Contaminated Property "Continuing Obligations" the New ASTM Standard

ASTM has given birth to a new standard for contaminated property – E2790-11 – the Standard Guide for Identifying and Complying with Continuing Obligations, which might become the most important American Society for Testing and Materials (“ASTM”) standard for contaminated property after its Phase I and II Standard Practices. Its six-year gestation involved the consensus building labor of the usual parties and midwives, including consultants, private and government landowners, lenders, EPA, and private practitioners.

Several of CERCLA’s six continuing obligations are straightforward and are therefore not addressed (e.g., legally required notices) in this Standard. This new Standard focuses on the more complicated three continuing obligations: compliance with land use restrictions, institutional controls, and “taking reasonable steps” with respect to releases of hazardous substances and petroleum.

The new Standard notes that the nature and extent of the continuing obligations should be proportional to the nature, extent, and complexity of the release and the potential for exposure at the property in question. It then describes a sequential process for determining whether continuing obligations apply, starting with identification of any recognized environmental conditions and then the review and evaluation of those conditions and activity and use limitations at the property (AULs are defined to include Institutional Controls, Land Use Restrictions, and Engineering Controls). This important evaluation step may in turn identify the need for a “Phase II” assessment or other detailed environmental sampling to gain a clear understanding of releases and exposure pathways, and consideration of whether the landowner should take additional remedial steps, or adopt or upgrade existing activity and use limitations.

Many times the next task is to prepare a “Continuing Obligations Plan” for developing or maintaining the AULs and reasonable steps for addressing releases of chemicals of concern, and a periodic “Continuing Obligations Monitoring and Evaluation Report.” Time is not on the contaminated property owner’s side: continuing obligations arise upon acquiring contaminated property under the bona fide prospective purchaser defense.

The ASTM Standard for Continuing Obligations is not intended to, and cannot replace, legal advice, and the Standard calls out the need to seek legal advice countless times. Intended for “users” (read: real property owners), a primary audience will be environmental consultants who will find the step-by-step process of the standard and the report outline handy. Nevertheless, the Standard recognizes that continuing obligation determinations will be highly site-specific, providing another source of work for environmental consultants.

Of course, clients are keenly interested in what continuing obligations they must take to retain their landowner liability protections, and can be expected to ask what the law (or a court) may require. By publishing a Standard, ASTM is providing a ready reference as courts weigh whether these three continuing obligation elements of the CERCLA defense have been established. Depending on the complexity of the site and the issues, clients would be wise to consider the investigation and documentation processes.

If you have questions about contaminated property, “continuing obligations,” or the “all appropriate inquiry” necessary to establish environmental defenses, please call Ken Gray at (207) 791-1212 or email to kgray@pierceatwood.com, or Mark Beliveau at (603) 373-2002 or email to mbeliveau@pierceatwood.com.