Authored by: Julie Kilgore, President, Wasatch Environmental, Inc. and William R. Weissman, Retired Partner, Venable LLP

November 2013

ASTM International, Inc. (ASTM) has issued a revised version of its widely used Phase I Environmental Site Assessment (ESA) due diligence standard.  Originally developed in 1993, the Phase I standard is used to conduct research into the previous ownership and uses of a property to identify the potential for releases of hazardous substances or petroleum products that could lead to potential future liability.  The most significant revisions occurred in 2005 to meet the new requirements enacted by Congress in the 2002 Brownfields Amendments to the Comprehensive Environmental Response, Compensation and Liability Act (commonly known as CERCLA or Superfund).  Following ASTM’s 2005 revisions, EPA referenced the 2005 Phase I standard as compliant with the “All Appropriate Inquiry” (AAI) regulation and hence an acceptable alternative procedure for satisfying AAI requirements.

Because all ASTM standards have a maximum shelf life of 8 years, ASTM’s Phase I Task Group began a careful review of the 2005 standard in 2010 to simplify the language and clarify provisions that experience had shown were sometimes misunderstood in conducting Phase I assessments.  The new E1527-13 standard is the result of that review, and it now supersedes the 2005 standard.  Copies may be obtained at  EPA has proposed a similar reference of the 2013 revision as compliant with the AAI rule and expects to take final action on the proposed reference by year-end.

There are three primary sets of users for ASTM E1527:

  • Purchasers of commercial property seeking to qualify for one or more of the CERCLA liability defenses for innocent property owners;
  • Municipalities and quasi-governmental agencies applying for federal brownfields grants;
  • Lenders who finance commercial property transactions for evaluating and managing environmental risks as part of their loan determination.

The ASTM E50 Task Group determined that several of the provisions in the 2005 standard were confusing and resulted in varying interpretations that produced inconsistencies in how information was presented to the end user.  The aim of the E1527-13 standard was to clarify these ambiguities, simplify some of the definitions, and facilitate greater consistency in applying the standard.  In a document EPA prepared comparing the 2005 and 2013 standards to determine consistency with the AAI rule, the Agency determined that “the newly revised standard, although essentially congruent to the ASTM E1527-05 Phase I Environmental Assessment Standard, provides some clarifications and additional guidance for the environmental assessment of commercial properties and determining whether or not there are recognized environmental conditions at a property or conditions indicative of releases or threatened releases of hazardous substances at a property.”  See EPA, Summary of Updates and Revisions to ASTM E1527 Standard Practice for Environmental Site Assessment Process – How E1527-13 Differs from E1527-05, available at!documentDetail;D=EPA-HQ-SFUND-2013-0513-0003.

A few commentators have circulated statements that E1527-13 introduces significant new costly requirements pertaining to a range of subject areas, including vapor intrusion, agency file reviews, and characterization of remediated properties.  These dire predictions are wildly exaggerated and contrary to both EPA’s and the ASTM task group’s understanding of E1527-13.  Only those who misread the 2005 standard as allowing environmental professionals to dispense with requirements that were never intended to be discretionary may face material changes in their Phase I implementation strategy.  This  minority of environmental professionals is now on notice that even if they continue to use the 2005 standard, they can no longer justify an inadequate environmental assessment by relying on the ambiguities in the outdated 2005 standard.  The clarifications in the 2013 standard provide ample guidance on what constitutes “good commercial and customary practice” for a Phase I assessment consistent with EPA’s AAI rule.  It would therefore be useful to explain the clarifications in E1527-13 and to dispel some of the myths circulating in the media.


The primary challenge with “vapor” is the tendency to use of the terms “vapor intrusion” and “vapor migration” interchangeably.  An evaluation of the potential for vapor to be present inside a building as a result of a release has never been part of a Phase I in the past and is not part of a Phase I with the new revision.  The objective of a Phase I ESA is to identify the presence or likely presence of hazardous substances or petroleum products on the property due to a release.  Whether that release or suspected release is affecting soil, groundwater, or indoor air is a matter of further evaluation and is not part of the Phase I assessment.

What is new in the revised ASTM standard is a definition for “migrate” or “migration.”  This definition states that  “migrate” and “migration” refers to the movement of hazardous substances or petroleum products in any form, including solid and liquid at the surface or subsurface, and vapor in the subsurface.  There is no requirement to identify in the Phase I ESA which form the environmental professional suspects the hazardous substance or petroleum product may be present on the target property, but rather to understand the various pathways and how the hazardous substance or petroleum product is likely to migrate on to the property.

