Maximize Value and Minimize Risk When Dealing With Environmentally Compromised Commercial Real Estate
Consulting Services for Environmental Issues in Commercial Real Estate
If you are seeking to buy, sell, or develop a commercial property that could be environmentally compromised, it is critical that you understand the opportunities and risks to support your business interests.
Jay Nuss Realty Group, LLC has special expertise in environmental issues that can impact the purchase or sale of a commercial property. Whether you are dealing with an underground storage tank, the development of wetlands, or the threat of petroleum or hazardous materials contaminating a drinking water supply, we can help you through our network of professionals:
- Conduct environmental due diligence to assess your potential liability or obligation
- Work through environmental cleanup and compliance processes and communicate with regulators
- Address and remedy any issues in the most effective and cost-efficient manner
- Properly position the property for a more expedient, efficient transfer of title and avoid any real or perceived reduction in value
Resources for Environmental Issues
Our team’s expertise covers Massachusetts state laws and regulations regarding the release or threat of release of oil and hazardous material via General Laws Chapter 21E.
Notification Requirements and Procedures Regarding the Release or Threat of Release of Oil or Hazardous Material
40.0330: Notification Requirements and Procedures
40.0331: Who Shall Notify
(1) The following persons shall notify the Department in accordance with 310 CMR 40.0300 of a release or threat of release of oil or hazardous material:
(a) the owner or operator of a vessel or a site from or at which there is or has been a release or threat of release of oil and/or hazardous material;
(b) any person who at the time of storage or disposal of any hazardous material owned or operated any site at or upon which such hazardous material was stored or disposed of and from which there is or has been a release or threat of release of hazardous material;
(c) any person who by contract, agreement, or otherwise, directly or indirectly, arranged for the transport, disposal, storage or treatment of hazardous material to or in a site or vessel from or at which there is or has been a release or threat of release of hazardous material;
(d) any person who, directly or indirectly, transported any hazardous material to transport, disposal, storage or treatment vessels or sites from or at which there is or has been a release or threat of release of such material;
(e) any person who otherwise caused or is legally responsible for a release or threat of release of oil and/or hazardous material from a site or vessel;
(f) any fiduciary who holds title to or possession of a site or vessel from or at which there is or has been a release or threat of release of oil and/or hazardous material;
(g) any secured lender who holds title to or possession of a site or vessel from or at which there is or has been a release or threat of release of oil and/or hazardous material;
(h) any agency of the Commonwealth or any public utility company that owns a right of way that is a site from or at which there is or has been a release or threat of release of oil and/or hazardous material; and (i) any person otherwise required to notify the Department of a release or threat of release pursuant to M.G.L. c. 21E.
(2) If a release to the environment has occurred or a threat of release to the environment exists at any site or vessel and there is a substantial likelihood that such release or threat of release includes or would include oil and/or hazardous material which appears at 310 CMR 40.1600 or exhibits any of the characteristics described in 310 CMR 40.0347, then any owner, operator, or fiduciary, or secured lender, who holds title to or possession of such site or vessel, shall determine whether such is the case and whether any such release or threat of release requires notification to the Department under 310 CMR 40.0300.
21E Terminology Simplifications
ASTM TRANSACTION SCREEN E1528-14
An ASTM “Transaction Screen” (TS) is the first step, and often the simplest form, for performing an environmental site assessment (ESA). The ASTM-recommended format for the Transaction Screen consists of a checklist that provides “yes”, “no”, or “unknown” responses to environmentally related questions for a specific property. Traditionally, the person that performs the Transaction Screen assessment will review the checklist with a current owner and/or a current operator of the property in the form of an interview. The owner and/or current operator provides answers regarding the history and state of the property that the inspector will then either agree or disagree with during the inspection of the property. For the ASTM Transaction Screen process, an understanding of the property’s history relies on the owner and/or current operator’s knowledge and does not require further document research into the property’s history that a Phase I ESA would require. An ASTM TS is first “screen” which is not required to be conducted by a “Qualified Environmental Professional” (QEP) as mandated by a Phase I or Phase II ESA (Environmental Site Assessment). The TS is intended to be utilized by anyone, i.e., an owner, prospective buyer, banker, or attorney to obtain an initial indication. Answering a “yes” to any of the TS questions may very well default to requiring a Phase I or Phase II ESA by a Qualified Environmental Professional who may be a Massachusetts “LSP” (Licensed Site Professional). Caution is given to the application of a TS that may not provide “Innocent Landowners Defense”, or in the worst case, be conducted by a non-professional, non-qualified individual devoid of five (5) years relative professional experience, thereby allowing the purchase or financing of a property with “Recognized Environmental Conditions” (RECs) resulting in environmental liability
PHASE I ENVIRONMENTAL SITE ASSESSMENT ASTM E1527-13 / U.S. EPA AAI
The goal of a Phase I ESA / AAI (All Appropriate Inquiry) is to identify Recognized Environmental Conditions (RECs). A REC is defined in the ASTM standard as “the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products” on a property. Similar to an ASTM Transaction Screen, a Phase I ESA involves inspecting the specific property, interviewing the current owner and/or current operator, and confirming that all gathered information about the property is accurate. However, unlike a Transaction Screen, a Phase I ESA also requires a review of pertinent documents from municipal departments, the Massachusetts Department of Environmental Protection (DEP), and the owner and/or current operator. These documents would describe the property’s current and previous uses, history, and oil and/or hazardous materials storage and usage. Because a Phase I ESA involves more background research, the higher level of due diligence provides a property buyer with legal protection against finding unknown RECs under the “Innocent Landowners Defense” as stated in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Superfund Amendments and Reauthorization Act (SARA). As a result, conducting a Phase I ESA / AAI Standard has become a common business practice for purchasers and lenders involved in commercial real estate in order to limit environmental liability.
