ASTM E2790-11

1.1 Purpose-The purpose of this guide is to provide information and guidance related to the process of identifying and fulfilling continuing obligations at commercial real estate, and forestland and rural property, with respect to hazardous substances within the scope of the Comprehensive Environmental 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, this guide's primary purpose is to provide information and guidance about procedures that, if completed, would help users to satisfy continuing obligations applicable to 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 Legal Appendix X1.1 to X1.3 for an outline of CERCLA's 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 "Brownfields Amendments"), which amended CERCLA, requires persons (a broad term meant to cover individuals, companies, government agencies, and other entities) seeking to maintain 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; and (6) providing legally required notices with respect to releases of any hazardous substances at a property.

1.1.2 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 lists 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 LLPs. The user seeking additional information will find background on these other continuing obligations in Legal Appendix X1.8 to this guide.

1.1.3 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. 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 necessarily makes reference to the statutory provisions of CERCLA. These CERCLA 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 CERCLA LLPs. Where particular sections do not suggest the need for legal advice, no implication is intended that legal advice is not recommended or warranted.

1.1.4 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. 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.

1.1.5 Applicability to Non-CERCLA Properties-While this guide is primarily intended to address CERCLA LLPs, it need not be limited exclusively for that purpose. The procedures described in this guide may prove prudent at properties where Activity and Use Limitations (AULs) or environmental contamination exists, even though CERCLA LLPs may not be of concern. AULs are employed at many properties remediated under state or non-CERCLA 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. Also, for example, Wisconsin sets legal rules and administrative guidance covering certain continuing obligations for AULs.

1.1.6 Activity and Use Limitations, Institutional Controls, Engineering Controls, and Land Use Restrictions-The term Activity and Use Limitation (AUL) is taken from 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. Where this guide directly addresses the continuing obligations for AULs set forth in CERCLA, it uses the statutory terms land use restrictions and ins