Contracting a Phase II

ASTM E1903-19 prescribes few contract terms. Its Section 5 requires a written Statement of Objectives set inside a contract, proposal or similar instrument, a statement there of any schedule, cost or budget limits, and pay that is not contingent on the results (E1903-19, 5.1.1, 5.1.2, 5.2). Beyond Section 5 the standard does not prescribe the content or form of the contract; its nonmandatory Appendix X2 discusses common contracting issues without saying how they should be resolved (E1903-19, 5.3).

The Statement of Objectives

The objectives, including the questions the Phase II is to answer, must be developed in consultation between user and Phase II Assessor and written as a Statement of Objectives, which must sit inside a written scope of work, contract or similar instrument (E1903-19, 5.1.1). In drafting it, the Phase II Assessor should explain the process so the user can make informed decisions, and the user should provide pertinent documents and information known and reasonably available to them, such as earlier ESAs and studies, oral histories of releases or disposal, and knowledge of specialized operations at the property (E1903-19, 5.1.3). The Phase II Assessor shall also describe the methods and work tasks; a separate formal document is not always needed if another, such as a proposal, holds the same elements (E1903-19, 5.1.4).

Time and resource limits

The standard expects the user and the Phase II Assessor to define scope and objectives together, weighing factors that include the confidence needed, the sampling and testing that confidence takes, and any time and resource constraints (E1903-19, 1.1.1). Detailed conclusions held with high confidence may need more testing and more rounds; general conclusions may need fewer (E1903-19, 1.4.1).

The Statement of Objectives must name any schedule, cost or budget limits, including any limit set in advance on the scope or on the number of sampling rounds (E1903-19, 5.1.2). Both parties must consider whether those limits would compromise their ability to carry out the Phase II under the standard. If so, the Statement must either scale the objectives to what the limits allow or describe how the limits are expected to affect meeting them (E1903-19, 5.1.2).

A Phase II does not generally require exhaustive assessment: there is a point where the cost and time of more information outweigh its benefit, and once target analytes are confirmed, how much further assessment follows depends on the confidence required and the uncertainty acceptable (E1903-19, 4.2.2). Any further round should start with the Phase II Assessor, consulting the user, revisiting the question and the cost and likely effectiveness of more work (E1903-19, 7.7.1.2). The contracting appendix suggests both sides clearly understand any limits on information, data, work or time and their effect on the results, which may be written into the contract, and that the Phase II Assessor tell the user of limits that follow from the user's time and cost constraints (E1903-19, X2.3, X2.9.3).

Pay not contingent on results

The standard says pay for a Phase II Assessor working as an independent contractor, and the pay or job security of one employed by the user, may not be made contingent on what the Phase II finds or concludes (E1903-19, 5.2). The Phase II Assessor must carry out and evaluate the Phase II objectively, without regard to any outcome the user hopes for (E1903-19, 5.2).

What the contracting appendix suggests

The nonmandatory Appendix X2 raises these points:

Reporting to government or third parties. The appendix says statutes, regulations, common law and professional standards may impose duties to report; most fall only on the property's owner, operator or person in charge, but some can reach others, the Phase II Assessor included, so the contract may usefully set out who reports and how (E1903-19, X2.1).
Written documentation. It suggests the agreement address the type and scope of the written record, with thought to attorney-client, work product and self-evaluation privileges, whether recommendations come apart from the report, and how far the user wants to review a report before it is final (E1903-19, X2.1.1).
Confidentiality. It suggests any confidentiality terms go in the contract and cover subcontractors (E1903-19, X2.1.2).
Work by others. It says the contract may set which party, user or Phase II Assessor, picks subcontractors such as drillers and laboratories, and what qualifications, certifications and licenses they must hold (E1903-19, X2.2).
Third-party reliance. It says responsibility for others' use of the report may be governed by the contract or by a reliance letter (E1903-19, X2.4).
Waste. It suggests agreeing on handling and disposal of wastes such as drill cuttings and purged groundwater. Where feasible, the contract may also specify techniques that reduce waste, provided they meet the assessment's information needs and data quality objectives and comply with applicable regulatory requirements (E1903-19, X2.5).
Damage from explorations. It notes that explorations can damage utility lines, underground storage tanks and other structures, and intrusive work may open new migration pathways; responsibility for finding subsurface structures may be set by contract, and a property owner who is not the user should be consulted on their locations (E1903-19, X2.6). It adds that many states set utility clearance duties by statute, and that the contract should also cover coordination with utility companies or locating services (E1903-19, X2.7).
The user's part. It says the user should give access to the right areas of the site and a site contact name and phone number, and, where the property is not the user's, provide for restoring landscaping the work damages (E1903-19, X2.8).
The Phase II Assessor's part. It says the Phase II Assessor should follow the standard and accepted industry practice and document and explain significant deviations; promptly tell the user of environmental conditions observed; confirm substantive changes to the contracted scope with the user before making them; observe site health and safety rules; give a written statement of qualifications on request; and take on no activity they are not qualified, or where applicable licensed, to do (E1903-19, X2.9).

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.