The Superfund Due Diligence Problem: The Flaws in an ASTM Committee Proposal and an Alternative Approach

Phillip B. Rarick

Editors' Summary: One of the most significant issues in nonresidential real estate transactions today is determining what level of due diligence by a prospective property owner is sufficient to qualify for the "innocent landowner" defense under CERCLA § 101(35). One reason for this is that a large percentage of commercial property, and virtually all industrial property, is impacted by environmental contamination, and few properties can be properly valued without assessing such contamination. Another reason is the strict liability scheme under CERCLA and the extraordinary breadth of the Superfund liability net. A committee of the ASTM (formerly named the American Society for Testing and Materials), an industry coalition representing lenders, realtors, environmental consultants, and the legal community, is considering a proposed guide for lay persons to follow in conducting Phase I environmental site assessments or audits. The author examines this proposal and analyzes its flaws. He concludes that it is inadequate and proposes a workable alternative.

Phillip Rarick is an environmental attorney and Director of Environmental Risk Management Services for Enviropact, Inc., an environmental consulting firm in Miami, Florida.

[21 ELR 1050]

What must a purchaser of land do to satisfy the "innocent landowner" defense¹ of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)?² This is not an academic question. In response to Superfund, it has become a common practice for holders of security interests to require a Phase I environmental site assessment³ (also called an audit) prior to committing to provide financing for commercial or industrial property transactions. Multi-million dollar real estate transactions often hinge on $ 2,500-$ 3,500 Phase I assessments. However, the answer to the question of how to satisfy the "innocent landowner" defense is elusive, since the blueprint for what should be done in a Phase I assessment is found in a short phrase in CERCLA § 101(35)⁴ that Congress chose toleave tantalizingly obscure.

This Dialogue examines a current effort by an ASTM committee (formerly the American Society for Testing and Materials) to define a national standard for Superfund due diligence for commercial property transactions, or to put it simply, what must be done to perform a proper Phase I environmental assessment. The Dialogue finds one proposal under consideration by the ASTM Committee to be fundamentally flawed and outlines an alternative approach.

Background

In 1986, as part of the reauthorization of Superfund, Congress intended to give landowners who purchase property without actual or constructive knowledge of contamination on that property a limited defense to Superfund liability. It, therefore, passed CERCLA § 101(35),⁵ now commonly referred to as the "innocent landowner" defense, to help such persons.⁶ Now property owners can only wish that Congress had not been so helpful. The number of landowners who have successfully used the defense to escape liability in court can be counted on one hand.⁷ The law has had the ironic effect [21 ELR 10506] of holding purchasers of commercial property to a much higher standard of due diligence when purchasing property than existed before Congress decided to "protect" the innocent property owner.⁸

The law has had another ironic impact on landowners. Rather than giving them a useful defense to Superfund liability, the "innocent landowner" defense has created the need to conduct some level of assessment to determine whether the property being purchased is contaminated or threatened by contamination. Such environmental studies or Phase I environmental site assessments have now become a de facto requirement to securing financing from most major lenders.

The troubling language is a phrase in CERCLA § 101(35)(B).⁹ It provides that, in order to qualify for the "innocent landowner" defense, a purchaser must, among other things, conduct "all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice."

What is "good commercial or customary practice"? Did Congress think there was a consensus in the industry regarding such practice? If it did, then Congress failed to do its homework. The more likely explanation for this vague language is that Congress decided to punt, hoping that the ball would quickly be picked up by industry or the U.S. Environmental Protection Agency (EPA).

Where is the ball now? Not with EPA. The Agency has chosen to let it bounce out of bounds. Fortunately, however, after a couple of years of sitting on the sidelines, industry has begun to react and take the ball, thanks to an effort led by an ASTM Committee called E.50, an industry coalition representing lenders, realtors, environmental consultants, and the legal community. Since early last year, the E.50 committee has been actively attempting to develop a voluntary industry standard that will inform all parties to property transactions of the actions that must be taken to satisfy the "all appropriate inquiry" provision of Superfund.¹⁰

Three elements combine to make E.50's work extremely significant. First, no other national group with ASTM's credentials is attempting to define due diligence under CERCLA. Second, Superfund strict liability law impacts virtually all nonresidential property transactions in the United States. In fact, few will argue that there exists today an environmental statute that has a more pervasive, national impact on property transactions than the federal Superfund law and similar "baby Superfund" statutes that have been passed in most states. Third, in the short term there is little chance that a legislative solution will be found to the Superfund due diligence problem, since Superfund has already been reauthorized through the Fall of 1994 and it is unlikely that anyone in Congress will want to open up this highly controversial statute before it expires again. These three elements mean that the effort by ASTM will likely have important legal and business implications for real estate transactions in all states.

