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The Small Business Liability Relief and Revitalization Act (the Brownfields Amendments) clarifies CERCLA liability provisions for certain landowners and potential property owners. The Brownfields Amendments provide liability protections for certain property owners, if the property owners comply with specific provisions outlined in the statute, including a requirement for conducting all appropriate inquiries into present and past uses of the property and the potential presence of environmental contamination on the property. EPA has established specific regulatory requirements and standards for conducting an assessment of the environmental conditions of a property prior to its acquisition, known as All Appropriate Inquiries (AAI); this information may also be available in local or state files.

Many of the properties targeted for revitalization already have some environmental history associated with them. As a result of the requirement for due diligence, properties that have been involved in recent transactions may have been subjected to some level of environmental assessment. All aspects of a site assessment, or all appropriate inquiries investigation, completed more than one year prior to the date of acquisition of the subject property must be updated to reflect current conditions and current property-specific information. Revitalization teams can benefit from environmental investigations completed in support of previously closed or failed transactions; municipal, state and federal records; and anecdotal information from individuals knowledgeable with regard to the operational history of the site. However, it is important to note that all properties need to have environmental due diligence efforts conducted for revitalization efforts in order to obtain financing or to qualify for landowner liability protections under CERCLA. Revitalization teams should contact site owners to obtain previous environmental assessment reports, if any.

EPA’s final AAI rule (40 CFR Part 312) was released on November 1, 2005.  The federal rule, which recognizes the current industry standard (ASTM E 1527-05) as an acceptable guidance document, took effect on November 1, 2006.  The ASTM International standard was revised to be at least as stringent as 40 CFR 312.  Some key differences between the two documents remain. However, a property purchaser using a qualified environmental professional may follow either the revised E 1527-05 standard or the AAI rule in order to meet the first step necessary to qualify for CERCLA liability protection. 

The ASTM International Guidance Site Assessment Documents Exhibit presents standard guidance documents that ASTM has published for use in site revitalization. These resources, and additional applicable resources, can be purchased through ASTM International's Web Site. At this time, the ASTM International website is the only known official source for purchasing ASTM International methods.

Site assessments known as Phase I environmental site assessments completed in accordance with ASTM International or AAI (some States' regulations will supersede ASTM International) will include information regarding abutting and adjacent sites that may be valuable sources of information to stakeholders during the early stages of environmental investigation. This information can be critical to the development of an accurate characterization of the condition of the surrounding properties and ultimately to the accurate estimation of costs associated with environmental cleanup. Stakeholders may encounter challenges in getting adjacent property owners to release results of prior environmental assessments due to concerns about liability. Partnering with adjacent property owners and marketing the positive impact of the revitalization can help improve the flow of information.

Thorough evaluation of the effectiveness and operating history of existing remediation systems associated with corrective action at the site is also required. Design and operation of previously-installed remedial technologies may not have been successful for a variety of reasons. Revitalization efforts may have to allow for the continuation of existing remedial activities. As with any industry, environmental technologies have advanced significantly in recent years with regard to the accurate and cost-effective assessment and cleanup of potentially contaminated sites. It is possible that a site with a prohibitively expensive cost to cleanup using traditional technology may be addressed more cost-effectively with innovative technologies now available.

Developing a thorough understanding of the regulatory aspects of site revitalization is as critical to the project success as the physical assessment of the site. Early in the revitalization process stakeholders should have a clear understanding of the current regulatory status of the property, the regulatory environment under which the project will be completed, existence of previously established land use controls (such as, deed restrictions) and potential future regulatory requirements impacting the planned reuse.

There is the possibility for potentially contaminated sites to be subject to regulation under a variety of programs. It is essential to the revitalization process that the regulatory history, status, and potential future impact be researched in detail to prevent costly project delays and/or “deal breaker” issues. This information is summarized in the Phase I Environmental Assessment Report. Federal, state, and local agencies with environmental jurisdiction maintain records that provide a “road map” of the regulatory direction the site has traveled and that the revitalization team will have to navigate. In some cases, multiple agencies may be involved in environmental regulation of the site. For example in California, the Department of Toxic Substances Control and the State Water Resources Control Board share jurisdiction over cleanups. EPA may layer responsibilities on as well, such as under the Toxic Substances Control Act, which is not delegated to states. Resource trustees are included when the federal and state government are designated to determine impacts and compensation in the case of natural resource damages (often water resources).