Agency File Reviews

There was considerable discussion within the ASTM task group on the issue of agency file reviews with active participation by all interested stakeholders.  The aim was to strike a reasonable balance to achieve the objectives of AAI without creating an undue and unnecessary marketplace burden.

It is important to note that there is no mandate to obtain regulatory agency file records in all Phase I ESAs.  The flexibility that was built into the revision was in direct response to the diverse opinions on the subject and is consistent with the AAI rule.  Nevertheless, there are several important points about reviewing agency records that need to be noted:

  • The task group found that many consulting firms performing Phase I ESAs throughout the country were already following the flexible procedure now prescribed in E1527-13.  What was often missing in past Phase I reports, however, was the environmental professional’s rationale for why a review of those records was not conducted.  There are a number of valid reasons for dispensing with a search for agency records.  For example, the environmental professional could determine that the database information was sufficient to allow a finding that there is a recognized environmental condition on the property.  The professional might consider certain factors to justify concluding that a neighboring property was not a risk to the subject site.  Or the professional might conclude that needed records were not available within reasonable time or cost constraints, or perhaps the needed information was available from another source.  All of these reasons are permissible within the framework of E1527-13.
  • A major reason that the agency file review issue became contentious during the task group development of the 2013 standard is that some environmental professionals have used the ambiguities in the prior 2005 standard to avoid conducting the appropriate research altogether, even though the objectives of AAI had not been met.  The task group sought to address this concern by stating clearly that performing the agency file review is not optional, but if the environmental professional concludes that it is unnecessary in a particular ESA (such as the reasons listed above), the justification for that omission must be included in the Phase I report.  E1527-13 puts those who may have assumed that the agency file review was optional under the 2005 standard on notice for future Phase I ESAs that their past interpretation is not consistent either with the intent of E1527-05 or the explicit language of E1527-13.

Definitions of Recognized Environmental Conditions and De Minimis Condition

The definition of recognized environmental condition (REC) has been simplified to track more closely EPA’s statement of the objective of the AAI rule to identify “conditions indicative of releases and threatened releases of hazardous substances on, at, in, or to the subject property.”  The new definition makes no substantive change to what the Phase I assessment seeks to identify.  The term “de minimis condition,” which is not a REC, has been given a separate definition, again without making a substantive change to the term.

Remediated Properties

Under the 2005 standard, properties that had undergone remediation were identified as “historic recognized environmental conditions” (HREC), but the standard was unclear how the environmental professional should treat properties that had been addressed to a standard that allowed contaminants to remain in place.  E1527-13 clarifies the ambiguity by bifurcating remediated properties into two categories:

  • HRECs are properties that have undergone a site remediation in the past that met unrestricted land use standards at the time of the cleanup, and the standard for unrestricted land use remains unchanged at the time of the Phase I assessment.  These properties need not be identified as RECs in the Phase I report.
  • “Controlled recognized environmental conditions” or CREC is a new term and applies to a property where a past release has been addressed and where some contamination remains subject to implementation of some type of formal or informal control, common in cases of a risk-based cleanup.  Under the 2005 standard, there were inconsistent interpretations whether such a property would fall within the definition of a REC or HREC, but under the 2013 standard this condition is clearly treated as a subset of a REC.  The evaluation process by the environmental professional does not change under either the 2005 or 2013 standard.  The adoption of the CREC term signals to potential purchasers of properties that not all RECs are necessarily bad or warrant aborting the property transaction.  Rather, the CREC signals that contamination is present on a property that is subject to some kind of control and alerts the prospective property owner that after acquiring the property, the new owner has continuing obligations to comply with any land use restrictions and not to impede the integrity or effectiveness of any institutional control.  Failure to satisfy these continuing obligations could result in forfeiture of otherwise available future CERCLA liability defenses.

In sum, E1527-13 contains relatively modest changes to the prior Phase I standard aimed at clarifying ambiguous or confusing language in the 2005 standard to produce more consistent results in Phase I assessments.  In responding to an inquiry on whether to begin using E1527-13 before EPA publishes its final action on referencing E1527-13, EPA staff advises that it is “encouraging folks to go ahead and use the new standard (E1527-13).  If you comply with E1527-13, you essentially are compliant with E1527-05 (only with a bit more rigor).”  We expect that the transition to E1527-13 will be swift and smooth.

Julie Kilgore is President of Wasatch Environmental, an environmental science and engineering firm based out of Salt Lake City, Utah.  She has 20 years experience in environmental assessment, investigation, remediation, and regulatory agency coordination.   Kilgore is the chair of Committee E50 on Environmental Assessment, Risk Management, and Corrective Action.  Kilgore also chairs the task group responsible for developing E 1527, Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, and served on the ASTM International Board of Directors. 

