“Are there requirements for reporting results of an Environmental Due Diligence Investigation?” This is a frequent inquiry we get from property owners and report users. Especially during real estate environmental due diligence periods. For example, when a Recognized Environmental Condition becomes apparent in a Phase 1 Environmental Site Assessment, there is a potential for subsurface contamination. Thus, a Phase 2 Environmental Site Assessment is necessary. And depending on the results, along with a few facts of the site, there might be an obligation to report the findings to an agency. Updated April 20, 2019.
An article about Environmental Due Diligence.
In most cases, the requirement to report subsurface investigation results to government agencies generally depend on three factors of the job:
This article was not written by an attorney. And this article does not intend to provide legal advice. This article simply serves to guide inquirers towards supportive information using the engineering and geological professional standards in California. In all cases, we advise readers to consult such matters with their attorney.
Health and safety codes across the United States specify that everyone has a duty to report contamination that can be a risk to the public, or environment.
Responsible Parties (or RPs) are typically the individuals or organizations responsible for a release. For instance, this can include property occupants, compliance violators and/or owners.
Sensitive receptors are items that are considerably essential to society. For example, water wells, schools, hospitals and more. The distance and direction to the nearest sensitive receptors, from a contamination case, determines the risk of public danger. In fact, major sensitive receptors can be discussion point in a Phase I ESA or Phase II ESA. Nonetheless, during environmental due diligence, property owners should refer to their environmental engineering consultant to determine if a risk to public health exists.
If the results of a subsurface investigation show contamination impacting a sensitive receptor, there is a legal responsibility to recommend further action and report findings to the government. And various agencies have oversight on various sensitive receptors. For example, a threat to potable water resources is best applicable to the State Water Board. Similarly, a threat to indoor air quality due to soil contamination is best applicable to the State Department of Toxic Substance Control. Moreover, some contamination cases might also require involvement by local agencies, such as City Fire Departments, County Health Departments, and State Environmental Departments. Furthermore, federal involvement may be a requirement. As a result, the United States EPA may require oversight.
Reporting the results of an environmental due diligence investigation may not always be a requirement. Phase 2 Environmental Site Assessment reports compare onsite results with screening levels. Screening levels vary by location. Moreover, various agency administer specific screening levels. And some local, State and Federal advisories overlap. For instance, the Federal EPA has jurisdiction across the nation, and publishes standards per region. Whereas State regulatory agencies may apply action levels inside their state only. In fact, some States (for example: California) have multiple divisions of their EPA, which also overlap each other. Furthermore, County and City agencies such as fire departments, health departments and water agencies, also have overlapping jurisdiction above the State and Federal EPAs.
Typically, screening levels are simply a reference point for reporting the results of an environmental due diligence assessment. In most cases, screening levels aren’t actionable levels. However, an environmental government agency can choose to use screening levels as an action level within their own oversight program. For example, a government environmental agency overseeing an ongoing remediation case, may require the RP to cleanup soil contamination until the contamination is below screening levels.
The US EPA provides Regional Screening Levels (RSLs). Similarly, the California EPA provides Human Health Screening Levels (CHHSLs). In fact, these publications provide a list of minimum chemical concentrations to for risk assessment purposes. And screening levels like these assist geologists and engineers when conducting toxicology and risk assessment projects. In environmental due diligence investigations, screening levels are not typically associated with reporting limits. However, if health-threatening circumstances arise, beyond a reasonable doubt, then reporting the results of an environmental due diligence investigation may be apparent. This duty is a matter of public policy.
The Federal EPA also provides Maximum Contaminant Levels (MCLs) as a drinking water standard. Consequently, Environmental Site Assessment work with groundwater testing, utilizes MCLs as a basic guideline for risk assessment. And on the other hand, some local agencies establish their own screening and action levels.
A Phase II Environmental Site Assessment generally includes drilling for the analysis of soil, soil gas and groundwater.
