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Property Transactions

Primary steps in the Environmental Due Diligence Audit (EDDA) process.

Property transactions raise the possibility of exposing buyers to CERCLA liability associated with contaminated media that might accompany a commercial property. Environmental Due Diligence Audits (EDDAs) attempt to quantify that liability. EDDA's follow a three step process:

  • Transaction Screening. The Transaction Screening Process (TSP) is a limited Environmental Site Assessment (ESA) of a parcel of commercial real estate, with respect to CERCLA hazardous substances and petroleum products. The TSP primarily uses a site assessment questionnaire to interview the property owner and current occupants (if any), a site reconnaissance visit to reveal any "recognized environmental conditions" on the property, and a historical record review. The term "recognized environmental condition" refers to the presence or likely presence of hazardous substances or petroleum products on a property under conditions that indicate an existing release, past release, or material threat of a release. The primary decision point is a determination of whether further inquiry is needed into the contamination status of the property.

  • Phase I Site Assessments. If the result of the TSP is a conclusion that additional information is required, a Phase I ESA is conducted. A Phase I ESA is a more detailed investigation of site history and use than the TSP, and is conducted by an environmental professional. The Phase I ESA has the same principal components as the TSP. The primary decision point is also the same: a determination of whether further inquiry is needed into the contamination status of the property.

  • Phase II Site Assessments. If the result of the Phase I ESA is that "recognized environmental conditions" exist for a property, a Phase II ESA may be conducted to provide sufficient information regarding the nature and extent of contamination so that an informed business decision can be made about the disposition of the property, including providing the level of knowledge necessary to satisfy the innocent purchaser defense under CERCLA. A Phase II ESA primarily involves the design and implementation of a sampling and analysis program, with the accompanying analysis and interpretation of the results of data collection. The primary decision point for a Phase II ESA is a determination of whether there is a reasonable basis to suspect the presence of hazardous substances or petroleum products, or whether the evidence establishes that the site is free from potential CERCLA liability. A Phase II ESA is functionally equivalent to a CERLCA site assessment.

Within the property transaction process, the primary point of linkage with the Triad is the Phase II Site Assessment since this is where the bulk of data collection takes place to support site decision-making.

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