Turnkey Approach to Environmental Due Diligence

2018-10-08T09:19:24+00:00 October 8th, 2018, 09:19am|

Superior Environmental Corp is an industry leader in environmental consulting, engineering, and real estate transaction services. Our staff of experienced scientists and engineers recognize the potential environmental risks for buyers, sellers, lenders, or owners involved in property acquisitions and transactions and provide integrated and comprehensive solutions in a turnkey approach specifically designed to alleviate those risks.

Phase I Environmental Site Assessment

The Phase I Environmental Site Assessment (ESA) is an important first step in the property acquisition process that allows a buyer and/or lender to assess potential environmental risks and identify Recognized Environmental Conditions (RECs) associated with the property. Lenders use Phase I ESAs, in part, to determine what effect current environmental conditions have on property value, which in turn can help facilitate loan decisions.

A Phase I ESA typically takes between 10 and 20 business days to complete, depending on access constraints, the type and size of the property, and the type and size of any improvements. The report has a shelf life of one year, with a comprehensive update of certain components required after 180 days.

Following the ASTM E1527-13 industry standard for conducting Phase I ESAs, helps buyers achieve environmental liability protection through the all appropriate inquiry portion of the innocent landowner defense under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and due diligence under Part 201 of Michigan’s Natural Resources and Environmental Protection Act (NREPA) P.A. 451 of 1994, as amended (Part 201).

Thorough Phase I ESAs will also include Tier 1 Vapor Encroachment Screening in accordance with ASTM E2600-15 guidelines to determine the potential for a Vapor Encroachment Condition (VEC) to exist.

Phase II Environmental Site Assessment

Phase II Environmental Site Assessments evaluate Recognized Environmental Conditions identified during the Phase I ESA. Phase II ESA services include a variety of site-specific and focused investigative techniques such as examining the subsurface for locations of buried objects using Ground Penetrating Radar (GPR) and sampling of soil, groundwater, and/or soil vapor. The GPR and sampling results are reviewed and the analytical results are evaluated against applicable regulatory criteria to compile a comprehensive report that offers logical conclusions and cost-effective recommendations.

Baseline Environmental Assessment

An integral part of a comprehensive environmental due diligence program is the Baseline Environmental Assessment (BEA). The BEA process is outlined in Part 201 and applies only to properties located in the State of Michigan. The purpose of the BEA is to document environmental contamination known to be present on a property and to establish cleanup liability protection. The liability protection does not apply to environmental contamination regulated by federal statutes or offer protection from claims made by a third party.

The premise of the BEA program relies, in part, upon the owner/operator exercising “due care” practices designed to prevent the exacerbation of, and unacceptable human exposures to, the existing contamination and does not apply to a new release or contamination exacerbated by the actions of the owner/operator.

BEAs are valid for one entity only and are not transferrable and are subject to the following prerequisites and timeframes:

  • A Phase I ESA and Phase II ESA have been performed that indicate the property meets the definition of a “Facility” as defined by Section 20101(1)(s) of Part 201 or a “Property” as defined by Section 21303(d) of Part 201.
  • The BEA must be substantially complete within 45 days before or after the purchase, occupancy, or foreclosure of the property. “Substantially complete” means the Phase I ESA, the Phase II field work, and sample analysis are all completed, and the BEA report is written.
  • The BEA must be submitted to the appropriate regulatory agency within six months of the purchase, occupancy, or foreclosure.

Documentation of Due Care Compliance

Once a BEA has been submitted and ownership of the property has been finalized, the new owner of the facility or property will also assume Documentation of Due Care Compliance (DDCC) obligations in accordance with Part 201. In short, the due care obligations assumed by the new owner of the facility or property would include the following:

  • Prevent exacerbation of the existing contamination.
  • Prevent unacceptable human exposure and mitigate fire and explosion hazards to allow for the intended use of the facility in a manner that protects the public health and safety.
  • Take reasonable precautions against the reasonably foreseeable acts or omissions of a third party.
  • Provide notifications to the Michigan Department of Environmental Quality (MDEQ) and others.
  • Provide reasonable cooperation, assistance, and access to the persons that are authorized to conduct response activities or corrective actions at the property.
  • Comply with any land use or resource use restrictions established or relied on in connection with the response activities or corrective actions.
  • Not impede the effectiveness or integrity of any land use or resource use restriction.

DDCC is accomplished, in part, by comparing Part 201 criteria to the contaminant concentrations identified at the property during Phase II ESA sampling to identify relevant exposure pathways and to evaluate and provide options to alleviate the potential exposure. DDCC is not required to be submitted to the MDEQ, but must be available for the MDEQ to review (if requested) within 8 months of becoming the owner/operator or of having knowledge that the property is contaminated.

Contact James Bresko, Real Estate Services Team Leader, at (616) 667-3636 or j.bresko@superiorenvironmental.com to discuss your specific environmental due diligence needs.