After years in the making and on the heels of two recent court decisions addressing “appropriate care,” ASTM published E2790-11, the “Standard Guide for Identifying and Complying With Continuing Obligations.”
Continuing Obligations And the Need for an Industry Standard
The phrase Continuing Obligations owes its origins to EPA guidance. EPA’s “Common Elements” guidance, as it’s known, summarized the various post-purchase obligations that must be shown “by a preponderance of evidence” in order for non-contaminating landowners to successfully assert CERCLA defenses made newly available in the 2002 Brownfields Amendements – namely, the Bona Fide Prospective Purchaser Defense, the Contiguous Property Owner Defense, and the Innocent Landowner Defense (which was actually modified from the pre-Amendments version). In doing so, EPA characterized these post-purchase requirements as “Continuing Obligations.”
ASTM’s Continuing Obligations Guide began as Bob Wenzlau’s vision when, after working closely in the area of institutional control monitoring, or LandWatch as we call it, and witnessing the passage of the 2002 Brownfields Amendments, he saw the absence of any regulatory guidance and thus the need (and heard the same from others) for the type of procedural guidance an industry standard could provide in this murky area. The need he saw seems highlighted by the recent Ashley II and Robertshaw “appropriate care” decisions as well as state laws and state programs, such as recent amendments to Michigan’s statute which requires landowners to comply with institutional controls, a Wisconsin Continuing Obligation administrative program, among others. Together, all of these developments help stress the importance of Continuing Obligations while indirectly showing how uniformity in this area can help bring certainty to brownfield site management while also working positively for environmental protection.
The CO Standard Guide
With it’s primary focus on procedures for institutional control compliance assurance and taking “reasonable steps” in light of residual contamination, the Continuing Obligations standard recommends a four-step process. The first step begins with a screening process to help identify whether Continuing Obligations are relevant. Next, it suggests steps for learning about the environmental conditions, including institutional controls and/or recognized environmental conditions, so that Continuing Obligation procedures can be appropriately designed for site specifics. Step 3, in turn, suggests immediate steps to take soon after the need for Continuing Obligation arises – usually shortly after property purchase. Finally, step 4 describes long term inspection, monitoring, and management procedures meant to make sure that, over time, proper management of residually contaminated and/or institutional controls keeps people and the environment safe.
Aided by this four-step framework, the standard provides instruction on developing a Continuing Obligations Plan – which, when completed, sets forth the actual Continuing Obligations for site specifics. The standard goes on to recommend formats for and forms for documenting Continuing Obligation site inspections and for preparing periodic reports to document proper Continuing Obligation performance. The standard provides a uniform framework while giving users tools to tailor Continuing Obligations to site specifics.
The primary users, in all likelihood, will be those who recently purchased contaminated property and desire to remain eligible for CERCLA’s Bona Fide Prospective Purchaser defense, the Contiguous Property Owner defense, or the Innocent Landowner defense. These defenses, among other things, require owners seeking the defense to show they have performed Continuing Obligations. In addition to these users, other landowners of contaminated property often wish to properly manage contamination and institutional controls, even if they do not feel the need to qualify for CERCLA defenses. This situation arises for many reasons, ranging from a desire to responsibly steward recycled property to the need to comply with state-law requirements, such as the need to periodically assure state regulators that institutional controls remain effectively operating. Parties like these are also likely to use the standard.
Having participated closely in the drafting of this standard, I can tell you that many smart and talented people offered wise, sometimes disagreeing, perspectives into the process – which proved a difficult one. In the end, though, I think the product that resulted will help inform persons performing Continuing Obligations, and particularly the process of assuring compliance with institutional controls and with establishing and assuring compliance with reasonable steps designed for site specifics.