The 2002 Brownfields Amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) required EPA to establish standards for conducting All Appropriate Inquiries (AAI) to provide liability protections for potential property owners who did not cause or contribute to contamination at a property. AAI is the process of evaluating a property’s environmental conditions and assessing potential liability for any contamination. This process is accomplished by conducting a Phase I Environmental Site Assessment (ESA), which follows the 10 steps of AAI. Phase I ESAs often identify recognized environmental conditions (RECs) associated with a property’s current or historical uses, and Users can be left wondering what steps are necessary to maintain CERCLA’s liability protections.
Every site is unique and there is no single approach to evaluating potential subsurface impacts during a Phase II ESA. The overall level of effort for the Phase II ESA must be customized to the User’s needs, and options should be presented to allow for the User’s own risk tolerances. This discussion will include the thought process behind scoping a Phase II ESA as well as an evaluation of the options available to Users if contamination is identified.
The goal of a Phase II ESA is to evaluate the REC or environmental concern previously identified in the preliminary stages of environmental due diligence. The purpose of conducting a Phase II ESA depends on the objective of the User. Typically, the purposes of a Phase II ESA are to: (1) develop sufficient information from which the environmental professional (EP) can render an opinion whether constituents of concern are absent from a site, thereby satisfying the innocent purchaser defense under CERCLA; or (2) develop sufficient information about the presence of a REC at a site to meet the business objectives of the User.
The results of the Phase II ESA sampling are interpreted to determine the significance of the data as they relate to the User’s objectives. The data is evaluated to determine if detected constituents are naturally occurring or are present as a result of human activity. If constituents of concern were not detected and there is no reasonable basis for suspecting the disposal or release of hazardous substances at the site, then no further work is necessary to satisfy the AAI element of the innocent purchaser provision of CERCLA. If the presence of contamination is confirmed on the site in excess of naturally occurring levels, then the User may be eligible for the bona fide prospective purchaser defense. If requested by the User, the Phase II data may be interpreted to determine what further work is required or desirable to assess the extent of the release and assess whether exposure pathway mitigation is required. Depending on the User’s goal, these objectives can be accomplished independently or under the guidance of a state remediation program.