William Weissman focused his law practice for more than 45 years on administrative law matters with an emphasis during the past three decades on environmental regulation, legislation and litigation.  He concentrated on regulatory, compliance and enforcement issues arising under the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  He has been an officer of the ASTM E50 Committee on Environmental Assessment, Risk Management and Corrective Action since 1998 and is a member of the E1527 Phase I Task Group and its Legal subgroup.

Authored by: Steve Hoffmann, Founder of WaterTech Capital LLC
October 2013

The notion of sustainable water use, even before an attempt to measure it as a process or define it as a goal, involves the normative determination of the cultural value of water sustainability. Human institutions are shaped by our core values, whatever they may be, and that is why a sustainability ethic must permeate global belief systems.  As the social value of water sustainability is elevated to a social norm, water institutions will begin to change.  The strength of this core belief will determine the extent to which policy can effectively utilize market processes in the pursuit of sustainability.

There exists, however, an ethical disconnect between the institutionalized governance of a natural resource, which arguably constitutes the planet’s most valuable biogeochemical cycle, and the supply and demand fundamentals of water as a necessarily economic commodity.  It is becoming increasingly clear that water scarcity results as much from an inefficient institutional structure as from the physical limitations imposed by the dynamics of availability.

Institutional frameworks embody the formal and informal rules that govern human activity.  As a subset, water institutions govern virtually all aspects of water — preservation, development, allocation, regulation, management, and sustainability.  The challenge is that most water institutions were shaped by the ideological premise (core value) that water should be (is) an exclusively social good.  Having developed in a period of relative abundance, the treatment of water as a public good did not expose the allocational shortcomings.   Now, for all reasons, we are experiencing increasing volatility (and extremes) in the spatial and temporal scarcity of water.

The resulting imbalance in the supply and demand for water has revealed allocational limitations inherent in our current institutional approach to water.  While this may not yet be a crisis, it is a serious problem.  By definition, ‘water stress’ conditions erode the foundation of social structures as manifested in food insecurity, poverty, disease, and potential conflict.  The factors contributing to the institutional failure are complex and powerful:

—   Globalization fed by the high–throughput economies of industrializing countries.

—   Historic shifts in global population ecology.

—   Degradation of easily accessible water supplies and emerging contaminants.

—   Substitution of capital for ecosystem services in ‘managing’ the growing imbalances in water supply and demand.

—   Climate variability compounded by a loss of ecosystem services.

While one could easily take a Malthusian stance and imply planetary limits to economic growth, such a position simply demonstrates the asymmetry of anthropocentrism.  The principles of ecosystem sustainability arise more from the laws of thermodynamics and the conservation of matter than from the dominance of a particular species.  Nonetheless, the human reality is that ecosystem services contribute to GDP in significant ways: (a) the production of natural resources, (b) the dilution and detoxification of wastes, (c) climate stability, and (d) biodiversity.  Simply put, water (with its growing consumptive uses and its essential ecological functions) is emerging as a critical constraining/enabling component of global economic growth.

Unfortunately, under governing frameworks that centrally allocate resources and institutionally set prices artificially low, ecosystem services are exploited as a means of ‘managing’ the imbalances rather than properly valued for their essential role in the search for sustainability.  This framework yields the opposite of sustainability.  Human capital is inconsequentially substituted for nature’s capital; that is, resources are inefficiently allocated.  Water resource sustainability ultimately dictates the utilization of market processes that are invoked, to some degree, by all economic systems.

In the economic sphere, the seemingly debilitating challenge is that ‘water’ has characteristics of a common natural resource, a public good, and a commodity.  It can be considered ubiquitous globally but scarce locally; it is renewable but can be depletable; it has no substitutes but can be recycled; it is an economic input as well as a prerequisite for life; and while access to healthy drinking water is regarded as a human right, water can also be privately owned and transferred as a legal property right.

Not only is this mix confounding from an ecological perspective, but it also forces the application of disparate and unwieldy economic principles that are called upon to determine the proper role of market mechanisms in advancing sustainable solutions.  Given the preoccupation of neo–classical economics with utility maximization, optimality, and externalities, it is not surprising that the role of market mechanisms within the larger process of water resource sustainability is not well modeled. Socioeconomic questions surrounding water must be addressed (and gains from sustainability quantified by ecological economists) in order for water institutions to adapt to changing social values and embrace the institutional economics of water. This is the logic behind the opening assertion that water sustainability must be a core value.