Proposal Under Consideration by ASTM Committee E.50

The ASTM Committee is considering two guides for conducting Phase I environmental assessments. One, entitled "Standard Guide for Environmental Property Assessment,"¹¹ is a detailed effort to define the Superfund mandate to conduct "all appropriate inquiry" and is intended to provide guidance to environmental professionals who conduct assessments. The second, entitled "Transaction Screen Checklist,"¹² is a list for lay persons to follow in conducting Phase I assessments purportedly consistent with federal Superfund standards. This screening process seems intended to eliminate the need to conduct a more expensive Phase I assessment by professionals.

The checklist includes an interview with the site owner or operator, a review of records, and a site inspection. Committee rules prohibit verbatim citation of this checklist; however, it can be said that the list is a detailed document with questions followed by guidance comments for the nonprofessional, and in some cases pictures of items to look for during the inspection. For example, one question asks whether industrial drums are located on the property. The inspector must answer "yes" or "no." Following the question there is a guide, informing the inspector that chemicals are usually stored in large 55-gallon drums. The inspector is then directed to a picture of a 55-gallon drum that will be attached as an exhibit to the checklist.

Among numerous other requirements, the checklist calls upon the lay person to determine if

(a) any underground tanks are located on the property;

(b) contaminated fill dirt has been brought onto the property; and

Upon completion of this checklist, the inspector must certify under oath that the information provided is true to the best of his or her knowledge and disclose the inspector's relation to and interest in the site.

Although highly controversial when introduced in February of this year, the checklist proposal had apparently [21 ELR 10507] secured the endorsement of many of the most active participants in the ASTM E.50 Committee by mid-July.¹³ However, prior to adoption, the proposal must pass through a rigorous ASTM voting procedure that is expected to begin in late August or September 1991. It is possible that the checklist will undergo further revision before or during the voting process.

The Transaction Screen Checklist proposal clearly evidences considerable thought and innovation by knowledgeable and experienced persons in environmental risk assessment. It may be the best checklist that anyone could develop for lay persons to conduct environmental assessments. However, the proposal is also compelling testimony to the reality that even the "best" checklist is an inadequate substitute for good professional judgment. It would likely fail to fulfill even the most modest hopes of its sponsors if it was ever used in practice.

Flaws in the Transaction Screen Checklist Proposal to ASTM

The Transaction Screen Checklist is deficient in five respects. These are cost and time, report confidence, liability, inspector competence, and inspector bias.

Cost and Time

Apparently, the primary justification for the checklist proposal is to save the time and cost of a Phase I environmental assessment. It is likely to have the opposite effect. The reason for this is the detail of the screening and an explicit presumption that further inquiry is warranted if any question is unanswered or answered in the affirmative. Except for possibly a few isolated plots of tundra in the Alaskan Yukon Peninsula, it is unlikely to screen out any properties. Rather than eliminate properties presenting low environmental risks, the proposal is likely to add another "phase" to the assessment process, increasing delays and cost.

Confidence in the Report

Bankers, many of whom support this proposal, should ask themselves this question: would I loan as little as $ 25,000 based upon a checklist environmental evaluation by a lay person with a possible interest in the transaction? Probably not. The reason has little to do with concerns about lender liability and everything to do with securing an accurate valuation. In the final analysis, most lenders realize that a good Phase I assessment is necessary to obtain a more accurate valuation of property.

