Phase I ESA Scientist in Lancaster PA

Information Overload! Why the Definition of “Reasonably Ascertainable” is Changing Rapidly in Due Diligence

Guest author: David S. Coyne, Principal, Liberty Environmental, Inc.

Social media, and the information age in general, has connected us in ways that were unimaginable when many us began in the environmental business.  I recall the difficulties of sharing a single PC among a staff of five in a cramped office in 1992; the novelty of Windows when it was purchased by our company a year later, and the utter joy over a company-wide internet connection – a technological wonder! – on my first day at a new job in the late 1990s.

In those days, collecting information about a site required real legwork, and the completion of a single Phase I Environmental Site Assessment meant some sweat equity.  There was the trip to the County Courthouse and its Tax Assessment Office for parcel information, then the Recorder of Deeds office for the cumbersome chain-of-title research.  Then, there was often a separate trip to the County Planning Commission for aerial photographs, and yet another drive to the County Agricultural Extension office or the local Conservation District office for soil, geologic, and other physical setting data.  In Philadelphia in the 1990s, I was on a first-name basis with the Free Library’s mapping archivist, the gatekeeper to the only reliable source of detailed historical maps in the city.  It all amounted to quite an effort, but as a result of the limited availability of records there was a clear line of demarcation between what data you could collect and what you couldn’t.  If it was available within the project timeline and you could go get it, you did.  Often, you were left with less data than you hoped to collect, but it represented what was reasonably ascertainable at the time.

How times have changed.  Liberty’s younger professionals cringe when I tell them of the miles I logged for a single ESA, of the piles of quarters I kept in the car for parking meters and pay phones, and – this actually gets a chuckle – the stack of County Atlases on the passenger seat to keep from getting lost somewhere in southern Delaware County.  It’s a shock because nearly every conceivable resource that we used to chase down with great effort is now available through a simple online search or ordering system.  From historical aerial photographs to fire insurance maps, deeds to liens, topographic maps to tank registrations, it’s mostly available at the click of a button and a subscription payment.  And thus, within the context of environmental due diligence, there has been a re-evaluation of what information is now reasonably ascertainable and, perhaps more to the point, practically reviewable.

Thankfully, each of these terms is clarified under ASTM Standard Practice E1527-13 for Phase I Environmental Site Assessments.  In essence, if the data is relatively easy to search using standard efforts, it’s reviewable.  More to the point, there are a number of examples that the Standard definition describes that it considers not practically reviewable – such as large numbers of records that are searchable only across large geographic areas, or databases that can only be screened through chronological entries.  But in the short period of time between the publishing of the current ASTM Standard in late 2013 and now, such circumstances are rapidly disappearing.  Once-obscure map records are now easily viewable in your browser on public agency websites backed by GIS-based applications, regulatory databases have become more robust and searchable, and archived agency records are being digitized quickly in all states.

The takeaway of all this for environmental professionals is that we must keep ahead of the information curve and be sure to collect all information that is reasonably ascertainable and practically reviewable within the definitions set forth in our industry’s standards of practice.   Periodic updates of the ASTM Standard or others, as current as they may be, may not be able to keep up with the changing nature of this definition in the information age.  More data is available to us now than ever before, so more data is expected to be collected, reviewed and evaluated within the scopes of our assessments.   Is this a good thing?  Sure.  And it’s exciting to have so much information at our fingertips, that’s for certain.  But I will admit to a certain wistfulness for those great old courthouses, and I still keep a stack of quarters in my glove compartment – just in case.

Pictured above: A Liberty Environmental, Inc. scientist visits a residential site development as part of a Phase I Environmental Site Assessment.

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.

Case Study 1: The Tank that Stank

During a Phase I ESA, evidence of an underground storage tank (UST), including a fuel gauge, supply and return lines, and an apparent fill port, were identified at an office building. The consultant was hired to perform a tank tightness test on what was believed to be a UST fill port in front of the building. The test was performed and failed. Our review of the Phase I report and a brief site inspection revealed that the alleged fill port was in fact a sewer vent, a distinction that most people who are familiar with basic plumbing can make, and any assessor should be able to easily identify.

I hope that this case story, and future case stories and insights, will help readers to gain valuable industry insights. I’m always interested in hearing others’ stories, so comments are welcome!

Pictured above is an actual fill port.