What does water institutional change look like?   An illustration is contained within the Sustainability Assessment & Management process recommended by the National Research Council in its ‘Green Book’ report.  The study analyzed the incorporation of sustainability concepts across all EPA programs and details an operational framework for integrating sustainability as one of the key drivers within its regulatory responsibilities.  The report, in essence, is a description of the institutionalization of sustainability, one that embraces an impetus for market processes.  This is derived from the application of ‘sustainability tools’ such as ecosystem services valuation, environmental benefit–cost analysis, integrated assessment models, and sustainability impact assessments.  Quantitative tools like these have important implications for the measurement of meaningful performance indicators and enabling market–based mechanisms in the optimization of the social and economic benefits of environmental protection.

While regulatory bodies such as the EPA are at the forefront of institutional change in the sustainable governance of water, a significant point to be made is that the full spectrum of water institutions must reflect the changing socioeconomic status of water — from irrigation districts to municipal governing boards.  Nowhere is it clearer that the value of sustainability has yet to be even remotely priced into water, than in the institutional methods employed to actually set water rates.  Again, our institutions are shaped by our values.

Water rate schedules are not only the price charged for access to water but a reflection of the broader goals and policies of the institutions involved in rate making.  This reality generates the ever–present discussion of the low price of water, to the exclusion of actually examining the underlying beliefs.   Water institutions at the local (grass roots) level must transition from the politics of equity and fairness embedded in the cost of service model to the broader inclusion of environmental justice.  An ethic of water sustainability as a core value would greatly reduce the clash between social equity and the incentives required for intergenerational sustainability.

But the focus should not be on a commodity price that is expected to serve as an equilibrating mechanism for water supply and demand.  Despite attempts to metaphorically (‘blue gold’) and strategically (‘water is the next oil’) compare the economics of other resources to the prospects for water, there are surprisingly few similarities that would portend a meaningful ‘commodity’ price, let alone a spot market for facilitating transactions.  A more instructive comparison occurs at a product level.  Consider that crude oil distills down into dozens of products, each representing distinct economic goods that respond to signals from market processes.  Many of the practical challenges associated with water resource sustainability could be clarified, if not resolved, by the application of market processes at a product level; i.e., by the unbundling of ‘water’ into ‘water goods’.

The following diagram is a stylized visualization of a framework for analyzing the potential contribution of market processes in the context of water sustainability (a detailed analysis is presented in The Horinko Group’s webcast, Investing in Water: The Rationale Beyond the Talking Points).  This analytical framework seeks solutions to the tradeoff mentioned between social equity and economic incentives that is invariably at the center of water policy.


Where market processes advance sustainability criteria, sending the proper institutional signals begins with the long overdue move away from treating water as a stand–alone public good.  The private good characteristics inherent in many of the consumptive uses of water must be recognized.  This is accomplished by unbundling ‘water’ into product–level water goods such as: water rights, which, as legal property rights, are as close as you can get to a private good; residential tap water, which is artificially characterized by water institutions as a public good; industrial process water where the benefits are already internalized in the private sector; desalinated water, which is certainly priced through a market process but has less–expensive substitutes; and so on.

The diagram maps the position of water goods according to the qualitative mix of the two attributes used in economics to classify goods as common resources, public goods, near–public goods, or private goods.  The attributes are excludability and rivalry in consumption.  As can be seen, many water ‘products’ inherently exhibit the characteristics of economic or private goods.  This framework can be used as a sustainability tool to identify water uses where the characteristics of private goods can be institutionally attributed in order to invoke the allocational efficiency of market processes.  Sewage sludge is a good example.  When the EPA enacted the Section 503 regulations defining the conditions for the beneficial use of sewage sludge, this product of the wastewater treatment process was transformed into biosolids, a private good around which a market developed.  This institutional change is shown in the diagram by a shift in the positioning of sewage sludge to that of biosolids; representing a mix of more excludability (due to a market price for biosolids) and greater rivalry in consumption (biosolids are beneficially consumed). The idea is that many water uses can be made more sustainable through changes to the institutional rules that govern them.

Reused water is another example of the benefit from institutionalizing market–based processes through the attribution of private good characteristics.  If there are sustainability benefits embedded in reclaimed water (but a supplier can’t exclude somebody else for non–payment) then you can compensate for this market failure by institutionalizing the internalization of the external social benefit.  The supplier of the good is getting paid.  It’s clear that the offset is a form of direct subsidy, but at the product–level, the unintended consequences of cross–subsidization (bundling) are eliminated from policy considerations.  Incentives (subsidies) or disincentives (taxes) can override the conditions of nonrivalry and nonexclusivity that deter private solutions.  This is similar to the economic logic behind a system of tradable emission permits.

