On June 30, 2011, ASTM International released ASTM E2790-11, Standard Guide for Identifying and Complying with Continuing Obligations to help property owners meet their post-acquisition requirements for maintaining eligibility for Superfund (often also referred to as "CERCLA") liability protection. The Guide takes the property owner on a step-by-step analysis of issues to be addressed and options to be considered after acquiring a property to assist the property owner in qualifying for Superfund defenses involving that property. The Guide focuses on questions that a property owner seeking to redevelop Brownfields and other industrial properties will need to address to ensure successful assertion of Superfund defenses that Congress enacted in 2002 as part of the Brownfields Amendments to CERCLA to promote restoring such properties to productive use:
- When do continuing obligations apply?
- Do land use restrictions or institutional controls exist at the property and how do you satisfy the continuing obligations stemming from such restrictions and controls?
- Do you have to conduct sampling and analysis of contaminants to satisfy continuing obligations?
- Although the statute requires the property owner to exercise due care if there is contamination on the property by taking reasonable steps to stop or prevent releases of hazardous substances and to limit exposure to such releases, will eligibility for Superfund liability protection be lost if the steps taken were reasonable under the circumstances but did not fully achieve the intended goal of stopping or preventing releases or limiting exposure?
- Given the statutory provision that all disposal of hazardous substances have occurred prior to acquisition of the property to retain eligibility for CERCLA liability protection, will normal development activities, such as excavating, grading and preparing the land for development, which typically result in moving contaminated soils within the property, be deemed to constitute post-acquisition disposal of hazardous substances and thereby jeopardize the CERCLA defenses?