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26 Nat. Resources & Env't 56 (2011-2012)
Gregory Mountain: A Sacred Site Protection Failure

handle is hein.journals/nre26 and id is 190 raw text is: tion defenses must, once continuing obligations are triggered, take reasonable steps to identify and implement steps to stop continuing releases, prevent threatened future releases, and pre- vent or limit exposure to released substances. Reasonableness, of course, tends to be in the eye of the beholder. The standard provides a framework process to assess potential requirements and meet them. Whether compliance will be viewed as constituting reasonable steps by a court or EPA remains to be seen, but an en- tity ignoring the standard risks being held not to have attempted to be reasonable. Once the relevant information regarding site conditions has been gathered, the standard calls for development of a site conceptual model to assess exposure pathways and receptors, including reasonable anticipated future receptors based on an- ticipated site use changes. STANDARD § 6.7.4.1. The site model becomes the basis on which reasonable steps are defined. The standard provides no direction on how to identify appropriate reasonable steps, but it does provide examples of responses to hypothetical situations. These include over-packing leaking drums or installing secondary containment for above ground releases, and removal of product from underground storage sys- tems that leak or threaten to leak. STANDARD § 7.6.4.1. The standard also suggests replacing or removing a storage tank system to prevent future threatened releases if there are signs of deterioration, or evaluating secondary containment systems for tanks or container that store hazardous substances. STAN- DARD § 7.6.4.2. Other examples of reasonable steps include contacts with occupants of the property, or nearby residents, to inform them of potential exposure risks, adding signage, implementing vapor barriers, creating clean corridors for utili- ties, or refraining from digging in impacted areas as potential reasonable steps. STANDARD § 7.6. The standard calls for development of written reports, potentially including a statement of no continuing obliga- tions if no obligations are identified, a continuing obligations plan if obligations are identified, and reports monitoring the effectiveness and completeness of performance of continuing obligations. STANDARD § 9.1. The documentation can be valu- able in circumstances where the investigation, assessment, and decision-making processes are complex. Documenting ongoing performance and review of continuing obligation requirements can help property owners ensure they meet their expectations. But there are practitioners and clients who balk at record creation where the records are not strictly required by law. Many have had the experience of a motivated opposing counsel managing to create a negative sound bite out of context from a document that, taken as a whole, is positive for the client. Because the ASTM standard says documents should be created, clients and attorneys who are opposed to creating documents should think carefully about the possible repercussions of failure to create documents called for in a standard that may come to set a floor for continuing obligation performance. The standard also notes a preliminary legal issue that may affect the value of the innocent owner, contiguous owner, and bona fide purchaser defenses: If a court should determine that ongoing leaking or migration of previously released hazard- ous substances constitutes disposal or a release within the meaning of CERCLA, the defense may be lost. STANDARD § 6.7.2.2. For example, Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 846 (4th Cir. 1992), cert. denied, 506 U.S. 940 (1992) held that leakage from underground drums constituted disposal. If leakage or migration is held to consti- tute disposal within the meaning of the statute, an innocent owner, contiguous owner, or bona fide purchaser could lose their defense because the statute makes liable persons who own a property at the time of disposal. 42 U.S.C. § 9607(a) (2). This is not an issue that a property owner can easily plan around. Persons who acquired property without knowledge of the presence of hazardous substances are particularly unlikely to be able to prevent leakage or migration of the unknown hazardous substances. Nevertheless, especially because the standard calls the issue out specifically, it may be important for practitioners to make clients aware of this potential pitfall. Persons who purchase property, or represent such purchas- ers, should review the ASTM standard. It may affect in a significant way the approach that parties choose to follow to establish and preserve important defenses that may avoid potentially significant CERCLA liability at properties where some hazardous substance has come to be present. Because of the breadth and importance of the issues involved, practitio- ners should consider carefully how to fold the ASTM stan- dard's provisions into their transactional work. Mr. Andreasen is of counsel at Shook, Hardy & Bacon, L.L.P. in Kansas City, MO, and a member of the editorial board of Natural Re- sources & Environment. He may be reached at jandreasen@shb.com. Gregory Mountain: A Sacred Site Protection Failure Ted Griswold and Jonathan P Scoll Our resource protection system is currently ill-suited to the protection of Native American sacred sites. In general, resource protection in environmental law is grounded on the optimis- tic premise that a resource can be identified, quantified, and disclosed to a decision maker, who will then make an informed and appropriate decision. As applied to sacred sites, the premise is in direct conflict with Native American spiritual values, which emphasize individual and cultural privacy in their experi- ence with governmental decision makers. In practice, disclosed sacred sites are more likely impacted by a lack of effective enforcement mechanisms or by disinterested decision makers. Identification of culturally important sites is the first chal- lenge. Historically, the Native American tendency to keep private the unique knowledge, cultural beliefs, and practices of a particular tribe or nation has been reinforced by efforts of the dominant society that restricted traditional religious prac- tices, thus driving them underground. Once disclosed, the sites NR&E Winter 2012 56

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