Continuing Obligations or Due Care Compliance

Due Care

& Continuing Obligations

The owners and operators of property that is contaminated are required to take actions to ensure that unacceptable exposures are eliminated, contamination is not exacerbated, proper notifications are made, and compliance with on-going land use restrictions is met.

Various states have liability protection mechanisms through Voluntary Cleanup Programs, Baseline Environmental Assessments (BEA) and consent orders/covenants not to sue. The conditions for attaining and/or maintaining liability protection usually involves Continuing Obligations or Due Care Compliance.

PM Environmental's qualified and experienced team can develop an effective and sensible Continuing Obligations plan that enables you to identify, ensure and track compliance with, and manage ongoing obligations of a purchaser to maintain due care and CERCLA protections.

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What are the conditions for attaining liability protection under CERCLA

To be eligible for liability protection under CERCLA as an innocent landowner, contiguous property owner or bona fide prospective purchaser, prospective property owners must:

Conduct All Appropriate Inquiries in compliance with 40 CFR Part 312, prior to acquiring the property;
Comply with all Continuing Obligations after acquiring the property (CERCLA §§101(40)(C – G) and §§107(q)(A) (iii – viii)); and

To demonstrate that it qualifies as an innocent landowner, contiguous landowner, or bona fide prospective purchaser, the applicant must:

Conduct All Appropriate Inquires prior to acquiring the property; and
Comply with all Continuing Obligations after acquiring the property.

What are Continuing Obligations under CERCLA?

After acquiring a property, to maintain the liability protections, landowners must comply with “continuing obligations” during their property ownership. The continuing obligations include:

Provide all legally required notices with respect to the discovery or release of a hazardous substance;
Exercise appropriate care with respect to the hazardous substances by taking reasonable steps to stop or prevent continuing or threatened future releases and exposures, and prevent or limit human and environmental exposure to previous releases;
Provide full cooperation, assistance, and access to persons authorized to conduct response actions or natural resource restoration;
Comply with land use restrictions and not impede the effectiveness of institutional controls; and
Comply with information requests and subpoenas.

What are Due Care Requirements?

Similar to CERCA Continuing Obligations, Due Care under P.A. 451, Parts 20107a and 21304, requires that an owner or operator of a contaminated property shall do all of the following with respect to hazardous substances at the property:

Undertake measures as are necessary to prevent exacerbation of the existing contamination.
Exercise due care by undertaking response activity necessary to mitigate unacceptable exposure to hazardous substances and allow for the intended use of the facility in manner that protects the public health and safety.
Take reasonable precautions against the reasonably foreseeable acts or omissions of a third party and the consequences that foreseeable could result from those acts or omissions.
Provide notification of abandoned containers.
Provide notification to off-site parties of migration of contamination beyond the property boundary.
Comply with land use restrictions associated with response activities, and
Not impede the effectiveness of response activities implemented at the property.

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