Friday, July 22, 2011
ASTM Issues Standard Guide For Continuing Obligations Under CERCLA
ASTM International recently released a new standard guide that provides a comprehensive framework for owners of contaminated properties to identify and comply with continuing obligations for contaminated properties. The Standard Guide for Identifying and Complying With Continuing Obligations (E2790-11) will aid those seeking liability protection under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as bone fide prospective purchasers, innocent landowners, or contiguous property owners.
This new Guide takes ASTM guidance beyond Phase I Environmental Site Assessments and focuses on the next steps: performance of the continuing obligations necessary to maintain liability protection. Continuing obligations may involve land use restrictions, institutional controls, engineering controls, or reasonable steps with respect to releases of chemicals of concern.
Step 1 of the Guide’s framework begins with a screening process to determine if continuing obligations apply and whether they should be performed at the property. This involves a detailed review of the Phase I and any actual knowledge of the presence of hazardous substances.
Once it is clear that continuing obligations apply, Step 2 suggests steps for evaluating the environmental conditions at the property and the nature, scope and extent of any activity and use limitations in place and cleanup activities already undertaken.
Step 3 next suggests initial property-specific continuing obligations to undertake in order to meet the statutory elements for liability protection, such as installing an engineered barrier or removing leaking drums from the property.
Finally, Step 4 suggests methods to identify and implement continuous or intermittent ongoing continuing obligations required to maintain statutory protection. These may include property inspections to ensure compliance with land use restrictions or evaluating land uses over time to ensure there is no potential for unacceptable exposure to hazardous substances.
While the new Guide sets forth a framework for evaluating continuing obligations, the law in this area is not settled. The identification and implementation of legally sufficient continuing obligations is an evolving process.