January 01, 2012

ASTM Standard for CERCLA Continuing Obligations

James H. Andreasen

The American Society for Testing and Materials (ASTM) recently issued its standard E2790–11, Standard Guide for Identifying and Complying With Continuing Obligations, covering some of the requirements applicable to various defenses established under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. (CERCLA). The standard covers the so-called “continuing obligation” requirements that are incorporated into the CERCLA bona fide prospective purchaser, innocent landowner, and contiguous owner defenses. Practitioners need to be aware of the standard, but will have to develop over time with their clients approaches that they believe will protect available defenses, in light of the standard and developing case law. The standard may be useful as guidance to comply with similar continuing obligation requirements under state law.

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