Introduction
In 1979 a major manufacturing firm donated a seemingly bucolic piece of property to a unit of local government for use as a park. The undeveloped parcel of land was located on Neville Island in the Monongahela River and appeared to be an ideal tract for recreation. Unknown to the community at the time, owners of the property had allowed chemical and other manufacturing firms to discard process wastes there during the 1950s. Waste disposal ceased by the mid 1970s and vegetation quickly obscured the evidence of former land uses.

Under the provisions of the Superfund law (Comprehensive Environmental Response, Compensation, and Liability Act or CERCLA), the current land owner is responsible for the costs of cleaning up contaminated property. In the case of Neville Island, the local community government faced a very high price tag for restoring the property to a safe environmental condition; however, they were extremely fortunate in negotiations with the former owner and were able to return the land to its donor. While the local government escaped onerous financial liabilities, they became keenly aware of their responsibilities under current environmental laws. Local governments in Illinois also need to recognize their potential for involvement in environmental litigation and prepare themselves to take action to prevent the acquisition of liabilities.

Relict Hazards
Like the situation in Pennsylvania, there are many sites in Illinois that have undergone significant land-use changes over the past half century. These may be former factories that have been dismantled, old gasoline stations converted to small offices, or quarries filled in with a mixture of urban refuse and transformed into a park. Although there are federal and state programs that seek to inventory and clean up contaminated sites, only a small number of sites are known. In 1987, the U.S. General Accounting Office estimated that the U.S. Environmental Protection Agency's (USEPA) computerized inventory of potential Superfund sites contained only 20 percent of their estimated number of actual hazardous material sites. More recently, the U.S. Office of Technology Assessment reported that the number of Superfund sites may climb from slightly more than 1, 000 to over 9, 000 by the end of the century. Furthermore, the USEPA has never had a program that actively sought out and identified waste sites. This suggests contaminated sites will continue to be discovered for years to come.

Illinois' industrial economy has had a long association with hazardous substances. Well before there were specific regulations to deal with such risks, manufacturers of coal gas, electroplated metal hardware, mirrors, watches, agricultural tools and chemicals, refined petroleum, and primary metals, casually discarded unwanted by-products. Subsequent urban growth and economic shifts have contributed to changes in how property is used. The Department of Commerce and Community Affairs reported that there were over 4, 500 idle factory sites across the state in 1987. Many undoubtedly contain accumulations of virtually invisible on-site wastes and are targeted for adaptive reuse in the next decade. Redevelopment or conversion of such properties can take place, but the relict hazards need to be dealt with first and with care.

Responsibilities
The alarming reality of this situation is that current property owners can be held culpable for contamination. The Superfund law applies strict, joint and several

SELECTED PRE-1930 HAZARDOUS WASTE GENERATORS

Industry	Hazardous Material	Years
	Pre-1870
Pottery	lead	1800-
Felt hats	mercury	1800s
Fabric dyeing	aniline dyes (coal tar products)	1849-
Printing, publishing		1850s-
Paints	lead, metals (cadmium)	1850s-
Plumbing supplies, batteries	lead	1850s-
1870-1930
Steel manufacture	acids, cyanide, oils	1870s--
Mirrors	mercury, ammonia, lead	1880-
		1890
	lead	1890s-
Carpets and wallpaper	arsenic	1880-
		1900
Illuminating gas	tars, phenols	1880-
		1950
Electroplating	acid, cyanide, arsenic	1880--
Pesticides	arsenic	1890s--
Petroleum products	phenols, lead, oils	1900-
Creosote products	tars, oils	1900-
Munitions	benzene, toluene	1917-
Plastics	phenols, cyanide	1907-
Metal working--	solvents (toluene, xylene,	1910-
machinery, tools	benzene), arsenic
Watch making	radium, plating wastes	1910-40s
Fireproof insulation	asbestos	1910-
Organic dyes and pigments	acridine	1912-
Lineoleum	acrolein	1915-
Airplanes	tetrachlorethane (dope)	1915-30
Dry cleaning	trichlorethylene naptha	1915-
Rubber products	trichlorethylene, benzene	1915-
Glass making	arsenic, cadmium	1915-
Leather tanning	arsenic, chromium	1920s-
(soft leather)
Paints	acetone, acrolein	1920s-
Wood finishing	synthetic varnishes	1923"

Sources: Oliver 1902; Price 1914; Hamilton 1925; McCord 1931; Rogers 1921: Coates. et al. 1982.

Figure 1: Many of the pre-1930 sources of hazardous substances were common industries in Illinois. Not only were there many businesses that used hazardous substances, small-scale factories operated in many towns and villages that do not have a significant industrial economy today.

February 1991 / Illinois Municipal Review / Page 19

liability, and is retroactive. This means that the financial burden for cleaning up a site can be attributed to a wide range of past and present owners, operators, or contributors to the problem, and for actions that were legal at the time they took place. More specifically, strict liability is attached to owners regardless of whether they acted in a knowing or reasonable manner. Joint and several liability makes each owner, past and present, potentially liable for the entire cost of remediation.

