The Small Business Liability Relief and Brownfields Revitalization Act of 2002 amended various sections of CERCLA in order, among other things, to promote redevelopment of contaminated Brownfields properties. These amendments included creation of the Contiguous Property Owner and Bona Fide Prospective Purchaser protections from CERCLA liability.
To obtain these CERCLA landowner liability protections (LLP) under these provisions (as well as the similar innocent landowner protection), a property owner must comply with certain pre-acquisition and post-acquisition obligations. The pre-acquisition obligation is primarily a requirement that the purchaser conduct “all appropriate inquiry,” and this requirement has been detailed in regulations promulgated by EPA. (See, 40 CFR Part 312; ASTM 1527 also sets forth guidelines relating to this inquiry.)
However, EPA has not promulgated regulations regarding the post-acquisition “continuing obligations” detailing what an owner must do to maintain the LLP after acquisition. Indeed the CERCLA amendments did not authorize EPA to promulgate such rules. Thus, the ASTM has stepped into the vacuum and prepared and issued ASTM E2790 addressing these continuing obligations.
As described by ASTM, this standard is “intended for use on a voluntary basis primarily by parties who desire to satisfy continuing obligations…. As such, this guide provides information and suggested procedures that could be useful to persons who wish to assert a defense to CERCLA liability and to establish one of the LLPs.” The ASTM standards are a helpful tool, but they are not statutory, and further, as also acknowledged by ASTM, “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.” Nevertheless, the ASTM is especially timely given the rise of cases involving disputes about whether an LLP applies based upon the owner’s alleged failure to satisfy the continuing obligations. See, e.g., Ashley II of Charleston LLC v. PCS Nitrogen, Inc., 791 F. Supp.2d 431, 500-01 (D.S.C. 2011), appeal pending (4th Cir.) [Plaintiff failed to exercise appropriate care and therefore failed to take reasonable steps.]; 3000 E. Imperial v. Robertshaw Controls Co., 2010 U.S. Dist. LEXIS 138661 (C.D. Cal. Dec. 29, 2010) appeal pending (9th Cir.) [Plaintiff properly took reasonable steps.].