Services AULs & Continuing Obligations

Successful Superfund cleanups and brownfields remediation have led to the routine development of institutional and engineering controls and restrictive covenants; these ensure long-term protection against exposures to contamination left-in-place through risk-based corrective action. Such controls were coined Activity and Use Limitations (AULs) by the ASTM E1527 Standard. The EPA All Appropriate Inquiries Rule (40 CFR Part 312) highlights the need for users seeking liability protection to affirmatively search for recorded AULs, along with environmental liens.

A related but separate requirement for property owners seeking liability protection is conformance with Continuing Obligation(s). Owners of contaminated property, who have qualified for landowner liability protections under Superfund when they acquired the property, must continue to:

  • Exercise due care with respect to contamination
  • Cooperate with regulatory authorities and their agents
  • Provide legally required notices
  • Not impede the integrity of controls put in place
  • Comply with AULs

Vieau Associates can help clients minimize the risk of forfeiting liability protection through inadvertent acts of noncompliance with an AUL or continuing obligations.

We start by identifying AULs as part of a Phase I or other due diligence assignment. Often working closely with the client’s legal counsel, we obtain and review AULs or liability assurance letters to understand the details of contamination, evaluate what is required for ongoing operations, and position the client to take title and operate the property with eyes wide open.

Vieau Associates has assisted many clients and their legal counsel with drafting affidavits, environmental covenants, and engineering controls (e.g. operation and maintenance) for remedial systems. We can assist clients with developing and executing a voluntary Continuing Obligations Plan, consistent with the ASTM Standard Guide E2790 and any applicable regulatory requirements.