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

The track record of successful cleanups on Superfund sites and brownfields redevelopments have led to the routine implementation of institutional and engineering controls and restrictive covenants. These instruments ensure long-term protection against exposures to contamination left-in-place. Such controls are 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.  This is a standard line of inquiry in Vieau Associates’ Phase I ESAs.

A related but separate requirement for property owners seeking liability protection is conformance with Continuing Obligations. 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. O&M manuals) 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.