Re: Use of Urban history to identify Brownfields -Reply

[peter strauss <pstrauss@igc.apc.org>]

I agree with Bruce and his description of a Phase 1 site assessment is
accurate.  I want to add, however, that from the consultant's
perspective, a Phase 1 assessment is based almost entirely on public
records combined with a visual inspection of the site.  As such, these
are not very expensive. In order to shield oneself from liability, it
would be rare for a consultant to unequivocally state that a site needs
no further investigation. Phase 2 studies which sample the subsurface
environment are also more expensive (and profitable).  Consultants doing
both phases have an inherent conflict of interest.

One of the things that the Brownfields grants can do is to compile all
public records and to pay for site assessments (Phases 1 & 2). This is
doable and would encourage developers to take a look at sites that come
up clean.

Bruce Klafter wrote:
> 
> Regarding the use of historical information -
> 
> What you're describing (if I understand it correctly) is
> already a part of standard Phase 1 Envirnmental Site
> Assessment.  The ASTM Standard for site assessments
> calls for the use of historical maps, Sanborn maps
> (insurance company), interpretation of aerial photos, title
> reports and personal interviews.
> 
> Doing an in-depth historical research effort will probably not
> yield more valuable information than those type of sources.
> It is uncommon to find historical information that reveals
> much about waste handling practices.  The key then to
> designing a followup investigation (or "Phase II") is the type
> of uses that took place on the site historically and their
> approximate locations.  For example, if the site was formally
> a foundry, you would sample for heavy metals (among other
> things) and the location of the shop and storage areas
> would be the best places to look for contamination.
> 
> I cannot imagine any brownfields project proceeding without
> a well done Phase 1.   Phase 1's are a comodity, but some
> companies do a much better job than others.
> 
> Attached is a brief article on how to read a Phase 1.
> 
> HOW TO READ A "PHASE 1" ENVIRONMENTAL
> ASSESSMENT REPORT - THE SMART WAY
> 
> Bruce S. Klafter
> 
> As potential environmental liabilities continue to increase in terms of
> magnitude and complexity, virtually every commercial development is now
> preceded by a "Phase 1"-type investigation or assessment.  The aim of such
> investigations is to identify and better understand the potential
> environmental liabilities associated with a particular piece of the
property.
> 
>   While it is easy to obtain a "Phase 1" from a myriad of consultants, it
> is far more difficult to evaluate the information contained in the report
> and to determine the need for further investigation.  It is also a
> challenge to determine whether or not conditions disclosed in a report
> require a response in the form of remedial work or in the form of
> contractual arrangements with tenants or other parties.  The following are
> some suggestions on how to read a Phase 1 report with a critical eye so
> that its value is maximized.
> 
> WHAT IS A "PHASE 1" ASSESSMENT?
> 
> A preliminary environmental site assessment has generally come to be known
> as a "Phase 1" even though that term is not used in any statute or
> regulation.  Although it is also generally accepted that a Phase 1 will
> include an inquiry into the previous uses and ownership of real property,
> the particular sources of information used in such a review are by no means
> standardized.  Unless you are familiar with your chosen consultant's normal
> scope of inquiry, it is perilous to simply request "please do a Phase 1 on
> the ABC Corp. property."  The scope of the consultant's investigation
> should always be spelled out and agreed upon before any work is performed.
> 
> A comprehensive Phase 1 assessment will reference and interpret a variety
> of sources of information, including but not limited to the following:
> 
> * A title search to identify previous owners and users.
> 
> * Aerial photographs dating as far back in time as possible to ascertain
> prior uses of the property.
> * Regulatory lists, both state and Federal, to identify reported releases
> of hazardous substances, leaking underground storage tanks and generators
> of hazardous waste, both on-site and off-site within a 1/2 to 1 mile radius.
> * Information on site geology to assess the potential for migration of
> contaminants, potential impacts to groundwater, etc.
> * Regulatory agency files to determine current conditions and pending
> enforcement actions.
> * Reconnaissance of the property to discover signs of potential hazardous
> conditions, e.g. leaking drums, discolored soils or paving, standing water.
> * Interviews with owners and employees to understand the nature of the
> business being conducted on the premises.  A review of operating plans,
> hazardous materials or waste handling programs may also be appropriate.
> 
> A number of trade groups have attempted to craft standards or protocols for
> site assessments in order to bring some uniformity to the practice.  The
> most widely accepted effort has been that of the American Society for
> Testing and Materials ("ASTM").  ASTM assembled a group of real estate,
