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United States: New Standard Of Care Document On Environmental Due Diligence (“Phase I”)

Article by Jerrold Samford and Andrea L. Rimer

Troutman Sanders LLP

The GeoProfessional Business Association (GBA) – formerly known as ASFE – recently released a new study on the standard of care for conducting Phase I environmental site assessments.  This document is the fourth in a series of studies the organization has produced since the inception of the due diligence process in the early 1990’s.  The study is an evaluation of approximately 200 Phase I reports from across the country, written between 2007 and 2010. The results of the study will be a valuable tool in determining whether a Phase I conducted during that time period meets the standard of care or not.

In completing the study, the GBA compared the Phase I reports to the elements of the ASTM Standard E1527-05, applicable during the time period of the reports, to see whether the reports included the elements of the ASTM standard. Although nearly all of the reports stated they were completed in accordance with the ASTM Standard, the committee reviewing the reports concluded that not a single report actually complied with every component required by the Standard. Consequently, the GBA study finds that strict compliance with the ASTM standard does not constitute the standard of care for conducting Phase I evaluations of commercial real estate.

The committee’s conclusion could become critical in legal actions where the issue at hand is whether appropriate environmental studies were completed prior to completion of the transaction. The GBA study could be used to show a court that because strict compliance with the ASTM Standard is not commensurate with the standard of care, a purchaser could still be in compliance with the All Appropriate Inquiry provisions of CERCLA even if some of the elements of the ASTM Standard had not been completed.

The study is available through the GeoProfessional Business Association at www.geoprofessional.org.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

This article was first published on the Troutman Sanders website.

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About the Authors

Jerrold “Jerry” Samford is an environmental compliance specialist at Troutman Sanders.  He is a certified professional geologist in the State of Virginia, a licensed professional geologist in the States of North Carolina and Kentucky.

Andrea L. Rimer is a partner at Troutman Sanders.  She has a national practice representing clients on transactional and regulatory matters involving brownfields redevelopment, hazardous site investigation and cleanup, hazardous waste management, and state and federal Superfund and voluntary remediation programs.

 

Events

Phase II (Two) Environmental Site Assessment Certification Course

The Associated Environmental Site Assessors of Canada (AESAC) is hosting to training courses on Phase II Environmental Site Assessments.  One will be in Calgary in April and one will be in Toronto in May.  For information can be found in the link below.

Calgary, Alberta:                                             April 17th – 19th 2018

(Western Canada regulation expanded course)

Toronto, Ontario:                                            May 15th –  17th 2018 

(MOE O.R. 153/511 expanded course)

Download the Phase II Course Outline – Click here 

Download AESAC’s Spring 2018 Course Flyer -Click here