ASTM_E_2790_-_11.pdf

Designation:E279011Standard Guide forIdentifying and Complying With Continuing Obligations1This standard is issued under the fixed designation E2790;the number immediately following the designation indicates the year oforiginal adoption or,in the case of revision,the year of last revision.A number in parentheses indicates the year of last reapproval.Asuperscript epsilon()indicates an editorial change since the last revision or reapproval.1.Scope1.1 PurposeThe purpose of this guide is to provideinformation and guidance2related to the process of identifyingand fulfilling continuing obligations3at commercial real estate,and forestland and rural property,with respect to hazardoussubstances within the scope of the Comprehensive Environ-mental Response,Compensation and Liability Act(CERCLA)(42 U.S.C.9601 et seq.)as well as petroleum products(collectively hereafter chemicals of concern).As such,thisguides primary purpose is to provide information and guid-ance about procedures that,if completed,would help users tosatisfy continuing obligations applicable to the innocentlandowner,the contiguous property owner(CPO),and thebona fide prospective purchaser(BFPP)protections fromCERCLA liability(hereinafter,collectively referred to as the“Landowner Liability Protections,”or“LLPs”)(see LegalAppendix X1.1 to X1.3 for an outline of CERCLAs liabilityand defense provisions).1.1.1 Continuing ObligationsSubsequent to propertyacquisition,the Small Business Liability Relief and Brown-fieldsRevitalizationActof2002(the“BrownfieldsAmendments”),which amended CERCLA,requires persons(abroad term meant to cover individuals,companies,governmentagencies,and other entities)seeking to maintain LLPs toestablish,by a preponderance of the evidence,fulfillment ofcertain continuing obligations.The continuing obligations setforth in the Brownfields Amendments include:(1)complyingwith any land use restrictions established or relied upon inconnection with a response action at a property;(2)notimpeding the effectiveness or integrity of any institutionalcontrols employed at a property in connection with a responseaction;(3)taking reasonable steps with respect to releases ofhazardous substances,including stopping continuing releases,preventing threatened future releases,and preventing or limit-ing human,environmental or natural resource exposure toprior releases of hazardous substances;(4)providing fullcooperation,assistance and access to persons who are autho-rized to conduct response actions or natural resource restora-tion at a property;(5)complying with information requests andadministrative subpoenas;and(6)providing legally requirednotices with respect to releases of any hazardous substances ata property.41.1.2 Certain Continuing Obligations Not Detailed in thisGuideThe procedures recommended in this guide focus oncontinuing obligations pertaining to land use restrictions,institutional controls,and taking reasonable steps.As notedimmediately above,CERCLA lists other continuing obliga-tions such as those related to legally required notices,allowingaccess,and cooperating with government regulators.These“other”continuing obligations are not further discussed in thisguide.The lack of detailed treatment of these other continuingobligations,however,does not intend to suggest that they areless important or less relevant to maintaining LLPs.The userseeking additional information will find background on theseother continuing obligations in Legal Appendix X1.8 to thisguide.1.1.3 Guide Does Not Provide Legal AdviceAs notedabove,this guide primarily intends to provide information andguidance to users who wish to perform continuing obligationsfor the purpose of maintaining CERCLA LLPs.To serve thispurpose,this guide focuses on technical,scientific,and proce-dural issues involved with identifying and performing appro-priate continuing obligations under site-specific circumstances.In order to explain the context for the various continuingobligations recommended in this guide,however,the guidenecessarily makes reference to the statutory provisions ofCERCLA.These CERCLA discussions are meant for informa-tional purposes only and are not intended and should not beconstrued as legal opinions or conclusions of law;nor shouldany statement in this guide be relied upon as legal adviceconcerning CERCLA or any legal matter.The CERCLA LLPsinvolve complicated legal matters with potentially severeconsequences.This guide is not intended to and does not1This guide is under the jurisdiction ofASTM Committee E50 on EnvironmentalAssessment,Risk Management and Corrective Action and is the direct responsibil-ity of Subcommittee E50.02 on Real Estate Assessment and Management.Current edition approved May 15,2011.Published June 2011.DOI:10.1520/E279011.2This guides CERCLA discussions are for information purposes only and arenot intended and should not be construed as legal opinions or conclusions of law.This guide should not be relied upon to answer legal questions.3Definitions provi