ASTM E2790-2011 Standard Guide for Identifying and Complying With Continuing Obligations《确定与遵守继续存在的义务的标准指南》.pdf

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1、Designation: E2790 11Standard Guide forIdentifying and Complying With Continuing Obligations1This standard is issued under the fixed designation E2790; the number immediately following the designation indicates the year oforiginal adoption or, in the case of revision, the year of last revision. A nu

2、mber in parentheses indicates the year of last reapproval. Asuperscript epsilon () indicates an editorial change since the last revision or reapproval.1. Scope1.1 PurposeThe purpose of this guide is to provideinformation and guidance2related to the process of identifyingand fulfilling continuing obl

3、igations3at commercial real estate,and forestland and rural property, with respect to hazardoussubstances within the scope of the Comprehensive Environ-mental Response, Compensation and Liability Act (CERCLA)(42 U.S.C. 9601 et seq.) as well as petroleum products(collectively hereafter chemicals of c

4、oncern). As such, thisguides primary purpose is to provide information and guid-ance about procedures that, if completed, would help users tosatisfy continuing obligations applicable to the innocent land-owner, the contiguous property owner (CPO), and the bonafide prospective purchaser (BFPP) protec

5、tions from CERCLAliability (hereinafter, collectively referred to as the “LandownerLiability Protections,” or “LLPs”) (see LegalAppendix X1.1 toX1.3 for an outline of CERCLAs liability and defenseprovisions).1.1.1 Continuing ObligationsSubsequent to property ac-quisition, the Small Business Liabilit

6、y Relief and BrownfieldsRevitalization Act of 2002 (the “Brownfields Amendments”),which amended CERCLA, requires persons (a broad termmeant to cover individuals, companies, government agencies,and other entities) seeking to maintain LLPs to establish, by apreponderance of the evidence, fulfillment o

7、f certain continu-ing obligations. The continuing obligations set forth in theBrownfields Amendments include: (1) complying with any landuse restrictions established or relied upon in connection with aresponse action at a property;(2) not impeding the effective-ness or integrity of any institutional

8、 controls employed at aproperty in connection with a response action;(3) takingreasonable steps with respect to releases of hazardous sub-stances, including stopping continuing releases, preventingthreatened future releases, and preventing or limiting human,environmental or natural resource exposure

9、 to prior releases ofhazardous substances;(4) providing full cooperation, assis-tance and access to persons who are authorized to conductresponse actions or natural resource restoration at a property;(5) complying with information requests and administrativesubpoenas; and (6) providing legally requi

10、red notices withrespect to releases of any hazardous substances at a property.41.1.2 Certain Continuing Obligations Not Detailed in thisGuideThe procedures recommended in this guide focus oncontinuing obligations pertaining to land use restrictions,institutional controls, and taking reasonable steps

11、. As notedimmediately above, CERCLA lists other continuing obliga-tions such as those related to legally required notices, allowingaccess, and cooperating with government regulators. These“other” continuing obligations are not further discussed in thisguide. The lack of detailed treatment of these o

12、ther continuingobligations, however, does not intend to suggest that they areless important or less relevant to maintaining LLPs. The userseeking additional information will find background on theseother continuing obligations in Legal Appendix X1.8 to thisguide.1.1.3 Guide Does Not Provide Legal Ad

13、viceAs notedabove, this guide primarily intends to provide information andguidance to users who wish to perform continuing obligationsfor the purpose of maintaining CERCLA LLPs. To serve thispurpose, this guide focuses on technical, scientific, and proce-dural issues involved with identifying and pe

14、rforming appro-priate continuing obligations under site-specific circumstances.In order to explain the context for the various continuingobligations recommended in this guide, however, the guidenecessarily makes reference to the statutory provisions ofCERCLA. These CERCLA discussions are meant for i

15、nforma-tional purposes only and are not intended and should not beconstrued as legal opinions or conclusions of law; nor shouldany statement in this guide be relied upon as legal adviceconcerning CERCLA or any legal matter. The CERCLA LLPsinvolve complicated legal matters with potentially severecons

16、equences. This guide is not intended to and does notreplace legal advice, and should not be relied on for any legalquestion. No implication is intended that a person must use this1This guide is under the jurisdiction ofASTM Committee E50 on EnvironmentalAssessment, Risk Management and Corrective Act

