope of services desired for the Phase I (including whether any parties to the property transaction may have a required standard scope of services on whether any considerations beyond the requirements of Practice E1527 are to be considered), (e) identification of all parties who will rely on the Phase I report ,


E1527 – 05 (f) identification of the site contact and how the contact can be reached, (g) any sp spec ecial ial te term rmss an and d co cond nditi ition onss wh whic ich h mu must st be agreed upon by the environmental professional, and (h) any other knowledge or experience with the property that may be pertinent to the environmental professional (for

example, exampl e, cop copies ies of any ava availab ilable le pri prior or environmen environmental tal site assessment reports, documents, correspondence, etc., concerning the property and its environmental condition).

X4. RECOMMEND RECOMMENDED ED TABLE OF CONTENTS AND REPORT FORMAT FORMAT

X4.1 Summ Summary ary X4.2 Introduction X4.2.1 X4.2.1 X4.2.2 X4.2. 2 X4.2.3 X4.2. 3 X4.2.4 X4.2. 4 X4.2.5 X4.2. 5 X4.2.6 X4.2. 6

Purpose Purpose Detailed Scope-of-Serv Scope-of-Services ices Significant Signifi cant Assumptions Assumptions Limitations Limitatio ns and Exceptions Special Terms Terms and Condi Conditions tions User Reliance Reliance

X4.3 Site Descriptio Description n X4.3.1 Locatio X4.3.1 Location n and Legal Description Description X4.3.2 X4.3. 2 Site and Vicinity General General Charac Characteristic teristicss X4.3.3 X4.3. 3 Curren Currentt Use of the Property X4.3.4 X4.3. 4 Descri Descriptions ptions of Structu Structures, res, Roads, Other ImproveImprovements on the Site (including heating/cooling system, sewage disposal, source of potable water) X4.3.5 X4.3. 5 Curren Currentt Uses of the Adjoining Adjoining Properties Properties

X4.6 Site Reconnaissance Reconnaissance X4.6.1 X4.6.2 X4.6.3 X4.6.4

Methodology Methodolog y and Limiting Conditions General Gener al Site Setting Exterior Exteri or Observations Observations Interior Inter ior Observations Observations

X4.7 Interviews X4.7.1 X4.7.2 X4.7.3 X4.7.4 X4.7.5

Interview with Owner Interview Interview Inter view with Site Manager Interviews Inter views with Occupants Occupants Interviews Inter views with Local Government Government Of Offficials Interviews Inter views with Others

X4.8 Find Findings ings X4.9 Opini Opinion on X4.10 Conc Conclusio lusions ns X4.11 Deviations

X4.4 User Provided Provided Information Information

X4.12 Additional Services Services

X4.4.1 Title Records X4.4.1 Records X4.4.2 X4. 4.2 Env Enviro ironme nmenta ntall Lien Lienss or Activity Activity and Use Limi Limitatations X4.4.3 X4.4. 3 Special Specialized ized Knowledge Knowledge X4.4.4 X4. 4.4 Commonly Commonly Kno Known wn or Reas Reasona onably bly Asc Ascerta ertaina inable ble Information X4.4.5 X4.4. 5 Valuatio aluation n Reducti Reduction on for Environmental Environmental Issues X4.4.6 X4.4. 6 Owner Owner,, Prop Property erty Manager, Manager, and Occupant Information X4.4.7 X4.4. 7 Reason for Performing Performing Phase I X4.4.8 X4.4. 8 Other

X4.13 Referenc References es

X4.5 Reco Records rds Review Review X4.5.1 X4.5.1 X4.5.2 X4.5. 2 X4.5.3 X4.5. 3 X4.5.4 X4.5. 4 X4.5.5 X4.5. 5

Standard Environmental Standard Environmental Record Sourc Sources es Additional Additi onal Environmental Environmental Record Sour Sources ces Physical Physi cal Setting Source(s) Historical Histor ical Use Information Information on the Property Historical Histor ical Use Infor Information mation on Adjoining Adjoining Prope Properties rties

X4.14 Signature(s) of Environmental Environmental Professional(s) Professional(s) X4.15 Qualification(s) of Environmental Environmental Professional(s) Professional(s) X4.16 Appen Appendice dicess X4.16.1 Site (Vicinity) X4.16.1 (Vicinity) Map X4.16.2 X4.16 .2 Site Plan X4.16.3 X4.16 .3 Site Photographs Photographs X4.16.4 X4.16 .4 Histor Historical ical Researc Research h Docum Documentatio entation n (aerial photographs gra phs,, fire ins insura urance nce map maps, s, his histor torical ical top topogr ograph aphical ical map maps, s, etc.) X4.16.5 X4.16 .5 Regulat Regulatory ory Records Docum Documentatio entation n X4.16.6 X4.16 .6 Interv Interview iew Docum Documentatio entation n X4.16.7 X4.16 .7 Special Contractual Contractual Conditions Conditions betwee between n User and Environmental Professional X4.16.8 X4.16 .8 Qualifi Qualification( cation(s) s) of the Envir Environmen onmental tal Profe Profession ssion-al(s)


E1527 – 05

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E1527-05.pdf

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