A typical Phase 2 ESA report in California relates all onsite detentions of soil and soil gas to screening levels. In most assessments, geologists and engineers also apply soil sample analytical data to geologic models and programs to estimate the overall risk. Some models focus on the extent of contamination. Whereas other models focus on human exposure risks. Nonetheless, there is a professional and legal responsibility to recommend further action if the results of a Phase 2 Environmental Site Assessment suggests: (1) the likelihood of contamination to groundwater near a potable source; (2) there is a potential health risk to the occupants of the lot by mode of vapor intrusion; or (3) any other possible human health dangers.
In some jurisdictions, exceeding screening levels alone, can create an immediate obligation to report results. Some agencies also adopt the screening levels other larger agencies, to use as their own clean-up standards. This is typical during the course of remediation. Environmental engineering consultants and their clients should always contact the lead environmental agency for a site’s jurisdiction to confirm reporting obligations.
Groundwater reporting requirements hold to a higher standard. Under the California EPA, the State Water Quality Control Board (SWRCB) protects groundwater quality on a statewide basis, and comprises 9 groups. The groups make up Regional Water Quality Control Boards (RWQCB). Each regional board provide oversight and interest in groundwater quality, with a focus on sensitive receptors. For instance, standards are higher for sites nearby a drinking water well, river, wash, school, hospital, etc. And in most cases, the RWQCB will act as the leading agency for oversight programs, alongside with County and City agencies.
If a Phase II ESA detects groundwater contamination which exceeds MCLs, the RP will likely need to report the data to their regional water board. Similarly, the same groundwater data may be a requirement for the County and City agencies, if a drilling permit is necessary. In most cases, agencies refer to MCLs as the minimum allowable contamination to groundwater before requiring notification.
Some subsurface contamination investigations have a limiting scope of work, which differs from a Phase 2 Environmental Site Assessment. Nonetheless, the process of drilling to collect soil and groundwater samples from below the ground surface entails similar reporting obligations. Ultimately, it is important for all property owners and consultants to acknowledge each project is different in scope, purpose, jurisdiction and result. Because reporting obligations can vary on a case by case basis, property owners undergoing real estate environmental due diligence projects should never blindly rely on general information. Instead, parties should consult with their environmental engineer, attorney and local regulatory agency.
Some County and City environmental agencies will also require a borehole permit for any drilling project within their jurisdiction. On the other hand, some agencies only require a permit when groundwater is present. Often times these permits have a closure process that requires reporting all the laboratory data, regardless of the result. Consumer can rely on their environmental engineering consultants to provide such information. If so, consumers must prepare to release analytical data to the respective government agency, no matter what the result.
A RP may also be need to report analytical data from a subsurface investigation if the site is already undergoing regulatory oversight for remediation. Under these circumstances, the lead agency caseworker will directly require a copy of the assessment report to review and publish as municipal information. Prior to any subsurface testing, a Phase I ESA report discloses whether the property is undergoing regulatory oversight or not. In the State of California, assessment reports for properties with known groundwater and soil contamination cases are visible via the SWRCB Geotrackter Database. Similarly, reports for properties with known soil and soil-gas contamination cases are available via the DTSC Envirostore Database.
For more information, or a free consultation about site specific environmental due diligence reporting requirements, call (888) 930-6604.
(a) A person shall not release, or allow or cause a release of, a reportable quantity of a hazardous substance into the environment that is not authorized or permitted pursuant to state law.
(b) Any release of a reportable quantity of hazardous substance shall be reported to the department in writing within 30 days of discovery, unless any of the following apply:
(c) For the purposes of this section, “reportable quantity” means either of the following:
(d) The owner of property on which a reportable release has occurred and any person who releases, or causes a reportable release and who fails to make the written report required by subdivision (b), shall be liable for a penalty not to exceed twenty-five thousand dollars ($25,000) for each separate violation and for each day that a violation continues. Each day on which the released hazardous substance remains is a separate violation unless the person has either filed the report or is in compliance with an order issued by a local, state, or federal agency with regard to the release.
(e) Liability under this section may be imposed in a civil action or may be administratively imposed by the department pursuant to Section 25359.3.
(f) If the violation of subdivision (b) results in, or significantly contributes to, an emergency, including, but not limited to, a fire, to which a county, city, or district is required to respond, the responsible party may be assessed the full cost of the emergency response by the city, county, or district.”