Standard Guide for Identifying and Complying With Continuing Obligations

Importancia y uso:

4.1 Uses—This guide is intended for use on a voluntary basis primarily by parties who desire to satisfy continuing obligations at commercial real estate or at forestland or rural properties. As such, this guide provides information and suggested procedures that could be useful to persons who wish to establish one of the CERCLA LLPs or similar liability protections offered under state law. This guide may apply where response actions have already occurred, where response actions remain ongoing, or where response actions may be necessary in the future. As noted in 1.1.2, the use of this guide need not be necessarily limited to CERCLA LLPs.

4.2 Clarifications on Use: 

4.2.1 Use is Property-Specific—Continuing obligations, and the process to identify and implement continuing obligations, is necessarily property-specific. Therefore, this guide includes information to consider when performing a property-specific, fact-based evaluation to determine appropriate continuing obligations.

4.2.2 Partially Addresses Eligibility for CERCLA LLPs—Users wishing to establish CERCLA LLPs should be aware that the continuing obligations covered by this guide comprise only part of CERCLA's statutory eligibility requirements for LLPs. For example, users seeking to qualify for LLPs must perform AAI before property acquisition. Users seeking the BFPP or CPO LLP must also demonstrate that they are not liable or potentially liable or affiliated with any person who is liable or potentially liable for releases of hazardous substances under CERCLA. 42 U.S.C. §9607(q)(1)(A)(ii); 42 U.S.C. §9601(40)(B)(viii). Further, users seeking the BFPP or ILO  LLP must establish that disposal of hazardous substances occurred on the property prior to its acquisition. 42 U.S.C. §9601(40)(B)(i); 42 U.S.C. §9601(35)(A). Users seeking the CPO LLP must establish that they did not cause, contribute or consent to the release of hazardous substances. 42 U.S.C. §9607(q)(A)(i). Finally, users seeking to qualify for the ILO LLP must establish that a third party was the sole cause of the release of hazardous substances and that they held no employment, agency, or contractual relationship with the third party, among other requirements. In addition, users asserting the ILO defense must also establish that they had no knowledge (or reason to know) of any such releases. 42 U.S.C. §§9601(35)(A)(i), 9607(b)(3). The foregoing list is not meant to be exhaustive.

4.2.3 Certain Continuing Obligations Not Detailed in this Guide—As noted in 1.1.13, this guide focuses only on certain continuing obligations, namely those pertaining to land use restrictions, institutional controls, and taking reasonable steps with respect to releases of chemicals of concern.

4.2.4 Use Will Depend on Context—The context for continuing obligations may differ between BFPPs, ILOs and CPOs.

4.2.4.1 BFPPs acquire property after performing AAI, and, therefore may have knowledge of the presence or likely presence of chemicals of concern at the property, as well as the potential need for additional appropriate investigation, if any. This knowledge would guide the BFPP as to what measures it may employ in order to satisfy continuing obligations.

Note 4: The presence of chemicals of concern on the subject property may be the result of historical, area-wide land uses (for example, heavy metals in the soil due to the property being down-wind of smelters or foundries or area-wide ground water contamination) and such area-wide concerns could affect continuing obligations.

4.2.4.2 To establish eligibility for CERCLA LLPs as ILOs or CPOs, CERCLA requires, among other things, that, after performing AAI, there was neither knowledge nor a reason to know that any hazardous substances were disposed on, in, or at the property (ILO) or that the property was or could be contaminated by a release (CPO). 42 U.S.C. §9607(q)(1)(A)(viii)(II) (setting CPO standard); 42 U.S.C. §9601(35)(A)(i) (setting ILO standard). Even though ILOs and CPOs would have no knowledge of hazardous substances when they acquired property, compliance with continuing obligations would be triggered if the persons seeking the ILO or CPO protection thereafter learned of hazardous substances on the property due to releases of hazardous substances.

4.3 Who May Conduct—This guide does not suggest minimum qualifications for persons implementing or evaluating the need for continuing obligations. Continuing obligations may, in some cases, require professional judgment. Property owners should closely evaluate whether, under site-specific circumstances, the evaluation of continuing obligations suggested by this guide would benefit from the experience and judgment of an environmental professional with appropriate education and training relevant to the conditions at the property. Similarly (see 1.1.13) continuing obligations issues are likely to warrant legal advice.

4.4 Consultation with Government Agencies—A user may also wish to consult (or may be required by state or local laws to consult) appropriate governmental agencies when implementing continuing obligations.

4.5 Residential Properties—This guide does not cover properties with four or less dwelling units. Rather, this guide covers commercial real estate. Dwelling purchasers and owners should be cautioned, however, that depending on the circumstances, dwellings could qualify as facilities under CERCLA § 101(9) and, therefore, CERCLA liability could exist if hazardous substances were released at dwellings. Thus, purchasers of dwellings that conducted all appropriate inquiries prior to acquiring the property may wish to seek liability protection associated with releases of hazardous substances in some circumstances, and if they do, the recommendations in this guide could be useful.

4.6 Principles: 

4.6.1 Striking A Balance Between Remediation Liability and Redevelopment Incentives—As more fully discussed in Legal Appendix X1.3.1, Congress sought to strike a balance between the broad liability and remedial goals imposed by CERCLA on responsible parties and the goal of promoting redevelopment of Brownfields sites by removing the disincentives to redevelopment that result from the strict CERCLA liability scheme. Under this balance as discussed in the Legal Appendix (Appendix X1), those performing continuing obligations for the purpose of meeting a CERCLA LLP would not ordinarily need to undertake the same response actions as parties responsible for the release. This guide reflects that balance and when suggesting various continuing obligation steps, does so based on the principle that those performing continuing obligations do so within the balanced paradigm desiring property reuse on one hand with adequate environmental and human health protection on the other.

4.6.2 Proportionality to Nature of Release and Exposure Potential—The nature and extent of the continuing obligations should be proportional to the nature, extent, and complexity of the release as well as the potential for exposure under the site-specific property conditions and land uses. Environmentally impaired properties range from extremely large and severely contaminated sites (for example, Superfund sites) to small lightly contaminated sites (for example, small service station leaks). The procedures suggested in this guide, and particularly those in Sections 7 through 9, should be tailored to the site conditions. Thus, the magnitude and frequency of continuing obligation efforts will be more or less involved depending on the site specifics. Based on the procedures recommended in the guide, the continuing obligations plan (see Section 9) designs tailored procedures to perform site-specific continuing obligations.

4.7 Applicability of Other Environmental Laws—Users are reminded that all persons, including those seeking eligibility for the LLPs, have an affirmative obligation to comply with local, state, federal (and tribal if appropriate) rules and statutes governing the management and disposal of hazardous materials and hazardous waste (many of which encompass chemicals of concern), the details of which are beyond the scope of this guide. In addition, some locally enforced national codes (for example, the Uniform Fire Code or International Fire Code) provide standards for the management of hazardous materials and include rules governing the prevention and mitigation of unauthorized releases of chemicals of concern.

Subcomité:

E50.02

Referida por:

E3228-19, E1903-19, E2091-24, E1903-19, E3155-19, E2247-23, E1527-21, E1527-21

Volúmen:

11.05

Número ICS:

13.020.40 (Pollution, pollution control and conservation)

Palabras clave:

activity and use limitations; all appropriate inquiries; CERCLA; commercial real estate; continuing obligations; hazardous substances; landowner liability protections; property;