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  • Lasting Bona Fide Protection: EPA Common Elements and ASTM Continuing Obligation Guidance Updates

    Friday, December 13, 10:30 am - 11:30 am
    403 A
    Panel Discussions
    Track 6: Liability and Enforcement
    Lead drafters from USEPA and ASTM will describe recent revisions to EPA’s “Common Elements” guidance and ASTM’s “Standard Guide for Identifying and Complying With Continuing Obligations” both of which address “continuing obligations” and both of which were updated in 2019 based on site-specific experiences on landowner liability issues, relevant court decisions, and feedback received from brownfields stakeholders. Together, the updated guidances provide important interpretations, viewpoints, and practical steps to help guide brownfield purchasers and similar stakeholders seeking liability protections or otherwise desiring to meet “continuing obligations.” Under federal and state laws, purchasers or other owners of environmentally impacted property can sometimes be among those liable to address environmental pollution even though they did not cause the problem. Recognizing this as an unintended hindrance to property redevelopment, federal and state laws provide landowner liability protections for certain owners and purchasers. These protections, however, are ordinarily conditioned on the performance of future activities known as “continuing obligations,” designed to safely manage or control environmental impacts. Among others, continuing obligations include requirements to take “reasonable steps” to manage environmental impacts, to comply with or maintain the effectiveness of institutional controls, and to not “dispose” of hazardous substances after acquisition.
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