New Standard Defines Continuing Obligations Monitoring at Contaminated Sites to Retain Federal Liability Protection


The 2011 Brownfields Amendments[1] provide clarity on federal environmental liability protection to facilitate brownfields transactions, but until recently commercial property owners had little guidance on how to maintain liability protection when purchasing sites with continuing environmental monitoring and maintenance obligations.  The new ASTM Standard Guide for identifying and complying with continuing obligations (E2790-11) was released in June 2011 to develop a consistent voluntary approach to maintain institutional and engineering controls for continuous liability protection after the real property transaction.  These institutional (e.g. deed notices, permits, easements, etc.) and engineering (e.g. caps, fencing, etc.) site controls[2] are proven approaches to implement cost effective and protective cleanup strategies for most commercial and industrial contaminated sites.  However, if these controls become compromised the landowner may lose liability protection obtained at the time of the original property transaction.  The new ASTM Standard Guide provides a road map for commercial property owners on how they can maintain these federal liability defenses, primarily through the development and implementation of a Continuing Obligations Plan.  (Click on the link to read the entire article)

[1] The Small Business Liability Relief and Brownfields Revitalization Act of 2002, which amended the Comprehensive Environmental Response and Liability Act (CERCLA).

[2] The ASTM Standard uses the term Activity and Use Limitations (AULs) to collectively reference either legal, (i.e. institutional) or physical, (i.e. engineering) restrictions or limitations on the use or access to, a site or facility to eliminate or minimize potential exposures to hazardous substances or petroleum products or to prevent activities that could interfere with the effectiveness of a response action, to ensure maintenance of a condition of “acceptable risk” or “no significant risk” to human health and the environment.

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