In the past few years, I’ve been tasked with assessing and remediating two properties that were
purchased without the benefit of a Phase I ESA. These were not purchased before the 1990s when the
practice was in its fledgling stage, but less than 10 years ago when we all should have known better.
As an aside, cash buyers are not exempt from environmental risk, but do enjoy less red tape prior to
showing up at the closing table. It’s also important to note colloquial information about a site does not
suffice, nor is there safety in transactions within an arm’s length. Nor is having a previous Phase I done
for someone else in hand, especially if it was done poorly, or if expertly done with the wrong conclusions
reached.

I have two examples. The first involved the thinking that the only consequential environmental risk to
the subject property came from across the street, which was richly documented and under state
control. Since the property being considered for purchase was residential (an apartment across the
street from a former convenience store with gasoline storage), no real danger was thought to emanate
or originate from the residential “subject” parcel.

The second example involved consummating a real estate transaction on the basis of colloquial
information. Everyone was aware that an engine repair business occupied the site and abutting and
adjacent gas stations could be an issue. But all the parties in this case were far too familiar with each
other and the site, which on the surface appeared to be a “can’t miss” investment opportunity. The
problem was no one engaged an independent consultant to do the routine historic investigation. What
was learned about the site was learned once the property was acquired and the purchasers wanted to
capitalize on their investment by flipping the property to a developer. When the developer hired us to
use the Phase I ESA done by and for the first suitor, and we followed up on its conclusions with some soil
testing, it became painfully obvious that a relatively short-term prior use had devastating consequences.
My job as an environmental professional is to serve and protect, to put “two and two together.” It’s like
running something by your dad. Certainly, you think, he’s seen a thing or two. When this step is skipped,
or you go cheap, you can live to regret it. I’m writing this for all those out there who are tempted to give
the environmental assessment step short shrift.

In my first case, a residential property with the potential for commercial development on an active
street was adjacent to a convenience store which formerly dispensed gasoline. The dispensers and the
tank farm were in the site’s northeast corner directly across from my client’s property’s northwest
corner. This area experienced a release or releases and was put in the state’s cleanup program. When
the system was closed down and the tanks were removed, soil contamination was excavated, leaving
residual shallow groundwater contamination. The plume was chased by the state, and shallow
groundwater flow was to the east-northeast, directly toward the northwest corner of my site.
Monitoring wells were installed on my property and impacts were significant. Accordingly, the owners of
downgradient properties (mine included) were alerted by official letter from the state. As off-site
assessment progressed, more and more was known about the migration of the contamination, which
was looking like remedial measures might be capable of pulling the plume back, but might have to be
installed on the subject property. I believe my client bought the parcel during this timeframe, persuaded
by reams of data available from the state about this off-site source, the state’s responsibility under the
cleanup program, and the belief that his site was historically benign.

During our Phase I ESA, which was suggested to him to sort all of this out in light of planned commercial
development and bank financing, we discovered on the very corner of the site to which the off-site
contamination was migrating, an ancient gas station, with the potential to have impacted the area. It
was a distinct possibility that the state would never be successful in its efforts and might be making
matters worse. It also makes the case that program sites should do a better job assessing off-site
sources before launching into a massive off-site study with the thought of aggressive remediation.
Because of all the bad news that needed to be communicated and the additional discoveries on the
property in the shallow soil and groundwater during a “Phase II” investigation, including
tetrachloroethylene of all chemicals, which seemed to be out of place and would have been missed by
the state most likely, our client was stymied. Certainly, his prospects for sale to a would-be developer
were frustrated. Our being the bearer of bad news, i.e., “kill the messenger,” we had to give way to
someone else, and we may never know the outcome.

There are lessons to be learned here that could have been simply solved with the acquisition of a Phase I
ESA performed in accordance with the ASTM standard prior to acquisition. All that was needed was to
consult Sanborn fire insurance maps and either conduct an extensive “Phase II” prior to purchase or
walk away. Now you’ve got a case of potentially co-mingled contamination and “vapor intrusion” to deal
with, and possibly the designation of your own property as a cleanup site once the state figures all this
out.

In the second case, for a brief time between the site’s agricultural use and engine repair business, a pest
control company occupied the property. This was in the ‘70’s when the chemicals used by such
companies were egregious and subsequently banned. More importantly, we now know that they are
incredibly difficult to remediate without wholesale excavation of impacted areas, provided they do not
exceed hazardous levels (a nightmare scenario). In our case, we found the chemicals everywhere, well
above commercial levels, and at depth, certainly exacerbated by storage, mixing and loading prior to
dispatching the trucks to their respective destinations. Additionally, who knows if the residuals in the
tanks weren’t sprayed on excess portions of the site at the end of the day, since we never quite
completed our delineation efforts.

In the end, the soils that needed to be removed, and the fill that would be necessary to return the site
to grade, made development costs prohibitive, not to mention making our job in managing such a
cleanup incredibly risky. Since the discovery of these chemicals was “fresh” and technically done in the
“due diligence” phase of the transaction, we were well off the scene prior to the decision by the owners
to either report or not to report to the state.

As an environmental professional, I wanted desperately for all to end well and to help my clients
navigate through these unfortunate scenarios, but the blowback from all the negative news early on was
too much to surmount. Also, there are cases where a fresh approach is necessary and welcomed. I
would have preferred to have extended my services in both cases before the ink on the deeds was dry.
Much pain would have been spared.