Due Diligence

Due Diligence assessments are tools used to determine the existence of potential and recognized environmental concerns on properties prior to real estate transactions.  These assessments, if conducted properly, give the buyer Innocent Landowner Defense under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980.   CERCLA's retroactive liability has made the performance of an ESA a practical necessity for any potential buyer (or lender) of property, who naturally does not want to assume liability for the cleanup of any contaminants found there. The most common due diligence assessment is a Phase I Environmental Site Assessment (ESA).  The Phase I ESA work scope is defined by the most current ASTM Standard (E1527-13).   A Phase I is typically required by a financial institution prior to lending on a commercial property and is typically conducted by the prospective buyer of the property.  Professionals conducting Phase I ESAs must  have the experience and credentials outlined in the ASTM E-1527 Standard.  Another type of ESA is a Transaction Screen as defined in the  ASTM Standard (E1528-14). This standard is less rigorous than the Phase I standard and does not provide Innocent Landowner Defense under CERCLA.  Transaction Screens are commonly requested for commercial properties that are undeveloped or have lower property values.  Both the Phase I and Transaction Screen include a site and vicinity reconnaissance, a review of the site usage history, and a review of governmental databases targeting hazardous material storage, handling and releases.  The purpose of these ESAs is to identify recognized environmental concerns (RECs) and/or potential environmental concerns (PECs).  The professional conducting the ESA determines if the RECs and/or PECs pose a risk to the property.  These risks include soil, groundwater and vapor contamination.  If a REC or PEC poses a risk to the property, the professional will recommend a Phase II ESA.  A Phase II ESA is the collection and analyses of soil, water and/or vapor samples from the site to determine if the identified REC/PEC has affected the property.  Phase II ESAs are conducted in accordance with the ASTM Standard (E1903-11) standard.