ASTM's New Continuing Obligations Standard: Helpful Guidance for Parties Seeking to Establish Defenses to CERCLA Liability
On January 11, 2002, then-President Bush signed into law the Small Business Liability Relief and Brownfields Revitalization Act ("Brownfields Amendments"), which amended the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") by, among other things, adding the bona fide prospective purchaser ("BFPP") defense and the contiguous property owner defense to CERCLA's joint and several liability. With the addition of the BFPP defense, for the first time a party could knowingly purchase contaminated property and still qualify for a defense to CERCLA liability. To satisfy the statutory criteria for this defense, a party would have to demonstrate through a preponderance of evidence that it conducted "all appropriate inquiry" prior to property acquisition, and that it had complied with certain "continuing obligations" after property acquisition. These "continuing obligations" must also be satisfied by parties seeking to establish the contiguous property owner defense as well as the innocent purchaser defense to CERCLA liability. While the Brownfields Amendments directed the U.S. Environmental Protection Agency ("EPA") to promulgate regulations to clarify what was meant by "all appropriate inquiry" (and EPA did in fact promulgate these regulations in 2005, as discussed below), no such directive existed for promulgating regulations to clarify what was meant by "continuing obligations."