CIVILIAN FEDERAL AGENCY TASK FORCE

GUIDE ON EVALUATING ENVIRONMENTAL LIABILITY FOR PROPERTY

TRANSFERS

AUGUST 1998

CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Page i

TABLE OF CONTENTS

Page

PREFACE ......................................................................................................................... v

CHAPTER 1 ENVIRONMENTAL LIABILITY.................................................................1-1

Introduction .............................................................................................................................1-1

Background .............................................................................................................................1-1

Overview of the Due Diligence Process....................................................................................1-3

Property Transactions ..............................................................................................................1-4

Acquisition.........................................................................................................................1-5

Lease Transactions.............................................................................................................1-5

Lease Execution ...........................................................................................................1-6

Lease Termination ........................................................................................................1-6

Outlease and Outgrant........................................................................................................1-6

Disposal .............................................................................................................................1-6

Other Property Transactions...............................................................................................1-7

Other Related Issues.................................................................................................................1-7

CHAPTER 2 OTHER ENVIRONMENTAL ISSUES ASSOCIATED WITH

PROPERTY TRANSFER...............................................................................2-1

Background .............................................................................................................................2-1

EDDA Interaction With Other Environmental Issues................................................................2-2

National Environmental Policy Act (NEPA)........................................................................2-2

Environmental Justice.........................................................................................................2-2

Special Hazard Areas..........................................................................................................2-3

Endangered Species Act (ESA) ..........................................................................................2-3

National Historic Preservation Act (NHPA)........................................................................2-3

Removal of Chemicals and Hazardous Materials.................................................................2-3

Licenses and Permits ..........................................................................................................2-4

EDDA Interaction With Other Property Transfer Issues ...........................................................2-4

Personal Property ...............................................................................................................2-4

Equipment Decommissioning..............................................................................................2-5

Property Suitability.............................................................................................................2-5

Use of General EDDA Information...........................................................................................2-5

CHAPTER 3 THE ENVIRONMENTAL DUE DILIGENCE AUDIT PROCESS .............3-1

Objectives................................................................................................................................3-1

Phases of The EDDA ...............................................................................................................3-1

Phase I–Liability Assessment ..............................................................................................3-2

Phase II–Confirmation Sampling.........................................................................................3-2

Phase III–Site Characterization...........................................................................................3-2

EDDA Schedule.......................................................................................................................3-3

Risk and Flexibility In The EDDA Process ...............................................................................3-3

Regulation of Contaminated Sites.............................................................................................3-6
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August 1998—Page ii

TABLE OF CONTENTS

(Continued)

Page

Roles and Responsibilities ........................................................................................................3-7

Use Of EDDA In Decision Making...........................................................................................3-8

CHAPTER 4 PHASE I–LIABILITY ASSESSMENT .........................................................4-1

Description...............................................................................................................................4-1

Preliminary Activities ...............................................................................................................4-2

Logistics.............................................................................................................................4-2

Contact ..............................................................................................................................4-2

Questionnaire .....................................................................................................................4-2

Gather and Review.............................................................................................................4-2

Site Visit..................................................................................................................................4-3

Focus .................................................................................................................................4-3

Observations ......................................................................................................................4-4

Hazardous Material and Waste Handling Practices..............................................................4-4

Underground Storage Tanks and Aboveground Storage Tanks...........................................4-5

Polychlorinated Biphenyls...................................................................................................4-5

Pesticides ...........................................................................................................................4-6

Sensitive Environmental Areas............................................................................................4-6

Historic and Cultural Significance.......................................................................................4-6

Asbestos.............................................................................................................................4-7

Lead-Based Paint and Other Lead Sources .........................................................................4-7

Indoor Air Quality, Radon and Potentially Hazardous Dusts...............................................4-7

Facility Documentation.......................................................................................................4-7

Records Search and Review .....................................................................................................4-8

Adjacent Property.............................................................................................................4-10

Site History - Ownership and Use.....................................................................................4-11

Title Search......................................................................................................................4-11

Sanborne Fire Insurance Maps..........................................................................................4-11

Aerial Photographs...........................................................................................................4-11

Environmental Surveys and Audit Reports........................................................................4-11

Utility Transformer Records - PCBS.................................................................................4-12

Special Hazard Area Maps................................................................................................4-12

Nuclear Regulatory Commission (NRC) ...........................................................................4-12

Regulatory Review.................................................................................................................4-12

Federal Lists.....................................................................................................................4-13

State Agency Lists............................................................................................................4-13

Local Authorities..............................................................................................................4-13

Town and County Planning or Zoning Office ....................................................................4-14

Geology and Hydrogeology Review .......................................................................................4-14

United States Geological Survey.......................................................................................4-14

State Water Resources Control.........................................................................................4-14

United States Department of Agriculture and Local Authorities........................................4-15
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Page iii

TABLE OF CONTENTS

(Continued)

Page

Phase I Report .......................................................................................................................4-15

Report Development ........................................................................................................4-15

Phase I Report Review .....................................................................................................4-15

Use of the Phase I Report.................................................................................................4-15

CHAPTER 5 PHASE II—CONFIRMATION SAMPLING................................................5-1

Description...............................................................................................................................5-1

Review and Evaluation of Phase I Report.................................................................................5-2

Development and Implementation of the SAP...........................................................................5-3

Phase II Report ........................................................................................................................5-5

CHAPTER 6 PHASE III—SITE CHARACTERIZATION ................................................6-1

Description...............................................................................................................................6-1

Review and Evaluation.............................................................................................................6-2

Development and Implementation of a Full Characterization SAP.............................................6-2

Risk Assessment and Future Land-Use Options........................................................................6-2

Remedial Alternatives, Evaluation and Selection.......................................................................6-4

Phase III Report.......................................................................................................................6-4

LIST OF FIGURES

Page

Figure 3-1 Time Line for Phase I Liability Assessment Activities.............................................3-4

Figure 3-2 General Risk Framework........................................................................................3-5

Figure 3-3 Decision Process for Acquisition and Lease Execution Actions.............................3-10

Figure 3-4 Decision Process for Disposal and Lease Termination Actions..............................3-11

LIST OF TABLES

Page

Table 4-1 Target Information/Records and Potential Sources ..................................................4-8
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Page iv

APPENDICES

Page

Appendix A List of Acronyms..............................................................................................A-1

Appendix B EPA Early Transfer Guidance (June 16, 1998) .................................................B-1

Appendix C Terms and Definitions......................................................................................C-2

Appendix D DoD and Sponsoring Federal Agencies Memorandum Governing the Acquisition

of Federal Facility Property (reformatted).........................................................D-1

Appendix E EPA Policy Towards Landowners and Transferees of Federal Facilities............ E-1

Appendix F GSA Environmental Guidebook (reformatted)...................................................F-1

Appendix G GSA General Reference Guide for Real Property Policy...................................G-1

Appendix H Regulatory Overview of Major Environmental Statutes and Directives.............H-1

Appendix I Considerations for Equipment Deactivation and Decommissioning .................... I-1

Appendix J Examples of EPA Operations and Equipment Which May Require

Deactivation......................................................................................................J-1

Appendix K Qualifications for EDDA Personnel and Managers ...........................................K-1

Appendix L Phase I EDDA Contractor Specifications ......................................................... L-1

Appendix M Pre-Environmental Due Diligence Audit Questionnaire.................................... M-1

Appendix N Site Visit Guidelines.........................................................................................N-1

Appendix O Underground Storage Tank/Aboveground Storage Tank Questionnaire............O-1

Appendix P Nuclear Regulatory Commission Regional Offices............................................ P-1

Appendix Q United States Geological Survey Offices ..........................................................Q-1

Appendix R Example Phase I Report Outline.......................................................................R-1

Appendix S Phase II and III EDDA Contractor Procurement Specifications........................ S-1

Appendix T Description of Sampling and Analysis Procedures............................................. T-1

Appendix U Example Phase II Report Outline......................................................................U-1

Appendix V Sample List of Remediation Technologies........................................................V-1

Appendix W Example Phase III Report Outline ..................................................................W-1
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Page v

PREFACE

This document summarizes the requirements and process for evaluating potential liability from

environmental contamination, and will introduce readers to the larger context of environmental

issues associated with real property transfers. The general guidelines set out in this document for

conducting an Environmental Due Diligence Audit (EDDA) are intended for use as baseline

guidance when acquiring, leasing, transferring, or terminating interest in any real property.

Additional agency-specific policies and guidelines may apply for particular sites and situations,

along with the federal, state, and local regulations.

This document was developed for the Civilian Federal Agency Task Force, Facility Closure

Workgroup, under the direction of Maryalice Locke (FAA) and with the assistance of Booz•Allen

& Hamilton, Incorporated. The Civilian Federal Agency Task Force provides a forum and

resource leveraging opportunities for members to address the unique environmental issues of

concern to civilian federal facilities. These concerns and responsibilities are particularly significant

for real property transfers given that, as a group, civilian federal agencies control more land than

the Department of Defense and Department of Energy combined.

It is a pleasure to acknowledge the assistance of the following Facility Closure Workgroup

members who kindly participated in the technical review phases of this effort: Bob Wilson, DOI;

Pat Weggel and Jack Stanton, EPA; Sam Higuchi, NOAA; Juan Boston, NSA; Bill McGovern,

Treasury; George Sundstrom, USDA; and Jack Staudt, VA. In addition, sincere appreciation go

to the Federal Aviation Administration staff and contractors who initiated and proved the EDDA

process, in particular: William Echols, Alan Falk, Cindy Felis, Daphne Fueller, Brad Holway,

Georgia Phillips, Nancy Shalloway, and Steph Smith. Finally, special thanks go to Pat Weggel

and the Environmental Protection Agency’s Safety, Health and Environmental Management

Division who graciously provided the “Guidelines for Acquiring and Transferring EPA Real

Property and Complying with CERFA” as a model for this document.

CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 1-1

CHAPTER 1

ENVIRONMENTAL LIABILITY

INTRODUCTION

Federal agencies routinely lease and transfer real property in the course of carrying out their

missions. One of the essential steps in modern real property transactions is evaluating candidate

properties for potential environmental contamination and liability. This document summarizes the

requirements and process for evaluating potential liability from environmental contamination, and

will introduce readers to the larger context of environmental issues associated with real property

transfers.

The process of evaluating proposed transfer properties for potential environmental contamination

and liability is referred to in this document as the Environmental Due Diligence Audit (EDDA)

process. Depending on the agency, however, this process may be called a Property Transfer

Assessment, Environmental Site Assessment, Environmental Baseline Assessment, Transaction

Screen Questionnaire, Preliminary Hazardous Waste Site Survey, and Environmental Due

Diligence Process. A list of acronyms relating to property transfer and the EDDA process used in

this document is presented in Appendix A.

The general guidelines set out in this document should be used as baseline guidance when

acquiring, leasing, transferring, or terminating agency interest in any real property. For specific

sites and situations, additional agency policies and guidelines may apply, along with the federal,

state, and local regulations. Implementation of agency policies and the EDDA process delineated

in this document will help to reduce the agency’s environmental risk and liabilities associated with

real property transfer.

Ultimately, the purpose of an EDDA and this guidance is to help federal managers understand site

liabilities and manage—rather than react to—any associated costs and activities for site cleanup.

With the EDDA process, agencies can also go beyond the site contamination aspects and

comprehensively look at the proposed property to help identify other environmental concerns.

The material result of this process is documentation of the environmental conditions at a site prior

to property transfer. This will help to “baseline” the environmental condition of the property at

the time of the transaction and serve as a source document if subsequent contamination occurs

and questions about site responsibility are raised. The complete EDDA process is described in

detail in the following sections and chapters.

BACKGROUND

Environmental liability may result from a wide range of regulatory requirements affecting federal

agencies. Like the private sector, agencies may be held liable for cleanup of site contamination as

an owner or operator at a site. The Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA) or “Superfund Law” is the primary regulatory driver of the EDDA

process and defines what parties must do to exercise “due diligence” in assessing and acting on

potential site contamination.
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August 1998—Chapter 1-2

CERCLA Section 120 holds federal agencies strictly liable for cleaning up contamination at sites

they either own or operate, or where they have been found to have contributed to site

contamination. In many cases, the federal government may be the most viable Potentially

Responsible Party (PRP), and therefore, becomes the most accessible “deep pocket” to pay for

site cleanups even if its overall contribution has been small.1 The Community Environmental

Response Facilitation Act (CERFA) and CERCLA 120(h) require that—prior to disposing of real

property to organizations outside of the federal government—agencies identify hazardous waste

used on the property and clean up any site contamination. In accordance with Environmental

Protection Agency (EPA) guidance issued June 16, 1998, landholding federal agencies may

petition for transactions to occur before a cleanup is completed; however, in all instances the

agency remains responsible for the cleanup. (See Appendix B for relevant procedures and

guidance.)

For agencies acquiring property, the need to “determine the environmental condition of proposed

sites prior to purchase” has been delineated in a General Services Administration (GSA) proposed

rule2 that describes “current real property policies.” The language further states that, “sites must

be free from contamination, unless it is otherwise determined to be in the best interests of the

Government to purchase a contaminated site.” The EDDA process can help satisfy these

determination requirements.

The need for an EDDA process also arises for agencies that loan money to private parties. If a

loan is based on the apparent value of a property without consideration to its environmental

condition and contamination is subsequently discovered or occurs, the security value of the

property may be greatly reduced, or even eliminated.

Federal agencies are likewise governed by other environmental statutes that impact, and may

potentially limit, agency use of a property. Regulations involving wetlands, endangered species,

and cultural or historic assets are examples of some statutes that may affect agency use of a

property. These regulations and other environmental issues may also affect property transactions.

Chapter 2 discusses these issues, including hazardous material and waste management issues,

decontamination and disposal of contaminated equipment, and transferring environmental permits

and licenses. While all of these issues require consideration and management, site contamination

represents the most significant aspect of liability3 and potential costs, and is the principle focus of

the remainder of the document.

The primary focus of the EDDA process is on the risk and associated liabilities from past site use

and potential contamination under CERCLA. Prior site contamination results in extremely

expensive cleanup actions. For a current or former owner or operator, the extent of liability is

determined by the following:

ß Their ability to use the “innocent landowner” defense

ß The type and magnitude of site contamination

ß The number of other PRPs

ß Each PRP’s ability to pay for site cleanup.

Cleanup work may range from identifying, removing, and cleaning up limited leaking

Underground Storage Tank (UST) soil contamination, to engaging in a full-scope site cleanup of
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August 1998—Chapter 1-3

multiple hazardous waste sources, adjacent soils, underlying groundwater, and contaminated

surface waters and sediments. In some cases, the contamination and associated liability may

extend far beyond the site boundaries affecting neighboring properties and nearby natural

resources. In the first instance, the liability for addressing the leaking UST may be limited to tens

of thousands of dollars, while the extensive site cleanup can cost tens of millions of dollars.

Currently, the average cost at a CERCLA cleanup site is estimated at $30 million dollars.

Consequently, it is extremely important that agencies avoid, or fully understand and plan for, the

potentially significant cost of site cleanup activities.

The response to potential and existing liabilities will depend on numerous factors, including

ownership of the property, type of property transaction, extent of contamination, cost to address

site contamination, and the strategic value of the property to the agency. An overriding factor

will be the agency’s ownership or operation at the property. When the agency is the current

owner or is found to have caused site contamination through their use of the property, it will

likely bear the responsibility for addressing site contamination. When the agency is not the owner

or has not had a previous interest in the property, there are more options and decision points for

federal managers. In these cases, managers can assess the value of the liability against the

agency’s interest in the property and engage in negotiations with landowners for cleanup, or

require tenants on agency property to clean up contamination that has resulted from tenant

activities. The specific property transaction types and other factors affecting agency liability are

discussed later in this chapter and throughout the document.

OVERVIEW OF THE DUE DILIGENCE PROCESS

EDDA is a systematic procedure to evaluate subject properties for potential environmental

contamination and liability. This process is divided into three phases that relate to varying depths

of evaluation; they are:

ß Phase I–Liability Assessment

ß Phase II–Confirmation Sampling

ß Phase III–Site Characterization.

The EDDA process was originally developed by private lenders to evaluate potential liability

associated with proposed property acquisitions. Private lenders first used the due diligence

process as a mechanism to head off CERCLA liabilities for properties in their loan portfolios. As

such, the phases were developed in relation to this practical acquisition focus, rather than

originating from regulation. Due diligence reviews have subsequently become an industry

standard, required by lending institutions, for all loans and investments in real property. With the

onset of regulations (i.e., CERFA) that govern federal agency real property disposal, the due

diligence process has been expanded to address all types of property transactions.

The primary purpose for each phase of the EDDA process is summarized below and described in

more detail in the individual chapters dedicated to each phase of the process.

Phase I—Liability Assessment is performed to determine whether environmental contamination is

likely to be present at a property which may result in future environmental liability. Phase I
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August 1998—Chapter 1-4

comprises pre-audit activities, site visit, records review, regulatory review, geologic and

hydrogeologic review, report preparation, and report review. When an agency is disposing of a

property outside of the federal government, the Phase I Liability Assessment may also be

performed to satisfy CERFA requirements.

Phase II—Confirmation Sampling is performed when Phase I identifies potential areas of

contamination. However, unlike the Phase I EDDA that concentrates on a broad range of

concerns, the Phase II EDDA is conducted to verify whether a specific on-site environmental

issue exists or if a release has occurred. Phase II involves the used of limited site sampling to

confirm, or deny, suspected contamination identified in Phase I.

Phase III—Site Characterization is a comprehensive study to fully characterize the nature and

extent of contamination at a property and any affected populations or environmental receptors.

This should only be conducted after the limited Phase II sampling has confirmed contamination at

the site and the agency has a continuing interest in the property. (As stated above, if the agency is

the owner or operator of the site, parallel regulatory procedures may govern the process.) The

elements of Phase III typically include plan development, site characterization, risk assessment,

remedial technology recommendations, cost estimation, report preparation, and report review.

This phase builds on the information developed in the previous EDDA phases to develop a

complete understanding of site contamination issues, a recommended site cleanup plan, and a cost

estimate. Thus, the Phase III EDDA serves as a management tool to help agency decision makers

determine if the cost of remediation exceeds the benefit for a given property.

The intent of this guidance document is to familiarize the reader with the EDDA process,

specifically in addressing potential contamination and managing liability. EDDAs are a necessary

component to the agency's real estate and environmental programs; and, by performing them, the

agency is protecting itself from costly environmental liabilities in the future.

PROPERTY TRANSACTIONS

Within the federal government, real property transactions occur between federal agencies,

between federal and state or local entities, and between federal and a private entities. There may

also be property transfers within an agency which, due to agency policy, are given much of the

formality of out-of-agency transfers. Understanding the types of real property transactions is key

for the EDDA process since the process and focus of the EDDA can vary with the type of

transfer. Types of real property transactions include acquisition, disposal, outgrant or outlease,

lease transactions (lease execution or lease termination), right-of-way, easements, land swaps, and

special use permits. The type of transaction will greatly influence the agency’s exposure to

liability or its responsibility for addressing potential site concerns. Decision makers will need to

have a thorough understanding of both the implications of the transaction type and the agency’s

specific requirements to focus the extent of the EDDA process and to evaluate the results and

recommendations. The relationship between the major types of property transfer and the

implementation of the EDDA process is developed in discussion below on each type of real

property transfers and in later chapters. These terms and others related to the EDDA process are

defined in the glossary in Appendix C.
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August 1998—Chapter 1-5

Acquisition

An acquisition is defined as the act of becoming the owner or holder of an interest in certain real

property. In the EDDA process, the acquisition of real property is the most challenging category

of real property transfers because the federal agency must rely solely on external sources to obtain

past and current information on the site. Additionally, new acquisitions present the highest

potential for agencies to assume new liabilities associated with previous property use and

contamination that occurred before the agency took title to the property. Therefore, it is

extremely important to conduct a thorough and detailed liability evaluation to identify and

understand the potential for past contamination at the site. Appendix D contains two memoranda

governing federal property acquisition, one from the Office of the Under Secretary of Defense and

the other from the EPA.

During the acquisition process, Phase II EDDA activities may be required to confirm the presence

of environmental contamination. Phase III activities are rare because agencies generally avoid

acquiring property known to be contaminated due to cost considerations. In some cases,

however, agencies have been obliged to acquire contaminated properties by administration or

Congressional decisions. Nonetheless, decisions to proceed to a Phase II or Phase III will be

driven by how important the property is to the agency's mission or mandate. Note that even when

the agency is mandated to acquire a property, completion of the EDDA process should occur

prior to final property transfer so that the full extent of any environmental liability can be factored

into the transfer documents and budgeting. (If the EDDA process is not completed before

mandated transfer schedules, partial transfers or authorization to operate prior to transfer can be

executed.)

An EDDA should also be performed when acquiring property where there is no record of prior

occupation or activities performed on the property. In this case, the primary purpose for

conducting an EDDA is to document the environmental baseline of the property at the time of

acquisition. This can then be used for future reference in the event of an environmental incident

or at property disposal. Seemingly pristine and undeveloped properties may be found to have had

prior uses or undocumented hazardous waste releases that may be uncovered under the scrutiny

of a formal Phase I Liability Assessment.

For property acquisitions, the natural timing of the Phase I EDDA is to conduct it concurrently

with the National Environmental Policy Act (NEPA) process. It is particularly important that

Phase I Liability Assessment information be provided to decision-makers before formal

negotiations for a site occur.

Lease Transactions

The environmental liability issues associated with lease transactions vary depending both on

whether the agency is either executing or terminating the lease, and whether the agency is in the

position of the landlord or the tenant. Legally, lease execution is defined as initializing an action

to rent real property from another party.4 Lease termination is defined as the act of ending a lease

rental from another party.5 For this document, the terms lease execution and lease termination
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indicate that the agency is the tenant. Situations in which the agency is the landlord are defined

below in the “Outlease and Outgrant” section.

Lease Execution

An EDDA should be performed before the agency enters into a new lease to conduct operations

or otherwise use property owned by another entity. As with the acquisition process, without an

EDDA the agency has no knowledge of prior uses and activities conducted on the property and

may be liable for environmental costs if contamination is identified after the agency begins

operations. The EDDA performed prior to lease execution will serve as the baseline for

comparing environmental conditions of the property prior to agency operations and subsequent to

agency operations when the lease is terminated or when contamination is otherwise identified. A

Phase I Liability Assessment should be initiated before a final site has been selected and while the

NEPA process is being implemented.

Lease Termination

In a lease termination the agency is a tenant seeking to end occupancy or use of a property. In

this instance, the agency is performing the EDDA to determine the environmental condition of the

property at the time the agency vacates it. By leasing property the agency is considered an

operator, and can be held liable under the CERCLA for contamination on the property. Without

EDDA documentation stating the environmental condition of the property at the time the agency

vacated, the agency may be held liable for contamination caused by future owners or operators.

Prior to terminating the lease, a Phase I Liability Assessment should be completed and presented

to the property owner for acceptance. This documents that the agency tenancy has not

contributed to site contamination –or, in the event of suspected site contamination, identifies

potential environmental liabilities. Suspected contamination should then be addressed through

EDDA Phase II and III activities or equivalent regulatory requirements.

Outlease and Outgrant

Outleases and outgrants pose considerable risk to federal agencies. In both scenarios, the federal

agency is the property owner or landlord, leasing or granting the use of federally owned property

to public or private tenants. In these situations, even if the agency is not otherwise operating on

the property, under CERCLA and CERFA the agency retains liability for any contamination.

Thus, it is in the agency’s interest to conduct an EDDA and baseline the environmental condition

of a property prior to tenant occupancy. Further, when a tenant terminates the lease the agency

should require that another EDDA be performed to properly document the environmental

condition of the property at the time of the tenant's departure, address any environmental issues,

and minimize future liability. It is strongly recommended that the EDDA be completed prior to

executing or terminating outlease or outgrant agreements.