Liability

Another question that lenders need to ask is who is going to stand behind the report if there are errors or omissions. If a loan officer conducts the asssessment, then the answer is obvious — the bank. This legal reality may explain a practice observed by Win Hayward, Director of Multi-Family Housing for the Federal National Mortgage Association (Fannie Mae). He states that Fannie Mae does not require its lenders to use environmental professionals to conduct Phase I assessments. However, 100 percent of Fannie Mae's lenders have chosen to contract with third parties who are environmental professionals to perform the assessments.¹⁴

Competence of the Inspector

The proposal fails to set forth even rock-bottom qualifications for the person who performs the inspection. In fact, the checklist is clearly designed for someone with little or no experience in environmental risk assessment. A second grade student could perform the assessment. If the inspector must be shown a picture of a 55-gallon drum, can such a person truly be relied upon to detect the often subtle evidence of underground tanks? Or contaminated fill dirt?

Bias of the Inspector

Who can perform the site assessment? The astonishing answer is anyone, including a party with an interest in the transaction, such as a buyer or seller.

With one exception, the checklist approach is wholly defective. That exception is the proposal to review certain government records. As discussed later in this Dialogue, this exception makes sense because many government environmental records are on computer data bases that can now be checked quickly and cheaply by firms specializing in such research.

The checklist proposal will not work. The ASTM Committee would be wise to endorse only one set of criteria that outlines the minimum essentials for a Phase I, sets forth qualification standards for persons performing assessments, and defines conflicts of interest. The following discussion offers an alternative approach.

Where to Start in Defining Superfund Due Diligence

A good definition of Superfund due diligence must blend requirements that fall within three basic fields: legal, technical, and economic.

Legal Requirements

The "innocent landowner" defense provides four criteria for determining whether the owner had reason to know the property was contaminated and made "all appropriate inquiry." The criteria are:

(a) "specialized knowledge or experience" of the purchaser;

(b) "the relationship of the purchase price to the value of the property if uncontaminated";

(d) "the obviousness of the presence or likely presence of contamination at the property, and the [21 ELR 10508] ability to detect such contamination by appropriate inspection."¹⁵

The last two criteria are the most relevant for Phase I assessments. A number of excellent articles have been written analyzing them in depth.¹⁶ However, one important point needs to be kept in mind: the law does not require an exhaustive search. Rather, the law's mandate can probably be best summarized as follows: to conduct "all appropriate inquiry" the purchaser must examine all information about the present and past use of the property that is relevant to the site's environmental condition and readily available within a reasonable time and at a reasonable cost.

Economic Requirements

What is a reasonable time? Certainly, no one can give a precise answer. However, market realities usually dictate that the Phase I be performed within the same time frame as now allowed for an appraisal, because most investors now realize that a conventional appraisal will not provide a good estimate of the value of the property unless accompanied by a Phase I environmental assessment. Typically, the appraisal can be performed within 20 days or less; a Phase I, therefore, must also be capable of being performed within this time.

What is a reasonable cost for a Phase I? Cost is usually dependent upon the known use of the property and its size. The typical cost for a Phase I assessment for a five-acre tract of commercial property is $ 2,500 to $ 3,500 without an asbestos inspection. Industrial property Phase I assessments range from $ 3,500 to $ 10,000.

These market realities impose severe restrictions on what can be performed in a Phase I. Any attempt to define Superfund due diligence without considering market conditions is an exercise in wishful thinking and contrary to the language of the statute that links the definition of "appropriate inquiry" to "commercial practice."

Technical Requirements

The typical technical tasks in the Phase I almost always include evaluating the subject site and adjacent properties for existing or threatened sources of contamination from hazardous substances, petroleum, and PCBs. Other sources of contamination may also need to be evaluated. If there are structures on the property built or renovated prior to 1980, then an asbestos inspection is commonly recommended. There may also be a need to analyze the site for other contaminants, such as radon gas, lead-based paint, and formaldehyde. In addition, many lenders in Phase I assessments request information about environmental land use restrictions, such as those applicable to wetlands, endangered species, and well field protection areas. Since these issues deal with land use, and not contamination, they require different expertise and should be analyzed separately.

But lenders, investors, and purchasers want more than observations and warm opinions about the contaminants or land-use restrictions discussed in the preceding paragraph. They want specific, conclusive judgments. They do not want a report that states that "a Texaco gasoline station has been located on the adjacent property for the past 30 years." Investors want to know if this gasoline station will impact the property they plan to purchase. Some will want the inspector to take this analysis further and provide an opinion whether an identified source of potential contamination presents a low, moderate, or high risk. The inspector will then be faced with making a difficult judgment based upon limited information or deciding whether there is sufficient information to make such judgments.

