What Phase 1 ESAs Are Missing

Phase 1 Environmental Site Assessments may miss the presence of methane from nearby landfills, and the result could lead cost millions of dollars to meet methane mitigation requirements. To find out more about methane mitigation, the legal background and what developers need to know, we sat down with Cox, Castle & Nicholson LLP partner Keith Walker for an exclusive interview.

GlobeSt.com: Why is methane mitigation becoming an issue for developers?

Keith Walker: For developers throughout California, there is a potential environmental issue that appears to have been consistently flying under the radar.  It is quite often missed by the standard Phase I Environmental Site Assessment and the failure to identify it on a pre-acquisition basis can lead to requirements to install mitigation measures that could cost millions of dollars.  To be blunt, the issue is garbage – and, therefore, methane.  Under the California Building Code, “[p]ermits shall not be issued for buildings or structures . . . within 1,000 feet (304.8 meters) of fills containing rubbish or other decomposable material,” subject to certain exceptions.  The problem is that, according to the State of California’s Department of Resources Recycling and Recovery (“CalRecycle”), there are over 1,500 current and former landfills in the state; and many Phase I Environmental Site Assessments, even from reputable consultants, fail to identify the presence of nearby landfills based on inadequate database research or other investigation.  When that occurs, landowners may only learn of the requirement to install methane mitigation measures after acquiring the property at issue, thereby missing the chance to avoid incurring significant mitigation costs.