Unlike a TS, a Phase I / AAI mandates a “Qualified Environmental Professional” with a combination of a degree in a science/engineering and/or with applicable relative experience. A TS, therefore, may or may not provide appropriate environmental due diligence that may be expected. Only when a TS is conducted by a QEP/LSP may that standard be considered for purchase and/or financing.
PHASE II ESA E1903-11
When a Phase I Environmental Site Assessment (ESA) identifies a REC, an environmental consultant would likely recommend further investigation as part of a Phase II ESA. The purpose of a Phase II ESA is to determine the presence or absence of petroleum products and/or hazardous waste in the subsurface of a specific property, within the building, or migrating to or from an adjacent property.
Such investigation may include: intrusive soil and water exploration, soil, water, air, and soil gas sampling, and groundwater direction and flow monitoring. Subsequent to any sample result analysis and intrusive investigation, the environmental consultant writes a report certifying whether or not the property has contamination from oil and/or hazardous materials.
EXCEPTIONS TO ASTM / MA DEP 21E
ASTM and MA DEP MCP do not address all environmental issues which may include: building materials, PCBs, lead paint, and asbestos, for example. Those items may or may not be present in building materials readily identified by inspection or as a result of a specific concern for the current use or for a change in use, e.g., commercial industrial to residential, day care, or institutional use. As noted in the ASTM Standard, an element of “business environmental risk” beyond the scope of the ASTM Standard does not qualify as an MCP reportable condition. Upon a determination to renovate, demolish, excavate and/or redevelop, those items may become disposable or contribute to the contamination of the real estate.
UNDER MA DEP REPORTING STANDARDS
The result of conducting an environmental site assessment may conclude that a “Recognized Environmental Condition” (REC) results in a “reportable condition”/“reportable concentration” of oil and/or hazardous (OHM) as present in the “environment”. With that resultant condition, a concentration may necessitate a report to the Massachusetts Department of Environmental Protection (MA DEP) under Massachusetts General Law (MGL) Chapter 21E as stipulated under the Massachusetts Contingency Plan (MCP). Under certain conditions, with an “Imminent Threat” situation, an LSP may be required to report to the MA DEP within twenty-four (24) hours of the failure of the “Responsible Party” (RP) to report. Other conditions are the responsibility of the RP to determine reporting responsibilities upon notice from an LSP. An Environmental Site Assessment (ESA) for due diligence purposes does not mandate that an LSP be utilized.
Notification to the MA DEP rendering the Subject Property as a “Site” (OHM Contaminated Property) and receiving an RTN (Release Tracking Number) will mandate the use of an LSP of Record to manage, render opinions, provide a comprehensive plan for further assessment, and effect remediation and closure. Upon a determination that a property is a “Site”, significant comprehensive measures and related costs may result.
MASSACHUSETTS CONTINGENCY PLAN (MCP) REQUIREMENTS IF NECESSARY:
PHASE III Phase III is a general assessment term used for describing the site characterization and the level of cleanup that would be required for future remediation. This phase is normally conducted under the supervision of an LSP. Further soil and water sample collections may be required as part of delineating the extent of contamination. DEP requires that the Phase III ESA include a Remedial Action Plan (RAP), which assesses the feasibility of different Remedial Action Alternatives and concludes the best remedial option for the property based on the site’s condition, potential risk, and accessibility.
A Phase IV process consists of a “Remedial Implementation Plan” (RIP), essentially executing the RAP that was created in the Phase III process. The Phase IV includes the performance and the documentation of the remediation, the elimination of the source or sources of contamination, and the elimination of any perceivable substantial hazards to the public health and the environment. If, after the remediation, there remains a hazard to the public health and the environment, the environmental consultant may choose to implement an Operation, Maintenance, and Monitoring (OMM) Plan. This plan would provide stipulations governing the operation of the facility in order to limit the amount of contact that people would have with a contaminated area. The plan would also provide a method for monitoring the site’s contamination levels over an extended period of time.
Subsequent to the RAP, a “Remedy Operation Status” (ROS) is part of the Phase V process in that it provides the details of the Phase IV’s successful execution. The ROS will determine whether or not the remediation has achieved either a Permanent or a Temporary Solution. The Phase V process also includes a Completion Statement that provides an opinion from an LSP regarding the outcome of the Phase IV process. Specifically, the opinion will address any residual oil or hazardous materials that may remain on the property, the implementation of an “Activity and Use Limitation” (AUL), if applicable, and any other actions taken to ensure the limited risk of exposure of any hazards to the public and the environment. If a Temporary Solution exists, the Phase V process may also include periodically updated status reports that may describe the operations and maintenance on the site and any monitoring activities that are being conducted to establish the rate at which any contamination is attenuating.