Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted by Congress on December 11, 1980. This law created a tax on the chemical and petroleum industries and provided broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment. Over five years, $1.6 billion was collected and the tax went to a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites.

CERCLA accomplished the following:

• established prohibitions and requirements concerning closed and abandoned hazardous waste sites;
• provided for liability of persons responsible for releases of hazardous waste at these sites; and
• established a trust fund to provide for cleanup when no responsible party could be identified.

Phase I Environmental Site Assessment

An Environmental Site Assessment Phase I is deemed necessary as a legal obligation and/or for the purpose of:

• Commercial transactions;
• Qualifying for a landowner defense to Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Most likely an environmental site assessment is required, otherwise to reduce liability and manage risk.

Further CERCLA states that potential liability for the cleanup of hazardous substances may rest with the current landowner. This responsibility holds unless when acquired the owner was unaware and had no reason to know the presence of hazardous substance disposed on, in, or at the property. To establish defense that the landowner had no reason to know, "they must have undertaken, at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability..." [cited CERCLA section 9601(35)(B)].

Due diligence investigations and analysis for property, transactions and environmental assessments have been around for a long time. However, in the absence of standardized protocol, requirements and "forceful" guidelines created discrepancies in investigating, analyzing, evaluating, reviewing, classifying and reporting.

In 1989, the American Standard of Testing Materials (ASTM) got involved and standardized the protocol recognizing and determining environmental impacts on-site, ASTM standards E1528-96 (Transaction Screen Process) and E1527-97 (Phase I Environmental Site Assessment "Standard") came about. Further, this protocol of standards fulfills the criteria of CERCLA relevant regulations in the USA. The EPA does not require that the ASTM standards protocol be applied. However, this protocol is an accepted standard, meaning that a Phase I Environmental Assessment can be carried out without following ASTM standards (namely guidelines). However, the difficulty may come if the assessment is required for purpose of liability, while admissible it can be adversely attacked in a court of law.

ASTM standards E1528-96 (Transaction Screen Process) and E1527-97 (Phase I Environmental Site Assessment Standard) assist in effectively clarifying the assessment protocol. Compatible with International Standards (ISO), ASTM continues introducing and updating standardized tests and protocols in many technical disciplines.

The requirements set forth by ASTM Standards for a Phase I assessment include the following:

1. Planning - An activity that identifies purpose, objectives and gathers information to effectively progress through the steps that follow;
2. Review of Records - Includes reviewing records (governments and related entities) by accessing several governmental databases and historical records. It involves the review aerial photography and topographic maps;
3. On-Site Visit - Observing the site and with the information previously obtained study and analyze the site and surroundings from a past, present and potential future effects;
4. Dialogues & Interviewing - gathering information in dialogue with site present (and previous) owners, site occupants and local regulatory entities. If the information warrants, further investigation through others that may provide or assist with relevant information; and
5. Assessment Report - The obtained data and information is compiled in a report structured to meet requirements of the assessment objectives which includes findings, recommendations and conclusions.

Phase II Site Assessments

Phase II Site Assessments may be recommended as a result of findings of the Phase I Site Assessment. Phase II Site Assessments are conducted to delineate the type, concentration, and extent of chemicals in soil, soil vapor, and groundwater. This allows the potential risk at a given site to be assessed and a regulatory agency to decide whether remediation is needed. A Phase II can also provide valuable information for the development of a risk assessment model, risk-based corrective action, and the design of a remediation system, if needed.