After the Phase II

A Phase II ends in conclusions that answer the questions in the Statement of Objectives, or say clearly why they cannot be answered (E1903-19, 6.4.7). What follows is for the user to decide: the standard says it is not the Phase II Assessor's role to give legal or business advice (E1903-19, 4.2.5), and it expects the user to weigh legal, business and environmental risks with counsel, business advisors and the Phase II Assessor (E1903-19, 4.1.2.1).

What the conclusions must do

The conclusions rest on an interpretation of all the results and findings and must be consistent with the validated conceptual model (E1903-19, 6.4.7). If the Phase II gives the Phase II Assessor enough information to conclude, by the scientific method, that the question has been answered, further assessment is not warranted for the objectives (E1903-19, 4.1.2.3). Three cases need more care:

Some areas assessed. If the objectives require investigating only some releases or likely release areas, the report shall make clear that a conclusion ending further inquiry concerns only those investigated (E1903-19, 8.1.4).
An area set aside. If the objectives permit it, further work on a likely release area may end when Phase II findings provide no reasonable grounds to believe analytes occur there at concentrations of concern. The standard gives an assessment not aimed at establishing CERCLA landowner liability protection as an example (E1903-19, 8.1.4).
Objectives not met. If, for whatever reason, the Phase II falls short of its objectives, the results must be read against them and the gap described and evaluated (E1903-19, 8.1.5). The Phase II Assessor should then work out whether more Phase II work, and how much, could meet the objectives, unless the user redefines them to fit the data in hand (E1903-19, 8.1.5). The user may also stop without meeting them, and the report must identify every way the available data fail to meet the objectives (E1903-19, 1.3.2).

The nonmandatory report formats appendix leaves recommendations for further work to the user's option (E1903-19, X3.2.9).

What the standard leaves to the user and to counsel

Business risk. The standard does not address how business environmental risk is weighed in light of Phase II data; that turns on the site, the transaction, and the user's objectives and risk tolerance (E1903-19, 4.1.2.1). For quantifying and disclosing such risk it points to ASTM E2137, E2173 and E3123 (E1903-19, 3.1.5.1).
Thresholds of concern. It sets no level at which target analytes become a concern to the user, who may apply regulatory criteria, liability principles or objectives of their own (E1903-19, 4.1.2.2).
Regulators and the standard of care. It is not meant to supersede regulatory requirements, and it defines no legal standard of care, for professional services in general or for any one Phase II (E1903-19, 1.5).

Use by other parties

E1903-19 leaves third-party use and reliance outside its scope. It treats their appropriateness as a contractual question for the user and assessor to address (E1903-19, 4.1.5). Its nonmandatory contracting appendix adds that responsibility for third parties' use of the report may be governed by the contract between them or by a reliance letter giving others the right to rely on it (E1903-19, X2.4).

Later inquiry and the life of the data

Measured against a later inquiry, a Phase II's findings should be judged on how reasonable its judgments were at the time and in the circumstances (E1903-19, 4.2.3). Phase II data generally reflect conditions when they were gathered, so their usability may have a limited life; where the data are of a kind a Phase I uses, the Phase I standards' time limits apply (E1903-19, 4.2.4).

The legal appendix

The standard's nonmandatory Appendix X1 gives legal background; it says it is not legal advice and does not replace it, and encourages users to seek counsel where appropriate (E1903-19, X1 introduction). Its main points:

CERCLA landowner liability protections. The appendix says a Phase II may be done to qualify for and keep the bona fide prospective purchaser, innocent landowner and contiguous property owner protections; that all three require all appropriate inquiries before purchase, which need not include sampling under the AAI rule or the Phase I standards; and that where a protection is the objective, E1903-19 assumes AAI is already done (E1903-19, X1.1.2). The AAI rule adds: "Sampling and analysis may be conducted to develop information to address data gaps" (40 CFR 312.20(g)).
Continuing obligations. The appendix notes that keeping the protections after acquisition also takes continuing obligations, among them reasonable steps to halt releases that continue, prevent new ones and limit exposure to hazardous substances already released, and that a Phase II may develop the site information needed to meet them (E1903-19, X1.1.4, X1.1.5).
Obviousness. The appendix notes that an investigation's thoroughness may bear on how obvious contamination was, an independent factor for the innocent landowner protection, and that a Phase II may be advisable where other information suggests that contamination sampling could find might be deemed obvious (E1903-19, X1.1.6).
Private suits. The appendix observes that eligibility for the protections can also be tested in private cost recovery and contribution actions, where a court may decide on the record (E1903-19, X1.1.7).
State and common law. The appendix notes that a Phase II may be driven by state statutes, some requiring disclosure or investigation of certain properties at transfer, or by a duty to learn the land's condition that possessors may have at common law, and that users should obtain legal advice on state requirements (E1903-19, X1.2.1 to X1.2.5).
Grants and financial disclosure. The appendix notes that EPA brownfields cleanup grant guidelines have called for a Phase II report or equivalent investigation report, and that a Phase II may support estimating, accruing and disclosing environmental liabilities (E1903-19, X1.3, X1.4).

This page is general reference for environmental professionals. It does not assess any property. ASTM E1903-19 is the standard and is not reproduced here; the judgment of the Phase II Assessor on the facts governs.