The Subjective Nature of Phase I ESAs

The thought that Phase I ESAs are a simple checklist procedure where findings are black-and-white is an all-too-common misconception by those who have limited exposure to the process. To understand this, one only needs to look at the definition of a de minimis condition in the ASTM standard:

de minimis condition – a condition that generally does not present a threat to human health or the environment and that generally would not be the subject of an enforcement action if brought to the attention of appropriate governmental agencies.

Does this definition leave room for interpretation? Oh, let me count the ways! First, use of the word “generally” immediately implies that there is no certainty in what constitutes a de minimis condition and what does not. Second, each state has its own environmental laws, regulations and enforcement policies, and therefore there can be great differences among states as far as what types and sizes of releases could be subject to an enforcement action. Third, and perhaps most importantly, the combined visual assessment and prior experience of the environmental professional in dealing with small releases in the site’s jurisdiction can be a major factor in deciding whether an observation is identified as a de minimis condition or a recognized environmental condition (REC). Because most Phase I ESA users skip past most of the report and go right to the list of RECs, this critical decision, and the reasoning behind it, can go unnoticed.

Another subjective decision to be made by the environmental professional is distinguishing between an REC and historical REC (HREC). As noted in the ASTM standard, a change in regulatory criteria (e.g., a change to a contaminant’s action level in soil or groundwater) since a cleanup was approved by an environmental agency could possibly change what was once classified as an HREC to a REC. It is important for the EP to be familiar with the cleanup methods that were implemented at the site in determining whether a change in the regulatory criteria has any bearing on the cleanup approval.

You probably know what I’m getting at. Knowledge of the Phase I ESA standard and experience performing Phase I ESAs provides limited value to the report recipient. For maximum value in your environmental due diligence reporting, select an EP with knowledge of the regulatory programs and experience performing remediation in the site’s jurisdiction.