17、ion and is the direct responsibil-ity of Subcommittee E50.02 on Real Estate Assessment and Management.Current edition approved May 15, 2011. Published June 2011. DOI: 10.1520/E279011.2This guides CERCLA discussions are for information purposes only and arenot intended and should not be construed as

18、legal opinions or conclusions of law.This guide should not be relied upon to answer legal questions.3Definitions provided in Section 3. All defined terms appear in italics.4In setting forth these requirements, the Brownfields Amendments use the terms“vessel” and “facility” to describe the subject pr

19、operty. See, for example, CERCLA 101(40), 42 U.S.C. 9601(40). Since the aim of this guide is to assist the user inidentifying and satisfying continuing obligations at commercial real estate,weusethe term “ property”, which is the relevant subset of “facility” throughout this guide.1Copyright ASTM In

20、ternational, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959, United States.guide in order to establish or maintain LLPs. Conversely, noimplication is intended to assure a person using this guide ofsuccess against CERCLA liability when using this guide. Theuser is encouraged to

21、seek legal advice when seeking toestablish and maintain CERCLA liability defenses. In a num-ber of sections throughout the guide, the guide notes instanceswhere legal issues are particularly relevant and often reinforcesthe guides overall recommendation to seek the advice of legalcounsel concerning

22、CERCLA LLPs. Where particular sectionsdo not suggest the need for legal advice, no implication isintended that legal advice is not recommended or warranted.1.1.4 Inclusion of Petroleum ProductsPetroleum productsare included within the scope of this guide because they areoften of concern at commercia

23、l real estate.Although petroleumproducts enjoy a limited exclusion from CERCLA liability,current custom and usage generally includes an evaluation ofwhether petroleum products may be present on commercialreal estate during pre-acquisition environmental site assess-ments. Thus, this guide likewise in

24、cludes petroleum productswithin its scope. The actions discussed in this guide could beuseful or prudent if applied at commercial real estate affectedby a release of petroleum products.1.1.5 Applicability to Non-CERCLA PropertiesWhile thisguide is primarily intended to address CERCLA LLPs, it needno

25、t be limited exclusively for that purpose. The proceduresdescribed in this guide may prove prudent at properties whereActivity and Use Limitations (AULs) or environmental con-tamination exists, even though CERCLA LLPs may not be ofconcern. AULs are employed at many properties remediatedunder state o

26、r non-CERCLAfederal programs where CERCLAliability may not be of concern but, nonetheless, the AUL andreasonable step procedures recommended by this guide mayprovide useful procedures for assuring AUL compliance. Forexample, Michigan state law sets “due care” requirements forpurchasers of contaminat

27、ed properties, mandating that theyperform various post-purchase duties including, among others,complying with and not impeding the effectiveness and integ-rity of AULs, and preventing exacerbation and mitigatingunacceptable exposure of hazardous substances.5Also, forexample, Wisconsin sets legal rul

28、es and administrative guid-ance covering certain continuing obligations for AULs.61.1.6 Activity and Use Limitations, Institutional Controls,Engineering Controls, and Land Use RestrictionsThe termActivity and Use Limitation (AUL) is taken from Guide E2091to include both legal controls (that is, inst

29、itutional controls)and physical controls (that is, engineering controls) within itsscope. Agencies, organizations, and jurisdictions, however,may define or utilize these terms differently. For example, theterm “land use controls” is used by the Department of Defenseand the term land use restrictions

30、 is used but not defined in theBrownfields Amendments. CERCLA, as amended by theBrownfields Amendments, expressly prescribes continuing ob-ligations only for institutional controls (ICs) and land userestrictions (LURs), each of which represents a subset of theterm AUL. In addition to land use restri

31、ctions and institutionalcontrols, additional types of AULs, particularly engineeringcontrols, may exist at a property. While broadly a type of AUL,engineering controls could also be required by or be associatedwith ICs or LURs. Where this guide directly addresses thecontinuing obligations for AULs s

32、et forth in CERCLA, it usesthe statutory terms land use restrictions and institutionalcontrols to maintain consistency with CERCLA. Where thisguide refers generally to AULs, this guide employs the termAUL. Although certain continuing obligations expressly referto land use restrictions and institutio

33、nal controls, the broaderset of continuing obligations (such as taking reasonable stepsto address releases of chemicals of concern) require a consid-eration of all AULs, including engineering controls.1.1.7 Properties CoveredIn addition to property withAULs, the procedures suggested by this guide ar