This discussion should illustrate one point: Superfund due diligence demands tough, often complex judgment calls. Only highly trained and experienced environmental professionals can be expected to make such judgments upon which decisions to purchase or not to purchase may depend. There must be minimum, but rigid requirements for persons conducting Phase I assessments. Any suggestion that lay persons can perform any aspect of such work must be vigorously rebuffed by both the environmental and lending industries.

Proposal for Phase I Environmental Assessment Criteria

The following is an alternative proposal consistent with the three basic requirements listed above. This proposal assumes the minimum objective of the assessment is to evaluate the property and adjacent properties for hazardous substance, petroleum, and PCB contamination.

Pre-Screen for Red Flags in Environmental Records

Five key EPA data bases can now be searched cheaply and quickly by computer for sites in any state. Several firms now specialize in such research and can perform the search within five days or less. (Some firms can perform the search in 48 hours). The available data bases are:

(1) National Priorities List (NPL). This is the national list of approximately 1,200 Superfund hazardous waste sites.

(2) Comprehensive Environmental Response, Compensation and Liability Information System (CERCLIS). This is a list of approximately 30,000 identified or potential hazardous waste sites. Some CERCLIS sites may become Superfund sites.

(3) Facility Index System (FINDS). This list is EPA's master list of facilities subject to federal environmental regulation.

(4) Hazardous Waste Data Management System (HWDMS). This is EPA's national list of facilities required to give notice of hazardous waste activity under the Resource Conservation and Recovery Act (RCRA).¹⁷ RCRA facilities generate, transport, treat, store, or dispose of hazardous waste.

(5) Emergency ResponseNotification System [21 ELR 10509] (ERNS). This data base contains national spill reports of petroleum products or substances defined as hazardous under the federal Superfund law.

All data bases listed above should be searched for the subject property and adjacent property. In addition, NPL or Superfund sites should be searched for any sites within a quarter-mile radius of the subject site, since such sites often have off-site contamination and may affect property values in the nearby vicinity.

The data bases listed above are federal data bases. Most states have similar data bases and other important environmental records, such as lists of registered tanks, leaking underground tanks, and solid waste facilities.

There is no question that the information in the five federal data bases is now readily available within a reasonable time and at a reasonable cost. Therefore, a strong argument can be made that all five should be searched to satisfy Superfund due diligence requirements. Since this information can usually be obtained in five days or less, it makes sense to do a quick check of these records prior to committing to the cost of a full Phase I. Red flags detected in the search may lead the investor to either cancel the transaction or require a more detailed Phase I. For example, the search may show that a Superfund site is listed on adjacent property. Such critical information is needed by the investor as early in the transaction as possible.

Criteria for a Phase I Environmental Assessment Per Superfund Due Diligence Standards

Assuming the "red flag" preliminary record review has been performed for the data bases listed above, the tasks listed below should be performed to satisfy the Superfund mandate to conduct "all appropriate inquiry." All tasks, with the exception of the record research tasks (tasks 3, 6-10), should be performed by a qualified environmental professional. The records research tasks can be performed by a paralegal or person with specialized training in the search of environmental records. The tasks are:

(1) Site inspection, including a visual observation of the environmental setting; improvements and structures; site geology and hydrogeology; wells; tanks, both above ground and underground; surface water, impoundments, and other land uses; septic systems, leach beds, or other subsurface structures; drums or containers; hazardous substance or petroleum product use; waste disposal practices; and pollution sources that can be visually observed by appropriate inspection;

(2) Visual observation of the present uses of immediately adjacent property;

(3) Review of past ownership of the subject property for a minimum of 50 years as determined from a chain of title prepared by qualified professionals;

(4) Review of aerial photographs of the subject property;

(5) Interview with one or more persons knowledgeable about the present and/or past use of the land;

(6) Review of state and local government records concerning existing or potential hazardous waste or solid waste sites on the subject property or immediately adjacent properties;

(7) Review of state and local government records concerning the presence of underground storage tanks and reports of discharges from said tanks on the subject property or immediately adjacent properties;

(8) Review of state and local government records concerning reports of spills or discharges of hazardous substances or petroleum product, such as data bases for information collected under Title III of the Superfund Amendments and Reauthorization Act of 1986¹⁸ and similar state right-to-know laws;

(9) Review of federal, state, or local environmental permits in the name of the owner or operator of the subject property; and

(10) Review of environmental enforcement actions concerning the subject property as reported in state or local environmental agency records.