> legal and engineering professionals to draft a standard for assessments in
> commercial real estate transactions.  Although ASTM's scope of work is
> effectively an industry standard, it has not been adopted or promulgated by
> any government agency.  Until an official standard for environmental site
> assessments emerges, the level of inquiry conducted must simply be
> "appropriate" at the time of the transaction.  Unless the transaction
> involves few risks, such as a bare piece of rural land, the scope of an
> assessment should always be discussed with legal counsel and with a
> reputable, experienced consultant.
> 
> HOW TO DECIPHER THE REPORT
> 
> It may be tempting to skip right to the "Conclusions and Recommendations"
> section of a report and see whether or not the property has received a
> clean bill of health, i.e. no identified conditions requiring additional
> investigation or remedial action were encountered.  The consultant's
> conclusions are certainly important, but the report's reliability is more a
> function of the completeness of the information-gathering and the
> reasonableness of the interpretation of that data.  Although site
> assessments are something of a commodity now, the consultant should
> indicate whether or not particular conditions are potentially significant.
> The consultant's professional judgment should be reflected in the findings
> and questionable findings should be addressed to the consultant.
> 
> A Phase 1 should be read with the following types of questions in mind
> regarding specific sections and the overall scope of the report:
> Regulatory databases - The key is determining whether the site itself is
> listed or whether identified "generators" of hazardous waste and leaks from
> underground storage tanks pose any threat of cross-contamination, i.e.
> migration of contaminants onto or beneath the property to be developed.
> What distance from the site are the generators located?  What types and
> quantities of chemicals are in use?  Have any of those chemicals been
> released into the environment previously and, if so, has any enforcement
> action followed?  Were the leaking tanks located upgradient (in terms of
> groundwater movement) and close enough to be of concern?  County, township
> and local records may not be accessible by a computer search, so a
> comprehensive search will often require a visit to the appropriate offices
> or a number of telephone contacts.
> Geology and physical description of the site - This type of technical
> information should be discussed in terms of the practical implications for
> the development.  What direction is the groundwater flow and at what
rate(s)?
>  At what depth is groundwater encountered beneath the property?  What
> quality is the groundwater and is it used for drinking water?  What soil
> types are present and can pollutants migrate rapidly in such soils?
> Prior investigations or remedial work - Summaries of earlier reports and
> work should be critical and unambiguous.  An agency investigation may have
> concluded, for example, that a site required "no further action at this
> time".  Has the site simply been assigned a low administrative priority or
> has the presence of significant contamination actually been ruled out?  Was
> any sampling and remedial work done in accordance with all rules and
> regulations or did the contractor cut a few corners?  If contamination was
> detected, is it reasonable to do no further work or is additional soil or
> groundwater testing advisable?  Does the level of contamination detected in
> soils or groundwater exceed any regulatory guidelines?  For completed work,
> such as a tank removal, is there evidence of all necessary permits and
> approvals from the authorities?
> 
> Site reconnaissances or inspections - A worthwhile and legitimate
> inspection requires some time and should flag conditions that deserve
> closer scrutiny.  A report should reflect that a reasonable amount of
> effort has been expended and that the consultant has not simply driven by
> the property and looked out the window.  Are the boundaries of the property
> fenced or otherwise well-defined?  If suspect conditions are noted, are the
> descriptions complete, i.e. size, shape, color, odor, and location?  Have
> knowledgeable employees or representatives been interviewed in an effort to
> learn more about the suspect conditions?  Where possible asbestos
> containing materials ("ACM") are spotted, does the ACM appear to be
> friable, damaged or otherwise in need of removal?  Is further investigation
> of any conditions recommended?
> 
> CONCLUSIONS
> 
> Where a transaction or development is preceded by a Phase 1 environmental
> site assessment, it is critical to understand the scope of the report and
> the services to be provided by the environmental consultant.  It is equally
> important to read Phase 1 reports carefully and to insist that key
> interpretations and recommendations are made from the assembled data.  The
> purpose of obtaining a Phase 1 assessment is not to accumulate more
> information, but rather to identify potential environmental liabilities so
> that those liabilities can be dealt with in some fashion.  Developers
> should dedicate themselves to learning how to read a Phase 1 or should rely
> upon legal counsel or other experienced advisers to perform that task.
> ??
> 
> (..continued)