More than one environmental consultant has reported that Ohio EPA has changed its public records review procedures. Ohio EPA has centralized its document review process. It has developed a new public records request form that it asks any consultant requesting records to fill out (click here for the form).
After files are compiled in response to the request, Ohio EPA will typically not release the records until the Legal Office completes a review. The purpose of the review is to ensure attorney-client or other privileged documents are not released. That is understandable. However, the practical effect, as reported by more than one consultant, is that records are not being released or files made available for review as quickly.
Many times it can take more than three weeks before files will be made available. This causes practical issues for consultants performing Phase I Environmental Assessments.
Under the new ASTM 1527-13, the consultant performing a Phase I is required to review records from pertinent regulatory files. The consultant must review files that are deemed "reasonably ascertainable." With regard to records, the new ASTM standard defines reasonably ascertainable as a file review or copies made available within twenty days of making the request.
More and more Phase Is will note that file requests were issued, but no response was made when the report was finalized. While proper documentation in the Phase I does not render the report inconsistent with ASTM, it does create practical ramifications for the user of the report.
State EPA files are more often than not the best source for identifying environmental issues with properties. Those issues could include information about prior releases of contamination, enforcement actions, permitting issues, etc.
The more time it takes Ohio EPA to produce files, the more likely these critical reviews will not be completed before the Phase I report is finalized. This leaves the purchaser or tenant who ordered the Phase I with significant risk that problems exist with the property that will not be identified until after the transaction closes.
Users of Phase Is are left with the choice of delaying their transaction while they wait for the files to be reviewed or moving forward without potentially critical information regarding the property.