After determining the regulatory framework associated with the specific site of interest to the revitalization team, a preliminary assessment is required (see All Appropriate Inquiry). The development of a regulatory history for the site, consistent with ASTM International Guidelines, will provide the revitalization team with data regarding the actions necessary to address site-specific regulatory issues. Critical data includes information about the site and surrounding property solicited from the EPA and applicable state agencies as well as a number of local agencies. To determine if any CERCLA sites, hazardous waste generators, or hazardous materials spills were reported or EPA-regulated establishments are present in the vicinity of the subject site, revitalization teams should review information from several databases and lists compiled by the EPA, the state regulatory agency and municipal sources. Specifically, a review should include the Comprehensive Environmental Response, Compensation and Liability Information System (CERCLIS); National Priorities List (NPL); Resource Conservation and Recovery Act (RCRA) database; Facility Index System (FINDS); Emergency Response Notification System (ERNS); and underground storage tank (UST), landfill, well records, and environmental enforcement databases. State resources include “State Superfund” lists, Leaking Underground Storage Tank (LUST) databases, and state waste disposal permit files. Local resources include information solicited from municipal regulatory agencies. These resources include local environmental health department files, building and demolition permit records, fire department incident files, and files maintained by the zoning and planning departments. Environmental database searches, including information from the above-referenced federal and state databases, are available from private sources for a nominal fee. These database searches meet ASTM International and other standards as part of an environmental file review.

Data collected during the Phase I environmental site assessment may conclude that contaminant(s) may exist at the site and that further study is necessary to determine the extent of contaminantion. The purpose of a Phase II environmental site investigation is to give planners and decision-makers objective and credible data about the contamination at a brownfields site to help them develop an appropriate contaminant management strategy. A site investigation is typically conducted by an environmental professional. This process evaluates the following types of data:

Data gathering in a site investigation may typically include soil, water, and air sampling to identify the types, quantity, and extent of contamination in these various environmental media. The types of data used in a site investigation can vary from compiling existing site data (if adequate), to conducting limited sampling of the site, to mounting an extensive contaminant-specific or site-specific sampling effort. Planners should use knowledge of past facility operations whenever possible to focus the site evaluation on those process areas where pollutants were stored, handled, used, or disposed. These will be the areas where potential contamination will be most readily identified. Generally, to minimize costs, a site investigation begins with limited sampling (assuming readily available data does not adequately characterize the type and extent of contamination on the site) and proceed to more comprehensive sampling if needed (for example, if the initial sampling could not identify the geographical limits of contamination). The EPA Environmental Technology Verification (ETV) Program provides links to information regarding various site sampling, monitoring and characterization technologies, along with contact information for verified vendors that provide them.

A multi-disciplined team that can address the environmental aspects of the project should include individuals who have expertise in chemistry, geochemistry, geology, hydrogeology, biology, toxicology, civil engineering, and soil sciences. Depending upon site-specific conditions and potential for remediation options, other expertise also may be required. Specialized expertise may be required to conduct environmental and public health risk assessments, operate models, or perform complicated statistical analyses (EPA, 2002).

The Federal Remediation Technologies Roundtable (FRTR) offers a Field Sampling and Analysis Technologies Matrix for use in identifying methods involving non-intrusive or minimally intrusive technologies in order to optimize sampling locations and minimize well installation. The Matrix includes techniques and instruments that are (1) fieldable and (2) commercially available. The Reference Guide provides a description and additional background information on each technology. Member agencies of the FRTR are working jointly to make data more widely available on real experiences and lessons learned in selecting and implementing treatment and site characterization technologies to clean up soil and groundwater contamination at hazardous waste sites. They provide remediation case study reports, remediation technology assessment reports, and technology cost analysis links.

One such innovative approach to conducting an environmental site assessement is the Triad Approach which can be used to effectively plan an expedited yet effective approach to investigation, clean up, and revitalization. This approach incorporates advancing science, technology, and lessons-learned from the field. The three elements of the Triad Approach includes systemic project planning, dynamic work strategies, and real-time measurement technologies, which are integrated to attain more efficient and affordable project management. By including ‘if-then’ approaches in dynamic work plans, scientifically sound site models can be developed and corrected in real-time, streamlining site activities—cutting life-cycle costs and lifespan by a third, a half, or more. Systematic planning keeps all concerned parties informed, involved, and focused on project objectives during the entire cleanup process. Additional information can be found at the Triad Resource Center. Triad user experiences featuring the application of Triad at various sites in the U.S. can be found at www.triadcentral.org/user/index.cfm.

The EPA publication SW-846, entitled Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, provides analytical and sampling methods that have been evaluated and approved by the EPA for use in complying with the RCRA regulations. SW-846 functions primarily as a guidance document setting forth acceptable, although not required, methods for the regulated and regulatory communities to use in responding to RCRA-related sampling and analysis requirements. It contains procedures for field and laboratory quality control, sampling, determining hazardous constituents in wastes, determining the hazardous characteristics of wastes (toxicity, ignitability, reactivity, and corrosivity), and for determining physical properties of wastes. It also provides direction on how to select appropriate methods.

A Quality Assurance Project Plan (QAPP) describes the plan for collecting and using environmental data. It documents the planning, implementation, and assessment procedures for a particular project, as well as any specific quality assurance, quality control activities, and other technical activities. It increases the likelihood that the results of the work performed will satisfy the stated performance criteria needed for a specific decision or use. A QAPP is project specific. All work performed or funded by EPA that involves the acquisition of environmental data must have an EPA approved QAPP.

The EPA Quality Assurance Guidance for Brownfields Site Assessments documents important quality assurance concepts and issues, and provides a road map to Brownfields site managers for identifying the type and quality of environmental data needed to present a clear picture of the site's environmental conditions.