Standard Guide for Identifying and Complying With Continuing Obligations
|Publication Date:||15 May 2011|
Purpose-The purpose of this guide is to provide information and guidance2 related to the process of identifying and fulfilling continuing obligations3 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 land-owner, 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).
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.4
2 This guide's CERCLA discussions are for information purposes only and are not intended and should not be construed as legal opinions or conclusions of law. This guide should not be relied upon to answer legal questions.
3 Definitions provided in Section 3. All defined terms appear in italics.
4 In setting forth these requirements, the Brownfields Amendments use the terms "vessel" and "facility" to describe the subject property. See, for example, CERCLA § 101(40), 42 U.S.C. § 9601(40). Since the aim of this guide is to assist the user in identifying and satisfying continuing obligations at commercial real estate, we use the term " property", which is the relevant subset of "facility" throughout this guide.