Amendments to Superfund passed in 1986 provide a legal tool for "innocent property owners-- to escape the liabilities imposed by CERCLA. If property owners can show "due diligence," that is if they can demonstrate that they took "all appropriate inquiry" into discovering the contamination before taking title, they may be considered an innocent property owner. The courts have yet to clearly define "due diligence" or "all appropriate inquiry," but taking prudent steps before acquiring property is essential.

It is important to keep in mind that local governments are not exempted from the Superfund legislation. Cities and counties can become parties in lawsuits seeking to recover clean-up costs. Municipalities or counties can acquire liability by direct purchase, condemnation, donation, claiming land for back taxes, or even temporary management of a site. The means of acquisition is immaterial. Therefore, units of local government must exercise caution when proffered a gift or when evaluating property for purchase.

The most commonly accepted method to establish a due diligence defense is to prepare a "site assessment." Contractors for either the seller or buyer may prepare reports that document past land uses and potential abuses, although it is generally the responsibility of the seller. The intent of these investigations is twofold: (1) to detect potential contamination of the site and encourage the seller to attend to any remediation; and (2) prepare a means for the buyer to demonstrate he/she exercised all appropriate inquiry. These site investigations have become requisites for most commercial property transactions. Lending institutions are demanding a clean bill of health on real estate deals that they are involved in. Although units of local government do not always use bank funds, they should exercise the same level of prudence.

Site Assessment
A site assessment is generally divided into two phases. The Phase I component includes a site history, a review of environmental compliance, site geology and hydrology, a site inspection, and interviews with those familiar with activity on site. If the first phase indicates a strong potential for contamination, environmental tests, including soil and water analyses, compose the Phase II work. The basic purpose of the site history is to document past land uses that may have involved hazardous substances from about 1900 to the present. Hazards-related activity commonly found in Illinois since the turn of the century include the handling of lead-based paints, smelting of lead in type setting operations, use of solvents in dry-cleaning or printing opera-

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tions, the existence of underground storage tanks, mixing arsenic-based pesticides, or the disposal of mixed urban and industrial wastes. The final report should indicate not just the sequence of activity at the site being transferred, but land uses on surrounding property that may impact the parcel in question. The preparation of a site geological and hydrological report should indicate the possibility of contaminant migration to the site from neighboring property. Natural or man-made conduits can permit the movement of hazardous substances and need to be identified. A review of environmental compliance, often referred to as an environmental audit, attempts to trace the record of land uses as documented in the files of regulatory agencies since about 1970. This component identifies permits for handling hazardous substances or violations of environmental laws, thereby alerting the buyer to recent risks. The site inspection seeks to confirm that the documentary record is not at variance with the actual conditions of the site. There have been cases where government files indicated a site was clean, but stacks of leaking drums were on the property. Without a site inspection, responsibility for such obviously illegal situations can be passed on to the new owner.

Phase I site assessments may range in price from $1, 500 to $5, 000 depending on the size of the parcel and the complexity of its land use history. Phase II environmental testing can drive the costs up considerably. Despite the seemingly high price, the net benefit can offset any initial outlay. The relatively simple task of cleaning up soil contaminated by a leaking underground storage tank may run in the hundreds of thousands of dollars. Cleaning up large-scale contamination and the attendant damages may cost millions. By comparison, the up-front cost of a site assessment is a reasonable price to pay for piece of mind and legal security.

Illinois recently enacted legislation known as the Illinois Responsible Property Transfer Act (RPTA). It calls for certain types of transactions to file "disclosure documents-- with the county recorder and the state EPA. Although viewed by some as a due diligence form, the state legislature specifically stated that the disclosure document cannot fulfill this function. Consequently, properties that must report under RPTA, along with most other commercial properties, must have a separate site assessment.

Currently, there is no universally accepted standard for what constitutes an acceptable site assessment, and there is a wide range of services being offered as due diligence investigations. Until there is greater agreement on a standard procedure, property buyers will be smart to expect exhaustive investigations and reports. It is better to err on the side of thoroughness and accuracy, than to face potentially costly consequences.

Other Actions Appropriate for Local Governments
In addition to site assessments, there are other steps local units of government can take to deal with relict deposits of hazardous substances within their jurisdiction. We will discuss some of these in Part II of this series. •

Suggested Reading
C.E. Colten and D. Mulville-Friel, Guidelines and Methods for Conducting Property Transfer Site Histories. Illinois Hazardous Waste Research and Information Center, Research Report 049. Champaign, IL, 1990.

J.S. Moskowitz, Environmental Inability and Real Estate Transactions: Low and Practice. New York: Practising Law Institute, 1989. A.R. Wilson, Environmental Risk: Identification and Management. Chelsea, MI: Lewis, 1990.

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