ASTM E2790 - 20

1.1.1 Intended Scope of Standard Guide—As a standard guide, this document provides a compendium of information and options but does not recommend a specific course of action. As a guide, the purpose of this standard is to simply increase the awareness of possible techniques or procedures related to continuing obligations and to offer guidance based on a consensus of viewpoints, but not to establish a standard practice to follow in all cases.

1.1.2 Continuing Obligations Under CERCLA—Subsequent to property acquisition, the Small Business Liability Relief and Brownfields Revitalization Act of 2002 (the “Brownfields Amendments”), which amended CERCLA, requires persons (a broad term meant to cover individuals, companies, government agencies, and other entities) seeking to maintain CERCLA LLPs to establish, by a preponderance of the evidence, fulfillment of certain continuing obligations. The continuing obligations set forth in the Brownfields Amendments include: (1) complying with any land use restrictions established or relied upon in connection with a response action at a property; (2) not impeding the effectiveness or integrity of any institutional controls employed at a property in connection with a response action; (3) taking reasonable steps with respect to releases of hazardous substances, including stopping continuing releases, preventing threatened future releases, and preventing or limiting human, environmental or natural resource exposure to prior releases of hazardous substances; (4) providing full cooperation, assistance and access to persons who are authorized to conduct response actions or natural resource restoration at a property; (5) complying with information requests and administrative subpoenas; (6) providing legally required notices with respect to releases of any hazardous substances at a property; and (7) the CERLCA LLPs for BFPPs and ILOs also require that all disposal of hazardous substances at the property occurred prior to property acquisition.4 The BUILD Act further amended CERCLA. Under the BUILD Act, certain tenants qualify for CERCLA’s bona fide prospective purchaser protections if the property owner qualifies as a bona fide prospective purchaser, and certain tenants can qualify as bona fide prospective purchasers only if, among other conditions, the tenants fulfill continuing obligations.

1.1.3 Continuing Obligations at Non-CERCLA Properties—In many cases, liability protections under state law require the performance of the same or similar types of continuing obligations. For example, many states have enacted laws that define bona fide prospective purchaser to read similarly to the CERCLA definition, including BFPP requirements to exercise appropriate care, to comply with land use restrictions or to not impede the effectiveness or integrity of institutional controls. Analogous to CERCLA, some of these state laws may provide state law liability protections for persons who meet the BFPP definition.5 In addition, as described in Guide E2091, several state voluntary cleanup programs provide liability releases within “No Further Action” (NFA) or “Certificates of Completion” documents only if the conditions provided in those documents are complied with.6 These conditions vary but often include requirements to exercise appropriate care with respect to environmental impacts or to comply with activity and use limitations.7AULs are employed at many properties remediated under state or nonCERCLA federal programs where CERCLA liability may not be of concern but, nonetheless, the AUL and reasonable step procedures recommended by this guide may provide useful procedures for assuring AUL compliance. For example, Michigan state law sets “due care” requirements for purchasers of contaminated properties, mandating that they perform various post-purchase duties including, among others, complying with and not impeding the effectiveness and integrity of AULs, and preventing exacerbation and mitigating unacceptable exposure of hazardous substances.8 Wisconsin also sets legal rules and administrative guidance covering certain continuing obligations for AULs.9 Additional states similarly impose continuing obligations related to AULs.

1.1.4 Certain Continuing Obligations Not Detailed in this Guide—The procedures recommended in this guide focus on continuing obligations pertaining to land use restrictions, institutional controls, and taking reasonable steps. As noted immediately above, CERCLA and similar state laws or administrative programs require other continuing obligations such as those related to legally required notices, allowing access, and cooperating with government regulators. These “other” continuing obligations are not further discussed in this guide. The lack of detailed treatment of these other continuing obligations, however, does not intend to suggest that they are less important or less relevant to maintaining CERCLA LLPs or similar state liability protections. The user seeking additional information will find background on these other continuing obligations in Appendix X1 the Legal Appendix to this guide.

1.1.5 Inclusion of Petroleum Products—Petroleum products are included within the scope of this guide because they are often of concern at commercial real estate. Although petroleum products enjoy a limited exclusion from CERCLA liability, current custom and usage generally includes an evaluation of whether petroleum products may be present on commercial real estate during pre-acquisition environmental site assessments. Further, state laws and programs requiring continuing obligations often cover petroleum products. Thus, this guide likewise includes petroleum products within its scope. The actions discussed in this guide could be useful or prudent if applied at commercial real estate affected by a release of petroleum products.

1.1.6 Discussion of the Related Terms: Activity and Use Limitations, Institutional Controls, Engineering Controls, and Land Use Restrictions—The term Activity and Use Limitation (AUL) is taken from and meant to match the meaning of that term provided in Guide E2091, to include both legal controls (that is, institutional controls) and physical controls (that is, engineering controls) within its scope. Agencies, organizations, and jurisdictions, however, may define or utilize these terms differently. For example, the term “land use controls” is used by the Department of Defense and the term land use restrictions is used but not defined in the Brownfields Amendments. CERCLA, as amended by the Brownfields Amendments, expressly prescribes continuing obligations only for institutional controls (ICs) and land use restrictions (LURs), each of which represents a subset of the term AUL. In addition to land use restrictions and institutional controls, additional types of AULs, particularly engineering controls, may exist at a property. While broadly a type of AUL, engineering controls could also be required by or be associated with ICs or LURs.