The enabling nature of institutional change can be applied to the challenge of unfunded mandates in the looming stormwater regulations.  Stormwater exhibits significant public good characteristics, much like raw source water.  By creating a separate stormwater utility, however, the costs associated with the management of stormwater, if comprehensively identified, can be internalized with the customer as with water and wastewater utilities.  By unbundling stormwater costs of service from the water and/or wastewater rate structures, the utility can create a separate cost of service model that reflects the economic realities associated with meeting the rapidly increasing stormwater regulations and addressing the problematic issue of combined sewer overflows.

The water utility industry itself is a natural advocate for water institution change.  Water utilities are recognizing the critical importance of market processes (not to be misinterpreted as deregulation) within the comprehensive regulatory structure.  Markets could absorb some financial risk, thereby reducing institutional impediments to their own sustainability.  Severn Trent, one of the ten privatized water utilities in the UK, issued a report that envisioned the gradual insertion of ‘market–like’ mechanisms into the water utility sector in order to meet the challenges of climate change and sustainability.  The problem seen was that the policy and regulatory framework in the UK encourages a risk–averse approach to meeting standards that favors costly capital–intensive infrastructure solutions over more sustainable operating solutions, thereby placing too great a reliance on debt financing and jeopardizing the financial stability of the regulated water utility business.

The force behind water institution change is the increasing social value placed on the notion of sustainable water use.  As core values and cultural belief systems change to include an ethic of water sustainability they will influence the institutional landscape associated with water governance.  And where governing institutions are looking at private sector participation as a funding mechanism, the institutional economics of water have an important role in sending the proper market signals necessary to facilitate a more efficient and sustainable allocation of water resources.


Steve Hoffmann is Founder of WaterTech Capital LLC and Senior Advisor of Water Sector Sustainability and Investment to The Horinko Group.  The Horinko Group’s Resource Solutions division seeks to promote an understanding of how market processes can be utilized to facilitate solutions to complex water resource sustainability issues. The nexus between water sustainability and market processes is the subject of the recent webcast, “Investing in Water: The Rationale Beyond the Talking Points” (The Horinko Group/Steve Hoffmann, May 2013).

Excerpt from: Contaminated Sediments – How Do We Strike the Proper Balance?

By: Richard Fox, Vice President/Principal Scientist, Natural Resource Technology, Inc.

August 2013

Contaminated sediment projects represent some of our country’s largest environmental sites in terms of size, complexity, and cost due to several factors including:

  • Transport of contaminants during and after discharge to the water body;
  • Persistence of hydrophobic contaminants (i.e., those that do not dissolve in water);
  • Transfer of contaminants through the food chain; and,
  • A high degree of uncertainty as to how contaminants move through the food chain.

USEPA and state environmental agencies (Agencies) are increasingly focused on reducing potential risk through remediating contaminated sediment sites around the country.  Large programs such as USEPA Great Lakes National Program Office’s (GLNPO) Great Lakes Legacy Act (GLLA) are dedicated to addressing contaminated sediments.  Although the GLLA is focused on specific sites in the Great Lakes, the issue of contaminated sediments is nationwide.

Many larger sites have been remediated or are currently being remediated (e.g., Lower Fox River (WI), Hudson River (NY), Duwamish River (WA)).  For others a Record of Decision (ROD) prescribing the site remedy has been or will soon be issued through USEPA’s Superfund Program (e.g., Passaic River (NJ), Lower Willamette (OR), Gowanus Canal (NY)).

Many large sediment projects become mired in opposition while resources are unnecessarily expended.  An article titled “Accelerating Progress at Contaminated Sediment Sites: Moving from Guidance to Practice” (Bridges et al., 2011) does an excellent job of framing the key issues.  The paper lists the following five steps to accelerate the process:

Action 1: Development of a detailed and explicit project vision and accompanying objective, achievable short-term goals and long-term goals, and metrics of remedy success at the outset of a project, with refinement occurring as needed throughout the duration of the project;

Action 2: Strategically engage stakeholders in a more direct and meaningful process;

Action 3: Optimize risk reduction, risk management processes, and remedy selection addressing two important elements: a) the deliberate use of early action remedies, where appropriate, to accelerate risk reductions, and b) the systematic and sequential development of a suite of actions applicable to the ultimate remedy, starting with monitored natural recovery (MNR) and adding engineering actions as needed to satisfy the project’s objectives;

Action 4: An incentive process that encourages and rewards risk reduction; and,

Action 5: Pursuit of sediment remediation projects as a public-private collaborative enterprise.