Disposal

Disposal is the transfer of title and ownership of real property to another party. During the

disposal process, the scope and depth of the EDDA depends on the past and current operations at
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August 1998—Chapter 1-7

the site. Similar to lease termination, a Phase I EDDA is used to document the baseline condition

at the time of disposal. Where no contamination is present, the Phase I document will help to

protect the agency from future liability. In situations where contamination is possible, the EDDA

process is performed to address any site contamination before the property is disposed. A Phase I

Liability Assessment that indicates contamination is likely will serve to focus subsequent site

investigation activities; and Phase II and III EDDA activities or their regulatory mandated

equivalents may be required to address the environmental liabilities associated with the real

property.

Federal agencies entering into contracts for the sale or other transfer of real property are required

by CERCLA (42 U.S.C. 9620(h); 40 CFR 373) and by the Federal Property Management

Regulations (41 CFR 101) to include notice of certain hazardous substance activities on the

property. Specifically, notification that triggering levels of hazardous substances were stored for

one year or more—or known to have been disposed of or released on the property. These

requirements apply to the entire period of time the property was owned by the United States.

Thus, by their nature, these requirements trigger an investigation of past activities on the property,

which a Phase I Liability Assessment can help satisfy.

Other Property Transactions

While the preceding sections discuss the most typical types of property transactions, there are

many more types of property transactions that can occur. These transactions can include:

ß Land swaps

ß Right-of-ways

ß Easements

ß Special use permits (mining, public recreation, grazing).

An EDDA may be recommended for these transactions, particularly in the case of land swaps and

special use permits. Land swaps are comparable to property acquisition since there could be

liabilities associated with previous property use and contamination that occurred before the

agency took title. Special use permits present the potential for current or future site activities to

result in agency liability. The decision to perform an EDDA in these cases is largely based on

agency-specific policies or review process.

OTHER RELATED ISSUES

Assessing potential environmental contamination in the EDDA process is only one component of

managing environmental liability. Other environmental issues that are associated with property

transfer include assessment of cultural or historical importance and identification of endangered or

threatened species. Further, there are property transfer issues that bridge the environmental and

occupational safety areas, including lead-based paint, radon, indoor air quality and asbestos.

Although the EDDA process is focused on potential environmental contamination and related

liability, it can also aid in identifying other environmental issues that need to be considered and

addressed. Chapter 2 discusses both property-related and other environmental issues that are not

specifically addressed in the EDDA process.
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1

In general, any person owning property on which hazardous substances have come

to be located faces potential uncertainty with respect to liability as an “owner”

under Section 107(a)(1) of CERCLA, 42 U.S.C. §9607(a)(1), even where such

owner has had no participation in the handling of hazardous substances, and has

taken no action to exacerbate the release. However, EPA’s June 13, 1997, Policy

Toward Landowners and Transferees of Federal Facilities clarifies EPA’s intent

“to reduce the effect of potential CERCLA liability on the marketability of (federal)

property....” See Appendix E.

2 August 7, 1997, Federal Register: Volume 62, Number 152; Pages 42444-42456.

3

The “Government Management Reform Act of 1994” and the “Statement of

Federal Financial Accounting Standards (SFFAS) #6” require federal agencies to

report cleanup liabilities in their annual financial statements, including a listing of

the sites and estimated total cleanup cost for each site.

4 Black’s Law Dictionary, 5th Edition.

5

Ibid.
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August 1998—Chapter 2-1

CHAPTER 2

OTHER ENVIRONMENTAL ISSUES ASSOCIATED

WITH PROPERTY TRANSFER

BACKGROUND

There are both property-related activities and environmental features that should be addressed to

effectively manage liabilities associated with real property transfer. As discussed previously, the

Environmental Due Diligence Audit (EDDA) process focuses on identifying liabilities related to

site contamination. The EDDA process does not directly address property-related activities or

environmental responsibilities that are not contaminant-related; however, these activities and

responsibilities may be required by environmental regulations or agency property transfer

protocols.

Property transfer-related activities can include, but are not limited to,

ß Equipment deactivation and decommissioning

ß Chemical and hazardous materials removal

ß Permit and license transfers and terminations

ß Site restoration and improvements

ß Building demolition and disposal.

These activities are important regardless of the type of property transaction, and differ mainly in

addressing who (i.e., buyer or seller) assumes the responsibility or liability for improperly

completed activities.

Environmental regulatory concerns cover a broad range of fields, including:

ß Sites or buildings of historical and cultural significance

ß Sensitive environments

ß Endangered species

ß National Environmental Policy Act (NEPA) compliance.

These environmental areas may affect the agency’s ability to use a property for its intended

purpose or may require specific activities to evaluate or protect a natural resource.

There are a variety of information sources and agency documentation that provide guidance for

addressing these other environmental concerns for property transaction. For example, the General

Services Administration (GSA) Public Buildings Service, Office of Property Disposal has

produced two guidance documents intended to provide a framework for GSA Realty Specialists

to achieve “compliance with the environmental laws and regulations that are applicable to the

acceptance and disposal of interests in real property.” These documents are known as the

Environmental Guidebook (Appendix F in this document) and the Environmental Resource Book

Both provide useful information on the types of activities and assessments that GSA uses to

evaluate and document environmental issues during property transfer. For a broader resource,

GSA’s Office of Governmentwide Policy has published a General Reference Guide for Real

Property Policy (Appendix G in this document). This document provides a “map” to the full
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 2-2

scope of legal authorities relating to real property policies Included in the document are sections

on Real Property Disposal, Historic Preservation, and Safety and Environmental Management, as

well as an Index of Laws, Federal Property Management Regulations and Executive Orders.

Finally, a good source for information on the internet is the Real Property Clearinghouse,

sponsored by GSA; as of July 1998, the policies page can be found at:

http://policyworks.gov/org/main/mp/library/policydocs/agpolicy.htm.

As noted earlier, the EDDA process can help to identify a range of potential environmental issues;

however, federal managers should be aware that the EDDA process does not satisfy all

assessment and documentation requirements surrounding potential environmental concerns.

Managers can use information generated in the EDDA process to address these other

environmental and property management issues. Managers should coordinate the EDDA process

with other property-related activities to ensure that assessments and data gathering are conducted

efficiently.

EDDA INTERACTION WITH OTHER ENVIRONMENTAL ISSUES

Information gathered during the EDDA process can be used to identify other environmental issues

associated with a property. A summary of environmental areas that may affect real property

transactions, and the regulatory drivers behind them, are described in this section. A more

detailed description of the major environmental statutes and directives is provided in Appendix H.

National Environmental Policy Act (NEPA)

When executing any major federal action, such as property transfers, NEPA requires that agencies

consider a host of potential environmental and socioeconomic issues, including but not limited to

wetland preservation, effects of construction, local jobs and traffic concerns, and long- and shortterm environmental impacts. NEPA consideration is particularly important when acquiring a

property that was previously undeveloped, or when modifying or expanding facilities on

developed property. In such cases, an EDDA makes note of the presence of sensitive

environments, such as wetlands, and gathers basic site information that can be used in evaluating

potential impacts. A separate analysis, however, is needed to meet the NEPA requirements,

which can be found at 40 CFR Parts 1500–1508. Agency-specific directives should be consulted

for additional information; for example implementation guidance is included as a chapter in the

Environmental Protection Agency (EPA) Safety, Health, and Environmental Management

(SHEM) Guidelines.

Environmental Justice

Executive Order (EO) 12892, Federal Actions to Address Environmental Justice in Minority

populations and Low-Income Populations, requires that agencies consider the effect of

disproportionately high and adverse human health and environmental effects to minority and lowincome groups along with other socials, economic, legal, and technical issues. This requirement

mandates that agencies implement environmental justice strategies and policies and assess the
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 2-3

specific impacts of federal actions against the objectives of the strategy. The directive was

amended by EO 12948 (February 1, 1995, Federal Register (Volume 60, Page 6381)).

Special Hazard Areas

Special hazard areas include flood-, mud slide-, and erosion-related hazards. Although indications

of these special hazards may appear during the EDDA information gathering process, the EDDA

process does not specifically address these hazards since they are not directly related to site

contamination. Site suitability and other property transfer requirements are separate from the

EDDA. Information about identifying and mapping special hazard areas can be found in 44 CFR

Part 65. Deed restrictions may apply for both property acquisition and disposal with special

hazard areas, and as a result, intended and future use must be considered.

Endangered Species Act (ESA)

Information on endangered species may be recorded during the sensitive-environment research

component of the EDDA. However, this information typically is superficial and will not include

the full species and habitat review that may be required. In the case of an acquisition, the

presence of an endangered species could limit the intended agency activities or property use. If an

agency is disposing of real property that has endangered species, deed restrictions may be

required. The Act requires federal agencies to institute programs that preserve endangered and

threatened species; and requires that federally authorized, funded, or executed actions not

jeopardize any endangered or threatened species. A consultation with the U.S. Fish and Wildlife

Service under Section 7 of ESA is generally required. Additional information on the ESA can be

found in 50 CFR Part 17.

National Historic Preservation Act (NHPA)

The NHPA requires federal agencies to consider the impact of their actions on historic properties.

The EDDA process includes a review of all available records regarding a property. Important

information, such as documented archaeological finds or sites of historical significance are

included as part of the report, although detailed review is beyond the scope of the EDDA. Before

acquiring or leasing a site believed to be historically significant, further investigation may be

required. Additional information on the NHPA can be obtained in 36 CFR Parts 600 and 800.

Removal of Chemicals and Hazardous Materials

Identifying the presence of chemicals and hazardous materials is central to the EDDA process;

however, depending on the type of property transfer, the purpose for identification and the

follow-up actions required will vary. For acquisitions or lease arrangements, it is critical for

decision makers to know in advance whether materials are (or are not) present that may increase

environmental liability. For disposals, the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA) and Community Environmental Response Facilitation

Act (CERFA) require identifying and documenting the presence or absence of hazardous

materials. For outgrants and outleases, the owner-agency is establishing a baseline prior to tenant

activities. To facilitate any property transaction, prior to an EDDA, hazardous materials may be
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 2-4

removed and properly disposed of in accordance with Resource Conservation and Recovery Act

(RCRA) regulations (40 CFR Part 265).

Licenses and Permits

Many site operations require operating licenses and permits that must be reviewed to determine

whether they may transfer with the property or require special renewal, or whether they should be

terminated based on intended future use of the property. Examples of these include

environmental licenses and permits for:

ß Air emissions (e.g., from boilers or furnaces)

ß Water discharges to Publicly Owned Treatment Works (POTW)

ß Water discharges to National Pollution Discharge Elimination Systems (NPDES)

ß Radioactive material sources and operations

ß Underground Storage Tank (UST) and Aboveground Storage Tank (AST) operations.

In addition, approved UST and AST spill and containment plans should be considered. The

EDDA should note and document the environmental activities associated with licenses and

permits. The EDDA report would not include other non-environmental permits that might also be

associated with the property, such as those for:

ß General facility operations

ß Confined space

ß On-site concessions

ß Zoning variances and waivers.

Further, the disposition and transfer of any licenses or permits, regardless of the activity, are

beyond the scope of the EDDA process. Federal managers will need to negotiate these issues

separately to ensure appropriate resolution and closure.

EDDA INTERACTION WITH OTHER PROPERTY TRANSFER ISSUES

The EDDA process also considers other property transfer issues that may affect real property

transactions. These issues are discussed in the next sections.

Personal Property

Whether initiating or terminating an occupancy, another component associated with property

transfer is the management of personal property, including equipment, office materials, furniture,

and movable or reusable materials. Managers will need to assess the status, disposition and

ownership of personal property and make appropriate arrangements to relocate, dispose or

transfer ownership as part of the property transaction. An inventory of personal property is not a

component of the EDDA process, nor is the disposition of it. Early coordination of personal

property management activities with the EDDA, particularly the on-site investigation, may help

facilitate the overall property transfer process.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 2-5

Equipment Decommissioning

Many transactions also involve equipment that will require decommissioning, disposal, or

relocation consistent with the intended future use of the property. For instance, equipment may

include transformers and capacitors that contain Polychlorinated Biphenyls (PCBs); and, if used to

support activities that will no longer be conducted at the site, such equipment will need to be

formally decommissioned and deactivated in accordance with federal, state and local

requirements. The EDDA process should note the presence of the equipment associated with

environmental activities, the need for formal decommissioning, and will indicate if contamination

from the equipment is suspected or confirmed. The EDDA process, however, does not include

equipment decommissioning requirements or the UST closure process. Federal managers,

nonetheless, will need to consider the requirements and responsibility for equipment

decommissioning as part of the overall property transfer and provide the necessary documentation

to demonstrate that the equipment has been appropriately closed. General guidance on issues

relating to equipment deactivation and decommissioning is provided in Appendix I. Examples of

activities and processes for equipment decommissioning from EPA laboratories are included in

Appendix J.

Property Suitability

The condition and suitability of the property for its intended uses is an important consideration for

any property transaction. Prior to transfer, an agency will likely undertake a property or building

inspection to assess the condition of the structures and working infrastructure (e.g., heating and

cooling, water and wastewater systems) to assess what upgrades, modifications, or rehabilitation

will be necessary for the future owner or occupant. Where an agency is intending to occupy a

site, the property inspection will assist in identifying the suitability of the property and outline

needed improvements to be undertaken by the agency or the owner. In instances where an agency

is vacating a property, the new occupant will typically conduct the property inspection. Based on

lease agreements and conditions for returning the property to the owner, agencies may also need

to review agency-occupied facilities to assess the need to rehabilitate properties. Information

from a property assessment can be relevant to the EDDA in identifying property conditions that

may potentially result in environmental liabilities (e.g., degraded wastewater treatment systems

may have contributed to local soil and groundwater contamination).

USE OF GENERAL EDDA INFORMATION

The EDDA process provides a significant amount of valuable information on many aspects of

property transfer liability. The information can be an indicator that other investigations are

required, such as historic site or endangered species searches. However, it is important to realize

that the EDDA is one of several tools that identify and manage the full range of liabilities and

issues involved in property transfer. Besides managing contaminant liability, the EDDA process

provides basic information that can be used as part of related investigations or as indicators to

identify other facility or environmental considerations when preparing for property transfer.

CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-1

CHAPTER 3

THE ENVIRONMENTAL DUE DILIGENCE AUDIT PROCESS

OBJECTIVES

The focus of the Environmental Due Diligence Audit (EDDA) process is to identify and document

proposed transfer properties for potential environmental contamination. The agency’s objectives

in executing the EDDA process include:

ß Ensuring that all environmental due diligence requirements are addressed and potential

environmental contamination is identified

ß Establishing a consistent and defensible approach for addressing necessary environmental

actions

ß Providing the environmental baseline and assessment of properties to assist in property

transaction decision-making

ß Avoiding costly litigation and environmental remediation liability under the

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),

Resource Conservation and Recovery Act (RCRA), or other relevant regulatory statutes.

PHASES OF THE EDDA

The EDDA process contains three distinct and cumulative phases that are designed to support key

decision points. Progress from one EDDA phase to the next is based on the need to further assess

property contamination. Thus, the EDDA process ends at any point where the agency deems it

has sufficient property contamination and liability information to make a decision regarding the

property. If all three phases are necessary, they are as follows:

ß Phase I—Liability Assessment

ß Phase II—Confirmation Sampling

ß Phase III—Site Characterization.

The intent of the Phase I is to evaluate the potential for environmental liability at the site. This is

done through interviews, a site visit, and by gathering and analyzing information on current and

past site uses and activities. If the Phase I report indicates a potential for environmental liability

from contamination, the Phase II assessment is performed using focused field sampling to confirm

or deny the suspected contaminants. Once contamination is confirmed, a Phase III EDDA may be

initiated to fully characterize the nature and extent of the contamination and develop cleanup

options and recommendations.

The EDDA decision-making process and the integration between the three phases is discussed in

Chapters 4 through 6 of this document (also see Figures 3-3 and 3-4). Throughout the process it

is important to remember that the EDDA has two overriding objectives: 1) to identify liability

from past site uses, and 2) to provide technical information to assist in agency decision making.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-2

Phase I–Liability Assessment

Phase I identifies potential areas of contamination and environmental concern, which may result in

environmental liability. It consists of:

ß Preliminary activities

ß Site visit

ß Records review

ß Regulatory review

ß Geologic and hydrogeologic review

ß Report development.

All data gathered during this phase are documented in a Phase I report. The activities and process

for the Phase I Liability Assessment are discussed in more detail in Chapter 4.

Phase II–Confirmation Sampling

If the Phase I Liability Assessment indicates possible contamination and the agency owns,

occupies, or has sufficient interest in the property, Phase II (or the regulatory-mandated

equivalent) will be conducted. (Note: For agency property designated for disposal, confirmation

sampling is also required by the Community Environmental Response Facilitation Act (CERFA).)

The Phase II EDDA involves targeted sampling to confirm or deny the presence of suspected

contamination identified during liability assessment. The information contained in the Phase I

Liability Assessment report is used to develop a strategy for carrying out Phase II. Depending on

the findings and recommendations described in the Phase I report, several activities may be

performed under Phase II. Typically, these activities consist of:

ß Reviewing and evaluating the findings in the Phase I report

ß Developing a confirmation Sampling and Analysis Plan (SAP)

ß Performing sample collection and analysis

ß Evaluating the sampling results against environmental or hazardous waste standards

ß Developing the Phase II report.

The activities and process for the Phase II EDDA are discussed in more detail in Chapter 5.

Phase III–Site Characterization

A Phase III EDDA may be necessary when contamination has been confirmed by the Phase II

EDDA. The purpose of Phase III is to fully characterize and assess the nature (i.e., types) and

extent (i.e., magnitude or distribution) of site contamination. In addition, site characterization

involves identifying appropriate cleanup technologies based on the nature and extent of

contamination, potential cleanup goals, technology applications, and cost. Typically, Phase III

activities include:

ß Evaluating of prior EDDA reports to develop a site characterization-sampling strategy

ß Performing more extensive sampling to assess the full extent of contamination

ß Evaluating the contamination risk in relation to future land use

ß Evaluating the technological viability and cost of cleanup alternatives

ß Developing the Phase III report.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-3

The activities and process for Phase III are discussed in more detail in Chapter 6.

EDDA SCHEDULE

Depending on the type of property transfer, organizations involved, location importance,

environmental condition of the property, and other agency-specific issues, the EDDA process may

include one or more phases. Likewise, the schedule for the EDDA may vary. For example, an

assessor budgets 60 to 80 working hours to complete a Phase I; however, issues regarding

availability and accessibility of information result in delays. Such delays in the schedule are likely

to defer the completion date, though they should not unduly increase the overall level of effort.

Figure 3-1 provides a conceptual breakout of time allocations and activities for the Phase I

Liability Assessment process. Managers should anticipate the complexity of the real property

transfer process and the unique nature of the property in determining the time needed to collect

information and address site logistics. For all EDDA phases, a flexible schedule is often

appropriate.

RISK AND FLEXIBILITY IN THE EDDA PROCESS

Identifying potential risk and liability involved in property transactions is the heart of the EDDA

process. As discussed previously, these risks will vary greatly depending on the type of property

transaction and the type of property to be transferred. For instance, industrial properties typically

have a higher probability for potential contamination than property that is solely used for office

space.

Figure 3-2 provides a general risk framework for different transaction and property types. When

approaching an EDDA project, it is useful to consider this model—and to plan the EDDA with

consideration for the appropriate risk level.

Even though all EDDAs cover a standard set of investigative areas, they are not all equal; and,

inherently the EDDA process needs to be flexible to reflect the varying degree of risk associated

with the different types of property transactions and property-types. For example, the assessment

of a former industrial site will likely require deeper investigation and evaluation than an EDDA for

previously undeveloped woodlands in a remote location.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-4

Figure 3-1

Time Line for Phase I Liability Assessment Activities*

* Minimum times will vary based on property and transaction types.** Displayed time estimate based on requirement of approximately 60 to 80 hours for a basic Phase I EDDA

Preliminary Activities Site Visit Records Search Regulatory Review Geologic/Hydrologic Review Phase I Report

PrincipalActivities

• Obtain basic property

use/activitiesinformation

• Property map• Contact Owner and

establish logistics forsite visit

• Develop and distribute

questionnaire

• Visual survey of the

site and neighboring

properties

• Interview property

owners, on-site

employees and

neighboring owners

• Review on-site

documentation

• Site ownership and use

history (title search, facilityrecords)

• Aerial photos, site photos,

permits, previousenvironmental surveys

• Fuel storage tanks,

hazardous material andwaste management,sensitive environments

• Review permit and

compliance history forsubject andneighboring properties

• Access the regulatory

databases (IDEA,RCRIS, andCERCLIS)

Obtain basic information

on:

• Direction of groundwater

flow

• Depth to groundwater• Water Quality• Soil characteristics• Site topography• Site hydrology

•Draft report•Technical and

quality revisions

•Publication and

delivery

PotentialFactorsAffectingSchedule

• Receipt of pre-audit

questionnaire andmaterials

• Site access and

security issues

• Availability of site

personnel

• Site size and

complexity

• Travel time to site

• Availability of records• Proximity to source of

records (e.g. county seat)

• Access and

responsiveness tolocal regulators

• Document requests

(e.g. FOIA) 

• Availability of documents • Revisions and

response tocomments

Working Days

1 2 12 13 14 15

Preliminary Activities

KEY

Data collectionActivity / Analysis

Phase I Report 20-24 hrs .** over 5-10 days

3 4 5 6 7 8 9 10 11

 8 – 10 hrs .** over 3-4 days

Site Visit 8–16 hrs .** over 4-5 days

Records Search 8-10 hrs .** over 4-8 days

Regulatory Review 8-10 hrs .** over 4 -8 days

Geologic and Hydrologic Review 8-10 hrs .** over 3-5 days
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-5

Figure 3-2

General Risk Framework

Transfer

Type

Property Type

Lab or

Industrial

Property

Commercial

or Multi-use

Property

Undeveloped

Urban

Property

Undeveloped

Rural/Remote

Property

Office Space

or Office

Building

Acquisition

Lease

Executions

Disposal

Lease

Termination

Out Grant /

Out Lease

TRANSACTION RISK

Lease

Renewal

PROPERTY RISK

Risk Level:

High Moderate Low

Flexibility is built into the EDDA process to allow the assessors to target high-risk areas and

allocate resources (and time) appropriately. Particularly in the Phase I Liability Assessment, the

EDDA process requires that the assessor investigate a broad range of areas and exercise

professional judgement in order to focus on those issues that present the highest likelihood for

risk. The assessor’s understanding of risk is continuously refined as additional information is

gathered and assessed during the EDDA process. Based on this emerging understanding of

potential risk, the assessor continues to make adjustments with each step in the process.

Inevitably there will be exceptions to the general risk framework provided in Figure 3-2, and it is

the role of assessor to recognize these exceptions and modify the EDDA process accordingly. For

instance, the model shows a low risk associated with the disposal of an office building property;

however, if an industrial operation located on the site prior to environmental regulation was

forgotten, soil contamination may remain. An experienced assessor should see clues when

reviewing the title search results and other Phase I material. The example also emphasizes how

prior site history and use provide a baseline for evaluating the nature of risk at the site, whether or

not the agency owns the property.

Overall, the strength of the EDDA process is in its flexible approach to balancing the agency’s

need to uncover and define risk areas, to manage liabilities associated with property transactions,

and to accomplish due diligence. Readers should keep in mind that the materials, techniques, and

information sources presented are to be used as a “guide” in how the process should be applied.

