August Mack Newsletter | October, 2019

Going the Distance - Implementing Continuing Obligations at Contaminated Properties
by Sarah Young

You have identified an abandoned or underutilized facility that you want to purchase and redevelop.  Through the process of negotiations to purchase the property and through information gathered while establishing your Bona Fide Prospective Purchaser (BFPP) defense to liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), you became aware of subsurface contamination located at the facility.  You did not cause the contamination, and you did not contribute to the contamination. As a BFPP, what are your future obligations concerning the contamination identified at the site?

There are five continuing obligations that must be met to maintain BFPP status:

The purchaser must exercise appropriate care with respect to hazardous substances found at the facility by taking reasonable steps to:

  1. Stop any continuing release;
    • Prevent any threatened future release; and
    • Prevent or limit human, environmental, or natural resource exposure to any previously released hazardous substance.
     
  2. The purchaser must provide all legally required notices with respect to the discovery or release of any hazardous substances on the property.
  3. The purchaser must provide full cooperation, support, assistance, and access to persons authorized to conduct response actions at the property.
  4. The purchaser must be in compliance with land use restrictions and must not impede the effectiveness or integrity of any institutional controls.
  5. The purchaser must comply with any request for information or administrative subpoena.

Preparing a contaminated property for reuse can involve extensive coordination between the interests of various stakeholders.  Many times, Responsible Parties (RP) such as former owners or operators have been identified; those RPs have reported a release to their regulatory agency, and the release is undergoing investigation or evaluation of cleanup strategies.  As mentioned in the list above, as part of your continuing obligations, you can be faced with the challenge of not only incorporating restrictions into site development plans and mitigating exposure to future site occupants but also allowing the RP to continue addressing their regulatory requirements.

It is imperative to define goals for property reuse to prioritize site activities and guide decisions made during project activities.  End-use (i.e. residential, commercial, mixed-use) will determine appropriate engineering controls or mitigation efforts that need to be incorporated into redevelopment plans thereby impacting project timeline and costs.  End-use will also assist the RP in strategizing investigation and remediation approaches.  The following are examples of engineering controls or mitigation efforts that may need to be considered in redevelopment plans to meet continuing obligations:

  • Soil Management Plans: A common environmental restriction placed on a property deed to prevent exposure is to not allow soil disturbance without proper management procedures in place.  Proper soil management procedures can be defined in a written Soil Management Plan (SMP).  The SMP should effectively define items such as the area and extent of contamination left or currently in place compared to proposed site features; cut and fill plans; excavation work plan activities; dewatering activities if needed; waste characterization and disposal or reuse planning of excavated material; and stockpile management.
 
  • Engineered Direct Contact Barriers: These barriers are typically man-made, permanent structures comprised of impermeable materials such as concrete or asphalt that are incorporated into project design to prevent direct contact exposure to shallow soil contamination.  These include features such as building slabs, paved parking lots, and sidewalks.  They can even include geotextile fabric below a layer of clean fill material or artificial turf in landscaping areas or green spaces.
 
  • Vapor Mitigation Systems:  Vapor mitigation systems are often required when buildings are going to be constructed or reused and are located above a contaminant plume posing a potential vapor intrusion risk to current or future building occupants.  Vapor mitigation systems can be installed as passive or active, depending on subsurface chemical concentrations at the time of building occupancy and mitigation goals.  Passive vapor barriers such as sealants, spray-on coatings, or sheets of geomembrane or thick plastic may be incorporated into existing or newly constructed buildings.  Passive venting systems or active sub-slab depressurization systems involve the installation of venting layers beneath a slab or installation of sumps in a building slab to vent vapors from beneath an existing or newly constructed building to the outdoors.
 

Continuing obligations must be considered in redevelopment or reuse of contaminated properties to maintain BFPP defense to CERCLA liability and prevent exposure to site occupants.  These considerations may also, in turn, expedite regulatory closure for RPs. Incorporation and implementation of various engineering controls or mitigation techniques can significantly alter redevelopment timelines and overall project costs, especially if not taken into consideration in the early stages of project development.  Systematic project planning and communication of project goals are imperative to determine the most feasible options for project requirements.


Sarah Young, CHMM is a Senior Manager with August Mack Environmental, Inc. in the Indianapolis, Indiana office. She has sixteen years of experience providing environmental consulting services, including Remediation and Construction, Subsurface Investigation, and Vapor Intrusion. She is a Certified Hazardous Materials Manager (CHMM). Sarah can be reached at 317.916.3154 or via e-mail at syoung@augustmack.com.


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Going the Distance - Implementing Continuing Obligations at Contaminated Properties
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