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1.1.1 A user's interest in the presence or likely presence of substances in environmental media at a property may arise in a wide variety of legal, regulatory, and commercial contexts, and may involve diverse objectives including those listed in 1.2. This practice contemplates that the user and the Phase II Assessor will consult to define the scope and objectives of investigation in light of relevant factors, including without limitation the substances released or possibly released at the property, the nature of the concerns presented by their presence or likely presence, the behavior , fate and transport characteristics of substances released or possibly released, the portion of the property to be investigated, the information already available, the degree of confidence needed or desired in the results, the degree of investigatory sampling and chemical testing needed to achieve such confidence, and any applicable time and resource constraints. This practice requires that Phase II activities be conducted so that the resulting scope of work is performed, and the stated objectives are achieved, in a scientifically sound manner.

1.1.2 A Phase II ESA in accordance with this practice may be conducted after site assessment activities in accordance with Practice E1527 for Phase I Environmental Site Assessments: Phase I Environmental Site Assessment Process, Practice E2247 for Environmental Site Assessments: Phase I Environmental Site Assessment for Forestland or Rural Property, EPA’s All Appropriate Inquiries (AAI) Rule, 40 C.F.R. Part 312, or Practice E1528 for Limited Environmental Due Diligence: Transaction Screen Process. In defining the scope and purposes of a Phase II ESA, however, previous decisions to classify property conditions or areas as RECs, or to refrain from doing so, are not determinative as to whether investigation of the same conditions or areas is appropriate to meet the objectives of the Phase II ESA.

1.2.1 Objective 1—Assess whether there has been a release of hazardous substances within the meaning of CERCLA, for purposes including landowner liability protections (i.e., innocent landowner, bona fide prospective purchaser, and contiguous property owner).

1.2.2 Objective 2—Provide information relevant to identifying, defining or implementing landowner “continuing obligations,” or the criteria established under CERCLA (e.g., exercising appropriate care by taking reasonable steps to prevent or limit exposures to previously released hazardous substances) for maintaining the CERCLA landowner liability protections.

1.2.3 Objective 3—Develop threshold knowledge of the presence of substances on properties within the scope of the CERCLA definition of a “brownfield site” and as required for qualifying for brownfields remediation grants from the EPA Brownfields Program.

1.2.4 Objective 4—Provide information relevant to identifying, defining and evaluating property conditions associated with target analytes that may pose risk to human health or the environment, or risk of bodily injury to persons on the property and thereby give rise to potential liability in tort.

1.2.5 Objective 5—Provide information relevant to evaluating and allocating business environmental risk in transactional and contractual contexts, including transferring, financing and insuring properties, and due diligence relating thereto.

1.2.6 Objective 6—Provide information to support disclosure of liabilities and contingent liabilities in financial statements and securities reporting.

1.2.7 Additional information concerning these six objectives may be found in the Legal Appendix, Appendix X1.

1.3.1 In developing the scope of work and in evaluating data and information concerning the property, the Phase II Assessor must determine whether the available information is sufficient to meet the objectives of the investigation. Even after conducting Phase II activities to generate additional data, the Phase II Assessor must independently evaluate the sufficiency of the data in relation to the objectives. As the investigation progresses, the objectives may be refined or redefined in consultation between the user and the Phase II Assessor.

1.3.2 A single round of sampling and chemical testing may not always provide data sufficient to meet the chosen objectives. If not, this practice contemplates additional sampling in an iterative sequence that concludes when the available data are sufficient. This practice also acknowledges, however, that the user may instead elect either to redefine the objectives so that they can be met with the data available, or to terminate the investigative process without meeting the stated objectives. The Phase II Assessment report must disclose any respect in which available data are insufficient to meet objectives.

1.3.3 This practice does not require full site characterization in every instance, but may be used to carry out an investigation sufficient for that purpose if desired to meet the user's objectives.

1.4.1 The degree of confidence desired by the user influences the scope of the investigation and the evaluation of data. More extensive testing and more iterations of sampling and analysis may be needed if the objectives require detailed conclusions with high confidence. Less testing and fewer iterations of sampling and analysis may be needed if the objectives of the assessment require only general conclusions.

4.1.1 This practice is intended for use on a voluntary basis by parties who wish to evaluate known releases or likely release areas identified by the user or Phase II Assessor, and/or to assess the presence or likely presence of substances, for legal or business reasons such as those described in 1.2.

4.1.2 This practice is intended to meet the business community's need for a written, practical reference describing a scientifically sound approach to investigating a property to evaluate the presence or likely presence of a substance. It is impossible to generalize about the contexts in which a user may wish to conduct such investigations or the degree of confidence a user may require in the results. In any context, this practice, being rooted in sound scientific methodology, can assist users in achieving an objective and defensible assessment.

4.1.3 Use Not Limited to CERCLA—This practice is designed to assist a user in developing information about the environmental condition of the property and has utility for a wide range of target analytes (e.g., including diffuse anthropogenic contamination and naturally occurring substances) and users including those who may have no actual or potential CERCLA concerns.

4.1.4 Site- and Transaction-Specific—The scope of a Phase II ESA is site-specific and context-specific. The assessment process defined by this practice is intended to generate sound, objective, and defensible information sufficient to satisfy diverse user objectives.

4.1.5 Use by Other Parties—This practice does not define whether or to what extent any person other than the user may use or rely upon a Phase II ESA prepared for the user. The appropriateness of third party use or reliance is a contractual matter that should be addressed between user and Phase II Assessor, see Appendix X2, section X2.4.

4.2.1 Elimination of Uncertainty—No Phase II ESA can eliminate all uncertainty. Furthermore, any sample, either surface or subsurface, taken for chemical testing may or may not be representative of a larger population. Professional judgment and interpretation are inherent in the process, and even when exercised in accordance with objective scientific principles, uncertainty is inevitable. Additional assessment beyond that which was reasonably undertaken may reduce the uncertainty.

4.2.2 Level of Assessment—Phase II ESAs do not generally require an exhaustive assessment of environmental conditions on a property. There is a point at which the cost of information obtained and the time required to obtain it outweigh the benefit of the information and, in the context of private transactions and contractual responsibilities, may become a material detriment to the orderly conduct of business. If the presence of target analytes is confirmed on a property, the extent of further assessment is a function of the degree of confidence required and the degree of uncertainty acceptable, in relation to the objectives of the assessment.

4.2.3 Comparison With Subsequent Inquiry—The justification and adequacy of the findings of a Phase II ESA in light of the findings of a subsequent inquiry should be evaluated based on the reasonableness of judgments made at the time and under the circumstances in which they were made.

4.2.4 Data Usability—Investigation data generally only represent the site conditions at the time the data were generated and site conditions can be dynamic. Therefore, the usability of data collected as part of a Phase II ESA may have a finite lifetime depending on the application and use being made of the data. To the extent that investigation data would fall within the scope of data used in a Phase I ESA conducted pursuant to Practice E1527 or Practice E2247, the lifetime limits defined by those standards apply. In all other respects, a Phase II Assessor should evaluate whether previously generated data are appropriate for any subsequent use beyond the original purpose for which they were collected, or are otherwise subject to lifetime limits imposed by other laws, regulations or regulatory policies.

4.2.5 Phase II Assessor Does Not Provide Legal or Business Advice—The Phase II ESA is intended to develop and present sound, scientifically valid data concerning actual site conditions. It shall not be the role of the Phase II Assessor to provide legal or business advice.