Report Requirements

The report should be required to state specific findings and recommendations.

Findings. The report must reach specific findings regarding any existing or threatened contamination. As a rock-bottom minimum, this will involve separate findings for the following categories of contaminants:

(a) Hazardous substances as broadly defined by CERCLA § 101(14),¹⁹ and specifically excluding asbestos or asbestos-containing material;

(b) Petroleum, including both used and waste oil; and

Since the geographic area of concern is usually the subject site and adjacent properties, findings for each of the above categories should be made regarding on-site sources of contamination and off-site sources of contamination on adjoining properties.

Recommendations. There is a practice among some environmental professionals conducting Phase I's to omit recommendations from the Phase I and put them in a letter to the client. This practice clearly undermines confidence in the Phase I report, since findings without recommendations may present only half of the consultant's opinion. Persons reading Phase I reports need to be confident that they are getting 100 percent of the consultant's views. This will not happen unless all of the consultant's recommendations regarding all contaminants required to be assessed at the site are set forth in the final report.

Asbestos, Radon Gas, and Other Contaminants

The above discussion assumes that the objective of the Phase I is to assess the site for hazardous substance, petroleum, and PCB contamination. Commonly, other contaminants need to be assessed, such as asbestos, radon gas, [21 ELR 10510] formaldehyde, lead paint, and others. These contaminants are relatively easy to assess, since they require that samples be taken and analyses made. Once again, specific findings and recommendations should be made for each contaminant in the final report.

Conflict of Interest

The issue of what constitutes a conflict of interest between the person who performs the Phase I and the parties who rely upon the Phase I report must be addressed in a national standard. The standard should clearly define what organizational and personal conflicts of interest are.

Training and Qualifications

Any proposal that purports to be a national standard for Superfund due diligence cannot fail to address the controversial issue of the training and qualifications of persons performing Phase I assessments. This issue calls for immediate attention, as the environmental consulting industry has already been widely andoften justifiably criticized for ignoring the practice of unqualified persons performing Phase I assessments and other environmental risk assessment services.

Although the qualifications issue appears not to be on the ASTM E.50 Committee's agenda, several national and regional organizations have developed specific qualification criteria. One organization that has recently grappled with the issue is the Florida Environmental Assessor's Associaton (FEAA). FEAA advocates that all persons performing Phase I assessments must have either an environmental, chemical, geotechnical, or civil engineering decree; or a science degree in geology, hydrogeology, hydrology, physics, chemistry/geochemistry, biology, soils, or environmental and occupational health.²⁰ Applicants with other science degrees can apply to a committee for consideration. FEAA also advocates testing and certification in eight specialty areas.²¹ The FEAA policy represents a forthright and balanced approach that could serve well as a model for the ASTM Committee and other organizations to consider.

Conclusion

A compelling argument can be made that the Superfund due diligence problem is the most significant issue demanding resolution in nonresidential real estate transactions today. One reason for this is the simple fact that a high percentage of commercial property and virtually all industrial property are impacted by environmental contamination. As a result, few properties can be properly valued without assessing such contamination. A second reason is Superfund law. Because of the strictness of the Superfund liability scheme and the extraordinary breadth of the Superfund liability net, virtually all parties that have held title to, or used or exercised control over, the property since the time the contamination arose are potential Superfund defendants.

A clearer definition of Superfund due diligence will not shield purchasers and lenders from Superfund liability, but it will help to minimize that exposure substantially. Similarly, a clearer definition will not eliminate the difficulty in valuing property impacted by contamination, but it will help to insure that environmental cleanup costs or damages are given proper and consistent consideration in the effort to value the property. In the final analysis, as long as the Superfund due diligence problem remains unresolved, a cloud of uncertainty will hang over most nonresidential property transactions.

1. See infra notes 5-6 and accompanying text.

2. CERCLA §§ 101 et seq., 42 U.S.C. §§ 9601 et seq., ELR STAT. CERCLA 007-075.

3. See EPA, Proposal to Limit Liability of Financial Institutions under CERCLA (draft proposed rule), 56 Fed. Reg. 28798 (June 24, 1991).

