ASTM E2790-20

Standard Guide for Identifying and Complying With Continuing Obligations

SIGNIFICANCE AND USE
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 qual...
SCOPE
1.1 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 that is contaminated by hazardous substances within the scope of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. § 9601 et seq.), petroleum products, or other contaminants that require cleanup under federal or state law (collectively hereafter chemicals of concern). Because of the importance of federal law, this guide largely focuses on continuing obligations applicable to the innocent landowner (ILO), the contiguous property owner (CPO), and the bona fide prospective purchaser (BFPP) protections from CERCLA liability (hereinafter, collectively referred to as the “CERCLA Landowner Liability Protections,” or “CERCLA LLPs”) (see Legal Appendix X1 to Appendix X3 for an outline of CERCLA's liability and defense provisions). However, the continuing obligations arising from CERCLA LLPs are often very similar to the types of continuing obligations that state laws set as conditions for state liability protections. And, therefore, the purpose of this guide seeks to help users who wish to perform continuing obligations because of concerns over CERCLA liability and also extends to help users who wish to perform continuing obligations because of concerns over state law liability. Similarly, where sound risk management rather than a desire for liability protection is the goal, the procedures recommended in this guide can also prove useful  
1.1.1 Intended Scope of Standard Guide—As a standard guide, this document provides a compendium of information and options but does not recommend a specific course of action. As a guide, the purpose of this standard is to simply increase the awareness of possible techniques or procedures related to continuing obligations and to offer guida...

General Information

• Status: Published
• Publication Date: 31-Dec-2019
• ICS: 13.020.40 - Pollution, pollution control and conservation
• Technical Committee: E50 - Environmental Assessment, Risk Management and Corrective Action
• Drafting Committee: E50.02 - Real Estate Assessment and Management

Relations

• Referred By: ASTM E2091-22 - Standard Guide for Use of Activity and Use Limitations, Including Institutional and Engineering Controls
• Effective Date: 01-Jan-2020
• Referred By: ASTM E1527-21 - Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process
• Effective Date: 01-Jan-2020

Standards Content (Sample)

This international standard was developed in accordance with internationally recognized principles on standardization established in the Decision on Principles for the
Development of International Standards, Guides and Recommendations issued by the World Trade Organization Technical Barriers to Trade (TBT) Committee.
Designation: E2790 − 20
Standard Guide for
1
Identifying and Complying With Continuing Obligations
This standard is issued under the fixed designation E2790; the number immediately following the designation indicates the year of
original adoption or, in the case of revision, the year of last revision. A number in parentheses indicates the year of last reapproval. A
superscript epsilon (´) indicates an editorial change since the last revision or reapproval.
INTRODUCTION
A need and desire exists to purchase and redevelop environmentally impacted property. Under
federal and state laws, however, purchasers or other owners of environmentally impacted property can
sometimesbeamongthoseliabletoaddresstheenvironmentalimpactseventhoughtheydidnotcause
the impact. Recognizing this as an unintended hindrance to property redevelopment, more recent
federal and state laws provide liability protections for certain innocent owners. These liability
protections,however,areordinarilyconditionedontheperformanceofcertainfutureactivities,known
as “continuing obligations” designed to safely manage or control environmental impacts. Among
others, continuing obligations may include requirements to take reasonable steps to manage
environmental impacts or to prevent unsafe exposure, or requirements to comply with or maintain the
effectivenessofactivityanduselimitations.Theactualcontinuingobligationsthatmaybeneededvary
and depend on site specifics, and could also depend on whether the liability concern involves federal
liability, state liability, or both. In any case, the need for continuing obligations could arise in the short
term and, in some cases, could last for a long time. This guide seeks to provide its users with
information and guidance for establishing a process and, in turn, identifying and performing the
continuing obligations needed in site specific circumstances. By helping users identify and perform
continuingobligations,thisguidecanbeanimportantimplementingtoolforuserswhowishtoqualify
for various federal or state liability protections afforded to innocent owners of environmentally
impactedproperty.Similarly,wheresoundriskmanagementratherthanadesireforliabilityprotection
is the goal, the procedures recommended in this guide can also prove useful.
1. Scope (ILO),the contiguous property owner(CPO),andthe bona fide
prospective purchaser (BFPP) protections from CERCLA
1.1 Purpose—The purpose of this guide is to provide
2
liability (hereinafter, collectively referred to as the “CERCLA
information and guidance related to the process of identifying
3
Landowner Liability Protections,” or “CERCLA LLPs”) (see
andfulfilling continuing obligations at commercial real estate,
Legal Appendix X1 to Appendix X3 for an outline of CER-
and forestland and rural property that is contaminated by
CLA’s liability and defense provisions). However, the continu-
hazardous substances within the scope of the Comprehensive
ing obligations arising from CERCLA LLPs are often very
Environmental Response, Compensation and Liability Act
similar to the types of continuing obligations that state laws set
(CERCLA) (42 U.S.C. § 9601 et seq.), petroleum products,or
as conditions for state liability protections. And, therefore, the
other contaminants that require cleanup under federal or state
purpose of this guide seeks to help users who wish to perform
law (collectively hereafter chemicals of concern). Because of
continuing obligations because of concerns over CERCLA
the importance of federal law, this guide largely focuses on
liability and also extends to help users who wish to perform
continuing obligations applicable to the innocent landowner
continuing obligations because of concerns over state law
liability. Similarly, where sound risk management rather than a
1 desire for liability protection is the goal, the procedures
ThisguideisunderthejurisdictionofASTMCommitteeE50onEnvironmental
Assessment, Risk Management and CorrectiveAction and is the direct responsibil-
recommended in this guide can also prove useful
ity of Subcommittee E50.02 on Real Estate Assessment and Management.
1.1.1 Intended Scope of Standard Guide—As a standard
Current edition approved Jan. 1, 2020. Published August 2020. Originally
guide, this document provides a compendium of information
approved in 2011. Last previous edition approved in 2011 as E2790–11. DOI:
10.1520/E2790–20.
and options but does not recommend a specific course of
2
This guide’s CERCLA discussions are for information purposes only and are
action. As a guide, the purpose of this standard is to simply
not intended and should not be construed as legal opinions or conclusions of law.
increase the awareness of
...

