I have seen this too often in the last couple weeks to not call it out as a concerning practice! If you receive a Phase I ESA that recommends a file review in the Phase 2 - that means you received a non-ASTM compliant Phase I ESA! See Section 8.2.3 of the standard quoted at the bottom of this post.
Here are some tips/thoughts on this:
- If the contract/proposal you signed stated you would receive an ASTM 1527-21 compliant Phase I ESA, you have every right to push back and ask for a revised Phase I with no cost to you/your client which includes a file review!
- If you requested a RUSH report and the environmental professional (EP) stated there are files with the state agency and they can't be reviewed within that timeframe, and you said you want the report prior to the review, that is your fault. However, this lack of file review needs to be listed as a significant data gap and the EP can opine on its potential to affect the outcome of the report.
- If the EP's Phase I contract states that the file review will be an extra charge, look for a new EP. (There are exceptions to this such as large brownfields projects but that is known going into the proposal.)
- Paper records held at the regional state agency ARE reasonably ascertainable even if we all prefer electronic copies.
- Simply relying on the "Closed" status of a record in the ERIS/EDR database report to remove it as a concern is not enough. (See quoted section of standard below.) I have seen too many instances when the "closed" site has additional requirements, missed areas of concerns, new standards or parameters of concern, only a partial closure, post remediation care activities and/or a covenant/deed restriction requirement that hasn't been followed through on.
Section 8.2.3: "If the subject property or any of the adjoining properties is identified on one or more of the standard government environmental record resources in 8.2.2, pertinent regulatory files and/or records associated with the listing should be reviewed in accordance with 8.1.1 through 8.1.8. The purpose of the regulatory file review is to obtain sufficient information to assist the environmental professional in determining if a recognized environmental condition, historical recognized environmental condition, controlled recognized environmental condition, or a de minimis condition exists at the subject property in connection with the listing. If, in the environmental professional’s opinion, such a review is not warranted, the environmental professional must explain within the report the justification for not conducting the regulatory file review."