Yes, anyone contemplating the purchase of commercial or industrial property must have a Phase I Environmental Assessment performed as part of his or her due diligence in order to take advantage of the “innocent purchaser” defense or bona fide prospective purchaser status. Plus, it is very important to note that the prospective buyer must also perform any additional studies recommended by his consultant in the report.

The presence of contamination does not automatically exclude the possibility of purchasing the property. It may be cost effective for the buyer to remediate the property, and there are other options available, such as managing the contamination in place and restricting certain uses of the property. And it is worthwhile to explore the possibilities of brownfields grants as well.

Although anyone subject to inspection can always demand that the agency have a warrant, the better practice is to prepare in advance for inspections. The right to inspect is usually reserved by the Agency in any permit that is granted. Taking certain specific steps, such as maintaining permit-specific records separately in an easily-accessibly location where they can be quickly retrieved, can significantly reduce the stress of an inspection.