Understanding Your Liability
Before taking ownership of any property with known or suspected contamination, it is highly recommended that you have a Phase I environmental assessment performed to the U.S. Environmental Protection Agency’s (EPA) All Appropriate Inquiries (AAI) standard. This can provide some liability protection and makes some sites eligible for EPA brownfield cleanup grants. Liability protection extends to bona fide prospective purchases of qualified properties, for entities that:
- Did not cause the contamination
- Have conducted an AAI assessment of environmental issues at the site
- Take care to prevent the environmental problem from becoming worse
- Take appropriate steps to prevent or eliminate exposure to previously related hazardous substances.
- Are willing to provide access to the property for cleanup purposes
- Do not disrupt any instructional controls or violate land-use restrictions designed to manage the contamination, and
- Have no affiliation with the party responsible for the contamination
For more information, visit EPA Brownfield Liability Website.
To incentivize brownfield remediation and development the City works with qualified owners, developers, or potential developers to offer no charge or reduced rates site assessments. Phase I and Phase II Site Assessments are performed on a first-come, first-served basis while funding is available through the EPA Assessment Grant. Program staff can help entities determine the future path of their property once site assessments have been complete.
Interested in Getting Started?
If you are a current or potential property owner interested in learning more about how the city can help you with a site assessment, remediation or development incentives, you can contact David Tetrick at 503-526-2537.
Recognized Environmental Condition: Recognized environmental conditions means the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products into structures on the property or into the ground, ground water, or surface water of the property. The term includes hazardous substances or petroleum products even under conditions in compliance with laws. The term is not intended to include the minimal conditions that generally do not present a threat to human health or the environment and that generally would not be the subject of an enforcement action if brought to the attention of appropriate governmental agencies. Conditions determined to be the minimal are not recognized environmental conditions.
Phase I Environmental Site Assessment: This is the first step in the full site assessment process. This is essentially a review of past uses of the property to determine if there is the potential that the property is contaminated. Typical activities performed in this phase include:
- Records review: All state and federal environmental records will be reviewed to identify any contaminated sites in the vicinity of the property.
- Physical setting: This review will include identification of all physical characteristics of the property including geologic and topographic conditions.
- Property uses: All historic uses of the property and adjacent properties will be identified and all recorded land and title information will be collected back to original development or 1940 whichever is earlier.
- Site reconnaissance: The property and adjacent properties will be observed visually and physically. All evidence of current and historical facilities and uses will be documented.
- Interviews: Owners and occupants or adjacent property owners and occupants will be interviewed to obtain information about the recognized environmental conditions in connection with the property.
- Historical sources such as chain of title documents, aerial photographs, building department records and land use records will be reviewed to determine previous ownership, uses and occupancy since first development.
- Data gaps will be identified and documented when usage information is not available.
The goal of the Phase I assessment is to identify recognized environmental conditions that may be further investigated in the Phase II assessment. If the Phase I assessment does not identify any recognized environmental conditions, a Phase II assessment is not needed. If a Phase I assessment identifies any recognized environmental conditions, a Phase II assessment may be conducted. Phase I Environmental Site Assessments should follow American Society for Testing and Materials (ASTM) standards which provide uniformity. This practice is intended to permit a user to satisfy one of the requirements to qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitation under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability.
Phase II Environmental Site Assessment: When a recognized environmental condition is found during a Phase I assessment, a Phase II assessment is done to confirm or disprove the presence of contaminants. The testing also helps determine what contaminants are present, where on the property they are located and the level of contamination. Phase II activities include:
- Soil samples to screen for chemical or metal contamination
- Groundwater or surface water sampling and testing of materials found in buildings on the property
- Cleanup plans are determined by the findings of the Phase II assessment and the end use of the property
This process can take several months to complete and could require additional sampling depending on the outcome of the sample tests.
All Appropriate Inquiries: All appropriate inquiry refers to the requirements for assessing the environmental conditions of a property prior to its acquisition. Phase I assessments that adhere to this standard must be performed prior to the purchase of a property in order to make owners eligible for Bona Fide Prospective Purchaser status and federal brownfield cleanup grants.