34、e primarilyintended to cover property where chemicals of concern areknown to have been (1) released on the property prior toacquisition by the current property owner (2) are present at theproperty after acquisition by the current property owner, due tothe migration from neighboring property,or(3) ar

35、e discoveredafter property transfer where the Phase I (or other methods ofperforming AAI), though properly performed, provided noreason to know of the presence of chemicals of concern. Thisguide focuses on these release situations because such situa-tions tend to give rise to circumstances in which

36、one or moreof the CERCLA LLPs could apply. See Legal Appendix X1.3for additional discussion of CERCLA LLPs.1.1.8 Recognized Environmental ConditionsFor the pur-poses of this guide, the term recognized environmental condi-tion is defined in the same manner as the term is defined inPractices E1527 and

37、 E2247, which provide guidance for thePhase I environmental site assessment process (hereafterPhase I). REC means the presence or likely presence of anychemical of concern on a property under conditions thatindicate an existing release, a past release, or a material threatof a release of any chemica

38、ls of concern into structures on theproperty or into the ground, groundwater, or surface water onthe property. RECs do not include de minimis conditions thatdo not generally present a threat to human health or theenvironment and which would not generally be the subject ofan enforcement action if bro

39、ught to the attention of theappropriate governmental agencies.1.1.9 Presumption of All Appropriate Inquiries and Desireto Qualify for LLPsThis guide is primarily intended for userswho seek to qualify for any LLPs. Therefore, this guidepresumes that its users have performed or will perform acurrently

40、 valid Phase I or otherwise satisfy “all appropriateinquiries” prior to acquisition of the property.1.1.10 TimingSubject to the other scope considerationsdescribed in this section, the procedures in this guide areintended to be applicable when a user knows or has reason toknow, after the users purch

41、ase of the property, that chemicalsof concern either (1) have been released at the property or (2)may be released in the future. Therefore, for users whopurchase property where RECs have been identified, this guideis meant to apply upon property purchase. Users who have5See MCL 324.20101 et seq.6Con

42、tinuing Obligations for Environmental Protection, Responsibilities ofWisconsin Property Owners, PUB_RR_819 (Jun. 2009) (avail. at http:/dnr.wi.gov/org/aw/rr/archives/pubs/RR819.pdf).E2790 112gained knowledge or reason to know of property releases ofchemicals of concern prior to the publication of th

43、is guide (forexample, where a user purchased contaminated property yearsbefore this guide was published) may still use this guide. Suchusers may need to reconsider and update the findings andconclusions in any existing Phase I (or alternative all appro-priate inquiries efforts) in order to fully uti

44、lize this guide. See5.2.2 (addressing presumption of currently valid Phase I/AAI).1.1.11 Determination of No Continuing Obligations Relatedto Activity and Use Limitations and Reasonable StepsSection 5 of this guide recommends a procedure for consider-ing whether continuing obligations covered by thi

45、s guide arerequired or applicable to the property. Refer to 1.1.2 for asummary of continuing obligations that are not addressed indetail by this guide. As addressed in more detail in Section 5,a determination that no continuing obligations are required canbe made where neither RECs, institutional co

46、ntrols, nor landuse restrictions exist, and users otherwise have no knowledgeto indicate the presence of chemicals of concern at theproperty. Even where a Phase I (or all appropriate inquiries)found RECs, further evaluation (see Section 6) can justify aconclusion that no chemicals of concern were re

47、leased and, inturn, this conclusion can justify a determination of no continu-ing obligations. See 5.4, however, discussing the case wherefuture circumstances could arise that would cause users toreevaluate determinations that no continuing obligations arerequired.1.1.12 CERCLA Requirements Other Th

48、an ContinuingObligationsThis guide does not provide guidance on require-ments other than continuing obligations that may be necessaryto retain eligibility for LLPs or other CERCLA defenses. SeeLegal Appendix X1.3 for discussion of CERCLA LLPs andother CERCLA defenses.1.1.13 Other Federal, State, and

49、 Local EnvironmentalLawsUsers are cautioned that federal, state, and local lawsmay impose environmental assessment, remedial action,orother obligations related to hazardous substances or petroleumproducts that are beyond the scope of this guide.1.1.14 DocumentationCERCLArequires that a user seek-ing to retain eligibility for an LLP must demonstrate compli-ance with continuing obligations by a preponderance ofevidence. There is no apparent requirement for written docu-mentation to demonstrate compliance with continuing obliga-tions, but written documentation