Here are a few of the legal issues we discussed yesterday:

(1) Each of the statutory elements of the three liability protections (bona fide prospective purchaser, innocent landowner, contiguous property owner) are slightly different.  While generally the continuing obligations are the same, there may be variations depending on your specific facts.

(2) Some courts have found that some typical development activities such as land grading have constituted "disposal" under CERCLA.  This broad definition could limit the availability of the CERCLA liability protections in some circumstances, since owners or operators who engage in "disposal" activities are likely not eligible for protection.

(3) Passive migration may be considered disposal, a "continuing release" or a "previously released hazardous substance." How passive migration is ultimately defined by the courts will likley impact the continuing obligation assessment at many sites. 

(4) Persons with improper affiliation with PRPs are generally not eligible for liability protections.  While not directly related to continuing obligations, the issue has received much attention lately, and may be addressed in the Ashley II appeal.  EPA also recently issued a guidance document discussing the affiliation requirement.

Other issues were discussed in the presentation as well.  Also, since continuing obligations decisions are very often site-specific, other issues may exist at your site.  For those seeking to preserve protections, it is a good idea to have environmental counsel as part of the team identifying and implementing continuing obligations.