The background and experience the assessor and EDDA team bring to the process play a

significant roll in successfully managing the flexibility provided by the EDDA process.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-6

REGULATION OF CONTAMINATED SITES

CERCLA, RCRA, the Toxic Substance Control Act (TSCA), the Clean Water Act (CWA), the

Oil Pollution Act (OPA), and state regulations prescribe for responsible parties the procedures to

investigate and remediate environmental contamination. Alternately, evaluating for potential

environmental contamination and liability was a process originally developed by lenders in

reaction to CERCLA. Thus, the EDDA “phases” were developed to provide a practical

acquisition focus to property transfer, rather than providing a framework for environmental

cleanup. Addressing the CERCLA considerations of “due diligence” and “all appropriate

inquiry” for environmental risks are the basis for Phase I Liability Assessment activities. When

activities beyond a Phase I are indicated on agency-held property, the agency may be compelled to

follow a regulatory-based process for addressing contamination. In such instances, compliance

with applicable CERCLA, RCRA, TSCA, CWA, OPA, or state requirements takes priority over

EDDA in dictating the process to address specific types of liabilities or contamination. When

the property is not held by the agency and the agency is not a potentially responsible party, the

Phase II and Phase III EDDA processes exist as guidance to confirm and characterize potential

contamination and liability.

The statutes and regulations governing the requirement to investigate and remediate

environmental contamination will vary depending on the nature of the contamination and when the

release occurred. In such situations the Phase II and III sections of this document (Chapters 5

and 6) provide only a broad reference to the parallel regulatory procedures. For additional

information on the CERCLA and RCRA processes, refer to Appendix H, Regulatory Overview.

In addition to the regulations on investigation and remediation of environmental contamination,

National Environmental Policy Act (NEPA) may also apply. A facility closure or property

transfer disposal action will often typically qualify as a “major federal action” under NEPA. As

such, the agency’s NEPA compliance efforts for this action (environmental impact assessment and

public participation process) should also consider the EDDA activities. Depending on the timing,

the agency’s NEPA documentation may reference the completed EDDA Phase I and II reports, or

may mention these as planned activities.

Along this line, NEPA public outreach activities may be sequenced with the evaluation and

selection of site cleanup options. Public outreach may involve agency meetings with the

community to address their concerns, agency grants to the public for their evaluation of the

remedial alternatives, or creating fact sheets for the public on the contamination and remediation

at the site.

To determine the applicability of NEPA, CERCLA, RCRA, or state regulations for a given

property transaction, refer to the Regulatory Overview in Appendix H, the program offices, and

legal counsel before proceeding.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-7

ROLES AND RESPONSIBILITIES

The EDDA process is typically undertaken by a team of technical and management staff

responsible for overseeing and managing the process, conducting the EDDA, performing the

technical reviews, and developing a decision based on report findings and input from agency realestate and legal staff. Roles and responsibilities for conducting the EDDA process and decisionmaking are determined on an agency-by-agency basis. However, in all cases an agency

representative should be identified to manage and oversee the execution of the EDDA.

Regardless of the nature of the property transaction, the EDDA should be performed by qualified

individuals who have the relevant technical environmental background, training, and experience

(refer to Appendix K for sample qualification requirements). Contractors selected to assist or

conduct Phase I activities should also satisfy the contractor specification guidelines presented in

Appendix L.

The following description of typical EDDA participants and roles provides a generic

interpretation of how agencies may structure an “EDDA team.” Depending on internal agency

policies, there will be at least three primary team roles carried out during the Phase I: assessors,

technical reviewers and agency decision-makers. In addition, there are collaborating roles for

real-estate and legal staff. The specific roles of the EDDA team include:

ß Assessors—Technical environmental staff who conduct the EDDA, develop

recommendations, and draft reports. Assessors may be either agency or contractor staff;

often Phase II and III EDDAs are performed exclusively by contractor resources.

ß Technical reviewers—Technically qualified agency personnel who review the EDDA

report for technical accuracy in methodology, scope, depth, and findings. A technical

reviewer, who concurrently is the project leader, may also work with the assessors up

front to determine the scope and work plan—in addition to reviewing and accepting the

EDDA report. Technical reviewers should always include, but may not be limited to,

agency personnel.

ß Agency decision-makers. Agency management involved with overseeing the full scope of

the property transfer activities and vested with authority to determine the agency’s

ongoing interest and responsibility for a given property. Agency executive decisionmakers are typically briefed throughout the EDDA process to maintain an understanding

of site issues, parameters, and implications of the EDDA process. This central role on the

EDDA team should be fulfilled by one or more individuals who are collectively vested

with the authority for determining the agency’s position on the property transaction and

committing necessary resources.

ß Real-estate personnel. Professionals responsible for executing the property transaction on

behalf of the agency. In acquisition lease execution situations, real-estate personnel will

screen and identify possible candidate sites. During the EDDA process, real-estate staff

remain involved facilitating the EDDA process by providing basic site information,

executing the title search, and coordinating with property owner and operator.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-8

ß Legal representatives. Agency staff who participate in property transactions to ensure

that the EDDA process is conducted appropriately and the report findings demonstrate

due diligence. This offers legal protection to both the agency and the transacting entity.

Lawyers typically provide advice on the EDDA process and are involved in the document

reviews to ensure that the final report meets legal objectives. In some cases, the EDDA

document may be conducted as attorney-directed work to ensure future protection of the

documents for future landowners.

ß Site owner and operator. Whether initiating occupancy (acquisition, lease executions) or

vacating a site (disposal, lease termination) it is important to involve the current

landowner or operator early in the EDDA process planning. Site owners and operators

need to be fully apprised of the scope, intent and specific activities of the EDDA process

and understand the implications of assessing and determining environmental liabilities.

Owners and operators are typically included in a review capacity for preliminary EDDA

report findings and are often a recipient of the final EDDA documents. When the subject

property is owned or operated by the agency, there is also a critical role for the facility

manager and staff. In such cases, the facility manager needs to identify the relevant

personnel to facilitate the interview process, and all must provide accurate information to

the EDDA team. Likewise, out-of-agency landowners and operators are excellent sources

of basic site information and are an important source of both interview information and

current site documentation.

USE OF EDDA IN DECISION MAKING

The EDDA process is used to document the results of the investigation, document that due

diligence has been exercised, and provide a basis to evaluate potential and actual environmental

liabilities to aid in property transaction decisions. Professional judgement decisions are an integral

part of the EDDA process, from deciding whether a full or partial Phase I Liability Assessment

should be conducted, to deciding whether or not to proceed with the property transaction based

on EDDA investigation results.

The EDDA process differs significantly from CERCLA in this decision-making aspect. While

CERCLA directs a structured process from identifying contamination through site cleanup, the

focus of the EDDA process is to manage liability. This is particularly important for property

acquisition and lease execution. Figures 3-3 and 3-4 are decision making flowcharts for

acquisition and disposal transactions.

To further illustrate the decision making process, consider that the EDDA Phase I Liability

Assessment is conducted for most property transactions. The need for additional EDDA phases

for acquisition or lease transactions, however, will depend on the importance or strategic nature

of the property. If the location of the property to be acquired or leased is relatively unimportant,

then the agency decision-maker choosing to minimize agency liability would pursue a property

without suspected contamination. Conversely, if the location of the property to be acquired or

leased is important, then the agency may decide to gather additional information from a Phase II

EDDA to further assess the likelihood of liabilities before making a decision about acquiring or

leasing the property. In some situations, if an EDDA report documents contamination at a
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-9

property of strategic interest, the agency may elect to lease the rather than acquire the property.

In such a case, the EDDA has allowed the agency to avoid “acquiring the liability” and to

structure a “managed approach” to insulate intended operations from known or suspected

contamination.

During a Phase II EDDA if contamination is not confirmed, the property transaction can proceed

without adding undue risk for environmental liability. If, however, the presence of contamination

is confirmed during the Phase II EDDA, decision makers must determine whether the importance

of the site outweighs the potential liability that would accompany acquisition of the property. At

this point, the agency may enter into negotiations with the owner to address the contamination, or

the agency may choose to pursue further assessment of the extent of the contamination on

property with a Phase III EDDA. The Phase III EDDA information will allow the agency to

make a decision by weighing the potential liability costs against the value of the property. The

agency could decide to take on these costs—possibly even using the information to lower the

purchase price of the property. If the findings of the Phase II or Phase III EDDA appear

significantly adverse, then other acquisition or lease opportunities may become more acceptable.

There is no requirement to continue to a Phase II or Phase III for acquisition or lease transactions.

For disposal of federally owned or operated properties the decision-making process is fairly

direct. Those properties that the agency releases to organizations outside the federal government

are required to be free of contamination or have an authorized remediation in process before the

transfer process can be completed. Where the Phase I Liability Assessment indicates a potential

for contamination, federal agencies must confirm and, as necessary, characterize and cleanup

contaminated property.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-10

Figure 3-3

Decision Process for Acquisition and Lease Execution Actions

NO

YES

YES

EDDA Complete

Proceed with transfer

Inform Owner /

Negotiate further

investigation issues

Contamination

suspected?

EDDA Complete

Proceed with transfer

Inform Owner /

Negotiate further

remediation

Acquire/Lease***

Property

Inform Owner /

Negotiate further

investigation issues

Negotiations are

satisfactory?

NO

NO

NO

 YES

YES

 YES

 YES

EDDA Process Complete

* Value of property to the agency outweighs the scope of potential liability or is of strategic interest.

** Property owners or agency may complete EDDA at their cost, provide for cost offsets against 

property value, or agree on other cost allocation position as part of negotiated settlement. 

*** Acquisition / lease may proceed before cleanup activities are completed.

Conduct Liability Assessment to evaluate property condition and potential 

environmental concerns

PHASE I

PHASE II

Conduct Site Characterization to determine extent of contamination and select 

remedial alternative

PHASE III

Clean up property

Contamination

exists?

Agency 

as a continuing 

interest?

*

Agency 

as a continuing 

interest?

*

NO

Inform owner of findings

and implications

Pursue other

property opportunities

Agency 

as a continuing 

interest?

* Pursue other

property opportunities

NO **

Conduct Confirmation Sampling to verify suspected contamination areas

NO Inform owner of findings

and implications

Pursue other

property opportunities
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 3-11

Figure 3-4

Decision Process for Disposal and Lease Termination Actions

Inform owner

of findings and

implications

YES

YES

Likely that

cleanup requirements

apply?

Property owned

by agency?

Plan for site

characterization and

budget requests

Qualifies for 

regulatory process?**

N O

NO Address CERFA

compliance

N O

YES

 * Lease termination only

** Consult experts for guidance on regulatory contamination and cleanup requirements

*** Properties may—with regulatory approval—be transferred before cleanup is complete

Conduct Liability Assessment to evaluate property condition and potential environmental 

concerns

PHASE I

PHASE II Conduct Confirmation Sampling to verify suspected contamination areas

Conduct Site Characterization to determine extent of contamination and select 

remedial alternative PHASE III

Select remedial

technology and

secure budget

Clean up property Address CERFA

compliance Transfer property***

EDDA Process Complete

Contamination

exists?

Contamination

suspected?

NO*

Continue under Federal

or State cleanup

requirements

YES

YES

EDDA Complete

Proceed with transfer

NO Address CERFA

compliance

Continue under

Federal or State

cleanup requirements

Likely that

agency contributed to

contamination?

NO*

YES

EDDA Complete

Proceed with transfer

CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-1

CHAPTER 4

PHASE I–LIABILITY ASSESSMENT

DESCRIPTION

The purpose of the Phase I Environmental Due Diligence Audit (EDDA) is to identify potential

areas of hazardous waste contamination or environmental liability associated with a property to be

transferred. This chapter describes in greater detail the EDDA Phase I Liability Assessment,

which consists of the following elements.

ß Preliminary activities. Coordinating site visit logistics, gathering basic information

regarding the subject property, and building a rapport with the site owner and site contact.

ß Site visit. Observing visual signs of contamination and uncovering evidence of potential

liabilities and contamination from past and current operations, or from off-site activities.

ß Records review. Examining applicable documents, records, and aerial photography to

supplement site visit findings and to gain additional information regarding prior uses of the

property that may indicate a release of hazardous substances has occurred.

ß Regulatory review. Examining applicable enforcement records to supplement site visit

findings and to gain additional information regarding past environmental compliance

violations, fines, or outstanding liens.

ß Geologic and hydrogeologic review. Evaluating potential contaminant migration

pathways and exposure routes.

ß Report. Documenting the results of the EDDA Phase I Liability Assessment; documenting

that due diligence has been exercised; and, as necessary, documenting information to

initiate Phase II, confirmation sampling.

Sampling is not performed during the liability assessment, all of the information included in the

Phase I report is gleaned from existing documents or inferred from observation made during the

site visit. The environmental areas that are examined during this process include the following:

ß Hazardous substance release on the subject or adjacent property

ß Hazardous material and waste handling practices

ß Underground and aboveground storage tanks

ß Polychlorinated biphenyls (PCBs)

ß Pesticides and herbicides

ß Sensitive environments (including wetlands) on the subject or adjacent property

ß Historic or cultural significance of the subject or adjacent property

ß Asbestos

ß Lead

ß Radon and indoor air

ß Ionizing and non-ionizing radiation

ß Topographical and natural resource factors.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-2

These elements and areas are covered in further detail in the following discussion of EDDA Phase

I Liability Assessment process.

PRELIMINARY ACTIVITIES

Prior to conducting the site visit, some preliminary activities are necessary, including logistics for

the site visit, obtaining basic property information, and contacting the site owner or operator to

brief them on the purpose, scope, and process of the EDDA Phase I Liability Assessment.

Logistics

Identifying a primary point of contact for the subject property will facilitate the entire EDDA

process. Negotiate an exact date and time for the site visit with this person, then inform: the

property owner and operator; environment, health, and safety manager; other site representatives;

and relevant agency officials. As appropriate, invitations to attend the briefing and walk-through

should be extended. During this preliminary step it is also necessary to discuss and resolve escort

issues, including: access, site security, safety briefings and the need for specialized equipment,

such as Personal Protective Equipment (PPE).

Contact

Preliminary telephone interviews may include the property owner or operator, adjacent property

owners, and state and local authorities.

Questionnaire

A questionnaire can be used as a tool to gather fundamental information from the site owner and

operator or lead point of contact. It may be administered by the assessor during the initial phone

contact, or it may even be electronically mailed to the property manager when the property is

agency-held. In either case, the name, phone number, position, and responsibility of the person

answering the questions must be documented to allow for later verification as necessary. In

addition to gathering basic information about the property, a questionnaire may help focus the site

visit and document search to issues of relevance to the particular property. A sample

questionnaire is provided in Appendix M.

Gather and Review

The assessors should prepare for the site visit by reviewing available site maps and documentation

relevant to site activities and environmental issues. Information gathered during this step will give

the assessors a general understanding of the property and site activities, in particular:

ß The exact location and size of the property

ß Identity of current property owners

ß A site contact, to provide access to the property during the site visit

ß The number of buildings and structures located on the property

ß Presence of Aboveground Storage Tank (AST) or Underground Storage Tank (UST)
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-3

ß Current site activities or operational issues that could have an impact on the site visit.

All of the preliminary activities provide a foundation for conducting the site visit.

SITE VISIT

The site visit is an essential element of the EDDA Phase I Liability Assessment that allows the

assessors to make first hand observations. In general, it consists of the following activities:

ß Visual survey of the subject property and neighboring properties

ß Interviews with property owners, on-site employees and neighboring property owners

ß Review of on-site documentation.

The visual survey portion is intended to identify visible signs of environmental contamination or

evidence of suspected contamination from current or past operations, both on and off the

property.

The interviews should include discussion of site management and operations with the property

owner, manager, or a designated representative. As warranted and reasonably possible, former

facility personnel may also be identified and interviewed. They may have information regarding

suspected contamination from past activities conducted at the facility. The input and inquiry of as

many personnel as possible will help produce valid and defensible information.

The site visit further includes review of on-site records relevant to the environmental management

and history of the property. All three aspects of the site visit are discussed in greater detail in the

following sections. Appendix N also provides sample questions to consider when performing a

site visit.

Focus

Basic environmental considerations, including the items listed below, should be reviewed as part

of the site visit. In addition, an assessor should walk the entire perimeter of the property to look

for potential site contamination issues, and to note the presence and condition of any sensitive

environments. Any potential or actual hazardous conditions encountered during the site visit

should be reported to the owner and operator or facility manager.

The following is summary of issues to be addressed during the walk-through.

ß Former and current uses of the subject and adjacent properties

ß Adjacent property characteristics such as zoning, future land use, UST, and past uses

ß Sensitive environmental areas

ß Surveys or inspections, past and present, including radiological, asbestos, radon, and UST

ß National Priorities List (NPL) status of the subject property and properties in the vicinity

ß Permits, past and present, including: air; Nuclear Regulatory Commission (NRC); National

Pollution Discharge Elimination Systems (NPDES); Publicly Owned Treatment Works

(POTW); UST; and hazardous waste Treatment, Storage, or Disposal Facility (TSDF)
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-4

ß Hazardous releases, including disposal, injection, and discharging

ß Hazardous waste handling and storage practices

ß Other waste handling practices—solid, sewage, septic, drains, sumps, lagoons, and pits

ß USTs or ASTs—operating, closed, leaking, or inactive

ß Fuel leaks or releases on both subject and adjacent properties

ß Radon

ß Potentially hazardous dusts and indoor air quality

ß Asbestos-containing materials—use, storage, and research

ß Lead-based paints and other lead sources—use, storage, and research

ß Ionizing and non-ionizing sources, such as radiological materials and equipment—use,

storage, and research

ß PCB-containing materials—use, storage, and research

ß Pesticides—use, storage, and research

Observations

Observations made during the site visit will include obvious signs of current or potential

contamination. Many hazardous substances will stain soils or other surfaces and may destroy

vegetation, such as grass or plants. The presence of drums may be an indication of hazardous

waste contamination. The site owner and operator or representative should be consulted to

identify the contents of unlabeled drums. Material Safety Data Sheets (MSDS) on file at the

facility site may also be helpful in determining hazardous materials present. Additionally, to

determine the potential for contamination, inquiries should be made about past practices, such as

the disposal of chemicals in sinks.

In conducting a walk-through, EDDA team members should not engage in any activities that

could put themselves or others in jeopardy. Certain activities may require specialized training,

procedures, or permits in order to conduct them safely and in compliance with regulatory

requirements. Such activities include opening drums of known or suspected hazardous materials,

and entering hazardous areas, such as confined spaces, trenches or pits five feet or deeper.

Hazardous Material and Waste Handling Practices

The terms “hazardous material,” “hazardous waste,” and “hazardous substance” refer to a wide

range of chemical, radioactive, and biological substances or materials.

ß Hazardous material—Any substance or material that has been determined to be capable of

posing an unreasonable risk to health, safety, and property when transported in commerce

(49 CFR Part 172, Table 172.101). This includes hazardous substances and hazardous

wastes.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-5

ß Hazardous waste—Under the Resource Conservation and Recovery Act (RCRA), a waste

is considered hazardous if it is listed in, or meets the characteristics described in 40 CFR

Part 261, including ignitability, corrosivity, reactivity, or extraction procedure toxicity.

ß Hazardous substance—Any element, compound, mixture, solution, or substance defined

as a hazardous substance the Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA) and listed in 40 CFR Part 302. If released into the environment,

hazardous substances may pose substantial harm to human health or the environment.

Hazardous wastes and the potential for past release or mismanagement presents the greatest

single area for environmental concern and potential for liability. Details about correct waste

handling, storage, and disposal practices should be available from either the owner and operator

or from the facility environment, health, and safety manager. If the subject property is owned or

operated by the agency and is under review for disposal or lease termination, the review team

should be extra vigilant to account for all hazardous materials and wastes and when they will be

transferred. Any facility which disposes regulated quantities of hazardous materials will have an

Environmental Protection Agency (EPA) waste generation identification number on record.

Underground Storage Tanks and Aboveground Storage Tanks

Petroleum products or hazardous substances may be present on-site in USTs or ASTs, as well as

associated underground pipelines. A leaking UST or AST system presents a potential risk of

contaminating surface soils, surface waters, or groundwater. There may also be a potential fire or

explosion hazard from a poorly maintained or leaking UST or AST system containing ignitable or

reactive materials. The entire system, including sumps and pits, should be visually inspected

where possible to identify potential sources of contamination. The questionnaire in Appendix O

may be used as a protocol or guide for obtaining additional information on UST and AST.

Federal regulatory requirements for managing USTs are found in 40 CFR Part 280.

Polychlorinated Biphenyls

PCBs are organic chemicals that have been determined to be a public health concern. In the

United States PCBs have not been manufactured since 1979; however, they remain prevalent in

many types of electronic equipment and hydraulic fluids. Examples of equipment that may

contain PCBs include transformers, capacitors, and light ballasts. In addition, fluids associated

with heat transfer systems, hydraulics and waste oils may also contain PCBs. The regulations

under Toxic Substance Control Act (TSCA) cover PCBs and require prominent labeling and

management activities. Once introduced into the environment, PCBs are extremely persistent and

do not breakdown. The assessor should establish whether PCBs are associated with the property

and pose a potential liability. Assessors should also document all equipment that may be PCBcontaining. Any suspect equipment that is not marked as “non-PCB equipment” should be

considered a potential source. TSCA regulations for PCB management are codified in 40 CFR

Part 781.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-6

Pesticides

Pesticides are chemical products developed to control plant or animal life. The term “pesticide”

includes insecticides, herbicides, rodenticides, fungicides, disinfectants, and plant growth

regulators. The most widely used pesticides share some common traits:

ß They tend to be chlorinated hydrocarbons

ß At sufficient levels, they tend to produce a wide range of adverse effects in humans, such

as nerve damage, liver damage, and kidney failure

ß They tend to bioaccumulate, meaning that as plants and animals ingest these chemicals and

are in turn ingested by other animals, the poisons accumulate up the food chain.

Therefore, what starts out as a small, non-harmful release may accumulate into harmful

doses for other organisms.

Assessors should document both the use and the management of pesticides at the site.

Sensitive Environmental Areas

Sensitive environments encompass a broad spectrum of site characteristics (e.g. wetlands, coastal

zone, parks and recreational areas). Certain ecosystems are considered critical when endangered

or threatened species are sustained within that ecosystem. As a result, evaluation of a property

requires an awareness of floral and faunal environments, wetlands, and endangered species.

Though some issues related to the presence of sensitive environments are outside the scope of

EDDA, during the site visit the assessor should walk the entire perimeter of the site to identify

sensitive environments and note any potential for contamination, either on- or off-site.

In addition to wetlands, all surface water retention ponds, stormwater management units, surface

impoundments or pits should be identified. To the most reasonable extent possible, the use,

contents, and characterization reports of these ponds, pits, or impoundments should be analyzed

to determine if suspected contamination exists.

Other sensitive environments, such as coastal areas, parks and natural preserve areas, or surface

waters (e.g. rivers, streams, ponds) may also present future limitations to property use or

constitute difficult-to-address receptors for contamination issues. These resources should also be

noted and specifically observed during the site visit.

Historic and Cultural Significance

The Phase I provides an opportunity to consider historic significance in the property transfer.

Districts, sites, buildings, structures and objects that are significant in American history,

architecture, archaeology, engineering and culture are to be preserved for present and future

generations. Assessors should specifically inquire into the historical and cultural significance of

the site and adjacent properties. The EDDA Phase I Liability Assessment should note any

potential restrictions to property use or development.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-7

Asbestos

Asbestos is a naturally occurring mineral which is a very effective heat and sound insulator. As a

consequence, it was used in many buildings as a fire and noise retardant. However, it has been

linked to several diseases, including lung cancer; and since 1987 it has not been used in

construction materials. Nonetheless, most structures constructed before 1987 have AsbestosContaining Materials (ACM) in insulation, floor tiles, mastic, pipe-wrap, roofing, and other

materials. Sites which manage friable ACMs should have an asbestos operations and management

plan on-site that contains a survey of the site ACMs. Assessors should review any site-specific

asbestos documentation, assess construction dates, and visually examine building materials to

judge whether ACM may be present at the site. Keep in mind that assessors should never disturb

any objects suspected of containing ACM; doing so requires specialized training and certification,

and if done improperly may cause a hazardous situation.

Lead-Based Paint and Other Lead Sources

Many buildings and structures contain significant amounts of lead-based paints and other lead

sources that may pose an environmental health condition at subject property. Other sources

include lead piping and solder that may contribute to high lead content in the drinking water.