This document is not an ASTM standard and is intended only to provide the user of an ASTM standard an indication of what changes have been made to the previous version. Because
it may not be technically possible to adequately depict all changes accurately, ASTM recommends that users consult prior editions as appropriate. In all cases only the current version
of the standard as published by ASTM is to be considered the official document.
Designation: E2790 − 11 E2790 − 20
Standard Guide for
1
Identifying and Complying With Continuing Obligations
This standard is issued under the fixed designation E2790; the number immediately following the designation indicates the year of
original adoption or, in the case of revision, the year of last revision. A number in parentheses indicates the year of last reapproval. A
superscript epsilon (´) indicates an editorial change since the last revision or reapproval.
INTRODUCTION
A need and desire exists to purchase and redevelop environmentally impacted property. Under
federal and state laws, however, purchasers or other owners of environmentally impacted property can
sometimes be among those liable to address the environmental impacts even though they did not cause
the impact. Recognizing this as an unintended hindrance to property redevelopment, more recent
federal and state laws provide liability protections for certain innocent owners. These liability
protections, however, are ordinarily conditioned on the performance of certain future activities, known
as “continuing obligations” designed to safely manage or control environmental impacts. Among
others, continuing obligations may include requirements to take reasonable steps to manage
environmental impacts or to prevent unsafe exposure, or requirements to comply with or maintain the
effectiveness of activity and use limitations. The actual continuing obligations that may be needed vary
and depend on site specifics, and could also depend on whether the liability concern involves federal
liability, state liability, or both. In any case, the need for continuing obligations could arise in the short
term and, in some cases, could last for a long time. This guide seeks to provide its users with
information and guidance for establishing a process and, in turn, identifying and performing the
continuing obligations needed in site specific circumstances. By helping users identify and perform
continuing obligations, this guide can be an important implementing tool for users who wish to qualify
for various federal or state liability protections afforded to innocent owners of environmentally
impacted property. Similarly, where sound risk management rather than a desire for liability protection
is the goal, the procedures recommended in this guide can also prove useful.
1. Scope
2
1.1 Purpose—The purpose of this guide is to provide information and guidance related to the process of identifying and
3
fulfilling continuing obligations at commercial real estate, and forestland and rural property, with respect to property that is
contaminated by 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, or other contaminants that require cleanup
under federal or state law (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 Because of the importance of federal law, this guide
largely focuses on users to satisfy continuing obligations applicable to the innocent landowner,landowner (ILO), the contiguous
property owner (CPO), and the bona fide prospective purchaser (BFPP) protections from CERCLA liability (hereinafter,
collectively referred to as the “CERCLA Landowner Liability Protections,” or “CERCLA LLPs”) (see Legal Appendix
X1.1Appendix X1 to X1.3Appendix X3 for an outline of CERCLA’s liability and defense provisions). However, the continuing
obligations arising from CERCLA LLPs are often very similar to the types of continuing obligations that state laws set as conditions
for state liability protections. And, therefore, the purpose of this guide seeks to help users who wish to perform continuing
obligations because of concerns over CERCLA liability and also extends to help users who wish to perform continuing obligations
1
This guide is under the jurisdiction of ASTM Committee E50 on Environmental Assessment, Risk Management and Corrective Action and is the direct responsibility
of Subcommittee E50.02 on Real Estate Assessment and Management.
Current edition approved May 15, 2011Jan. 1, 2020. Published June 2011August 2020. Originally approved in 2011. Last previous edition approved in 2011 as E2790–11.
DOI: 10.1520/E2790–11.10.1520/E2790–20.
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. T
...