We explain the role of an environmental professional, and who can perform a Phase I Environmental Site Assessment.
For many folks out there, a Phase I Environmental Site Assessment is a completely foreign concept. Regardless of the reason, there tends to be a lot of questions floating around about the subject. People tend to have a lot of questions, such as what is a Phase I ESA? and how much does a Phase I Environmental Site Assessment cost?
Invariably, one question that comes up again and again, is who can do this? Who can perform or prepare a Phase I ESA? It's a great question to ask, because, from our experience, there tends to be a lot of misinformation and shady practices when it comes to performing a Phase I Environmental Site Assessment.
So, let's dive into the topic and explain just who can perform a Phase I ESA at your location.
'Environmental Professionals' perform Phase I Environmental Site Assessments
If you're getting a Phase I done to provide CERCLA liability protection, then it must be completed in accordance with the current ASTM standards (ASTM E1527-13 as of writing this) and the All Appropriate Inquiry (AAI) rule (found at 40 CFR 312).
But what does that mean?
Simply put, the ASTM standards are the 'rules' that must be followed in order for your Phase I ESA to count. Now that's an extreme oversimplification, but in a sense, that's the easiest way to describe it. ASTM standards dictate how a Phase I ESA is conducted, and who can conduct it. The person who can conduct a Phase I ESA, as per ASTM standards, is considered an 'Environmental Professional', or EP for short.
Let's make this crystal clear: if your Phase I ESA was not conducted by an environmental professional, then it doesn't qualify for CERCLA liability protection. In short, if an EP didn't conduct the Phase I ESA, then your Phase I is worthless. If that's the case, you'll be held liable for contamination due to releases of hazardous substances or petroleum products at your property, even if you just acquired it, and even if you had nothing to do with the releases (such as if they happened in the past).
A Phase I ESA needs to be performed by an environmental professional each and every time. Period, end of story!
What makes someone an environmental professional?
This is where things get interesting. Over the course of my career, I've seen credentials that are beyond questionable.
But, before I get into what makes an environmental professional an environmental professional, let's think about this from a different angle.
Imagine you were going to go see a doctor because you wanted to make sure you were healthy. Are you going to want a doctor with rock-solid credentials, or someone who's cobbled together experience and just barely makes the cut? I'm sure I already know the answer. Consider the same when it comes to your environmental professional.
Here are the qualifications one must have to be considered an environmental professional:
- Possess a current Professional Engineer (PE) or Professional Geologist (PG) license or registration from a state and have the equivalent of 3 years full-time experience (with environmental due diligence activities); -or-
- Possess a Baccalaureate (Bachelor's degree) or higher degree from an accredited institution of higher education in a discipline of engineering or science and 5 years equivalent full-time experience; -or-
- Have the equivalent of 10 years full-time experience.
So, aside from engineers or geologists, there is no certification for an environmental professional. If you meet the definition of one, then you are one. Simple as that.
But you'll notice the need for experience, and most wonder where and how one obtains experience in this field. Think of it like being an apprentice. For instance, if I as an environmental professional had two staff members work directly underneath me and assist me in the Phase I ESA process, all under my strict supervision, then they would begin accruing experience with environmental due-diligence activities.
A person not meeting one or more of these qualifications can assist in the Phase I process in various ways if they are under the supervision or responsible charge of an environmental professional, but cannot perform the Phase I ESA on their own.
No two environmental professionals are created equally.
Just bear in mind, an EP is not an EP is not an EP.
The Phase I standards require that the EP have sufficient experience both in the type(s) of properties to be evaluated, as well as within the specific geographic area of interest. For example, if you're in New Jersey and are considering having a Phase I done on a chemical plant, you really shouldn't consider hiring an environmental professional from California who only has experience working in residential properties.
So, the EP you choose to conduct your Phase I should not only be experienced and meet the EP requirements as dictated in the ASTM standards, they should have specific experience in the type of property being evaluated and the state it's being conducted in.
But what if you didn't care about CERCLA liability protection, and had some other reason to conduct a Phase I ESA? In that case, it could be done by someone other than an EP, but why bother? Would you go to someone who doesn't meet the definition of a doctor for your annual checkup? How about an accountant? How about your auto mechanic?