All five actions are important and if implemented will very likely realize accelerated sediment cleanups.  Though all of these actions can accelerate site cleanups, Actions 3-5 will likely not occur without Actions 1 and 2.  This article focuses on the first two of the five recommended actions.

Why do we get stuck?  The Agencies are trying to reduce risk – risk to human health and the environment.  However, Agencies often select remedies that may not be the best remedy to reduce risk.  Industries or responsible parties (RPs) are usually forced to remediate their site and seek to do it at the least cost.  At most contaminated sediment sites, Agencies prefer dredging to remove contaminants, while RPs prefer monitored natural recovery (MNR), adding amendments to reduce bioavailability, or capping.  They are typically at odds.

The GLLA Program has not experienced the delays that typically plague other sediment remediation sites.  GLLA has completed remediation at 14 sediment sites and has many others at various stages moving toward remediation.  However, the GLLA is limited to specific areas in the Great Lakes and is not available across the country.

The GLLA Program is a cooperative endeavor where the Federal Government actually contributes significant funding to the project.  It is much easier for RPs and Agencies to come to agreement when both parties are aligned (they both have an interest in creating a win-win remediation scenario), particularly with a funding cap and a clear understanding of how much both are paying.  The success of this program in aligning interests of Agencies and RPs forces us to ask:

  • How do we accomplish sediment remediation in a timely manner for sites not in the GLLA?
  • Is GLLA a model for future sediment remediation projects?

Many practitioners believe the GLLA model should be applied at locations outside the Great Lakes.  However, in the current political climate it is unlikely a broader cost-sharing program will be created.  Clearly, we have learned from the GLLA Program that projects move to remediation faster and achieve better results when interests are aligned.

Typically, sites are remediated using dredging or removal, capping, adding amendments to in situ sediments to reduce bioavailability (more recently), MNR, or a combination of these.  There are advantages and limitations to each of these technologies.  The table below provides a high-level comparison of the advantages and limitations to these technologies.




Dredging Removes contamination; permanent; precise Most expensive; disrupts habitat; leaves residuals
Capping Less expensive than dredging; provides immediate barrier to contaminants; less destructive to habitat and can enhance natural habitat Contaminants remain and must be monitored for a long time; caps have failed; decreases navigation depth
Adding amendments such as activated carbon Less expensive than capping; reduces bioavailability; less disruption Contaminants remain in place; must monitor long term to ensure contaminants not available
Monitored Natural Recovery (MNR) Least expensive; no disruption to habitat No action to accelerate risk reduction; it may not work



In 2011, Bridges et al. stated, “The primary objective of an optimized risk management process is to focus the project, from the very beginning, on developing and implementing solutions for managing risks posed by the site.”  How do we strike this balance?  USEPA has coined a term “smart from the start” to describe how a holistic consideration of a site vision can lead to better sampling of the site.  Here the term “smart from the start” broadens this concept to mean a holistic approach to understand, compromise, and communicate a site vision to find alignment and create a win-win remediation scenario.  The “smart from the start” steps include:

  • Creating the vision for your site
  • Aligning the site vision with the Agencies
  • Building the relationship to align vision and goals
  • Creating win-win

Based on this, implementing Actions 1 and 2 (i.e., site vision along with clear, meaningful communication with stakeholders; Bridges et al., 2011) are important first steps to create alignment between Agencies and RPS.  These actions are more effective if done early in the process before risk-based remedy decisions are made and dollars are spent.

Regardless of whether a site has been studied extensively or is “new” with a paucity of data, it is important to create a conceptual site model (CSM) that shows the current site information.  The CSM can be an illustration or table showing contaminant transport and exposure pathways for important receptors (e.g., humans, birds, fish).  The CSM is important from a technical perspective because risk determination is very complex and fraught with uncertainty.  Small changes in basic assumptions can lead to significant increases in sediment volumes requiring remediation that increase the costs.  The CSM is also the first step to determine the vision for the site and helps keep focus on risk management.  Below is an example CSM courtesy of the Interstate Technology & Regulatory Council (ITRC):

Feature Column Image

Action 1 offered by Bridges et al. (2011) recommends, “development of a detailed and explicit project vision and accompanying objective, achievable short-term goals and long-term goals, and metrics of remedy success at the outset of a project, with refinement occurring as needed throughout the duration of the project,” as the first of five actions for accelerating cleanups at contaminated sediment sites.  Site vision can be viewed as taking the current CSM to the future CSM.

