5. UTLIZE PROFESSIONAL RISK ASSESSMENTS

Consideration of properties or projects, offers and purchase contracts, negotiations on price and other considerations, expectations for projects or future plans, and all other business decisions should be based not on guesswork, but rather on a professional calculations of contamination nature and extent, response actions and any eventual cleanup, reporting and monitoring obligations, financial costs and obligations undertaken, and the likelihood of related government enforcement and private litigation. That way, the parties can assess potential liabilities, expected expenses, returns on investment, transaction types, and contract clauses to deal with contingencies. Otherwise, the parties are negotiating from ignorance, based on imagined horribles or inflated hopes.

For the simplest transactions, a thorough site assessment and realistic cleanup estimate is needed to make a realistic offer with sensible terms on a do-able schedule, and to prevent the deal falling apart soon after. That is just for starters. More is needed to avoid dashed expectations, blown schedules, escalating costs, unpredictable results, contract disputes, and litigation over property conditions, disclosures, warranties and representations.

Make it a point to collect adequate data to properly and fairly characterize the risk of harm to health, safety, public welfare, and the environment generally, not just a narrow set of Superfund implications. If public health standards do not exist for all substances and all appropriate media at the site, or if no predetermined cleanup levels are set forth in the regulations or in cleanup policies of DEP, evaluate the risks by site-specific risk assessment. This can be accomplished using appropriate reference doses or suitable analogous standards, policies, and guidelines.


There is room for debate in selecting doses or standards in performing risk assessments, which is more like an art than a science. Since the risk assessment drives the determinations of whether any remedial response is necessary, or what future remediation is required or recommended, attorneys and their professional consultants need to seize this opportunity to shape final decisions.


For the development of cleanup alternatives and the final remedial action plan, assuming they are important to the transaction, evaluate each potential remedial action based on such factors as:

• feasibility (cost-benefit analysis, technology-personnel availability);
• residual risk of harm;
• unique site characteristics;
• logistical difficulties;
• reliability of technologies;
• cost of implementation; and
• reasonably foreseeable land uses.