Phase I Environmental Site Assessments

Most often, it is buyers, sellers and lenders involved in a real estate sales transaction who will engage an environmental consultancy professional to perform and prepare such an assessment, commonly known as a "Phase I." The purpose of a Phase I is to identify any recognized environmental conditions for the real property that is the subject of the transaction. Lenders and purchasers procure such Phase I assessments as part of the "all appropriate inquiry" process to determine whether the innocent landowner defense under the federal CERCLA statute, 42 U.S.C. §9601(35), can be asserted in the event that environmental contamination liabilities are discovered after acquisition.

Whenever there are allegations of inaccuracy, negligent misrepresentation (actually expressed or by omission) or negligent preparation of a Phase I, the stakes can be high in light of the liability and damages exposure that environmentally contaminated sites pose to landowners. Such disputes typically pit purchasers of real estate and/or their secured lenders against the environmental consultant who prepared the Phase I.

Fellheimer & Eichen's experience includes its successful representation of a purchaser client who secured a multi-million dollar settlement against the preparer of Phase I assessments on a portfolio of commercial properties shortly before the conclusion of three day bench trial. In another matter, when an environmental consultant client retained the firm just three weeks before a scheduled jury trial, our attorneys, with only one week remaining before that trial was to begin, were able to secure a settlement for the clients' voluntary dismissal from the case without having to make any payment to the plaintiff.

The members of Fellheimer & Eichen's Phase I Environmental Site Assessment Practice Group have the experience needed to represent clients in Phase I disputes like these.