Lead has been associated with central nervous systems disorders, particularly among children and

other sensitive populations. Exposure to lead is usually through inhalation during renovations

and demolition activities or through ingestion of paint chips or lead-contaminated drinking water.

Assessors should evaluate the potential for site structures to have lead-based paints and inspect

building features and documentation to determine whether lead piping has been used.

Indoor Air Quality, Radon and Potentially Hazardous Dusts

Radon, potentially hazardous dusts, and other indoor air issues are not readily observable. Radon

is a naturally occurring, invisible, odorless, tasteless, and radioactive gas. Inside enclosed spaces

radon and other indoor air quality concerns can accumulate to levels that may pose risks to human

health. Assessors should inquire about tests conducted at the subject property, and should review

area documentation for the presence of radon in and around the subject property.

Facility Documentation

Clues to past and present hazardous material and waste management practices can also be

ascertained from facility records and their review is an important aspect of the site visit. Facility

records provide an excellent document trail of the environmental history and current management

practices at the site. Records on hazardous waste accumulation, storage, treatment, or disposal

(e.g., satellite waste accumulation records and manifests) should be reviewed. Other

environmental management plans and reports may also provide information on the use and

management of hazardous materials and wastes. These include, but are not limited to, Spill

Prevention, Control, and Countermeasures (SPCC) plans; Pollution Prevention (P2) plans; and

Emergency Planning and Community Right-to-Know Act (EPCRA) plans and reports. Quantities

of hazardous materials used and stored, as well as reportable hazardous substance releases, must

be accurately identified for compliance with federal and state requirements (e.g., 40 CFR Part
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-8

373). Refer to Appendix H for more information on the regulatory requirements and notifications

for disposal or lease termination transactions. Finally, assessors should review any previous

environmental inspection or audit reports, management plans, National Environmental Policy Act

(NEPA) documentation, and any other relevant information to gain a comprehensive

understanding of the environmental history of the site.

RECORDS SEARCH AND REVIEW

A significant element of a Phase I Liability Assessment is the record search and document

analysis. EDDA assessors must analyze documents obtained during the site visit, as well as

records from federal, state and local regulatory entities. In conjunction with the site visit, an

assessor should visit local regulatory and county offices to obtain and review additional records

that may shed light on the environmental history of the property, and, to the extent practicable, on

contiguous and adjacent properties. For example, chain-of-title documents, aerial photographs,

incident reports, and other key documents that might provide information on past site uses and

hazardous materials management and disposal activities. Many records can also be obtained

without traveling to the site. The following table summarizes target records and their potential

sources.

Table 4-1

Target Information/Records and Potential Sources

TARGET INFORMATION/RECORDS POTENTIAL SOURCES

Site Ownership History Title search - local courthouse

Agency real estate office

Agency historian

National Archives and Records Administration (NARA),

related regional archives, and state archives

Site Use History Current owner and operator

Facility records

Previous owner and operator

Sanborne Fire Insurance Maps

Agency historian

Agency facility, architecture, or engineering office

Agency reports (budget, A-106, FedPlan, annual, ...)

NARA, related regional archives, and state archives

Title search

Aerial Photographs Facility records

Current owner and operator

Previous owner and operator

Agency historian

Agency regional or area office

Agency facility, architecture, or engineering office

Agency reports (budget, A-106, FedPlan, annual reports)

Local collections, universities or museums

Local highway or transportation department

United States Geological Survey (USGS)
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-9

Table 4-1

Target Information/Records and Potential Sources (Continued)

TARGET INFORMATION/RECORDS POTENTIAL SOURCES

Environmental Permits Current owner and operator

Facility records

Agency regional or area office

Previous owner and operator

State and local regulatory authorities

Environmental Surveys Current owner and operator

Facility records

Agency regional or area office

Previous owner and operator

Hazardous Materials and Waste Facility records

Material safety data sheets

Facility environmental compliance audit reports

Facility hazardous materials management plans

EPCRA reports

State environmental agency

Environment, health, and safety manager

Facility engineering manager

Facility personnel or service contractors

Agency regional or area office

Agency facility, architecture, or engineering office

Agency reports

Product manufacturers

Site Contamination per

National Priorities List,

Federal Facilities Docket, or

State Contaminated Site List

LandView (mapped environmental and census data tool)

IDEA database (1-888-EPA-IDEA or

http://es.inel.gov/oeca/idea)

CERCLA Information System (CERCLIS) Hotline

(202-260-0056)

RCRA/Superfund industry assistance hotline (1-800-424-

9346)

EPA Regional Offices (web site: http://www.epa.gov/)

State environmental agency

Fuel Leaks State environmental agency

Local fire and health department

Facility records

Above and Underground Storage

Tanks

State environmental agency

Local fire department

Facility records

Facility environmental compliance audit reports

Facility SPCC plans

Facility hazardous materials management plans

EPCRA reports

Material safety data sheets

PCB equipment, use, and incidents Facility PCB log or records

Current owner and operator

Facility personnel or service contractors

Local fire department

Agency regional or area office

Agency facility, architecture, or engineering office

Equipment manufacturer

Utility company (large transformers or utility-owned)
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-10

Table 4-1

Target Information/Records and Potential Sources (Continued)

TARGET INFORMATION/RECORDS POTENTIAL SOURCES

Wetlands and

Environmentally Sensitive Areas

Facility studies

Town/county planning and zoning office

County soil survey reports

Local soil conservation district

National/ State Wetland Inventory Maps

(available from EPA Regional Offices)

United States Army Corps of Engineers

Wetlands Protection Hotline (1-800-832-7828)

Asbestos Building age (pre-1987)

Asbestos survey reports

Facility records

Facility as-built drawings and specifications

Current owner and operator or manager

Environment, health, and safety manager

Facility engineering manager

Facility personnel or service contractors

Agency regional or area office

Agency facility, architecture, or engineering office

Product manufacturers

Lead-Paint and other Lead or

Heavy-Metal Sources

Building age

Lead survey reports

Construction blueprints and specifications

Facility Maintenance Records or Procedures

Facility personnel or service operators

Water utility service

Indoor Air Quality, Radon and

Potentially Hazardous Dusts

Facility records and survey reports

Environment, health, and safety manager

Agency regional or area office

County/ local health department

State Occupational Safety and Health Administration

Hydrogeology and geology Facility soil studies and groundwater test results

USGS

United States Department of Agriculture (USDA)

State water resources control

County planning office

Local soil conservation district

Local county planning office

Aerial photographs

Adjacent Property

The purpose of the adjacent property records search and review is to identify the issues that may

have adversely affected the environmental condition of the subject property. Generally, the

adjacent property review effort will be limited and not as extensive as the subject property review.

The search radius may be left to the discretion of the environmental professional (i.e., EDDA

Phase I Liability Assessment review team). Factors that may be considered when evaluating

adjacent properties and determining the search radius include:
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-11

ß Density of the setting where the facility is located (e.g., rural, urban, or suburban)

ß Distance that hazardous substances or petroleum products are likely to migrate based on

local geologic or hydrogeologic conditions

ß Adjacent NPL or contaminated sites.

Site History - Ownership and Use

Prior site ownership and use is typically documented in local property ownership and tax records.

A chain-of-title review should be conducted to list continuous ownership and use of the property

to the present time. A title search, Sanborne Fire Insurance (SFI) map and special hazard area

map review will reveal the past owners, uses of the property, and properties that are subject to

flood hazards. The general site history and property owners for the last 50 years should be

identified to determine the past property uses and activities.

Title Search

Chain-of-title records are maintained at the local courthouse and may be researched with the

assistance of agency real-estate specialists or court clerks. The purpose of the title search and

review is to fully identify past owners and research any information that might affect the current

environmental condition of the subject property.

Sanborne Fire Insurance Maps

SFI maps identify past property owners and property uses. Analysis of this information may

reveal the types of activities and associated materials that could have been managed at the facility.

Aerial Photographs

Aerial photographs are used to reveal past site uses that raise environmental concerns, or may

help in documenting the timetable for site improvements and associated activities. Aerial

photographs of the subject and surrounding properties should be reviewed for the last 50 years to

verify site activities and the activities at neighboring sites. An individual qualified and trained to

interpret aerial photographs (such as personnel meeting the criteria provided in Appendix K)

should perform this review.

Environmental Surveys and Audit Reports

All available environmental survey and audit reports (from current or past owners and operators)

should be reviewed to determine if contaminants were or are currently present at the site or

adjacent properties. This includes surveys and reports for UST, lead-based paint, air quality,

radiological, mercury, PCB, and asbestos contaminants. In addition, beneficial information may

be obtained from reviewing reports on multimedia environmental compliance status, management

practices, NEPA, and P2.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-12

Utility Transformer Records - PCBs

Under 40 CFR Part 761.180, facilities that use or store a total capacity in excess of 45 kilograms

of PCBs, one or more PCB transformers, or 50 or more PCB large capacitors are required to

maintain an annual PCB log on-site. Records may also be sought from the local utility companies.

Note that occasionally more than one utility company will have jurisdiction over a given property.

Special Hazard Area Maps

Special hazard areas denote properties that lie within the floodplains and have flood, mudslide or

flood-related erosion hazards. The maps identify properties in terms of 10-, 50-, 100-, and 500-

year flood discharges. Such designations may limit the type of activity permitted on a property.

In addition, understanding the property’s location with respect to floodplain areas will assist in

interpreting the potential for on- and off-site contamination impacts.

Nuclear Regulatory Commission (NRC)

For properties where there have been permitted radiological activities (e.g., laboratories, medical

facilities, and some commercial research and development applications), the NRC or facility

should have information on the facility’s radioactive materials license. The NRC license, license

conditions, and notices of violation should be obtained and reviewed to determine the nature and

type of materials handled, stored, and disposed. The operating procedures applicable to licensed

activities should also be reviewed to determine the potential areas of contamination; equipment

and laboratory surface exposure; potential air emissions and Heating, Ventilation, and Air

Condition (HVAC) duct contamination; and potential contaminated environmental media (e.g.,

groundwater, surface water, soil). NRC licenses require monitoring and surveys to be maintained

by the facility. These surveys should be reviewed to determine the potential levels and locations

of radioactive contamination. A list of the four NRC Regional Offices and their phone numbers

are provided in Appendix P.

REGULATORY REVIEW

The regulatory review is another essential step in the investigative due diligence process. This

activity involves reviewing the permit and compliance history for the subject property, as well as

neighboring sites that may have an impact on the property (typically a one-mile radius).

Otherwise unknown environmental concerns can be revealed, such as a history of fines for spills

on the adjacent property. Of course, the regulatory search can only reveal the known compliance

history; unreported spills and other activities that could contribute to contamination are not part

of an official regulatory record.

Records and files should be obtained for applicable environmental enforcement agencies such as

the EPA, state environmental protection department, water control board, local fire department,

and the health inspector. Each entity can be contacted independently for a search of the necessary

records, or commercial vendors can be used to provide regulatory database search services.

Examples of federal, state and local regulatory data sources are provided in the following

sections.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—Chapter 4-13

Federal Lists

Federal regulatory data sources include the following:

ß RCRIS—The RCRA Information System is an EPA list of permitted hazardous waste

facilities and generators.

ß CERCLIS—The CERCLA Information System is an EPA database with information on

“Superfund” sites on the NPL. CERCLIS is a component of idea.

ß SETS—The Site Enforcement Tracking System is an EPA database listing responsible

parties at NPL sites.

ß ERNS—The Emergency Response Notification System for spill and response activity

information, which is maintained by the U.S. Coast Guard.

ß IDEA—The Integrated Data for Enforcement Analysis database contains data from

15 EPA and EPA-related databases, including RCRIS, CERCLIS, SETS, and ERNS.

Information on IDEA can be obtained from the hotline (1-888-EPA- IDEA) or the

internet (http://es.inel.gov/oeca/idea).

State Agency Lists

The appropriate state environmental agencies should be contacted for information on fuel or other

regulated releases that may have occurred on the subject or adjacent property. Many states

maintain lists similar to CERCLIS and RCRIS on environmental site contamination, response

actions, and small fuel releases. State enforcement inspection reports should be reviewed for

information on potential sources of contamination. In addition, state environmental permits

should be obtained and reviewed for specific closure requirements. Other permit areas to be

considered include UST, AST, air quality, hazardous waste, industrial and domestic wastewaters,

radioactive materials, and hazardous materials.

Local Authorities

Regulatory records from local authorities should not be overlooked. Local fire and health

departments typically conduct enforcement inspections, which could reveal environmental

conditions relative to local codes and standards. Fire departments may have information

regarding facility hazardous substance use and USTs, as well as past releases or environmental

incidents. Health departments may have information on radon levels in the area of the site, as well

as site activities that may impact human health and the environment.

All local environmental permits and inspection reports should also be obtained and reviewed,

including those for POTW, sanitary sewer, and stormwater discharge. Permits and inspection

reports will assist in determining the potential composition of the hazardous materials used and

whether there is cause for concern based on the permit parameters and report findings.
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August 1998—Chapter 4-14

Town and County Planning or Zoning Office

Typically the planning or zoning office is located with the main city or county offices. The

applicable entity should be contacted to determine whether the property is zoned for a particular

use (e.g., industrial, agricultural, wetland, or sanctuary), and whether the property has any

historical or recreational value. The county planning office or the local soil conservation district

may also be able to provide a copy of county soil survey reports for the area. This information

will be helpful in accurately characterizing the property’s features (including wetlands). It will

also be useful in determining the limitations of future land use or property transfer. Information

obtained regarding the existence and classification of wetlands should be verified with other

hotline or national wetlands inventory map data.

GEOLOGY AND HYDROGEOLOGY REVIEW

The geology and hydrogeology of a property are investigated to provide an understanding of how

potential contamination could affect the soil and groundwater of subject or adjacent properties.

Both the land and water features of the site will have an impact on the speed and ability for

potential contaminants to migrate. Topics to consider in this review are:

ß Direction of groundwater flow

ß Depth to groundwater

ß Floodplain

ß Water quality

ß Soil characteristics

ß Site topography.

The property owner and operator should be contacted for a copy of any previous soil or

groundwater studies, which should be reviewed for general geologic and hydrogeologic

information as well as data on suspected contamination. The following sections provide a list of

other available information sources.

United States Geological Survey

The USGS maintains information on the soil characteristics and hydrogeology for the United

States. Reports for the applicable area should be analyzed to determine the groundwater depth

and flow, and surface water flow. The phone number for USGS headquarters is 703-648-6045;

other USGS offices and phone numbers are provided in Appendix Q.

State Water Resources Control

State water resources control boards conduct well surveys of groundwater and drinking water.

Information on the aquifer type, depth to groundwater, classification, and use is often found in

regional reports. Data from these surveys should also be reviewed to characterize and identify

existing or formerly operated wells on the site.
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United States Department of Agriculture and Local Authorities

The USDA and regional Soil Conservation Service (SCS) districts generate soil survey reports on

regional geology and soil types. The county planning office or the local soil conservation district

may also be able to provide a copy of county soil survey reports for the area. This information is

helpful in accurately characterizing the property’s features (including wetlands). It will also be

useful in determining the limitations of future land use or property transfer. Information obtained

regarding the existence and classification of wetlands should be verified with other hotline or

national wetlands inventory map data.

PHASE I REPORT

The EDDA Phase I Liability Assessment report is prepared after all the information gathering

activities have been completed. The intent of the report is to document the results of the liability

assessment, including the findings, conclusions and recommendations. By its nature, it also

documents that due diligence was exercised.

Report Development

The Phase I report must document all aspects of the site visit, as well as the record, regulatory,

geologic, and hydrogeologic reviews. The report must also include statements of conclusion on

the possibility and nature of environmental contamination associated with the site and the

potential for liability. Further, the report should recommend appropriate next steps based on

intended use of the property and the liability conclusion stated. Any limitations should be directly

stated to ensure that the reader and decision maker are aware of what information was not

available for assessment of potential liability. Back-up documentation should also be provided

with the report, including but not limited to inspection notes, property-related reports, completed

questionnaires, correspondence with state agencies, and site maps. A suggested outline of the

report is provided in Appendix R.

Phase I Report Review

It is essential for the Phase I report to be reviewed for correctness and completeness. In this role,

the technical reviewer ensures that the report is complete and properly worded; but, more

importantly, he or she evaluates the assessor’s methodology to ensure that the report reflects that

due diligence and all appropriate inquiry were applied during the investigation. The reviewer

must also ensure that statements of conclusion regarding suspected contamination and liability are

correctly derived from, and supported by, the data collected. To do this, the technical reviewer

must be qualified, with the relevant technical environmental background, training, and experience

(see Appendix K for a list of qualifications). Agency legal council may want to review the draft

reports to ensure that the content is consistent with agency policies.

Use of the Phase I Report

Following the approval and acceptance of the Phase I report by the technical reviewer, it is

forwarded to the executive decision maker. This individual or group of individuals evaluates the
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August 1998—Chapter 4-16

findings, conclusions, and recommendations contained in the report and decides how to proceed

with a proposed property transfer. General guidance on the decision making process has been

provided in Chapter 3 (refer also to Figures 3-3 and 3-4 for separate decision making issues for

acquisition and disposal situations).

For all transactions, if the Phase I report indicates no evidence of contamination or liability, then

the EDDA process is complete; environmental due diligence has been met and results may be used

to satisfy any property disposal obligations under CERCLA Section 120(h)(4).

If the agency is considering an acquisition or lease initiation and the findings of the Phase I

indicate there is the potential for contamination or liability, then decision makers must weigh other

property options against the importance or strategic value of the subject property (see Figure 3-

3). When the agency has continuing interest in the property, a Phase II must be conducted to

confirm contamination and liability. If the property transaction is a disposal or lease termination

and the findings indicate potential contamination or liability, then a Phase II must also be

conducted.
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August 1998—Chapter 5-1

CHAPTER 5

PHASE II—CONFIRMATION SAMPLING

DESCRIPTION

The purpose of the Phase II Environmental Due Diligence Audit (EDDA) process is to confirm

the presence or absence of contamination and liability identified in the Phase I Liability

Assessment. The Phase II EDDA is accomplished through confirmation-sampling where the

suspected areas of concern noted in the Phase I Liability Assessment are physically sampled to

determine if actual contamination exists. Phase II procedures are designed specifically to confirm

the presence or absence of contamination. This is achieved through targeted field sampling of

suspected areas and appropriate laboratory analysis to quantify suspected contaminant

compounds. These activities may range from intrusive sampling, such as advancing groundwater

monitoring wells, to simple surface soil samples readily taken by hand augers. In some cases, the

sampling may consist only of taking asbestos sampling or setting radon canisters. The range of

required sampling will influence the scope of the Phase II activities and associated resources to

complete the investigation. If Phase II activities show that contamination exists, then Phase III

activities may be undertaken to fully characterize site contaminants. However, if Phase II shows

that contamination does not exist, the EDDA process is concluded.

Following an indication of possible contamination from a Phase I Liability Assessment, the

motivation for proceeding to Phase II differs by property transaction type. For agency property

targeted for disposal, any suspected contamination must be further investigated and, as necessary,

remediated in accordance with applicable regulations (refer to Figure 3-4). For acquisitions, the

agency interest in a given property must out weigh the expense of further investigation and other

property alternatives (refer to Figure 3-3). For other transactions, the decision to proceed with

confirmation sampling will depend on numerous factors, including:

ß The type of transaction

ß Level and severity of suspected contamination

ß Price and availability of alternate sites

ß Cooperation of the subject-property owner for the investigation to continue.

These issues are discussed in Chapter 3 of this guidance and should be fully considered as part of

the agency’s decision-making process.

Due to the technical requirements and potential liability issues raised by Phase II Confirmation

Sampling activities, the use of certified contractors is strongly recommended. The agency is

responsible for selecting a qualified contractor with a licensed Professional Engineer (PE) or a

licensed Professional Geologist/Hydrologist (PG/PH) on staff to supervise and approve the work.

Sample specifications for Phase II and Phase III EDDA contractors are provided in Appendix S.

When a contractor is engaged to design and perform the Phase II Confirmation Sampling field

activities, the agency role in the field will be to provide oversight and logistical support (e.g., site

access). Additionally, the agency will oversee the progress of the investigation to ensure that it is

completed within budget and on time. Depending on the scope and planned activities, Phase II

Confirmation Sampling can address one or more issues and require different levels of field
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August 1998—Chapter 5-2

activities and analytic procedures. Consequently, this can become a very expensive and timeconsuming process unless it is properly planned, managed, and controlled. Monitoring and

oversight of these activities is paramount and presents the agency with an opportunity to ensure

that the Phase II Confirmation Sampling is fully executed.

Agency personnel are responsible for reviewing and accepting the contractor’s plans and reports.

Accordingly, the personnel involved with the review process should be familiar with the sampling

strategy and understand the implications of the sampling results and recommendations of the

report. The Phase II EDDA is a critical element in developing specific knowledge about the

presence or absence of site contaminants and, if confirmed, generating an initial understanding of

potential future site implications. The duration of the Phase II Confirmation Sampling process

depends on the specific activities planned and the scope of the confirmation sampling program.

Phase II Confirmation Sampling activities consist of the following four steps; a description of each

of these activities is provided in the subsequent paragraphs.

ß Reviewing and evaluating the findings in the Phase I report

ß Developing and implementing a confirmation Sampling and Analysis Plan (SAP)

ß Identifying site risk based on the results of the confirmation sampling

ß Developing the Phase II report.

REVIEW AND EVALUATION OF PHASE I REPORT

Prior to initiating any Phase II Confirmation Sampling activities, the Phase I report should be

thoroughly reviewed to gain a complete understanding of what is currently known about the site

and the suspected contamination. The Phase I report provides valuable information on the

environmental condition of the property. Specifically, the conclusions and recommendations

section documents the potential areas of concern and provides recommendations for performing

Phase II Confirmation Sampling activities. These areas can include the site structures, site

grounds, or information on suspected sources on neighboring properties. Several types of

surfaces and environmental media may need to be sampled. Additionally, the Phase I report will

contain valuable background information that will be pertinent to designing and conducting Phase

II Confirmation Sampling. This information should be reviewed to ensure that the Phase II

Confirmation Sampling contractor has a full understanding of what is known about the site and

the specific areas of suspected contamination. Relevant background information may include:

ß Recommended locations of investigation and issues supporting the suspected types of

contamination and sources

ß Potential sources of contamination based on prior site use

ß Past site operations and practices

ß Physical characteristics of the site, such as soil types, depths to groundwater, geologic and

hydrogeologic features

ß Noted background (or ambient) levels of contaminants of potential concern

ß Previous hydrologic, testing or assessment report, identified and reviewed in the Phase I

that support the recommendations or provide additional site detail and characteristics.
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August 1998—Chapter 5-3

It is important for the Phase II Confirmation Sampling contractor and applicable federal agency

staff to become familiar with the contents of the Phase I report. This information forms the basic

building blocks for designing, planning, and performing Phase II Confirmation Sampling activities.

These activities must address all of the issues raised in the Phase I report. Therefore, the success

of the Phase II Confirmation Sampling activities, in part, rests with having a thorough knowledge

of the site conditions and areas of concern noted in the Phase I report This information is used to

develop the background and understanding as well as to specifically set forth the objectives of a

site SAP.

DEVELOPMENT AND IMPLEMENTATION OF THE SAP

The purpose of the SAP is to establish an agreed-upon sampling strategy that will fully address

each potential liability area through confirmation sampling and analysis. The SAP contains two

distinct elements. The first is the Field Sampling Plan (FSP) that specifically discusses the

sampling activities, scope, analysis, health and safety activities and the rationale for each. The

second is the Quality Assurance Project Plan (QAPP) that identifies the Quality Assurance/

Quality Control (QA/QC) procedures used in the field sample collections and analysis to ensure

that accuracy and precision of the sampling results. The use of an independent contractor is

always encouraged to demonstrate that an objective and defensible Phase II Confirmation

Sampling approach is executed and accurate results are obtained. The SAP must be developed by

the Phase II contractor and approved by the agency before Phase II Confirmation Sampling

commences.

