The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) provides liability protection at certain contaminated properties in accordance with the bona fide prospective purchaser (BFPP) provisions. The protections are included in the 2002 Brownfields Amendments that were developed to encourage purchase and redevelopment of contaminated properties. Many of these sites require activity and use limitations (AULs) that are implemented to provide on-going protection for human health and the environment after the remedial activities at the site have ceased.
ASTM developed the Standard Guide for Identifying and Complying with Continuing Obligations, ASTM E 2790-11 (Continuing Obligations guideline) procedures to identify and implement continuing obligations for use at sites where AULs are present. ASTM developed this voluntary guideline to assist property owners and other parties who may have liability interest for maintaining the CERCLA liability protection at these sites. Landowners must document that the contamination was caused by others in order to qualify for the CERCLA landowner liability protection. The documentation would be provided in a Phase I Environmental Site Assessment or by fulfilling and documenting the site investigation requirements for BFPP. The Continuing Obligations guideline would be appropriate also for sites completed outside of BFPP such as Voluntary Remediation Program and Uniform Environmental Covenants Act sites and other sites where AULs are present. The guidelines include provisions for sites with petroleum contamination, even though petroleum products may have certain exclusions from CERCLA related liability.
The Continuing Obligations guideline includes procedures for determining if continuing obligations are required or applicable to the site, preparing a continuing obligations plan, documenting compliance for liability protection and procedures for identifying future circumstances that may require a re-evaluation of the subject property. There are no specific qualifications for the person conducting the guideline; however, the user should be aware of the uniqueness and complexity of each property and it is important that the site be evaluated by someone knowledgeable of the types of issues specific to the site supplemented by education, experience and professional judgment. The guideline recognizes also the benefit of legal advice at sites with AULs, where appropriate.
This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.