By E. Lynn Grayson

A new ASTM guidance has been issued that addresses issues and concerns following a typical Phase I investigation, often premised upon existing guidance, E 1527-Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. The new guidance, E 2790-11,  Standard Guide for Identifying and Complying with Continuing Obligations, 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. According to ASTM, the guide offers information and suggested procedures potentially useful to persons who wish to assert a defense to CERCLA liability and to establish one of the landowner liability protections (LLPs).

The new guidance is intended to address the process of identifying and fulfilling continuing obligations. The newly developed standard will help users to satisfy continuing obligations applicable to the innocent landowner, the contiguous property owner and the bona fide prospective purchaser protections from CERCLA liability. The standard uses a four step process to help the user identify and organize the continuing obligations, take any initial steps after property acquisition and monitor and maintain the obligations moving forward. The 2002 CERCLA Brownfields Amendments required persons seeking to maintain LLPs to establish, by a preponderance of the evidence, fulfillment of certain continuing obligations related to existing environmental conditions at a property.

The new guidance offers helpful insight on an issue that has been a challenge for new or otherwise impacted property owners. Even with the new guidance, this remains a controversial and fact specific inquiry that needs to be evaluated on a case-by-case basis. On this topic, there is no "one size fits all" approach that will work.

The new guidance is available for purchase from ASTM at http://www.astm.org/Standards/E2790.htm.