Element 1, the FSP, should consist of field sampling and analysis procedures, a safety and health

plan, and a project management plan. The FSP must describe the following activities:

ß Sampling objectives

ß Site background

ß Site characteristics

ß Potential contaminants of concern

ß Type of media being sampled

ß Sample type and the location, number, and frequency of samples being taken

ß Sample collection, handling, designation, numbering, and preservation techniques

ß Field quality assurance and quality control procedures.

A description of each of these activities is provided in Appendix T. A safety and health plan is

also developed to ensure that adequate precautions and planning for onsite activities. This

portion of the plan must adhere to the Occupational Safety and Health Administration (OSHA)

regulations in 29 CFR Parts 1910 (General Industry Standards) and 1926 (Construction Safety).

The safety and health plan delineates the roles and responsibilities of site personnel, site-specific

hazards, safety precautions, and regional medical response facilities. Contact the facility’s

environment, health, and safety manager for additional information. The overall objective of the

plan is to ensure the safety and health of workers performing confirmation-sampling activities.

The agency must require contractors to have their own OSHA compliant safety program to

comply with OSHA multi-employer work-site regulations.
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August 1998—Chapter 5-4

Element 2, the QAPP, establishes the quality management system for all environmental programs

performed by or for the agency. Specific policies and program requirements involving QA/QC

activities will depend on internal agency policies. A program should be in place to define in detail

how specific QA/QC activities will be implemented during a specific project. The four general

quality assurance elements are:

ß Project management

ß Measurement and data acquisition, including sampling analysis, data handling, and quality

control

ß Assessment and oversight

ß Data validation and usability.

These elements correspond to planning, implementation, and assessment. QA/QC applied to a

project will be commensurate with the following:

ß The purpose driving environmental data collection (e.g., enforcement, research and

development)

ß The type of work to be done (e.g., site characterization, baseline of site conditions)

ß The intended use of the results.

The best means of achieving the appropriate content and level of detail in the quality management

program may be through having the agency’s QA/QC requirements reviewed and confirmed by

the agency’s project manager and documented through a QAPP.

The QAPP is usually submitted with the FSP; it describes the steps and procedures that will be

used to ensure quality information for field sampling and laboratory analysis. The plan usually

demonstrates that:

ß The project technical and quality objectives are identified, and there is concurrence

ß The intended measurements or data acquisition methods are appropriate for achieving

project objectives

ß Assessment procedures are sufficient for confirming that the type and quality of data

needed are obtained

ß Any limitations on the use of the data can be identified and documented.

Both the field (e.g. FSP) and quality (e.g. QAPP) components of the SAP are used as a

management tool to monitor the field and analytical laboratory performance of the Phase II

Confirmation Sampling activities. Typically, a project manager will develop the work-schedule,

milestones, and associated costs based on the requirements identified in these documents. Site

sampling may begin once the SAP has been developed and accepted.

The Phase II Confirmation Sampling contractor will be responsible for completely executing the

field sampling program specified in the SAP and meeting the field, laboratory, and analytic

objectives described in the QAPP. Federal agencies will be responsible for providing oversight
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August 1998—Chapter 5-5

during Phase II Confirmation Sampling activities and coordinating with the contractor and the

landowner to provide site access as appropriate. Federal managers should not provide field

direction to on-site contractors, as this type of activity may compromise the integrity of the

approved SAP. Where unexpected field or technical issues arise during the course of the

sampling activities, federal oversight managers should work with the contractor to amend and

document changes to the SAP and, where necessary, add change orders to the contract.

PHASE II REPORT

The Phase II findings, results, and recommendations must be formally documented in a report.

Typically, the report includes:

ß A summary of the Phase I findings

ß The results of the confirmation sampling and analysis

ß Discussion of potential risk to human health and the environment

ß Discussion of potential remedial alternatives

ß Recommendations for performing follow-on Phase III Site Characterization activities or

concluding the EDDA.

Appendix U is a sample outline/table of contents for a Phase II report.

The report should clearly document the findings and conclusions of the Phase II Confirmation

Sampling. It is essential that the results of the confirmation sampling and analysis be reviewed

against the specifications of the QAPP to ensure that the data are accurate and will support

drawing meaningful conclusions. Data should also be specifically evaluated against the QA/QC

parameters, and the report should show an accounting for all deviations from designated sample

quality standards. Additionally, the sample results must be evaluated against established

Applicable or Relevant and Appropriate Requirements (ARARs) to compare the contaminants

against established permissible levels. ARARs include federal, state and local standards that apply

to the contamination compounds and issues at the site. Additionally, contamination areas may be

compared against appropriate background samples or information to help determine the source

and impacts of the contamination areas.

When contamination is confirmed, the report should document the locations and types of

contamination found and provide the specific contamination levels. Information on the steps and

types of analysis necessary to further investigate the contamination area is often appropriate at

this point and provided in the Phase II report. In the event that the confirmation sampling

determines that no contamination is present, the report should fully document the sampling

activities, analytic results, and justification for determining the contamination is absent or below

levels of concern.

Preliminary identification of remedial alternatives may be included in the Phase II report based on

the types and location of noted contamination. Any estimates will necessarily be precursory, and

intended only to assist in decision making based on best judgment and potential extent of
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August 1998—Chapter 5-6

contamination confirmed in the Phase II. The full range of contamination will not be known until

a comprehensive site investigation (Phase III Site Characterization EDDA) has been completed.

The preliminary remedial alternatives are used to make property management decisions, in

situations such as acquisition, or to form a basis for refinement if site characterization is required,

in situations such as disposal. Examples of some of the more common remediation technologies

are listed in Appendix V.

In addition to the fundamental components of a Phase II report, any deviations from the SAP, the

rationale for deviations, and a strong justification and supporting information for the conclusions

and recommendations are essential. The Phase II report must be reviewed and approved for

content and accuracy by oversight personnel. The Phase II Confirmation Sampling report is the

decision-making tool to assist agency managers in understanding the actual presence of site

contaminants and need to conduct further study through the Phase III. Agency personnel

responsible for property transfer, such as the program manager, property transfer manager, safety,

health and environmental manager, facility engineering, and legal and real estate representatives,

should review the report. Their review must:

ß Evaluate the accuracy of the conclusions and recommendations relative to the data

gathered

ß Determine whether the investigation was actually carried out in accordance with the SAP

ß Ensure consistency between field samples and the QA/QC samples

ß Evaluate the field data against the appropriate and relevant criteria

ß Approve or concur with the conclusions and recommendations in the Phase II report.
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August 1998—Chapter 6-1

CHAPTER 6

PHASE III–SITE CHARACTERIZATION

DESCRIPTION

The Phase III Site Characterization process provides information to agency decision makers

regarding the extent and magnitude of contamination liability. This phase is initiated when a

subject property is of continuing interest to the agency, and the Phase II Environmental Due

Diligence Audit (EDDA) results confirmed contamination at concentration levels equal to or

above regulatory limits or risk levels. During Phase III, site contamination is fully characterized

and cleanup alternatives are developed. This is the final step in the EDDA process; thus, any

subsequent remediation activities follow solely Resource Conservation and Recovery Act

(RCRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),

or other statutory and regulatory processes.

Continuing a property investigation through Phase III Site Characterization is extremely rare in

proposed acquisition or lease initiation transactions. Such actions would be motivated only by

steadfast agency interest, probable funding reimbursement, and estimated cost of cleanup to

overall property value. Conversely, when the agency owns the property or is otherwise

responsible for the contamination, prior to disposal or lease termination the agency will inevitably

be required to conduct a Phase III Site Characterization or a regulatory equivalent. (Refer to

Figures 3-3 and 3-4 for Phase III decision making for acquisition and disposal scenarios.)

Much like the Phase II Confirmation Sampling process, Phase III Site Characterization consists of

numerous activities. The Phase III process builds on previously generated information to develop

a comprehensive assessment of all site contamination areas. Appropriate cleanup standards must

also be identified, based on the site-specific human health risk, ecological risk, or regulatory

requirements. Information on the nature (i.e., type of contaminants found) and the extent (i.e.,

magnitude across media) of site contamination are also used in the Phase III process to develop

and recommend cleanup technology alternatives.

Phase III activities include the following; discussion of each of these activities is provided in

subsequent paragraphs.

ß Review and evaluation of the Phase II report

ß Development and implementation of a Sampling and Analysis Plan (SAP) to fully

characterize contamination at the site

ß Assessment of risk and future land-use options

ß Evaluation and selection of remedial alternatives

ß Development of the Phase III report.

Phase III Site Characterization activities are conducted by independent contractors experienced in

site characterization and remediation. The selection of Phase III contractors is based on the
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August 1998—Chapter 6-2

contractors’ qualifications, experience, and ability to conform to the contractor procurement

specifications (see Appendix S for a list of qualifications).

REVIEW AND EVALUATION

Phase II report information provides the necessary background and building blocks for designing,

planning, and performing Phase III Site Characterization activities. As such, it is important for

the agency technical reviewers and the Phase III contractors to review and evaluate the contents

of the Phase II Confirmation Sampling report.

DEVELOPMENT AND IMPLEMENTATION OF A FULL CHARACTERIZATION SAP

The Phase III full characterization SAP is similar to the SAP process described for Phase II. Both

contain a project management plan, a safety and health plan, sampling and analysis procedures,

and Quality Assurance and Quality Control (QA/QC) requirements for the Quality Assurance

Project Plan (QAPP). (For the full discussion of these SAP elements, refer to Chapter 5 of this

document.)

The major difference between Phase II Confirmation Sampling and the Phase III SAP is the

objective. The objective of the Phase II SAP is to confirm the presence of contamination. The

objective of the Phase III SAP is to determine the extent and severity of the contamination, and to

provide the technical basis for establishing a site cleanup strategy. Due to the expanded objective

of the Phase III SAP, the scope and number of samples collected will likely increase during this

phase of the EDDA process, and result in higher costs. Additionally, the Phase III SAP will

typically call for higher resolution sampling and analytic procedures to evaluate performance limits

of potential cleanup technologies. Extreme care and professional judgment must be exercised to

ensure excessive sampling is not performed and excessive costs are not incurred. As in Phase II,

the QAPP elements in the SAP need to be implemented in proportion to the project.

Contractor-developed SAPs are submitted to the agency for review and approval. Once

approved, the contractor initiates site activities, and samples are collected and sent to a laboratory

for analysis. Rigorous and documented sampling procedures (refer to Appendix T for a

description of the procedures) should be followed to ensure the results of the sampling are

accurate and representative of site conditions.

When the analytical results from the sampling are obtained, they are compiled and analyzed. This

information is used to determine the nature and extent of site contamination, and to assess the risk

posed to human health and the environment from the contamination.

RISK ASSESSMENT AND FUTURE LAND-USE OPTIONS

The analytical results provide the data needed to assess the risk posed to potential human and

ecological receptors. These data, in turn, can be used to develop appropriate risk-based cleanup

levels in the absence of specific media criteria. Acceptable risk levels are typically in the 10-4 to
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August 1998—Chapter 6-3

10-6 (one-in-100,000 to one-in-a-million) range for potentially impacted populations. The risk

assessment depends on source characterization, exposure assessment, dose-response evaluation,

and risk characterization. A description of each of these components is provided in the following

list.

ß Source characterization—Identifies the contaminants of concern and their rates of release.

ß Exposure assessment—Identifies the potentially exposed populations, pathways of

exposure, and the extent of exposure.

ß Dose-response evaluation—Assesses the type of effects that could occur and the

magnitude of the effects.

ß Risk characterization—Determines the amount of exposure involved, its associated risks,

and the relative significance of the risk.

Each of these components must be evaluated to determine the overall risk posed to human and

ecological receptors.

Often the CERCLA (or Superfund) process is the applicable regulation for federal site

contamination. As such, when assessing risk during Phase III activities it is appropriate to

reference the following Environmental Protection Agency (EPA) guidance documents (which can

be obtained by calling the Superfund Hotline at 1-800-424-9346 or by contacting the US National

Technical Information Service (NTIS)).

ß Risk Assessment Guidance for Superfund, Volume I: Human Health Evaluation Manual

(Parts A, B and C) provides guidance for developing human health risk information at

Superfund sites.

ß Risk Assessment Guidance for Superfund, Volume II: Environmental Evaluation Manual

provides guidance for developing environmental assessments at Superfund sites.

In addition, EPA recently published the Revised Guidelines for Ecological Risk Assessment

(NTIS Publication PB98-117849), which provides a framework for evaluating past and future

impacts to ecological resources. Effective April 30, 1998, this guidance may be useful in

determining ecological-based cleanup goals or assessing the potential impact of selected remedial

actions at a site.

Depending on the types of contaminants involved and the information available, risk assessments

can be qualitative or quantitative. Although quantitative risk assessments are normally performed,

qualitative risk assessments may be required if (1) regulators consider it appropriate, (2) cost and

timeliness are an issue, (3) toxicity data on chemicals are not available, or (4) some other

phenomena are not quantifiable. When conducting qualitative risk assessments, risk-management

decisions must be based on prudence and best professional judgment.

Future land-use options are also considered when determining risk. There are four commonly

recognized future land-use options: industrial-commercial, agricultural, recreational, and

residential. When considering the impacts of future land-use on the overall risk of the property,

the industrial-commercial option is usually the least conservative, whereas the residential option is
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August 1998—Chapter 6-4

the most conservative. Future land-use options must be evaluated in conjunction with risk to

determine the appropriate level of risk reduction and cost effectiveness during the cleanup

process. Keep in mind that EPA, state and local environmental regulatory agencies often select

the most restrictive land-use option—the residential scenario—in setting and approving risk-based

cleanup goals.

REMEDIAL ALTERNATIVES, EVALUATION AND SELECTION

Remedial alternatives are screened against evaluation criteria to reduce the number of remedial

alternatives available for selection and implementation. (See Appendix V for a sample listing of

remedial technologies.) Only the remedial alternatives most representative of the evaluation

criteria should be place on the short-list of alternatives. In general, the evaluation criteria consist

of the following:

ß Overall protection of human health and the environment

ß Compliance with Applicable or Relevant and Appropriate Requirements (ARARs)

ß Long-term effectiveness and permanence

ß Reduction of toxicity, mobility, or volume through treatment

ß Short-term effectiveness

ß Ability to implement

ß Cost

ß State acceptance

ß Community acceptance.

Developing and assessing a (simple to complex) range of technically appropriate alternatives is

important to evaluate their relative feasibility. The short-list of remedial alternatives may include

the following: no action (i.e., natural attenuation), institutional controls (such as deed restrictions

or perpetual federal ownership), technological solutions (involving remedial, demolition, or

decontamination activities), or some combination of these.

Using the preceding criteria, the contractor-proposed short-list of applicable alternatives is

evaluated by the agency. The ultimate solution for the site, however, must be selected in

coordination with regulators and with consideration to public concerns. (See Chapter 3 for

additional discussion on the regulation of contaminated sites.)

PHASE III REPORT

The Phase III report documents all pertinent site information in one place for agency decision

makers, including: the nature and extent of contamination, activities performed, risk assessment

results, cleanup goals, remedial alternatives, and recommendations. Specifically, the Phase III

Site Characterization report should be a comprehensive statement delineating:

ß Prior site activities

ß Efforts leading up to site characterization.

ß Sampling rational and activities
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ß Final sampling results, clearly displayed with a complete vertical and horizontal

distribution of site contaminants and concentrations

ß A comparison of these results to site ARARs, background levels, or risk-based action

levels

ß Appropriate cleanup goals

ß Results from the analysis of applicable cleanup alternatives

ß Recommended alternatives and their rational, technical implementation issues, and costs

The Phase III report will constitute the guideline and technical basis for any further (and possibly

costly) remediation activity planned at the site, and as such, must be closely reviewed and

understood by agency technical staff and decision makers.

Appendix W contains a suggested outline of the Phase III report.
APPENDIX A

LIST OF ACRONYMS

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List of Acronyms

ACM Asbestos-Containing Materials

ARARs Applicable or Relevant and Appropriate Requirements

AST Aboveground Storage Tank

ASTM American Society for Testing and Materials

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act

CERCLIS Comprehensive Environmental Response, Compensation, and Liability Information

System

CERFA Community Environmental Response Facilitation Act

CFR Code of Federal Regulations

CWA Clean Water Act

EA Environmental Assessment

EBS Environmental Baseline Survey

EDDA Environmental Due Diligence Audit

EDDP Environmental Due Diligence Process

EO Executive Order

EPA Environmental Protection Agency

EPCRA Emergency Planning and Community Right-to-Know Act

ERNS Emergency Response Notification System

ESA Endangered Species Act

FSP Field Sampling Plan

GSA General Services Administration

IDEA Integrated Data for Enforcement Analysis

MSDS Material Safety Data Sheet

NEPA National Environmental Policy Act

NHPA National Historic Preservation Act

NPDES National Pollutant Discharge Elimination System

NPL National Priorities List

NRC Nuclear Regulatory Commission

NTIS National Technical Information Service

OPA Oil Pollution Act

OSHA Occupational Safety and Health Administration
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List of Acronyms

(Continued)

P2 Pollution Prevention

PCB Polychlorinated Biphenyl

PE Professional Engineer

PG/PH Professional Geologist / Professional Hydrologist

POTW Publicly Owned Treatment Works

PPE Personal Protective Equipment

ppm Parts Per Million

PRP Potentially Responsible Party

QA/QC Quality Assurance/Quality Control

QAPP Quality Assurance Project Plan

RCRA Resource Conservation and Recovery Act

RCRIS RCRA Information System

SAP Sampling and Analysis Plan

SCS Soil Conservation Service

SETS Site Enforcement Tracking System

SFFAS Statement of Federal Financial Accounting Standards

SFI Sanborne Fire Insurance

SHEM Safety, Health and Environmental Management

SPCC Spill Prevention, Control and Countermeasures

TSCA Toxic Substance Control Act

TSDF Treatment, Storage, or Disposal Facility

USDA United States Department of Agriculture

USGS United States Geological Survey

UST Underground Storage Tank
APPENDIX B

EPA EARLY TRANSFER GUIDANCE

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

JUN 16 1998

OFFICE OF

SOLID WASTE AND EMERGENCY

RESPONSE

MEMORANDUM

SUBJECT: Transmittal of “EPA Guidance on the Transfer of Federal Property by Deed

Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA

Section 120(h)(3)”

FROM: Timothy Fields, Jr.

Acting Assistant Administrator

TO: Superfund National Program Managers, Regions I-X

Office of Regional Counsel, Regions I-X

This memorandum transmits the “EPA Guidance on the Transfer of Federal Property by

Deed Before All Necessary Remedial Action Has Been Taken Pursuant to CERCLA Section

120(h)(3),” otherwise known as the Early Transfer Guidance. This guidance is for the EPA

Regions to use when reviewing requests from federal departments and agencies that are

transferring property to defer the CERCLA Section 120(h)(3) covenant that all necessary

remedial actions have been taken.

EPA is fully supportive of the early transfer process. When a transferee agrees to conduct

the response action, this new authority provides other federal departments and agencies with an

opportunity to secure cleanup by having other non-federal parties conduct cleanup. This could

yield significant benefits to human health and the environment and savings to the taxpayer. In all

instances, however, the landholding federal agency remains responsible for cleanup.

The Early Transfer Guidance benefits from the input of an interagency workgroup

composed of EPA, the Department of Defense, the Department of Energy, and the General

Services Administration. The interagency workgroup discussed several issues related to early

transfer that are covered in this policy. Earlier versions of the guidance were also shared with

ASTSWMO. This is, however, an EPA policy, not an interagency product.

The guidance establishes a process by which an EPA regional office should review an

early transfer request. This process begins with the transferring federal agency submitting

information of a sufficient quality and quantity to EPA which will support its request for a deferral

and provide a basis for EPA to make its determination. This information should be submitted to

EPA in the form of a Covenant Deferral Request (CDR). At base closure sites where an early

transfer is being sought, EPA anticipates that the Base Closure Team, including the EPA

representative, will work together in drafting the CDR to expedite the transfer.
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Finally it is important to note that states play an important role in this process regardless

of whether the parcel under review is on the National Priority List Federal Facility or not. States

must also concur on the early transfer.

I believe this Early Transfer Guidance provides useful information to the Regions to assist

federal departments and agencies in expediting the early transfer of property. If you have any

questions regarding this guidance, please contact the Federal Facilities Restoration and Reuse

Office at (202) 260-9924.

Attachment

cc: Craig Hooks, Federal Facilities Enforcement Office

Lisa Friedman, Office of General Counsel

Kathy Gorospe, American Indian Environmental Office

Federal Facility Leadership Council

Defense Environmental Restoration Task Force

Sherri W. Goodman, Department of Defense

Raymond Fatz, Department of Army

Ellsie Munsell, Department of Navy

Thomas McCall, Jr., Department of Air Force

Al Lowas, Air Force Base Conversion Agency

James Owendoff, Department of Energy

Jim Fiori, Department of Energy

Robert DeGrasse, Department of Energy

Willie Taylor, Department of Interior

Brian Polly, General Services Administration

Tom Kennedy, Association of State and Territorial Solid Waste Management Officials

Stan Phillipe, Association of State and Territorial Solid Waste Management Officials

Jerry Pardilla, National Tribal Environmental Council
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EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial

Action Has Been Taken Pursuant to CERCLA Section 120(h)(3) -- (Early Transfer

Authority Guidance)

I. PURPOSE

This guidance addresses the transfer by deed, under Section 120(h)(3)(C) of the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA), of real property listed on

the National Priorities List (NPL) held by a federal agency (landholding federal agency1) where

the release or disposal of hazardous substances has occurred, but where all necessary remedial

action has not yet been taken. This document provides guidance to the EPA Regions that have

received a request from a landholding federal agency for the deferral of the covenant mandated by

CERCLA Section 120(h)(3)(A)(ii)(I) that all necessary remedial action has been taken prior to the

date of transfer. This guidance establishes EPA’s process to determine, with the concurrence of

the Governor, that the property is suitable for transfer prior to all necessary remedial action being

taken.

II. EPA’s REQUIREMENTS FOR APPROVING A DEFERRAL REQUEST

When a federal agency transfers to another person (i.e., an entity other than another federal

agency) real property on which hazardous substances have been stored for one year or more,

known to have been released, or disposed of, the deed must contain a covenant warranting that

“all remedial action necessary to protect human health and the environment with respect to any

such substance remaining on the property has been taken before the date of transfer” (the

CERCLA 120(h)(3)(A)(ii)(I) Covenant) and that “any additional remedial action found to be

necessary after the date of the transfer shall be conducted by the United States.”2 EPA, with the

concurrence of the Governor of the State in which the facility is located, may defer the CERCLA

Covenant for parcels of real property at facilities listed on the NPL.3

The Agency’s general current view is that it will seek the concurrence of federally recognized

Indian tribes for purposes of determining whether the covenant requirement under CERCLA

120(h) should be deferred pursuant to CERCLA 120(h)(3)(C) for property located in Indian

country within tribal jurisdiction. However, the Agency will only make a final determination as to

 

1

 A landholding federal agency is the federal agency that holds custody and accountability for the

property on behalf of the United States. 41 CFR 101-47.103.7

2

 CERCLA Section 120(h)(3)(A)(ii) sets forth the two components of the covenant that shall be

contained in each deed. For purposes of this policy and the request for deferral, the term

“CERCLA Covenant” refers only to the first component contained in Section

120(h)(3)(A)(ii)(I).

3

 For non-NPL sites, the Governor of the State in which the facility is located may defer the

CERCLA Covenant.
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the appropriate tribal role under CERCLA 120(h)(3)(C) in the context of an actual Covenant

Deferral Request made for property located in Indian country within tribal jurisdiction. The

Agency’s determination should be made in light of the specific facts and circumstances

surrounding a particular Covenant Deferral Request. If the EPA Regional office receives a

Covenant Deferral Request concerning a transfer of property that is located in Indian country with

tribal jurisdiction, the EPA Regional office should contact EPA Headquarters, the American

Indian Environmental Office and the Federal Facilities Restoration and Reuse Office, for specific

guidance.