The vision for a site is a mental picture that takes the current site into a better future.  Considerations for creating a site vision include:

  • Potential future use for the site and nearby
  • Planned activities for the waterbody
  • Navigation concerns (both current and future)
  • Ability to redevelop, sell, or donate the site after remediation
  • Opportunities to create land from a waterbody

Developing a vision upfront is critical because different remedial technologies for contaminated sediments can enhance or limit future site use.  An RP that has started along the process of performing the remedial investigation (RI), feasibility study (FS), remedial design, and remedial action without a vision usually only asks, “How can we minimize the cost of the remedy?”  A much better question is, “How can we use ‘smart from the start’ to create a win for us and a win for the Agencies?”  If the site vision is aligned early in the process, a win-win situation is more attainable.

Being “smart from the start” (where we consider the end game, understand the Agencies’ and RP’s perspectives, and find alignment) is the opportunity to balance risk reduction achieved and cost (i.e., risk management).  This is only achieved when there is a common understanding, respect between parties, and a true effort to attain shared goals.  “Smart from the start” is as much psychological as technical.

Part of the site vision is the need for a high-level understanding of potential remedy costs relative to risk reduction.  This is done by estimating the areas and volumes of contaminated sediments to a variety of potential cleanup concentrations or levels (CULs).  These estimated volumes can help establish general cost ranges along with the potential risk reduction to provide an overall perspective of sensitivities to changes in the program.  It is also important to understand the feasibility of remedial technologies at a site.  Dredging is difficult under certain conditions (e.g., if contaminated sediments overlie a rocky substrate).  Capping is difficult under other conditions (e.g., if there are navigation concerns or the potential for ice scour of the cap).  Experienced personnel are best to assist with these analyses, especially if there are significant data gaps in understanding the breadth of contamination and potential risk.


It is critical to engage Agency personnel and demonstrate a willingness to work with them.  The goal is to create mutual trust which thereby, allows for more open and meaningful dialog.  Trust allows for discussion of ideas that might otherwise be thrown out without due consideration.

It is ideal to engage Agency personnel around a vision for the site.  Site vision is becoming increasingly more important and will likely be more of a driver for compelling Agencies to take action on sites.  Further, consideration of site vision will become increasingly more important and represents a prime opportunity to engage the Agency personnel to build relationships.  Attaining agreement on the site vision may be the most significant impediment to executing a contaminated sediment project that meets the goals of both the Agencies and RPs.

Site vision discussions should include potential for leveraging activities in the area that are being conducted or are planned to be conducted.  This is a time to establish a cooperative relationship, and hopefully a partnership.  It is important to keep early discussions at a high level to avoid forcing one’s agenda.  There is a tendency in early negotiations and discussions to try to push for less expensive remedial technologies.  This should be resisted.  There is much more to be gained when an RP makes every attempt to understand, agree to, and then blend the vision of the Agencies into a remedial approach.

The Great Lake Commission has recognized the value of developing a site vision and recently held a workshop titled “Creating Vibrant Coastal Communities: Techniques, Tools, and Resources to Advanced Placemaking in Waterfront Areas” was recently held in Muskegon, Michigan.  This workshop focused on an integrated approach to waterfront redevelopment that includes sediment remediation.


Why are relationships so important?  When perspectives are exchanged in a trust-filled environment, there is more consideration of ideas before taking positions on issues.  This is because in a trusting environment motives are rarely questioned.  Conversely, (and unfortunately, typically) motives behind ideas are questioned when there is distrust.  Relationship building provides the opportunity to change the basis of understanding.  While there is rarely agreement on all issues, merely modifying ones views to consider the perspective of the others will help bridge that gap.

Action 2 offered by Bridges et al. (2011) recommends, “Strategically engage stakeholders in a more direct and meaningful process.”  This is because engagement builds trust, provides perspective, and offers opportunities to adapt ideas and thoughts.  Agencies are the most important stakeholders to engage first, but other stakeholders can be engaged to offer opportunities to create win-win remediation scenarios.  Example opportunities that can be leveraged to create win-win remediation scenarios include:

  • Shoreline access for the public
  • Public amenities (e.g., parks, boat launches)
  • Redevelopment for residential or commercial purposes


Environmental negotiations, in particular those specifically related to contaminated sediment sites, are locked in on the “mythical fixed pie” (Bazeman, 2003).  The negotiation paradigm of the “mythical fixed pie” is that the “pie” is finite and in order for one party to gain more, the other party must give something up.  Recall that at most contaminated sediment sites the Agencies prefer dredging to remove contaminants, while RPs prefer MNR, adding amendments, or capping.  The mythical fixed pie is capping (or MNR or adding amendments) versus dredging; remove contaminants at a high cost or leave them in place at a lower cost.  If Agency personnel allow MNR, adding amendments, or capping they are losing some of the pie.  If the RPs are not allowed MNR, adding amendments, or capping they are losing pie.