4. 42 U.S.C. § 9601(35), ELR STAT. CERCLA 009.

5. Id.

6. CERCLA § 101(35) must be read in conjunction with the affirmative defense for third parties found at CERCLA § 107(b)(3), 42 U.S.C. § 9607(b)(3), ELR STAT. CERCLA 025.

7. In one case, a landowner's children successfully asserted the "innocent landowner" defense. The children acquired a gift of stock in the family business from their father and subsequently redeemed the stock for a percentage ownership in a metal recycling scrap yard, operated by the business, which was subsequently found to be contaminated. United States v. Pacific Hide and Fur Depot, Inc., 716 F. Supp. 1341, 19 ELR 20897 (D. Idaho 1989). See also United States v. Serafini, 706 F. Supp. 346, 19 ELR 20828 (M.D. Pa. 1988).

8. See In Re Sterling, Inc. v. Becker, 94 Bankr. 924 (Bankr. E.D. Mich. 1989); Wickland Oil Terminals v. Asarco, No. C-83-5906-SC, 15 Chem. Waste Lit. Rep. 1255 (N.D. Cal. 1988); Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 18 ELR 21026 (3rd Cir. 1988); Washington v. Time Oil Co., 687 F. Supp. 529, 18 ELR 21376 (W.D. Wash. 1988), order clarified by subsequent decision, No. C85-478TB (W.D. Wash. 1988); BCW Assoc. Ltd. v. Occidental Chemical Corp., No. 86-5947, 3 Toxics L. Rep. (BNA) 943 (E.D. Pa. 1988); PVO International, Inc. v. Drew Chemical Corp., 19 ELR 20097 (D.N.J. 1988); Jersey City Redevelopment Authority v. PPG Industries, 655 F. Supp. 1257, 17 ELR 20763 (D.N.J. 1987); City of Philadelphia v. Stepan Chemical Co., 18 ELR 20133 (E.D. Pa. 1987).

9. 42 U.S.C. § 9601(35)(B), ELR STAT. CERCLA 010.

10. The ASTM E.50 Committee on environmental assessment is chaired by Michael L. Italiano, Esq., of Gardner, Carolton & Douglas, Washington, D.C., and Richard Jones, Esq., of Pepe & Hazard, Hartford, Connecticut. More information about the committee can be obtained by contacting Jayme Kerr, ASTM staff manager at (202)752-6089.

11. ASTM, "Standard Guide for Environmental Property Assessment," working draft no. 4, July 11, 1991. Under committee rules, this document is not available for reproduction or circulation.

12. ASTM, "Transaction Screen Checklist," June 7, 1991. Under committee rules, this document is not available for reproduction or circulation.

13. Memorandum of William Gulledge to the ASTM Task Group leaders for Technical Section E50.02.07, July 11, 1991.

14. Telephone interview with Win Hayward, Director of Multi-Family Housing for Fannie Mae, April 15, 1991.

15. CERCLA § 101(35)(B), 42 U.S.C. § 9601(35)(B), ELR STAT. CERCLA 010.

16. See The Price of Innocence: Landowner Liability Under CERCLA and SARA, 6 TEMPLE ENVTL. L. & TECH. J. 117 (1987); Steinway, The Innocent Landowner Defense: An Emerging Doctrine, 4 Toxics L. Rep. (BNA) 486.

17. RCRA § 1002 et seq., 42 U.S.C. 6901 et seq., ELR STAT. RCRA 004-050.

18. Emergency Planning and Community Right-to-Know Act § 301 et seq. 42 U.S.C. § 11001 et seq., ELR STAT. EPCRA 002-12.

19. 42 U.S.C. § 9601(14), ELR STAT. CERCLA 007.

20. FEAA, STANDARDS, QUALIFICATIONS, AND EDUCATIONAL REQUIREMENTS, January 23, 1991. Copies can be obtained from Timothy Varney, the committee chair, at (813) 646-1402 or from John Cole, (813) 624-4437.

21. The speciality areas are (1) wetlands/environmental biology, (2) hydology/hydrogeology, (3) environmental/chemical engineering, (4) environmental/occupational health and safety, (5) environmental chemistry, (6) environmental geology, (7) environmental risk management, and (8) hazardous materials/waste management.