In order for EPA to defer the covenant requirement, CERCLA Section 120(h)(3)(C)(I)(I)-(IV)

requires that EPA determine that the property is suitable for transfer based on a finding that:

1. the property is suitable for transfer for the use intended by the transferee, and the intended

use is consistent with protection of human health and the environment;

2. the deed or other agreement proposed to govern the transfer between the United States

and the transferee of the property contains the Response Action Assurances described in

section IV of this guidance;

3. the federal agency requesting deferral has provided notice, by publication in a newspaper

of general circulation in the vicinity of the property, of the proposed transfer and of the

opportunity for the public to submit, within a period of not less than 30 days after the date

of the notice, written comments on the suitability of the property for transfer; and

4. the deferral and the transfer of the property will not substantially delay any necessary

response action at the property.

These findings are intended to assure that there is a sound basis for the proposed transfer based

on the finding that the particular reuse of the property identified by the transferee does not pose

an unacceptable risk4 to human health or the environment. As stated in Section 120(h)(3)(C)(iv),

all statutory obligations required of a federal agency remain the same, regardless of whether the

property is transferred subject to a covenant deferral.

III. APPLICABILITY AND SCOPE

This guidance applies to all early transfers by deed under CERCLA Section 120(h) of

contaminated real property owned by a federal agency and listed on the National Priorities List

 

4

 See, 40 CFR 300.430(d)(4) and U.S. EPA 1989a. Risk Assessment Guidance for Superfund

(RAGS): Volume 1: Human Health Evaluation Manual (HHEM), Part A, Interim Final and

Part B, Development of Risk-Based Preliminary Remediation Goals. Office of Emergency and

Remedial Response, Washington, D.C. EPA /540/1-89/002, NTIS PB90-155581/CCE and

Publication 9285.7-01B NTIS PB92-963333.
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(NPL), regardless of the statutory authority underlying a cleanup, including transfers of property

at DoD installations selected for closure or realignment.

This guidance does not apply to federal-to-federal transfers of property or to transfers of

uncontaminated property. A federal agency that is sponsoring a public benefit conveyance may

use this guidance as a model for obtaining useful information. Under a public benefit conveyance,

a sponsoring federal agency acts as a conduit through which title will ultimately pass from the

United States to a public benefit recipient. For further information regarding the relationship

between a sponsoring federal agency and the Department of Defense (DoD) for Base Realignment

and Closure (BRAC) property (a landholding federal agency), please see the Memorandum of

Agreement signed by DoD and the federal agencies that sponsor public benefit transfers (dated

April 21, 1997).

IV. GUIDANCE

EPA should generally not consider deferral of the covenant request for real property unless the

landholding federal agency submits a Covenant Deferral Request (CDR) containing the

information recommended by this guidance.

While the statute does not explicitly require a signed Interagency Agreement (IAG) to be in place

as a prerequisite for deferring the covenant requirement, EPA believes that the existence of an

IAG will significantly aid the Agency in making the covenant deferral decision.

A. Covenant Deferral Request

As discussed in Section II, EPA may defer the CERCLA Section 120(h)(3) covenant

requirement if EPA determines that a property is suitable for transfer based on certain

findings. To commence the process, the landholding federal agency should submit

information of a sufficient quality and quantity to EPA to support its request for deferral and

provide a basis for EPA to make its determination. This information should be submitted to

EPA in the form of a Covenant Deferral Request (CDR). EPA should consider a CDR

complete when it includes all of the following components.

1. Property Description

A legal description of the real property or sufficient information which clearly

identifies the property for which the CERCLA Covenant is requested to be deferred.
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2. Nature/Extent of Contamination

A description of the nature and a

real extent of contamination (with

supporting documentation) which

affects the property to be

transferred and which will not be

remediated prior to transfer. There

is a presumption that the Covenant

Deferral Request should include

the results from a completed

Remedial Investigation (RI) for the

parcel that will be transferred.

However, the landholding federal

agency should have an opportunity

to demonstrate why such data and

findings are not necessary before

the land is transferred. An example

of when this may occur is where

the intended use will be very

similar to or the same as current

use (e.g., airport runways), and

there are already appropriate

access controls, institutional

controls, etc. in place or response actions have mitigated exposure (e.g., removals). In

such instances these actions should prevent the creation of new exposure pathways or

create conditions already protective.

When determining what information is necessary, the EPA Region should take into

consideration, at a minimum, the degree of uncertainty regarding the nature and extent

of contamination; the future use of the property prior to completion of the response

action; who is to perform future work; and any existing information or data on the

parcel under consideration. Generally, the greater the uncertainty about any of these

factors, the more information the EPA Region may require to make the determination.

As noted below, the landholding Federal agency remains responsible for all necessary

response actions including the remedial investigation and the cleanup remains subject

to the requirements of Section 120.

3. Analysis of Intended Land Use During the Deferral Period

A description of the intended land use of the property during the deferral period and

an analysis of whether the intended use is reasonably expected to result in exposure to

CERCLA hazardous substances at sites where response actions have not been

completed. This analysis should be based on the environmental condition of the

property and should consider the contaminant(s), exposure scenarios, and potential

Contents of the Covenant Deferral

Request (CDR)

• Property Description

• Nature/Extent of Contamination

• Analysis of Intended Future Land

Use

• During the Deferral Period

• Risk Assessment

• Response/Corrective Action

Requirements

• Operation and Maintenance

Requirements

• Contents of Deed

• Responsiveness Summary

• Transferee Response Action

Assurances and Agreements
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and actual migration pathways that may occur during the future use. Where a

potential or actual unacceptable exposure to hazardous substances is identified, the

analysis should identify what response actions should be taken to prevent such

exposure. Treatment, engineering controls and use restrictions (see Section 6.d -

Response Action Assurances), may be considered as a means of limiting unacceptable

exposures to hazardous substances while allowing for property reuse. Any other

response actions necessary to protect human health and the environment should be

included in the deed (or other agreement governing the transfer) as described in

Subsection 6 of this policy. The land use during the deferral period cannot be

inconsistent with any necessary response actions.

4. Results From A Risk Assessment

Results from a CERCLA risk assessment, taking into consideration reasonably

anticipated future land use assumptions. There is a presumption that the Covenant

Deferral Request include the results from a completed risk assessment, as defined in

the National Continency Plan (NCP) and EPA guidance. However, the landholding

federal agency should have an opportunity to demonstrate why a risk assessment does

not have to be completed before the land is transferred.

When determining whether a completed risk assessment is needed before the early

transfer, the EPA Region should take into consideration, at a minimum, the degree of

uncertainty regarding the potential risks posed by the contamination; existing analyses;

certainty about future use; and who is conducting the response. The greater the

uncertainty about the risk from the contamination, the more information EPA may

require. As noted below, the landholding Federal agency remains responsible for all

necessary response actions, including the risk assessment.

In the absence of the completed risk assessment, at a minimum, EPA Regions should

examine potential exposure(s) during the deferral period, taking into account any

proposed restrictions to ensure the protectiveness of human health and the

environment.

5. Response/Corrective Action and Operation and Maintenance Requirements

A description of any ongoing or planned response or corrective action, including a

projected milestone date for the selection and completion of the action, and/or

projected date for the demonstration that a remedial action is “operating properly and

successfully.” Also, it will be necessary to provide adequate information regarding

ongoing or planned response actions and operation and maintenance of the response or

corrective action.
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6. Contents of Deed/Transfer Agreement

a. Notice

A copy of the notice to be included in the deed as required by CERCLA Section

120(h)(1) and (3) and in accordance with regulations set forth at 40 CFR Part 373.

b. Covenant

A copy of the covenant warranting that any additional remedial action found to be

necessary after the date of transfer shall be conducted by the United States as

required by CERCLA Section 120(h)(3)(A)(ii)(II).

c. Access

A copy of the clause which reserves to the United States access to the property in

any case in which an investigation, response, or corrective action is found to be

necessary after the date of transfer as required by CERCLA Section

120(h)(3)(A)(iii).

d. Response Action Assurances

A copy of the Response Action Assurances that must be included in the deed or

other agreement proposed to govern the transfer as required under CERCLA

Section 120(h)(3)(C)(ii). As required by statute, these assurances shall:

i. provide for any necessary restrictions on the use of the property to ensure the

protection of human health and the environment;

ii. provide that there will be restrictions on the use necessary to ensure that

required remedial investigations, response action, and oversight activities will

not be disrupted;

iii. provide that all necessary response action will be taken and identify the

schedule(s) for investigation(s) and completion of all necessary response

action(s) as approved by the appropriate regulatory agency; and

iv. provide that the landholding federal agency has or will obtain sufficient funding

through either: (a) submission of a budget request (or budget requests in the

event multi-year funding is needed) to the Director of the Office of

Management and Budget that adequately addresses schedule for investigation

and completion of all necessary response action, subject to congressional

authorizations and appropriations; or (b) sufficient current appropriations to

accomplish investigation(s) and completion(s) of all necessary response

action(s). In addition to (a) or (b), the landholding federal agency may also
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have an agreement with the transferee to fund and/or accomplish all or part of

the remediation.

The Response Action Assurances should include a description of requirements to

assure the protectiveness of the response action and shall specify the mechanisms

for assuring that such measures remain effective. These measures should reflect

discussions among the reuse entity, the community, the landholding federal agency

and any appropriate federal, State, or local government.

7. Responsiveness Summary

The final CDR should include a response to comments document which contains the

landholding federal agency’s responses to the written comments received during the

public comment period under Section 120 (h)(3)(C)(I)(III) and to the written

comments received from the regulatory agencies on the draft CDR.

8. Transferee Response Action Assurances and Agreements

A transferee may agree to conduct response actions on the property. However, the

landholding Federal agency remains responsible for ensuring that all necessary

response actions including, as appropriate, investigations and requirements under an

IAG are done.

When property is transferred prior to completion of the cleanup, the landholding

federal agency should include in each deed provisions notifying the transferee of the

requirement for, and status of, an Interagency Agreement or other enforceable

environmental cleanup agreement or order, as appropriate.

The landholding federal agency should also notify the transferee that EPA and the

State and their agents, employees and contractors, will have rights of access as

necessary to implement response actions and oversight responsibilities at the facility.

Where the transferee has agreed to fund and conduct the cleanup or portions of the

cleanup as a condition of the transfer, the landholding federal agency should provide to

EPA documentation demonstrating that the transferee has or will become legally

obligated to conduct the required response actions in accordance with the existing

IAG. Should the transferee become unable or unwilling to complete the cleanup or

order under its agreement with the landholding federal agency, EPA expects the

landholding federal agency will complete the cleanup. Nothing in this guidance shall

be interpreted to affect EPA’s or the landholding federal agency’s authority or

responsibility under CERCLA or any other federal statute to enforce the terms and

conditions of an existing IAG or to limit EPA’s authority to impose requirements

necessary to protect public health and the environment.
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If the transferee is expected to perform any response action (e.g., excavation of

contaminated soil in an area where facilities are to be constructed), then EPA should

receive assurance from the landholding federal agency that the transferee has:

a. the technical capacity (in-house or through appropriate contract management)

to perform anticipated investigations and response or corrective actions; and

b. the financial capacity to execute environmental cleanup activity requirements

that are known or can reasonably be anticipated, based on current information

available.

Financial capacity may be an especially sensitive area for a transferee and/or the

landholding federal agency. While the assurance does not need to contain the actual

documentation of the financial capacity, the EPA Region may request such information

from the landholding federal agency if there are questions in this regard.5 Any

proprietary or confidential business information should be handled as required under

Federal regulations.

If the landholding federal agency submits information supporting the technical and

financial assurances, but the EPA Region disagrees with the adequacy of such

assurances, and they cannot resolve their differences, there will be the opportunity to

elevate the disagreement to the federal agency headquarters and EPA Headquarters.

The EPA Region should contact the Federal Facilities Restoration and Reuse Office in

OSWER and the federal agency should elevate the issue to its headquarters

component when resolution cannot be reached at the Senior Manager level. EPA

Headquarters and the headquarters of the landholding federal agency will resolve the

disagreement in an expeditious fashion so as not to delay transfer.

The transferee should agree to conduct all necessary environmental response actions in

accordance with CERCLA and the National Contingency Plan (NCP). In the case

where the transferee does not perform cleanup in accordance with CERCLA and the

NCP or the terms of a cleanup agreement, then the United States may enter the

property and perform any necessary response action.

B. Process for Requesting Covenant Deferral

Before preparing a CDR, the landholding federal agency should notify the Administrator

of EPA or designee and the Governor of the State of the intent to request a CERCLA

 

5

 Financial capacity may be demonstrated through, but not limited to: reasonably anticipated cash

flows, existence of appropriate insurance, posting of a construction/ indemnity bond, authority

of the transferees to issue revenue bonds for such purpose, or assets, excluding the real

property to be transferred. Obtaining a security interest in the transferee's assets may be used as

a means of assuring project completion.
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Covenant Deferral and invite participation in the development and review of the draft

CDR. This notice should allow sufficient time for EPA, and State agencies, to participate

in the development and review and comment on a draft CDR.

As required by Section 120(h)(3)(C)(I)(III), the landholding federal agency must provide

notice, by publication in a newspaper of general circulation in the vicinity of the property,

of the proposed transfer. The notice should include:

1. The identity of the property proposed for transfer, the proposed transferee and the

intended use of the property;

2. A statement that the property is listed on the National Priorities List and that the

proposed transfer is pursuant to CERCLA 120(h)(3)(C) which allows the transfer of

federal property before remedial action is completed when certain conditions are

satisfied;

3. An assessment of whether the transfer is consistent with protection of human health

and the environment will be made only after a comprehensive evaluation of the

environmental condition of the property in consultation with the U.S. EPA and the

appropriate State agencies;

4. A summary of the decision-making process, e.g., that the property will not be

transferred until U.S. EPA determines, with the Governor’s concurrence, that the

transfer of the property for use as intended is consistent with protection of human

health and the environment and that the federal agency has provided assurance that

response actions will be taken;

5. The address and telephone number of the agency office which may be contacted for

obtaining a copy of the draft Covenant Deferral Request, site-specific information and

the address of the location of the administrative record for the response program; and

6. A statement that interested members of the public may comment on the suitability of

the property (the draft Covenant Deferral Request) for transfer and must submit such

comments to the agency before a date not less than 30 days from the date of the

publication of the notice.

It is also recommended that the draft CDR be made available to any existing Restoration

Advisory Boards (RAB), Site Specific Advisory Boards (SSAB), affected local

governments, and/or other interested community-based groups. Specific efforts should be

made to involve tribes surrounding the property that is to be transferred. As stated in the

notice requirement, the public shall be provided with at least a 30 day period in which to

submit comments on the suitability of the property for transfer. It may be appropriate

under certain circumstances (i.e., large and/or complicated land transfers) to extend the

public comment period beyond 30 days.
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After the public comment period has expired, the landholding federal agency may then

submit the final CDR to the appropriate EPA Regional office and State representative.

Property cannot be transferred by deed until the CERCLA Covenant is explicitly deferred

by EPA and the State. The request to defer the CERCLA Covenant should be made

simultaneously to the EPA and the State. EPA and the State should work closely to

assure careful evaluation of the request. EPA Regional offices are encouraged to take

steps to streamline the coordination process to avoid unnecessary delay.

C. Completion of Response Actions After Transfer

When all response actions necessary to protect human health and the environment have

been taken, e.g., when there has been a demonstration to EPA that the approved remedy is

“operating properly and successfully6“ pursuant to CERCLA Section 120(h)(3)(B)

(regardless of whether the landholding federal agency or the transferee has taken the

action), the landholding federal agency shall execute and deliver to the transferee an

appropriate document containing a warranty that all such response action has been taken.

This warranty will satisfy the requirement of CERCLA Section 120(h)(3)(A)(ii)(I).

V. NOTICE

This guidance and internal procedures adopted for implementation are intended solely as policy

for employees of the US EPA. Such guidance and procedures do not constitute rule making by

the Agency and do not create legal obligations. The extent to which EPA applies this guidance

will depend on the facts of each case.

 

6

 See, “Guidance for Evaluation of Federal Agency Demonstrations That Remedial Actions Are

Operating Properly and Successfully Under CERCLA Section 120(h)(3),” August 1996, NTIS

PB97-143770; http://www.epa.gov/swerffrr.
APPENDIX C

TERMS AND DEFINITIONS

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Terms and Definitions

Abandonment or Destruction

A method of disposing of surplus personal property which usually involves leaving the property at

its original location and site, or taking action to relocate the property to a public or private dump

where it is normally crushed, burned, or buried. This method is not permitted for hazardous

materials.

Aboveground Storage Tank (AST)

All tanks not classified as underground storage tanks, or tanks and associated piping that are more

than 90 percent, by volume, aboveground.

Acquisition

The act of becoming the owner or holder of an interest in certain real property.

Blank Samples

A sample of distilled, de-ionized, contaminant-free water is collected, containerized, treated, and

handled in the same manner as the samples. Blanks are used as an indicator of sample

contamination throughout the entire process.

CERCLIS

Comprehensive Environmental Response, Compensation, and Liability Information System,

EPA’s database and management system that inventories and tracks releases addressed or needing

to be addressed by the Superfund program.

Cleanup

Actions taken to deal with a release or threat of release of a hazardous substance that could affect

humans and/or the environment. The term ‘cleanup’ is sometimes used interchangeably with the

terms remedial action, removal action, response action, or corrective action.

Composite Sample

A series of samples taken over a period of time or at multiple spots, which are combined and

treated as one. Composite samples may give an average concentration or composition.

Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA), as amended

Imposes on property owners and operators strict, joint and several liability for environmental

damage, and provides a limited defense for innocent landowners. The Act also provides EPA

with funding and enforcement authority for responding to hazardous substance spills, and for

cleaning up high-risk, non-federal hazardous waste sites in the United States.

Decommissioning

The process of removing a facility from operation. It may include decontaminating entombing,

dismantling, or converting to another use.
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Terms and Definitions

(Continued)

Decontamination

The removal of harmful substances (such as radioactive material or hazardous material residue)

from exposed individuals, facilities, furnishings, soils, or equipment by washing, chemical action,

mechanical cleaning, or other techniques.

Disposal

ß of Wastes—Final placement or destruction of toxic, radioactive, or other wastes; surplus

or banned pesticides or other chemicals; polluted soils; and drums containing hazardous

materials from removal actions or accidental releases. Disposal may be accomplished

through use of approved secure landfills, surface impoundments, land farming, deep-well

injection, ocean dumping, or incineration.

ß of Personal Property—The act of discarding or relinquishing responsibility and control

over excess or surplus property in accordance with appropriate Government regulations

through transfer, donation, sale, abandonment or destruction. (Note: generators of

hazardous waste can be held liable for improper disposal.)

ß of Real Property—The transfer of title and ownership of real property to another party.

Duplicate Samples

A second sample, collected at the same time from the same location, that is treated the same as

the original sample in order to determine the precision of the analytical method.

Ecological Risk Assessment

The application of a formal framework, analytical process, or model to estimate the effects of

human actions(s) on a natural resource and to interpret the significance of those effects in light of

the uncertainties identified in each component of the assessment process. Such analysis includes

initial hazard identification, exposure and dose-response assessments, and risk characterization.

Effluent

Wastewater—treated or untreated—that flows out of a treatment plant, sewer, or industrial

outfall. Generally refers to wastes discharged into surface waters.

Emergency Planning and Community Right-to-Know Act (EPCRA)

Title III of the Superfund Amendments and Reauthorization Act (SARA), which calls for facilities

to report toxic releases and to submit information to state and local communities the develop

chemical emergency plans. The regulations govern planning and notification, emergency

notification and community right-to-know.
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Terms and Definitions

(Continued)

Emission

Pollution discharged into the atmosphere from smokestacks, other vents, and surface areas of

commercial or industrial facilities; from residential chimneys; and from motor vehicle, locomotive,

or aircraft exhausts.

Endangered Species

Animals, birds, fish, plants, or other living organisms threatened with extinction by anthropogenic

(man-caused) or other natural changes in their environment. Requirements for declaring a species

endangered are contained in the Endangered Species Act (ESA).

Endangerment Assessment

A study to determine the nature and extent of contamination at a site on the National Priorities

List and the risks posed to public health or the environment. EPA or the state conducts the study

when a legal action is to be taken to direct potentially responsible parties to clean up a site or pay

for it. An endangerment assessment supplements a remedial investigation.

Enforcement

EPA, state, or local legal actions to obtain compliance with environmental laws, rules, regulations,

or agreements and/or obtain penalties or criminal sanctions for violations. Enforcement

procedures may vary, depending on the requirements of different environmental laws and related

implementing regulations. Under CERCLA, for example, EPA will seek to require potentially

responsible parties to clean up a Superfund site, or pay for the cleanup, whereas under the Clean

Air Act the Agency may invoke sanctions against cities failing to meet ambient air quality

standards that could prevent certain types of construction or federal funding. In other situations,

if investigations by EPA and state agencies uncover willful violations, criminal trials and penalties

are sought.

Environment

The sum of all external conditions affecting the life, development and survival of an organism.

Environmental Assessment

An environmental analysis prepared pursuant to the National Environmental Policy Act (NEPA)

to determine whether a federal action would significantly affect the environment and thus require

a more detailed environmental impact statement.

Environmental Audit

An independent assessment of the current status of a party's compliance with applicable

environmental requirements or of a party's environmental compliance policies, practices, and

controls.
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Terms and Definitions

(Continued)

Environmental Baseline Survey (EBS)

A Department of Defense process to document environmental conditions for subject property and

comply with CERFA requirements. An EBS is used by DoD as a foundation document for base

closures, and related cleanup. There are two types of EBSs, base-wide and site-specific. The

EBS can facilitate re-use decisions and provide information about parcels that require further

investigation.

Environmental Equity/Justice

Equal protection from environmental hazards for individuals, groups, or communities regardless

of race, ethnicity, or economic status. This applies to the development, implementation, and

enforcement of environmental laws, regulations, and policies, and implies that no population of

people should be forced to shoulder a disproportionate share of negative environmental impacts

of pollution or environmental hazard due to a lack of political or economic strength levels. The

requirements for federal agencies to address Environmental Justice issues are stipulated in

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority

Population and Low-Income Populations.”

Environmental Impact Statement

A document required of federal agencies by the National Environmental Policy Act (NEPA) for

major projects or legislative proposals significantly affecting the environment. A tool for decision

making, it describes the positive and negative effects of the undertaking and cites alternative

actions.

Environmental Indicator

A measurement, statistic or value that provides a proximate gauge or evidence of the effects of

environmental management programs or of the state or condition of the environment.

Environmental Site Assessment

The process of determining whether contamination is present on a parcel of real property.

Environmental/Ecological Risk

The potential for adverse effects on living organisms associated with pollution of the environment

by effluents, emissions, wastes, or accidental chemical releases; energy use; or the depletion of

natural resources.

Excess Personal Property

Any personal property under the control of a Federal agency which is not required for its needs

and the discharge of its responsibilities.
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Terms and Definitions

(Continued)

Exposure Pathway

The path (via, soil, water, or food) from the sources of pollutants to man and other species or

settings. (see also Exposure Route)

Exposure Route

The way a chemical or pollutant enters an organism after contact; i.e., by ingestion, inhalation, or

dermal absorption. (see also Exposure Pathway)

Exposure

The process of coming into direct or indirect contact with harmful amounts of radiation or

pollutant present in a given environment that represents a potential health threat to living

organisms. Exposure is typically through dermal contact (through the skin), inhalation (breathing

contaminated air), or ingestion (eating contaminated substances).

Facility

As defined by Section 101(9) of CERCLA, a facility means any building, structure, installation,

equipment, pipe or pipeline, well, pit, pond, lagoon, impoundment, ditch, landfill, storage

container, motor vehicle, rolling stock, or aircraft, or any site or area where a hazardous

substance has been deposited, stored, disposed of, placed, or otherwise located. It does not

include any consumer product in consumer use or any vessel.