Such negotiations are based on win-lose rather than win-win.  There are opportunities to expand the pie and create win-win scenarios.  As mentioned above, trust between Agencies and RPs is the first step to expanding the pie and for achieving the win-win.

The second step is to agree to or at least understand the Agencies’ site vision.  Remedial options can then be discussed based on the site visions rather than on cost alone.  When there is trust and a site vision, the pie is not fixed and win-win can be attained.

As an example, proposing to install caps versus dredging will be better received by Agency personnel if both trust and a site vision (e.g., where shallowing or enhancement to natural habitat is desired) are present.  Conversely, when capping is proposed without a site vision that supports the benefits of capping, Agency personnel usually feel that the RPs are merely trying to propose a less expensive remedy that leaves contamination in place.

Another way to gain trust is to propose remedy components that are desired by the other party.  When dredging is proposed by RPs, Agency personnel are more likely to trust that RPs are not just seeking the lowest cost remedy.  Dredging can strategically be used to target areas of highest contamination or to remove sediments that inhibit navigation.


The overall goal of risk management is to reduce risk to acceptable levels at the least cost.  Of course the goal is to also limit the overall liability.  Liability includes the cost of the assessment, remediation, monitoring the effectiveness of the remedy, and potentially maintaining the remedy if contamination is left behind untreated (i.e., tailing liability). It is critical to understand that many contaminated sediment remedies have tailing liability that lasts beyond completion of the project remedy.  Under Superfund, one could argue all remedies have tailing liability because of the need to monitor the effectiveness of the remedy.  However, if sediments are capped in place, amended with organic carbon to reduce bioavailability, or subject to MNR, tailing liability can be far more significant.

The conundrum is that less expensive remedies typically come with more tailing liability.  It is classic “pay me now or pay me later.”  Further, the larger the site the more difficult and expensive it is to remove or treat all contamination, as river dynamics tend to redistribute contamination over larger areas.

With consideration to overall liability, combination remedies (i.e., use of multiple technologies) often afford the greatest opportunity to expand the pie and create “win-win” scenarios.  Combination remedies, by their nature, balance the tensions between parties because they allow both parties to attain wins.

An example combination remedy is being constructed on the Lower Fox River in Wisconsin.  The remedial action level is 1 ppm.  There are approximately 7.25 million cubic yards of sediments that must be remediated.  Approximately 70% of the mass of PCBs will be removed from the river using hydraulic dredging.  The rest of the sediments (approximately 3.25 million cubic yards) will be capped or covered with sand.  This remedy strikes a balance between the Agencies’ preferences for removal of PCBs with the RPs preferences for lower cost.  The combination remedy was arrived at through many meetings between the RPs and the Agencies and their Oversight Team.  The meetings focused on the site vision and risk reduction.  These meetings were conducted while there was a ROD in place that called for dredging all sediments but allowed for a “contingent remedy” of capping if capping could be shown to be as effective as and less expensive than dredging.  The combination remedy required an Amended ROD.  The fact that the Agencies were willing to amend the ROD shows the success of the processes of visioning the site and creating trust through meaningful and open dialog between the parties.  This truly was a win-win.

Finally, there have been a few projects recently where the RPs have opted for dredging all contaminated sediment out in order to create a situation with no tailing liability.  These projects have been conducted under a removal action and later receive a “No Action” decision in the ROD.  These types of projects are easier to come up with a win-win but the greatest opportunities exist when the project is conceived of from the beginning.  A balance must be struck to ensure that the remedy is complete enough for the Agency to agree to a situation where the remediation is complete.  This requires openness and trust.

The final piece to all of this is to align the site vision, remedy selection, and tailing liability with overall risk reduction.  If communication has led to trust, it is possible to agree to a win-win remedy where both parties are satisfied.


Bridges, T.S., S.C. Nadeau, and M.C. McCulloch. 2011. “Accelerating Progress at Contaminated Sediment Sites: Moving from Guidance to Practice”. Integrated Environmental Assessment and Management; Volume 8, Number 2: pp. 331-338.

Bazeman, M.X. “Mythical Fixed Pie”. Harvard Business Publishing Newsletters; 3 pages. November 1, 2003. Prod. #: N0311A-PDF-ENG.