1.1.7 Properties Covered—In addition to property with AULs, the procedures suggested by this guide are primarily intended to cover property where chemicals of concern are known to have been (1) released on the property prior to acquisition by the current property owner (2) are present at the property after acquisition by the current property owner, due to the migration from neighboring property, or (3) are discovered after property transfer where the Phase I (or other methods of performing AAI), though properly performed, provided no reason to know of the presence of chemicals of concern. This guide focuses on these release situations because such situations tend to give rise to circumstances in which one or more of the CERCLA LLPs, state liability protections or similar risk management concerns drive the need for continuing obligations at a property.

1.1.8 Presumption of All Appropriate Inquiries and Desire to Qualify for LLPs—This guide is primarily intended for users who seek to qualify for any CERCLA LLPs or similar state-law LLPs. Therefore, this guide presumes that its users have performed or will perform a currently valid Phase I or otherwise satisfy “all appropriate inquiries” prior to acquisition of the property. This presumption affects the organization and structure of this guide because it assumes certain Phase I activities would have been successfully performed and, in turn, relied on and built upon during the stepwise process suggested in this guide. Users who may not need or desire protections under CERCLA or state LLP, but nonetheless seek guidance on performing continuing obligations can nonetheless benefit from this guide and, in particular, the procedures described in Step 3 and Step 4 of this guide’s stepwise process.

1.1.9 Timing—Subject to the other scope considerations described in this section, the procedures in this guide are intended to be applicable when a user knows or has reason to know, after the user’s purchase of the property, that chemicals of concern either (1) have been released at the property or (2) may be released in the future. Therefore, for users who purchase property where Recognized Environmental Conditions (RECs) have been identified, this guide is meant to apply upon property purchase. Users who have gained knowledge or reason to know of property releases of chemicals of concern prior to the publication of this guide (for example, where a user purchased contaminated property years before this guide was published) may still use this guide. Such users may need to reconsider and update the findings and conclusions in any existing Phase I (or alternative all appropriate inquiries efforts) in order to fully utilize this guide. See 5.2.2 (addressing presumption of currently valid Phase I/AAI).

1.1.10 Determination of No Continuing Obligations Related to Activity and Use Limitations and Reasonable Steps—Section 5 of this guide recommends a procedure for considering whether continuing obligations covered by this guide are required or applicable to the property. Refer to 1.1.3 for a summary of continuing obligations that are not addressed in detail by this guide. As addressed in more detail in Section 5, a determination that no continuing obligations are required can be made where neither RECs, institutional controls, nor land use restrictions exist, and users otherwise have no knowledge to indicate the presence of chemicals of concern at the property. Even where a Phase I (or all appropriate inquiries) found RECs, further evaluation (see Section 6) can justify a conclusion that no chemicals of concern were released and, in turn, this conclusion can justify a determination of no continuing obligations. See 5.4, however, discussing the case where future circumstances could arise that would cause users to reevaluate determinations that no continuing obligations are required.

1.1.11 Requirements Other Than Continuing Obligations—CERCLA and similar state laws provide various liability defenses. This guide does not provide guidance on requirements other than continuing obligations that may be necessary to retain eligibility for CERCLA LLPs or other CERCLA or state law defenses. See Legal Appendix X1.2 and X1.3 for discussion of CERCLA LLPs and other CERCLA defenses.

1.1.12 Other Federal, State, and Local Environmental Laws—Users are cautioned that federal, state, and local laws may impose environmental assessment, remedial action, or other obligations related to hazardous substances or petroleum products that are beyond the scope of this guide.

1.1.13 Guide Does Not Provide Legal Advice—As noted above, this guide primarily intends to provide information and guidance to users who wish to perform continuing obligations for the purpose of maintaining CERCLA LLPs or similar liability protections under state law. To serve this purpose, this guide focuses on technical, scientific, and procedural issues involved with identifying and performing appropriate continuing obligations under site-specific circumstances. In order to explain the context for the various continuing obligations recommended in this guide, however, the guide sometimes makes reference to the law, such as statutory provisions of CERCLA. These discussions are meant for informational purposes only and are not intended and should not be construed as legal opinions or conclusions of law; nor should any statement in this guide be relied upon as legal advice concerning CERCLA or any legal matter. The CERCLA LLPs involve complicated legal matters with potentially severe consequences. This guide is not intended to and does not replace legal advice, and should not be relied on for any legal question. No implication is intended that a person must use this guide in order to establish or maintain LLPs. Conversely, no implication is intended to assure a person using this guide of success against CERCLA liability when using this guide. The user is encouraged to seek legal advice when seeking to establish and maintain CERCLA liability defenses. In a number of sections throughout the guide, the guide notes instances where legal issues are particularly relevant and often reinforces the guide’s overall recommendation to seek the advice of legal counsel concerning LLPs. Where particular sections do not suggest the need for legal advice, no implication is intended that legal advice is not recommended or warranted.

1.1.14 Documentation—CERCLA requires that a user seeking to retain eligibility for CERCLA LLPs must demonstrate compliance with continuing obligations by a preponderance of evidence. While the legal standards may vary, state LLPs may also require LLP seekers to provide evidence as to continuing obligations. Under CERCLA there is no apparent requirement for written documentation to demonstrate compliance with continuing obligations, but written documentation could be useful and, perhaps even essential, in cases where a user desires to demonstrate the performance of continuing obligations. The guide provides guidance in Section 9 on the preparation of continuing obligation plans and suggests procedures for documenting continuing obligation efforts. Users are encouraged to consult with legal counsel on steps to be taken to document compliance with continuing obligations.