Feasibility Study

ß Analysis of the practicability of a proposal; e.g., a description and analysis of potential

cleanup alternatives for a site such as one on the National Priorities List. The feasibility

study usually recommends selection of a cost-effective alternative. It usually starts as

soon as the remedial investigation is underway; together, they are commonly referred to as

the “RI/FS”

ß A small-scale investigation of a problem to ascertain whether a proposed research

approach is likely to provide useful data. (see also Remedial Investigation).

Federal Property Management Regulations (FPMR)

The Government regulations (41 CFR 101) issued by the General Services Administration to

govern and guide federal agencies relative to management and control of property.

Field Sampling Plan

A plan that defines in detail the sampling and data gathering activities to be used at a site (See also

Site Analysis Plan.).

Financial Assurance for Closure

Documentation or proof that an owner or operator of a facility such as a landfill or other waste

repository is capable of paying the projected costs of closing the facility and monitoring it

afterwards as provided in RCRA regulations.
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Terms and Definitions

(Continued)

Finding of No Significant Impact (FONSI)

A document prepared by a federal agency in accordance with the National Environmental Policy

Act (NEPA) showing why a proposed action would not have a significant impact on the

environment and thus would not require preparation of an Environmental Impact Statement. A

FONSI is based on the results of an environmental assessment.

Forfeited Property

Personal property acquired by a Federal agency either by summary process or by order of a court

of competent jurisdiction pursuant to any law of the United States.

Friable Asbestos

Any material containing more than one-percent asbestos, and that can be crumbled or reduced to

powder by hand pressure. (May include previously non-friable material which becomes broken or

damaged by mechanical force.) Friable asbestos releases fibers into the environment that may

cause health problems.

General Permit

A permit applicable to a class or category of dischargers.

Generator

ß Any person, by site, whose processes or actions produces hazardous waste as listed or

defined by RCRA.

ß A facility or mobile source that emits pollutants into the air or releases hazardous waste

into water or soil.

Geographic Information System (GIS)

A computer system designed for storing, manipulating, analyzing, and displaying data in a

geographic context.

Geological Log

A detailed description of all underground features (depth, thickness, type of formation)

discovered and documented during the drilling of a well or similar type of test hole or boring.

Geophysical Log

A record of the structure and composition of the earth encountered and documented when drilling

a well or similar type of test hole or boring.

Grab Sample

A single sample collected at a particular time and place that represents the composition of the

water, air, or soil only at that time and place.
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Terms and Definitions

(Continued)

Graded Approach

An approach by which the level of analysis, documentation, and actions necessary to comply with

a requirement are commensurate with

ß the relative importance to safety, safeguards, and security;

ß the magnitude of any hazard involved;

ß the life cycle stage of a facility;

ß the programmatic mission of a facility;

ß the particular characteristics of a facility; and

ß any other relevant factor.

Ground Water

The supply of fresh water found beneath the earth's surface, usually in aquifers, which supply

wells and springs. Because ground water is a major source of drinking water, there is growing

concern over contamination from leaching agricultural or industrial pollutants or leaking

underground storage tanks.

Hazard Evaluation

A component of risk evaluation that involves gathering and evaluating data on the types of health

injuries or diseases that may be produced by a chemical and on the conditions of exposure under

which such health effects are produced.

Hazardous Chemical

An EPA designation for any hazardous material requiring an MSDS under OSHA's Hazard

Communication Standard. Such substances are capable of producing fires and explosions or adverse health effects like cancer and dermatitis. Hazardous chemicals are distinct from hazardous

waste. (see Hazardous Waste)

Hazardous Material

As defined by DOT, a designated substance or material that has been determined to be capable of

posing an unreasonable risk to health, safety, and property when transported in commerce.

Hazardous Ranking System

The principal screening tool used by EPA to evaluate risks to public health and the environment

associated with abandoned or uncontrolled hazardous waste sites. The HRS calculates a score

based on the potential of hazardous substances spreading from the site through the air, surface

water, or ground water, and on other factors such as density and proximity of human population.

This score is the primary factor in deciding if the site should be on the National Priorities List and,

if so, what ranking it should have compared to other sites on the list.
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Terms and Definitions

(Continued)

Hazardous Substance

ß Any material that poses a threat to human health and/or the environment. Typical

hazardous substances are toxic, corrosive, ignitable, explosive, or chemically reactive.

ß Any substance designated by EPA to be reported if a designated quantity of the substance

is spilled in the waters of the United States or is otherwise released into the environment

Hazardous Waste

A waste that possesses at least one of four characteristics (ignitability, corrosivity, reactivity, or

toxicity), or appears on special EPA lists. Hazardous Wastes can pose a substantial or potential

hazard to human health or the environment when improperly managed.

Hazards Analysis

Procedures used to (1) identify potential sources of release of hazardous materials from fixed

facilities or transportation accidents; (2) determine the vulnerability of a geographical area to a

release of hazardous materials; and (3) compare hazards to determine which present greater or

lesser risks to a community.

Health and Safety Plan (HASP)

A site plan that describes the physical and chemical hazards at a site and the measures that will be

taken to ensure health and safety of site workers.

Historical Item

Property having added value for display purposes because its historical significance is greater than

the fair market value of the item for continued use. Items that are commonly available and remain

in use for their intended purposes such as military aircraft, still in use by active or reserve units,

would not be regarded as historical items.

Holding Agency

The executive agency which has accountability for the property involved.

Household Hazardous Waste

Hazardous products used and disposed of by residential as opposed to industrial consumers.

Includes paints, stains, varnishes, solvents, pesticides, and other materials or products containing

volatile chemicals that can catch fire, react or explode, or that are corrosive or toxic.

Household Waste (Domestic Waste)

Solid waste, composed of garbage and rubbish, which normally originates in a private home or

apartment house. Domestic waste may contain a significant amount of toxic or hazardous waste.
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Terms and Definitions

(Continued)

Innocent Landowner Defense

In CERCLA, the third-party defense, often called the “innocent landowner” provision, provides a

narrow exemption from liability associated with ownership of the land by claiming the landowner

made a good faith effort to discover any contamination. The elements of the defense are found in

CERCLA Sections 107(b)(3) and 101(35).

Joint and Several Liability

A legal concept, under CERCLA, that relates to the liability of more than one potentially

responsible party for Superfund site cleanup and related costs. For a site that became

contaminated over the years, all current and previous owners, operators, or users could be

considered potentially liable for the entire cost of cleaning up the site.

Land Ban

Phasing out of land disposal of most untreated hazardous wastes, as mandated by the 1984 RCRA

amendments.

Landfill (Sanitary)

A disposal site in which non-hazardous solid wastes are spread in layers, compacted to the

smallest practical volume, and covered by material applied at the end of each operating day.

Sanitary landfills are constructed to prevent leaching of wastes into the environment and are

regulated under RCRA

Leachate

Water that collects contaminants as it trickles through wastes, pesticides or fertilizers. Leaching

may occur in landfills, farming areas, or feedlots, and may result in hazardous substances entering

surface water, ground water, or soil.

Lead (Pb)

A heavy metal that is hazardous to health if inhaled or ingested. Its use in gasoline, paints, and

plumbing compounds has been sharply restricted or eliminated by federal laws and regulations

Lead-Containing Paint

Paint or other similar surface coating material that contains lead or lead compounds in excess of

0.06 percent of the weight of the total nonvolatile content of the paint or the weight of the dried

paint film.

Lease Termination

To end the action of renting real property from another party.
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Terms and Definitions

(Continued)

Liability

The state of being obligated according to law. Environmental liability refers to the state of being

obligated to address through positive actions environmental factors or issues. This may include

requirements to fund site remediation or compliance with environmental regulations.

Manifest

A form completed by hazardous waste generators and used by haulers transporting waste and

waste disposal facilities that lists EPA identification numbers, type and quantity of waste, the

generator it originated from, the transporter that shipped it, and the storage or disposal facility to

which it is being shipped. It includes copies for all participants in the shipping process.

Material Safety Data Sheet (MSDS)

A compilation of information required under the OSHA Communication Standard on the identity

of hazardous chemicals, health, and physical hazards, exposure limits, and precautions. Section

311 of SARA requires facilities to submit MSDSs under certain circumstances.

Media

Specific environments--air, water, soil--which are the subject of regulatory concern and activities.

National Pollutant Discharge Elimination System (NPDES)

A provision of the Clean Water Act (CWA) which prohibits discharge of pollutants into waters of

the United States unless a special permit is issued by EPA, a state, or, where delegated, a tribal

government on an Indian reservation.

National Priorities List (NPL)

EPA’s list of the most serious uncontrolled or abandoned hazardous waste sites identified for

possible long-term remedial action under Superfund. The list is based primarily on the score a site

receives from the Hazard Ranking System. EPA is required to update the NPL at least once a

year.

National Response Center

The federal operations center that receives notifications of all releases of oil and hazardous

substances into the environment; open 24 hours a day, is operated by the U.S. Coast Guard,

which evaluates all reports and notifies the appropriate agency.

Natural Resource Damage Assessment and Restoration (NRDAR)

The authorities and requirements included in CERCLA, CWA, and OPA that make entities who

are responsible for oil or hazardous substance discharges liable for injuries to natural resources (in

addition to the liability associated with protecting human health).
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Terms and Definitions

(Continued)

Non-Point Sources

Diffuse pollution sources (i.e., without a single point of origin or not introduced into a receiving

stream from a specific outlet). The pollutants are generally carried off the land by storm water.

Common non-point sources are agriculture, forestry, urban, mining, construction, dams, channels,

land disposal, saltwater intrusion, and city streets.

Operation and Maintenance (O&M)

ß Activities conducted after a Superfund site action is completed to ensure that the action is

effective.

ß Actions taken after construction to ensure that facilities constructed to treat waste water

will be properly operated and maintained to achieve normative efficiency levels and

prescribed effluent limitations in an optimum manner.

ß On-going asbestos management plan in a school or other public building, including regular

inspections, various methods of maintaining asbestos in place, and removal when

necessary.

Operation and Maintenance Plan

A plan developed for managing operations and maintenance at a facility.

Outgrant

A donation of real property to a subordinate government, corporation, institution, or an

individual.

Outlease

Initiating an action to rent real property to another party.

Personal Property

Any property, except: real property, records of the Federal Government, and naval vessels.

Pollutant

Generally, any substance introduced into the environment that adversely affects the usefulness of a

resource or the health of humans, animals, or ecosystems.

Pollution Prevention (P2)

The reduction or prevention of waste products or pollutants through analysis and subsequent

alteration or elimination of a process. P2 techniques may include: substitution of less polluting

products, re-use of wastes and residuals, recycling, and engineered efficiencies to industrial and

treatment processes.
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Terms and Definitions

(Continued)

Pollution

Generally, the presence of a substance in the environment that because of its chemical

composition or quantity prevents the functioning of natural processes and produces undesirable

environmental and health effects.

Potentially Responsible Party (PRP)

Any individual or company—including owners, operators, transporters or generators—potentially

responsible for, or contributing to a spill or other contamination at a Superfund site. Whenever

possible, through administrative and legal actions, EPA requires PRPs to clean up hazardous sites

they have contaminated.

Preliminary Assessment

The process of collecting, reviewing and reporting available information about a known or

suspected hazardous waste site or release, in accordance with CERCLA (42 U.S.C. § 9620).

Property Transfer

An act of two or more parties, or the law, by which the title or an interest, benefit, or right to

property is conveyed from one person to another. This includes sale, lease, mortgage, escheat,

eminent domain, and foreclosure.

Radon

A colorless naturally occurring, radioactive, inert gas formed by radioactive decay of radium

atoms in soil or rocks. Prolonged exposure to radon concentrations over 4 pico curies per liter

have been associated with adverse health effects.

Real Property

For federal agencies real property is any interest in land under the control of a Federal agency,

together with the improvements, structures, and fixtures located thereon (including prefabricated

movable structures, such as quonset huts). Excepted are lands in the public domain, lands

reserved or dedicated for national forest or park purposes, minerals in lands, and crops.

Release

Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,

leaching, dumping, or disposing into the environment of a hazardous or toxic chemical or

extremely hazardous substance.

Remedial Action (RA)

The actual construction or implementation phase of a Superfund (CERCLA) site cleanup that

follows remedial design.
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Terms and Definitions

(Continued)

Remedial Investigation (RI)

An in-depth study designed to gather data needed to determine the nature and extent of

contamination at a Superfund (CERCLA) site; establish site cleanup criteria; identify preliminary

alternatives for remedial action; and support technical and cost analyses of alternatives. The

remedial investigation is usually done with the feasibility study. Together they are usually referred

to as the “RI/FS” (see also Feasibility Study).

Remediation

Actions taken to remove or contain a toxic or hazardous substance release. Activities may

include isolating, enclosing, encapsulating, treating or removing site contamination.

Removal Action

Short-term immediate actions taken to address releases of hazardous substances that require

expedited response.

Reportable Quantity (RQ)

Quantity of a hazardous substance that triggers reporting under CERCLA. If a substance exceeds

its RQ, the release must be reported to the National Response Center, the State Emergency

Response Commission (SERC), and community emergency coordinators for areas likely to be

affected.

Resource Conservation and Recovery Act (RCRA)

The federal regulation that provides “cradle-to-grave” control of hazardous waste by imposing

management requirements on generators and transporters of hazardous wastes and upon owners

and operators of treatment, storage, and disposal facilities.

Response Action

ß Generic term for actions taken in response to actual or potential health-threatening

environmental events such as spills, sudden releases, and asbestos abatement/management

problems.

ß A CERCLA-authorized action involving either a short-term removal action or a long-term

removal response. This may include but is not limited to: removing hazardous materials

from a site to an EPA-approved hazardous waste facility for treatment, containment or

treating the waste on-site, identifying and removing the sources of ground-water

contamination and halting further migration of contaminants.

Restoration

Measures taken to return a site to pre-violation conditions.
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Terms and Definitions

(Continued)

Reutilization

The act of transferring excess personal property within or among federal agencies to fill current or

future authorized requirements in lieu of new procurements.

Risk Assessment

Qualitative and quantitative evaluation of the risk posed to human health and/or the environment

by the actual or potential presence and/or use of specific pollutants. (see also Risk)

Risk Characterization

The last phase of the risk assessment process that estimates the potential for adverse health or

ecological effects to occur from exposure to a stressor and evaluates the uncertainty involved.

Risk Factor

Characteristics (e.g., race, sex, age, obesity) or variables (e.g., smoking, occupational exposure

level) associated with increased probability of a toxic effect.

Risk

A measure of the probability that damage to life, health, property, and/or the environment will

occur as a result of a given hazard.

Sampling and Analysis Plan (SAP)

A plan consisting of a quality assurance project plan and a field sampling plan developed during

the scoping of a project to guide in sampling. The plan documents the comprehensive field and

analytical activities and objectives for conducting the site confirmation sampling (see also Field

Sampling Plan).

Screening Risk Assessment

A risk assessment performed with few data and many assumptions to identify exposures that

should be evaluated more carefully for potential risk.

Sewer

A channel or conduit that carries wastewater and storm-water runoff from the source to a

treatment plant or receiving stream. “Sanitary” sewers carry household, industrial, and

commercial waste. “Storm” sewers carry runoff from rain or snow. “Combined” sewers handle

both.
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Terms and Definitions

(Continued)

Site Inspection (SI)

The collection of information from a Superfund (CERCLA) site to determine the extent and

severity of hazards posed by the site. It follows and is more extensive than a preliminary

assessment (PA). The purpose is to gather information necessary to score the site, using the

Hazard Ranking System, and to determine if it presents an immediate threat requiring prompt

removal.

Solid Waste

Non-liquid, non-soluble materials ranging from municipal garbage to industrial wastes that contain

complex and sometimes hazardous substances. Solid wastes also include sewage sludge,

agricultural refuse, demolition wastes, and mining residues. Technically, solid waste also refers to

liquids and gases in containers.

Source Reduction

Reducing the amount of materials entering the waste stream from a specific source by redesigning

products or patterns of production or consumption (e.g., using returnable beverage containers).

Synonymous with waste reduction.

Spiked Samples

A laboratory quality assurance technique where known quantity of a particular contaminant has

been added in at known concentrations to a sample. This technique is used to determine the

accuracy of the analytical method.

Split Samples

A sample that has been divided into equal portions and analyzed by anther accepted analytical

technique or qualified laboratory in order to compare results. This technique is used to evaluate

the representative quality of samples collected in the field and the accuracy of the analytic method.

Stakeholder

Any organization, governmental entity, or individual that has an interest (or stake) in or who may

be affected by a given approach or issue (such as environmental regulation, pollution prevention,

energy conservation, etc.).

State Emergency Response Commission (SERC)

Commission appointed by each state governor according to the requirements of SARA Title III.

The SERCs designate emergency planning districts, appoint local emergency planning

committees, and supervise and coordinate their activities.
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Terms and Definitions

(Continued)

Superfund

The program operated under the legislative authority of CERCLA and SARA that provides for

liability, compensation, cleanup and emergency response for hazardous substances released into

the environment, and the cleanup of hazardous waste disposal sites.

Thermal Pollution

Discharge of heated water from industrial processes that can kill or injure aquatic organisms.

Threshold Planning Quantity

A quantity designated for each chemical on the list of extremely hazardous substances that

triggers notification by facilities to the State Emergency Response Commission (SERC) that such

facilities are subject to emergency planning requirements under SARA Title III.

Toxic Chemical

Any chemical listed in EPA rules as “Toxic Chemicals Subject to Section 313 of the Emergency

Planning and Community Right-to-Know Act of 1986.”

Toxic Pollutants:

Materials that cause death, disease, or birth defects in organisms that ingest or absorb them. The

quantities and exposures necessary to cause these effects can vary widely.

Toxic Substance Control Act (TSCA)

The federal regulation that gives EPA the authority to require testing of chemical substances, both

new and old, entering the environment and to regulate them where necessary. The Act provides

specific requirements for the use and disposal of Polychlorinated biphenyl (PCB) and asbestos.

Toxic Substance

A chemical or mixture that may present an unreasonable risk of injury to health or the

environment.

Toxic Waste

A waste that can produce injury if inhaled, swallowed, or absorbed through the skin.

Toxicity Assessment

Characterization of the toxicological properties and effects of a chemical, with special emphasis

on establishment of dose-response characteristics.
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Terms and Definitions

(Continued)

Toxicity

The degree to which a substance or mixture of substances can harm humans or animals.

ß Acute toxicity involves harmful effects in an organism through a single or short-term

exposure.

ß Chronic toxicity is the ability of a substance or mixture of substances to cause harmful

effects over an extended period, usually upon repeated or continuous exposure sometimes

lasting for the entire life of the exposed organism.

ß Subchronic toxicity is the ability of the substance to cause effects for more than one year

but less than the lifetime of the exposed organism.

Treatment, Storage, and Disposal Facility (TSDF)

A RCRA-regulated facility at which hazardous substance is treated, stored and/or disposed.

Underground Injection Wells

Steel- and concrete-encased shafts into which hazardous waste is deposited by force and under

pressure.

Underground Storage Tank (UST)

A tank and associated piping that are 10 percent or more below the surface of the ground, and

which are used for the storage of a regulated substance (e.g., gasoline, petroleum products,

chemicals or waste oil). EPA excludes: tanks used for heating purposes, septic tanks, surface

impoundments, and stormwater or wastewater collection systems from the federal UST

regulation. State regulations, however, vary and may mandate some or all of the tanks excluded

by the EPA.

Waste Characterization

Identification of chemical and microbiological constituents of a waste material.

Waste Generation

The weight or volume of materials and products that enter the waste stream before recycling,

composting, landfilling, or combustion takes place. Also can represent the amount of waste

generated by a given source or category of sources.

Waste Minimization

Measures or techniques that reduce the amount of wastes generated during industrial production

processes; term is also applied to recycling and other efforts to reduce the amount of waste going

into the waste stream.

Wastewater

The spent or used water from a home, community, farm, or industry that contains dissolved or

suspended matter.
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Terms and Definitions

(Continued)

Water Pollution

The presence in water of enough harmful or objectionable material to damage the water’s quality.

Water Quality Criteria

Levels of water quality expected to render a body of water suitable for its designated use. Criteria

are based on specific levels of pollutants that would make the water harmful if used for drinking,

swimming, farming, fish production, or industrial processes.

Water Quality Standards

State-adopted and EPA-approved ambient standards for water bodies. The standards prescribe

the use of the water body and establish the water quality criteria that must be met to protect

designated uses.

Watershed

The land area that drains into a stream; the watershed for a major river may encompass a number

of smaller watersheds that ultimately combine at a common watercourse or body of water.

Well

A bored, drilled, or driven shaft, or a dug hole whose depth is greater than the largest surface

dimension and whose purpose is to reach underground water supplies or oil, or to store or bury

fluids below ground. In the context of environmental investigations, the principle use of wells is

to reach subsurface water supply (groundwater or aquifer) to obtain a sample for environmental

testing.

Wellhead Protection Area

A protected surface and subsurface zone surrounding a well or well field supplying a public water

system to keep contaminants from reaching the well water.

Wetlands

An area that is saturated by surface or ground water (temporarily or permanently) with vegetation

adapted for life under those soil conditions, as swamps, bogs, fens, marshes, and estuaries.

Whole-Effluent-Toxicity Tests

Tests to determine the toxicity levels of the total effluent from a single source as opposed to a

series of tests for individual contaminants.
APPENDIX D

DoD AND SPONSORING FEDERAL AGENCY MEMORANDUM

GOVERNING THE ACQUISITION OF FEDERAL

FACILITY PROPERTY

(Material reformatted from original presentation)

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Appendix D

DoD and Sponsoring Federal Agency Memorandum Governing the Acquisition

of Federal Facility Property

(Material reformatted from original presentation dated March 7, 1997)

OFFICE OF THE UNDER SECRETARY OF DEFENSE

3000 DEFENSE PENTAGON

WASHINGTON DC 20301-3000

MEMORANDUM FOR DEPUTY ASSISTANT SECRETARY OF THE ARMY

(INSTALLATION AND HOUSING)

DEPUTY ASSISTANT SECRETARY OF THE NAVY

(CONVERSION AND REINVESTMENT)

DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE (INSTALLATIONS)

MANAGER FOR FEDERAL LANDS-TO-PARKS PROGRAM, NATIONAL PARK

SERVICE, DEPARTMENT OF THE INTERIOR CHIEF OF REAL PROPERTY BRANCH,

PUBLIC HEALTH SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES

DIRECTOR OF REAL PROPERTY GROUP, OFFICE OF MANAGEMENT,

DEPARTMENT OF EDUCATION, DIRECTOR OF PORTS AND DOMESTIC SHIPPING

MARITIME ADMINISTRATION

SUBJECT: Memorandum of Agreement (MOA) for Assigning Real Property to Federal

Agencies Sponsoring Public Benefit Conveyances.

An interagency working group comprised of DoD and sponsoring Federal Agency

representative has jointly developed an MOA (attached) delineating responsibilities for

environmental obligations associated with the assignment of base closure properties approved for

public benefit conveyances. This MOA assures sponsoring Agencies that the applicable landholding Military Department accepts responsibility for the environmental cleanup of base closure

property assigned to the sponsoring Agencies for further transfer to approved public benefit

recipients.

The MOA signatures are listed as designated by your respective Agencies. I request that

you obtain the appropriate and return the executed signature page to my office. My point of

contact is Captain Mike Durgin. (703) 604-6021. Thank you for cooperatively working to

develop this agreement to improve or process for expeditiously transferring base closure

properties for public benefit reuse.

