ASTM WK23121

    New Guide for Identifying and Complying with Continuing Obligations on Real Property Impacted by Chemicals of Concern

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    Developed by Subcommittee: E50.02 | Committee E50 | Contact Staff Manager


    1. Scope

    1.1 Purpose - The purpose of this Standard Guide is to suggest good commercial and customary practices in the United States of America for identifying and fulfilling continuing obligations at commercial real estate with respect to the range of contaminants within the scope of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. 9601 et seq.) and petroleum products. As such, this Standard Guide intends to suggest actions and procedures that, if completed, would help users to satisfy some of the requirements to qualify for the innocent landowner, the contiguous property owner (CPO), and the bona fide prospective purchaser (BFPP) protections from CERCLA liability (hereinafter, collectively referred to as the Landowner Liability Protections, or LLPs) (See Appendix X1 for an outline of CERCLAs liability and defense provisions). 1.1.1 Continuing Obligations - Subsequent to property acquisition, The Small Business Liability Relief and Brownfields Revitalization Act of 2002 (the Brownfield Amendments) requires persons seeking 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 land use restrictions established or relied upon in connection with a response action; 2) not impeding the integrity or effectiveness of any institutional controls employed in connection with a response action; and 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. Additional continuing obligations also exist, including requirements to: 1) provide full cooperation, assistance and access to persons who are authorized to conduct response actions or natural resource restoration; 2) comply with information requests and administrative subpoenas; and 3) provide legally required notices. 1.1.2 AULs, Institutional Controls, Engineering Controls, and Land Use Restrictions - The good commercial practices suggested by this Guide include continuing obligations for AULs. The term AUL, which this Standard Guide employs, encompasses the terms institutional controls, land use restrictions, land use controls, and engineering controls. Although AULs define a broader universe of land controls, as compared to only institutional controls and land use restrictions, compliance with AULs and maintaining the integrity and effectiveness of AULs provide good commercial practices at commercial real estate where AULs exist. 1.1.3 Chemicals of Concern and RECs In addition to AULs, the good commercial practices suggested by this Guide cover continuing obligations at property where chemicals of concern are known to be present. For the purpose of this Guide, chemicals of concern mean hazardous substances or petroleum products that were disposed or released on a property prior to acquisition by the current property owner, and which remain present and qualify as Recognized Environmental Conditions, or RECs, regardless of whether RECs are identified prior to or after property acquisition. The term recognized environmental condition used in the Guide matches the term as used in ASTM Guide E 1527-05, which covers the Phase I Environmental Assessment Process. REC means the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products into structures on the property or into the ground, ground water, or surface water of the property. RECs do not include de minimis conditions that do not generally present a threat to human health or the environment and which would not generally be the subject of an enforcement action if brought to the attention of the appropriate governmental agencies. While it is possible that CERCLA would require continuing obligations even in cases where RECs do not exist for the purposes of this Guide good commercial practices would perform continuing obligations where chemicals of concern and, therefore, RECs exist at a property. 1.1.4 Petroleum Products Petroleum products are included within the scope of this Standard 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. Thus, this Standard Guide likewise includes a discussion of petroleum products. The continuing obligations discussed in this Guide could be useful or prudent if applied at commercial real estate impacted by petroleum products. 1.1.5 CERCLA Requirements Other Than Continuing Obligations This Standard Guide does not provide guidance on other requirements, other than continuing obligations, that may be necessary to qualify for LLPs or other CERCLA defenses. For example, this Guide does not address all appropriate inquiry requirements (though such requirements are addressed in ASTM Standard Practice E 1527-05), nor requirements related to non-affiliation with liable parties, or other CERCLA defenses specified in 42 U.S.C. 9607(b), nor any other elements of LLPs or other CERCLA defenses, other than continuing obligations. See Appendix X1 for discussion of CERCLA LLPs and other defenses. 1.1.6 Other Federal, State, and Local Environmental Laws This Standard Guide does not address requirements of any state or local laws or of any federal laws other than continuing obligations. 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 Standard Guide. 1.1.7 Documentation- CERCLA requires that continuing obligations must be demonstrated by a preponderance of evidence. There is no requirement for written documentation in order to satisfy continuing obligations, but written documentation could be useful in many cases. For this reason the Standard Guide provides guidance on the preparation of continuing obligation plans and suggests procedures for documenting continuing obligation efforts. 1.1.8 Disclaimer In order to explain the context for and application of continuing obligations, this Guide discusses the statutory provisions of CERCLA. Any and all discussions related to CERCLA in this Guide, however, are not intended and should not be construed as legal opinions or conclusions of law nor should any statements in this Guide be relied upon as legal advice concerning CERCLA or any legal matter. The user is cautioned to seek legal advice when seeking to establish and maintain CERCLA liability defenses. 1.2 Objectives - This Standard Guide establishes the following objectives: (1) to suggest commercial and customary practices to identify and comply with continuing obligations on commercial real estate that has, or may have been impacted by hazardous substances or petroleum products; (2) to increase awareness and facilitate a more uniform understanding of what might be required to fulfill continuing obligations; (3) to help ensure that the procedures employed for satisfying continuing obligations are practical, efficient and reasonable; and (4) to formulate and clarify suggested industry methods and procedures for identifying and fulfilling continuing obligations. 1.3 Organization of this Standard Guide - This Standard Guide has ten sections and six appendices. Section 1 is the Scope. Section 2 lists Referenced Documents. Section 3, Terminology, contains definitions of terms used in this Standard Guide, definitions of terms unique to this Standard Guide and acronyms. Section 4 discusses the Significance and Use of this Standard Guide. Section 5 discusses initial planning considerations and recommends steps to help decide whether to prepare continuing obligations plans. Section 6 suggests continuing obligation procedures for attaining compliance with activity and use limitations and preserving the integrity and effectiveness of activity and use limitations. Section 7 suggests procedures for identifying the types of reasonable steps that may be required on commercial real estate and how to implement those reasonable steps. Section 8 summarizes CERCLAs additional continuing obligations such as the obligations to provide legally required notices, to cooperate and provide property access, and to comply with information requests. Section 9 represents practical considerations toward the performance of continuing obligations. Section10 offers guidance on the preparation of continuing obligations plans and documentation of continuing obligation efforts. The Appendices provide additional information. Appendix X1 describes liability and defenses to liability under CERCLA and the Brownfield Amendments, while also providing important discussion on continuing obligations. Appendix X2 provides a suggested outline for a continuing obligations plan. Appendix X3 provides a suggested outline for a continuing obligations performance report and a sample tabular form version of the report is shown in Appendix X4. Appendix X5 provides a continuing obligation checklist. Appendix X6 develops five scenarios to assist in the application of this Guide. 1.4 This Standard Guide does not purport to address the safety concerns, if any, associated with its use. It is the responsibility of the user to establish appropriate safety and health practices and determine the applicability of regulatory limitations prior to use. 1.5 This Standard Guide offers guidance on performing one or more specific tasks and should be supplemented by education, experience and professional judgment. Not all aspects of this Standard Guide may be applicable in all circumstances. This Standard Guide does not necessarily represent the standard of care by which the adequacy of a given professional service must be judged, nor should this document be applied without consideration of a propertys unique aspects. The word standard in the title means only that the document has been approved through the ASTM consensus process.


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