Under the CERCLA, how can prospective buyers best protect themselves from liability regarding potentially contaminated property?

Performing a Phase I Environmental Assessment is the most effective way for prospective buyers to protect themselves from liability regarding potentially contaminated property. This assessment is a preliminary evaluation that identifies any potential or existing environmental contamination on a property. It typically involves reviewing historical records, conducting interviews, and inspecting the property to determine if any hazardous substances are present.

The significance of a Phase I assessment lies in its ability to uncover environmental issues before the purchase takes place. If contamination is discovered, buyers can make informed decisions regarding the property, whether it involves renegotiating the terms of the sale, seeking remediation, or deciding to forgo the purchase entirely. Obtaining a Phase I assessment can also help establish a "due diligence" defense, protecting buyers from cleanup liabilities under CERCLA if they meet certain criteria, showing they were not involved in the contamination and took steps to investigate the property’s environmental condition.

While other assessments like a Phase II Environmental Assessment provide a more in-depth investigation by testing soil and groundwater samples, they are typically conducted after a Phase I assessment indicates the potential for contamination. Negotiating a liability waiver may not fully protect against future claims, and a property disclosure statement may not reveal all environmental issues. Therefore, initiating the process with a Phase I Environmental Assessment is the