Environmental Assessments should identify concerns, even in compliance with the law.

FOR IMMEDIATE RELEASE
(Free-Press-Release.com) October 8, 2009 --

Even if a property is in compliance with environmental regulations, liabilities can still be present, due to a number of ways, and should be identified by an accurate Phase 1 Environmental Study. Often, a case of a release of hazardous materials or petroleum products will receive a "closure" or "no future action letter" from a government agency, and a property buyer will buy the property based on this letter. However, these letters do not always mean that there is not an environmental liability at the property. Many regulatory agencies will close a site based on inadequate environmental work that is not conducted properly or may have been reviewed by a government agent that did not know what they were doing. This is more common than you think. If you look at these letters, they always state that the site may be reopened if information that is found that changes their conclusions. Also, the ASTM Standard E-1527-05, which is the industry standard for Phase 1 Environmental Site Assessments states that: "The term Recognized Environmental Condition includes hazardous substances or petroleum products even under conditions in compliance with laws."

Sites that have received regulatory closure also do not include "toxic tort liability." This type of civil liability can occur if the contamination migrates offsite and devalues neighboring properties, exposes people to hazardous substances or causes land-use limitations. Experience has shown that the large variety of environmental agencies that are reviewing and "closing" sites throughout the United States, vary greatly in their reasons for closing sites. Some states use "risk-based" concentrations and exposure pathways to come up with arbitrary ways of closing sites that some would call "voodoo" science. This type of analysis of environmental problems are also susceptible to changes in the political climate, regular changes in personnel at agencies or discovery of other scientific reasons why the site shouldn't have been closed, thus, the reason their "closure" letters have the caveat that the site could be reopened.

MTBE (methyl tertiary butyl ether), the oxidant used in gasoline, was not regulated for several years and sites were closed without even considering the environmental fate of this substance. Eventually, a fast toxicological study in California determined it was a human health hazard. Here is where common sense should have be used. A substance that increases the efficiency of fuel combustion is likely not good to drink in your water wells. There are many other substances that fall into this category where the effects are not really known but government agencies have done toxicological studies to cover themselves. Pesticides are other items that took the government a long time to regulate and many of these essentially overnight toxicological studies to help cover their tails may turn out to not be accurate in the future. Pesticides are used to kill organisms. Common sense says they are likely having a negative effect on human health. On top of that substances such as these with low solubility in water tend to persist for very long times in the soil, surface water and groundwater, as well as, the human body. If regulations change or civil precedent changes, selling your property later could be problematic, if some common sense beyond regulatory status is not considered.

Having competent geologists or engineers with much experience conduct your environmental reports from a "common sense" point of view is the best way to protect your interests when it comes to environmental liabilities. Depending on your degree of acceptable risk, you may want to look beyond what some local government agency has determined what they think is "clean." There have been numerous sites that have received closure where the agency did not even follow up properly on abandoning groundwater wells or doing final confirmation testing or chemicals were not even included in the final testing that should have been. Also, there a very large amount of sites throughout the United States that have been open for many years, where the agency is either too incompetent to properly close the site or they are understaffed or for some other reason that is often unclear why this happens. Local regulations often change after an agency is sued. For example, there are several lawsuits against counties for using landfills that they did not properly line with a clay membrane and local water wells have been negatively impacted causing a human health hazard.

Due to these types of shortcomings in regulatory oversite, incompetent Phase I Environmental Site Assessment reports that have entered the market, and other unseen reasons, a good dose of "common sense" will go a long way in preventing hazardous materials or petroleum products from causing liabilities that not only reduce the value of a property, but can cause litigation problems that no property owner wants when purchasing a property. There are plenty of consultants looking to not find issues in a Phase I ESA report in order to help a broker's deal go through so they can get paid quickly. This approach should be cautioned against so smart decisions can be made when purchasing a commercial or industrial property. These problems that can be discovered when you turnaround to sell your property down the road should be found before you "own" them. A competent Phase I Environmental Site Assessment report is the best way to find these issues. Hiring a Professional Geologist or Professional Engineer, instead of an asbestos technician or home inspector, is the other way to best protect your interests when contracting this service.

More information can be found online at http://www.aaienvcorp.com

environmental assessments     phase 1 environmental study     toxic tort liability