ESA cheat sheet

CERCLA §107 imposes strict, joint and several, and retroactive liability on current owners/operators, past owners/operators at disposal time, arrangers, and transporters.

CERCLA §101(20)(A) defines a vessel or facility owner/operator; the security interest exemption protects lenders who hold indicia of ownership primarily to protect a security interest without participating in management.

The bona fide prospective purchaser (BFPP) defense under CERCLA §101(40) requires all appropriate inquiries, no affiliation with liable parties, and continuing obligations including reasonable steps and cooperation.

The innocent landowner defense under §101(35) requires AAI before acquisition plus post-acquisition reasonable steps and full cooperation with response actions.

RCRA Subtitle C regulates hazardous waste from cradle to grave via generator, transporter, and TSDF requirements; Subtitle D governs nonhazardous solid waste landfills.

The Clean Water Act §404 program (USACE) governs dredge and fill material discharge into waters of the US; §402 NPDES permits govern point source discharges.

SARA Title III (EPCRA) requires reporting under §302/311/312 (hazardous chemicals) and §313 Toxics Release Inventory for facilities above threshold quantities.

The Clean Air Act regulates stationary sources through New Source Review and NESHAP/MACT; the Brownfields Revitalization Act (2002) funds assessment and cleanup and clarifies federal liability protections.

ASTM E1527-21 defines the Phase I scope: records review, site reconnaissance, interviews, and a written report; the goal is identifying RECs, CRECs, and HRECs.

AAI under 40 CFR Part 312 requires the assessment be conducted or updated within one year prior to acquisition, with specified components (interviews, records, site visit) completed within 180 days.

Standard historical sources include aerial photographs, fire insurance maps (Sanborn), city directories, topographic maps, and recorded land title records.

The regulatory database search uses ASTM standard radii; for example, NPL sites are searched at a 1-mile minimum radius and RCRA generators at a 1/8-mile radius (ASTM E1527-21).

A REC is the presence or likely presence of hazardous substances or petroleum products indicating a release or threat of release; a CREC is a REC that has been addressed but controls may be required.

An HREC is a historical REC where a past release has been addressed to unrestricted use without controls; it does not require action but must be disclosed.

The environmental professional must meet education, experience, and licensure criteria in 40 CFR 312.10 and must declare the assessment meets AAI standards.

A Phase I is not a guarantee of no contamination; the standard does not include sampling, and data gaps must be identified and evaluated in the report.

REC findings must be documented with a rationale linking the identified condition to a release or potential release of hazardous substances or petroleum products.

Historical uses most likely to produce RECs include dry cleaners, auto repair, gas stations, metal plating, printing, and manufacturing with solvent use.

Sanborn fire insurance maps can show past USTs, gasoline tanks, dry cleaning operations, and industrial uses not visible in current conditions.

City directories provide year-by-year occupancy data useful for corroborating historical uses when photographs or maps are unavailable.

A business environmental risk (BER) is a condition that may present a business risk but does not meet the REC definition; it is reported separately.

A de minimis condition is a release that does not pose a threat to human health or the environment and does not meet the REC threshold.

A controlled REC requires an evaluation of whether the engineering or institutional control remains effective and whether it limits current or future use.

Vapor intrusion potential from contaminated groundwater or soil beneath a building should be evaluated as a potential REC if the site is in a known vapor-affected area.

A Phase II is a sampling and analysis investigation designed to evaluate RECs identified in the Phase I; it is not a regulatory cleanup or a guarantee of closure.

A conceptual site model (CSM) identifies sources, release mechanisms, exposure pathways, and receptors to guide sampling locations and analytes.

Soil boring and monitoring well locations should target suspected source areas, downgradient groundwater, and migration pathways identified in the CSM.

A sampling and analysis plan (SAP) should document objectives, analytes, methods, detection limits, QA/QC, and data quality objectives.

Quality assurance includes field duplicates, trip blanks, equipment blanks, matrix spikes, and chain-of-custody documentation for defensible data.

Low-flow (low-stress) groundwater sampling minimizes turbidity and produces representative dissolved-phase concentrations compared with high-flow purging.

Field screening tools (PID, FID, OVA) provide real-time volatile organic compound indications to guide sample selection but are not definitive analytical results.

Data validation and comparison to applicable regulatory screening levels (e.g., EPA RSLs, state standards) support conclusions and recommendations for further action.

Common contaminants include chlorinated solvents (PCE, TCE), petroleum hydrocarbons (BTEX, TPH), heavy metals (lead, arsenic), PCBs, and pesticides.

Dense non-aqueous phase liquids (DNAPLs) such as PCE and TCE sink below the water table and can act as long-term continuing sources.

Light non-aqueous phase liquids (LNAPLs) such as gasoline float on the water table and spread laterally with groundwater flow.

Fate and transport processes include advection, dispersion, sorption, volatilization, biodegradation, and abiotic transformation.

The risk assessment paradigm (EPA) includes hazard identification, dose-response assessment, exposure assessment, and risk characterization.

The hazard quotient equals the exposure dose divided by the reference dose; a value greater than 1 indicates potential concern for noncarcinogens.

Carcinogenic risk is estimated as exposure dose times the cancer slope factor (or inhalation unit risk), with target risk ranges typically 1E-06 to 1E-04.

The vapor intrusion pathway is evaluated using the Johnson and Ettinger model, comparing indoor air concentrations to risk-based screening levels.

A Phase I report must include the environmental professional's declaration, site description, records review, interviews, site reconnaissance, findings, and conclusions.

Findings must distinguish RECs, CRECs, HRECs, de minimis conditions, and BERs, with an opinion on whether the property qualifies for liability protections.

Data gaps must be identified, and the report must state whether each gap affects the ability to identify RECs and whether it was resolved.

The report should document the ASTM E1527 version used, the date of the site visit, and the date of the report.

The environmental professional's qualifications and signature are required; a report without a signed declaration does not satisfy AAI.

Documentation should be clear, objective, and free of unsupported conclusions; each finding should be traceable to a source (records, interviews, or observations).

Retention of supporting documentation (maps, photographs, database reports, correspondence) is essential for defensibility and potential future litigation.

Professional standards include following applicable state licensing requirements and avoiding conflicts of interest that could compromise objectivity.

Due diligence should be tailored to the transaction type, the property's historical use, the buyer's risk tolerance, and the lender's requirements.

The Phase I must be completed or updated within one year prior to acquisition, with specified components within 180 days, to satisfy AAI.

The BFPP defense requires that the purchaser conduct AAI, not be affiliated with a liable party, and take reasonable steps to prevent or limit exposure.

Lender liability protection depends on the security interest exemption; participating in management can forfeit that protection.

Environmental insurance (pollution legal liability, cost cap, and remediation stop-loss) can transfer risk identified during due diligence.

Purchase price adjustments, escrows, indemnities, and representations and warranties allocate environmental risk between buyer and seller.

State voluntary cleanup programs (VCPs) can provide liability relief and closure letters, but the scope and protections vary by state.

Continuing obligations after acquisition include complying with land use restrictions, maintaining institutional controls, and responding to agency information requests.