John B. Goodman

Deputy Under Secretary

(Industrial Affairs and Installations)

Attachment:

As Stated
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(Material reformatted from original presentation dated March 7 1997)

MEMORANDUM OF AGREEMENT

BETWEEN

THE DEPARTMENT OF EDUCATION

THE DEPARTMENT OF HEALTH AND HUMAN SERVICES

THE DEPARTMENT OF THE INTERIOR

THE DEPARTMENT OF TRANSPORTATION

AND

THE DEPARTMENT OF DEFENSE

THE DEPARTMENT OF THE ARMY

THE DEPARTMENT OF THE NAVY

THE DEPARTMENT OF THE AIR FORCE

THIS AGREEMENT is made between the Departments of Education, Health and Human

Services, Interior, and Transportation (hereinafter collectively referred to as the “Sponsoring

Federal Agencies”), and the Department of Defense (hereinafter “DoD”) and the Departments of

the Army, Navy, and the Air Force (hereinafter collectively referred to as the “Military

Departments).

WITNESSETH, THAT:

WHEREAS, Sponsoring Federal Agencies will evaluate and approve or disapprove an

application from a Public Benefit Recipient for certain real property (the “Property”) on a military

installation, and in so doing will rely upon the Military Department’s assessment of the condition

of the Property in relation to the specific requirements of the Public Benefit Recipient’s approved

program, as described in the application; and

WHEREAS, a Sponsoring Federal Agency, acting as a conduit through which title will

ultimately pass from the United States to the Public Benefit Recipient, will request assignment of

the Property under the authority provided by the Federal Property and Administrative Services

Act of 1949, 40 U.S.C. § 484(k), as amended, and regulations promulgated thereunder; and

WHEREAS, the Military Department will assign the Property to a Sponsoring Federal

Agency for transfer to a Public Benefit Recipient, in accordance with an appropriate assignment

letter under authority vested in the Administrator of General Services, by the Federal Property

and Administrative Services Act, and delegated to the Secretary of Defense under Public Law

101-510, and redelegated to the Secretaries of the Military Departments;

NOW, THEREFORE, the parties agree as follows:

a. The Military Department accepts responsibility for the Property as the Federal

“holding agency” under the Federal Property Management Regulations, 41 C.F.R.

Part 101-47, and is the “disposal agency” for the Property pursuant to delegations of
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author from the Administrator of General Services, required by Public Laws 100-526

and 101-510.

b. The environmental remediation of the contaminated portions of the Property will be

the sole responsibility of the Military Department, and will be undertaken in

cooperation with the Environmental Protection Agency (“EPA”) and/or the State

environmental regulatory authority, as appropriate, and in compliance with an

enforceable agreement or order.

c. If hazardous substances were stored for one year or more, known to have been

released, or disposed of on the Property, the Military Department will provide the

Sponsoring Federal Agency with a copy of the notice required by the Comprehensive

Environmental Response, Compensation and Liability Act (“CERLA”) § 120 (h) (1),

and the contents of such notice, as required by CERLA § 120 (h) (3) (A) (i), will be

included in the transfer document. With respect to such property, and in accordance

with CERCLA § 120 (h) (3), the Military Department shall ensure that all remedial

action necessary to protect human health and the environment has been taken with

respect to any hazardous substance remaining on the Property (including EPA’s

determination that any ongoing remedy has been demonstrated to be operating

properly and successfully). In addition, the Military Department will direct the

Sponsoring Federal Agency to include in the deed transferring the Property to the

Public Benefit Recipient:

(1) a covenant warranting that all remedial action necessary to protect human

health and the environment with respect to any hazardous substance

remaining on the property has been taken;

(2) a covenant warranting that any additional remedial action found to be

necessary after the date of such transfer shall by conducted by the United

States, and

(3) a clause granting the United States access to the property in any case in

which remedial action or corrective action is found to be necessary after

the date of such transfer.

d. In accordance with CERCLA § 120(h) (4), if the Military Department determines the

Property is uncontaminated, and receives concurrence in this determination from either

EPA (for NPL sites) or the appropriate State official (for non-NPL sites), the Military

Department will direct the Sponsoring Federal Agency to include in the deed

transferring the Property to the Public Benefit Recipient:

(1) a covenant warranting that any response action or corrective action found to

be necessary after the date of transfer shall be conducted by the United

States; and
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(2) a clause granting the United States access to the Property in any case in which

a response action or corrective action is found to be necessary on the

Property after the date of transfer, or where such access is necessary to

carry out a response action or corrective action on adjoining property.

e. The Military Department assumes sole responsibility for the preparation and review of

the following documents:

(1) Environmental Baseline Survey

An Environmental Baseline Survey (EBS) of those portions of the military installation for

which a Public Benefit Transfer is being considered will be completed and copies will be

presented to the Sponsoring Federal Agency and the Public Benefit Recipient at least 60

days prior to assignment. The EBS shall summarize what is presently known of the

environmental condition of the property, as required by 40 C.F.R. Part 373.

(2) Finding of Suitability to Transfer

A Finding of Suitability to Transfer (FOST) will be completed in accordance with the

“DoD Policy on the Environmental Review Process to Reach a Finding of Suitability to

Transfer for Property Where Release or disposal has Occurred” based on the results of the

EBS, the Final Environmental Impact, Statement, the Disposal and Reuse Record of the

Property. Regulatory agencies shall be provided an opportunity to comment and their

comments shall be incorporated where appropriate or attached if unresolved.

f. The Military Department acknowledges that a Public Benefit Recipient may be entitled

to indemnification under Section 330 of the National Defense Authorization Act for

Fiscal Year 1993, Public Law 102-484, as amended (10 U.S.C. § 2687 Note).

g. The Military Department will determine that the Property is environmentally suitable

for transfer in accordance with the Public Benefit Recipient’s approved purposes, and

in accordance with the “DoD Policy on the Environmental Review Process to Reach a

Finding of Suitability to Lease” and “DoD Guidance on the Environmental Review

Process to Reach a Finding of Suitability to Transfer.” The Sponsoring Federal

Agency may rely upon this determination of suitability and is not required to

independently inspect the Property prior to transfer.

h. The Military Department will determine that the Property is environmentally suitable

for transfer in accordance with the Public Benefit Recipient’s approved purposes, and

in accordance with the “DoD Policy on the Environmental Review Process to Reach a

Finding of Suitability to Lease” an “DoD Guidance on the Environmental Review

Process to Reach a Finding of Suitability to Transfer.” The Sponsoring Federal

Agency may rely upon this determination of suitability and is not required to

independently inspect the Property prior to transfer.
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i. The Military Department acknowledges that, unless mutually agreed to in the context

of a particular proposed public benefit transfer, the Sponsoring Federal Agency has no

presence on nor has previously used or occupied the Property in a manner that would

make the Sponsoring Federal Agency liable for any costs or claims attributable to

existing contamination on or emanating from the Property. Accordingly, nothing in

this Agreement not in the public benefit conveyances is to be construed as requiring

the Sponsoring Federal Agency to accept responsibility for the payment of any taxes,

assessments, public utility charges, or environmental fees becoming due on the

Property and attributable to actions taken during the Military Department’s use or

occupancy of the Property. The Military Department acknowledges that one purpose

of this Agreement is to ensure that the Sponsoring Federal Agency does not assume

any of the U.S. Government’s potential liability or responsibility for contamination no

have any obligation to undertake the U.S. Government’s defense of any claim or

action, whether in existence now or brought in the future, caused by the use, storage,

management, release, or disposal of hazardous materials, substances, wastes, or

petroleum products or any contamination thereof (including any use, storage,

management, release, or disposal of such that occurs during any subsequent

environmental remediation) on any portion of the Property prior to its transfer to a

Public Benefit Recipient, including any contamination not presently known but

subsequently discovered and determined to be attributable to activities on the Property

prior to its transfer to a Public Benefit Recipient.

j. This Agreement is intended principally to govern the allocation of responsibility

between the Military Department and the Sponsoring Federal Agency for any

contamination determined to be attributable to actions taken on the Property prior to

its transfer to a Public Benefit Recipient. Nothing in this Agreement shall be construed

to prevent the Military Department from bringing a cost recovery, contribution, or

other action against third persons or parties the Military Department reasonably

believes may have contributed to the contamination prior to the Public Benefit

Transfer. This Agreement is intended only to improve the internal management of the

Executive Branch and is not intended to, nor does it, create any right or benefit,

substantive or procedural, enforceable at law or equity by any party against the United

States, it agencies, or it officers.

k. Except as otherwise expressly provided herein, this Agreement constitutes the entire

Agreement between the Military Department and the Sponsoring Federal Agency with

respect to matters set forth herein and supersedes any documents prepared before this

Agreement to the extent those documents may be inconsistent with this Agreement.

Nothing in this Agreement precludes the individual parties to this Agreement form

agreeing to amendments that apply only as between such parties in the context of a

proposed benefit transfer
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IN WITNESS WHEREOF, the Sponsoring Federal Agencies, the Military Departments,

and DoD have caused this Agreement to be duly executed.

DEPARTMENT OF THE INTERIOR

By: _______________________________ ________________

BONNIE R. COHEN Date

Assistant Secretary, Policy,

Management, and Budget

DEPARTMENT OF EDUCATION

By: _______________________________ ________________

GARY RASMUSSEN Date

Director of the Office of Management

DEPARTMENT OF HEALTH AND HUMAN SERVICES

By: _______________________________ ________________

LYNNDA M. REGAN Date

Director, Program Support Center

MARITIME ADMINISTRATION

By: _______________________________ ________________

JOEL C. RICHARD Date

Secretary
APPENDIX E

EPA POLICY TOWARDS LANDOWNERS AND

TRANSFEREES OF FEDERAL FACILITIES

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

JUN 13 1997

MEMORANDUM

SUBJECT: Transmittal of the Policy Towards Landowners and

Transferees of Federal Facilities

FROM: Timothy Fields, Jr. /s/

Acting Assistant Administrator

Office of Solid Waste and Emergency Response

Steven A. Herman /s/

Assistant Administrator

Office of Enforcement and Compliance Assurance

TO: Regional Administrator, Regions I-X

Regional Counsel, Office of Regional Counsel, Regions I-X

Director, Office of Site Remediation and Restoration, Region I

Director, Emergency and Remedial Response Division, Region II

Director, Hazardous Waste Management Division, Regions III, IX

Director, Waste Management Division, Region IV

Director, Superfund Division, Regions V, VI, VII

Assistant Regional Administrator, Office of Ecosystems Protection and

Remediation, Region VIII

Director, Environmental Cleanup Office, Region X

This memorandum transmits EPA's "Policy Towards Landowners and Transferees of Federal

Facilities", (Policy) which addresses potential liability concerns of landowners and

transferees (e.g., lessees) who acquire Federal facility property. With the nationwide

reduction in the number and size of these facilities, primarily closing military bases,

acquisition of such property by non-federal parties has become increasingly common.

The Policy was developed in cooperation with a number of Federal agencies, including the

Department of Defense and the Department of Energy, and is intended to alleviate uncertainty

regarding potential enforcement by the Agency against such landowners and transferees for

contamination existing as of the date of property acquisition. The Policy should also further

reduce transaction costs by eliminating the need for the negotiation of prospective purchaser

agreements for such property.
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The Policy applies only to the transfer of property at federally owned facilities. EPA's

existing "Guidance on Agreements with Prospective Purchasers of Contaminated Property", 60

Fed. Reg. 34792 (July 3, 1995), addresses property transfer between private parties where an

EPA action has been taken, is anticipated, or is currently underway.

If you have any questions or comments regarding the attached Policy, please have your

staff contact Seth Thomas Low of the Federal Facilities Restoration and Reuse Office at (202)

260-8692, Bill Frank in the Federal Facilities Enforcement Office at (202) 564-2584, or Joe

Tieger in the Office of Site Remediation Enforcement at (202) 564-4276.

Attachment

cc: Sherri Goodman, DoD

Patricia Rivers, DoD

Robert Taylor, DoD

James Van Ness, DoD

Alvin Alm, DOE

Martha Crosland, DOE

John Mandell, GSA

Steve Rogers, DOJ

Stephen Luftig, OERR

Barry Breen, OSRE

Craig Hooks, FFEO

Jim Woolford, FFRRO

Linda Garczynski, OSPS

Regional BRAC Contacts

Federal Facilities Leadership Council

Seth Low

Bill Frank

Joe Tieger
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POLICY TOWARDS LANDOWNERS AND TRANSFEREES OF FEDERAL FACILITIES

I. PURPOSE

This policy is issued to promote the expeditious transfer and reuse of real property where

the United States has ceased Federal government operations. It also implements the President's

initiatives to facilitate the redevelopment and reuse of closing military bases and brownfields.

Concern over potential environmental liability may have an adverse impact on the ability of local

communities to develop or reuse such property. This policy is intended to alleviate those

concerns, reduce uncertainty regarding the potential for CERCLA enforcement actions by the

Agency, and to reduce transaction costs by precluding the need for the negotiation of prospective

purchaser agreements. This policy applies only to the transfer of property at federally owned

facilities. EPA’s existing “Guidance on Agreements with Prospective Purchasers of Contaminated

Property”, 60 Fed. Reg. 34792 (July 3, 1995), addresses property transfer between private parties

where an EPA action has been taken, is anticipated, or is currently underway.

II. STATEMENT OF POLICY

It is the Agency's position that where a person or entity acquires property from the United

States that is subject to the covenants provided in Sections 120(h)(3) or 120(h)(4) of the

Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), or the

indemnity provided in Public Law 102-484, as amended by Public Law 103-160, EPA will not

take enforcement action against that person or entity, or its transferees or successors (hereinafter

referred to as “landowners or transferees”), to require the performance of response actions or the

payment of response costs incurred to respond to contamination existing as of the date that

person or entity acquires the property from the United States. However, EPA may take a

CERCLA enforcement action against landowners and transferees who cause, contribute to, or

exacerbate the release or threat of release of any hazardous substances, through act or omission,

and EPA may seek information and access from any person pursuant to CERCLA.

EPA believes that the protections afforded landowners and transferees through the above

mechanisms, together with this policy, are sufficient to eliminate the need to enter into

prospective purchaser agreements with them.

III. DISCUSSION

A. Background

1. CERCLA Liability for Owners

In general, any person owning property on which hazardous substances have come to be

located faces potential uncertainty with respect to liability as an "owner" under Section 107(a)(1)

of CERCLA, 42 U.S.C. §9607(a)(1), even where such owner has had no participation in the

handling of hazardous substances, and has taken no action to exacerbate the release.
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2. Closing Military Bases and Other Federal Facilities

With respect to Federal facilities, purchasers receive certain covenants or indemnifications

regarding environmental liability from the United States or the Department of Defense. In spite of

the deed covenants and indemnifications, however, some prospective purchasers or lenders view

the potential for becoming the subject of an EPA CERCLA enforcement action as a significant

risk. The Agency is aware that such concerns may impact the ability of local communities to

develop or reuse such property.

Pursuant to Congressional mandate, numerous military bases are undergoing realignment

or complete closure with the potential for severe economic impacts on the affected local

communities. Federal facilities, including such military bases, are frequently the subject of

response actions under CERCLA. With the nationwide reduction in the number and size of

Federal facilities, primarily closing military bases, transfers of such real property by deed or lease

to non-federal parties has become increasingly common.

 

 3. This Policy

EPA is issuing this policy to address potential EPA CERCLA enforcement concerns raised

by lenders, prospective purchasers, landowners and transferees who may acquire portions of

Federal facilities. The intent of the policy is to reduce the effect of potential CERCLA liability on

the marketability of such property by clarifying that EPA, in an exercise of its enforcement

discretion, will not take an action under CERCLA against landowners and transferees who meet

the conditions described in this policy for contamination existing as of the date of their acquisition

of such Federal facilities. Also, EPA expects the policy to reduce transaction costs by eliminating

the need to negotiate prospective purchaser agreements for purchasers of Federal facilities.

B. Existing Related Agency Guidance and Policy

As discussed earlier, the Agency has previously published guidance on the issue of

prospective purchasers of contaminated property. In addition, in other EPA policies, EPA has

asserted its enforcement discretion in determining which parties not to pursue.1

 

1

 See, e.g., Policy Towards Owners of Residential Property at Superfund Sites, OSWER Directive

#9834.6, (July 3, 1991) (stating Agency policy not to take enforcement actions against an owner of

residential property unless homeowner's activities led to the release); Final Policy Toward Owners of

Property Containing Contaminated Aquifers, 60 Fed. Reg. 34790 (July 3, 1995) (stating Agency policy

not to take enforcement action against owners of property contaminated solely by migrating

groundwater).
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C. Basis for the Policy

This policy is based on certain existing statutory protections afforded landowners or

transferees of Federal facilities. Consistent with such statutory protections, the Agency will

exercise its enforcement discretion and not take enforcement action against landowners and

transferees (e.g., lessees) of Federal facilities where the United States or the Department of

Defense has provided them certain statutory protections regarding environmental liability.

Specifically, this policy applies to landowners or transferees receiving any of the following types

of statutory protections.

1. Statutory Covenants for Federal Facilities

a) Contaminated Real Property

Section 120(h)(3) of CERCLA places certain restrictions on the conveyance of United

States owned property on which hazardous substances have been stored, released or disposed of.2

Generally, the United States must take all remedial action necessary to protect human health and

the environment with respect to any hazardous substances on a property before it can convey the

property by deed to another person. The deed transferring the property must include a covenant

that all necessary remedial action “has been taken” before the date of transfer and that the United

States will undertake any remedial action found to be necessary after the transfer. A remedial

action “has been taken” when an approved remedial design has been constructed and EPA

determines it to be operating properly and successfully. The requirement to include a covenant

regarding remedial action does not apply where the property is transferred to a person who is a

potentially responsible party as to that property.

Under certain circumstances, however, contaminated property may be conveyed by deed

before all remedial action has been taken. Section 120(h)(3)(C) of CERCLA sets forth the

conditions under which either the EPA Administrator with the concurrence of the Governor (for

property on the National Priorities List) or the Governor (for property not on the NPL) may defer

the requirement of providing a covenant that all necessary remedial action has been taken prior to

the date of transfer. In such cases, once the United States has completed all necessary remedial

action, it must issue a warranty that satisfies that covenant requirement. A transferee of property

conveyed under Section 120(h)(3)(C) also receives assurances at the time of transfer that all

necessary remedial action will be taken in the future. Because of that assurance, and the warranty

just described, it is appropriate to include these transfers within the scope of this policy.

b) Uncontaminated Real Property

Section 120(h)(4) of CERCLA provides that where the United States is transferring

property on which no hazardous substances and no petroleum products or their derivatives were

 

2

 Please refer to the Appendix for relevant provisions of Section 120(h)(3) of CERCLA.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

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known to have been released or disposed of, the deed must contain a covenant warranting that

any future cleanup activity will be conducted by the United States.3

2. Statutory Indemnification for Closing Bases

In Section 330 of the National Defense Authorization Act for Fiscal Year 1993, Public

Law 102-484, Congress provided that the Secretary of Defense shall hold harmless and indemnify

persons (including lessees) that acquire ownership or control of any facility at a military

installation that is closing or closed pursuant to a base closure law from any claim for personal

injury or property damage that results from the release or threatened release of hazardous

substances as a result of Department of Defense activities. Section 1002 of the National Defense

Authorization Act for Fiscal Year 1994, Public Law 103-160, expanded this provision by

including releases or threatened releases of petroleum or petroleum derivatives within the

indemnification. The indemnification does not apply to persons and entities that contributed to

any release or threatened release.4

D. Use of Prospective Purchaser Agreements for Federal Facilities

The Superfund statute assigns liability to parties who acquire property with knowledge of

contamination. Parties interested in acquiring contaminated property, therefore, often request

some guarantee from EPA that they will not be responsible for cleaning up contamination they did

not cause. EPA recognized the environmental benefit from encouraging the purchase, cleanup

and redevelopment of contaminated property and so issued its revised “Guidance on Agreements

with Prospective Purchasers of Contaminated Property” (“Guidance”). The Guidance describes

five criteria that must be met in order for EPA to enter into an administrative order on consent

with a prospective purchaser of contaminated property. Such agreements contain a covenant not

to sue from EPA for contamination existing at the time of purchase.

To prevent EPA’s involvement in purely private real estate transactions, two threshold

criteria are used to evaluate the appropriateness of entering into a prospective purchaser

agreement: 1) whether information regarding releases or potential releases of hazardous

substances at the site indicates that there is a substantial likelihood of EPA response or

enforcement action and 2) whether other available avenues may exist to sufficiently alleviate the

threat of Superfund liability at the site without the need for EPA involvement. It is EPA’s

intention to limit the use of such agreements to situations where there is a realistic probability that

a prospective purchaser may incur Superfund liability and the covenant not to sue is essential in

order for cleanup and productive use of the site to occur.

As previously discussed, landowners and transferees of Federal facilities are protected by

statutorily required deed covenants and/or indemnifications. Consequently, such prospective

purchasers are not at the same risk for incurring Superfund liability as prospective purchasers of

 

3

 Please refer to the Appendix for relevant provisions of Section 120(h)(4) of CERCLA.

4

 Please refer to the Appendix for relevant provisions of Public Law 102-484, as amended by

Public Law 103-160.
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private property. Given these protections, EPA has determined that a prospective purchaser

agreement as envisioned by the Guidance is not necessary for landowners and transferees of

Federal facilities.

E. Use of the Policy

This policy does not constitute rulemaking by the Agency and does not create any legal

obligations and is not intended and cannot be relied upon to create a right or a benefit, substantive

or procedural, enforceable at law or in equity, by any person. Furthermore, the Agency may take

action at variance with this policy. The extent to which the Agency applies this policy will depend

on the facts of each case. On a case-by-case basis, the Agency may take enforcement action to

ensure the protection of human health and the environment, such as when development or activity

on the property exacerbates the existing contamination, interferes with, or is inconsistent with, a

federal response action, or poses a health risk to the community.

For further information concerning this policy, please contact Seth Thomas Low in the Federal

Facilities Restoration and Reuse Office at (202) 260-8692, Bill Frank in the Federal Facilities

Enforcement Office at (202) 564-2584, or Joe Tieger in the Office of Site Remediation

Enforcement at (202) 564-4276.
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APPENDIX

Relevant Statutory Provisions

Footnote 2: Section 120(h)(3) of CERCLA, 42 USC §9620(h)(3), states in relevant part:

42 USC § 9620 Federal facilities

(h) Property transferred by Federal agencies

(3) Contents of certain deeds

“...in the case of any real property owned by the United States on which any hazardous

substance was stored for one year or more, known to have been released, or disposed of, each

deed entered into for the transfer of such property by the United States to any other person or

entity shall contain-

(A) ...

(B) a covenant warranting that -

(i) all remedial action necessary to protect human health and the environment with

respect to any such substance remaining on the property has been taken before the

date of such transfer, and

(ii) any additional remedial action found to be necessary after the date of such transfer

shall be conducted by the United States; and

(C) ...The requirements of subparagraph (B) shall not apply in any case in which the

person or entity to whom the property is transferred is a potentially responsible party

with respect to such real property....”

Footnote 3: Section 120(h)(4) of CERCLA, 42 USC §9620(h)(4), states in relevant part:

42 USC § 9620 Federal facilities

(h) Property transferred by Federal agencies

(4) Identification of uncontaminated property

(A) In the case of real property to which this paragraph applies ... the head of the

department, agency, or instrumentality of the United States with jurisdiction over the

property shall identify the real property on which no hazardous substances and no

petroleum products or their derivatives were stored for one year or more, known to

have been released, or disposed of. ...

(B) ....

(C) ....

(D) In the case of the sale or other transfer of any parcel of real property identified under

subparagraph (A), the deed entered into for the sale or transfer of such property by the

United States to any other person or entity shall contain -

(i) a covenant warranting that any response action or corrective action found to be

necessary after the date of such sale or transfer shall be conducted by the United

States; ....”
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Footnote 4: Public Law 102-484, as amended by Public Law 103-160, states in relevant

part:

“Indemnification of Transferees of Closing Defense Property

(a) In general.

(1) Except as provided in paragraph (3) and subject to subsection (b), the Secretary of Defense

shall hold harmless, defend, and indemnify in full the person and entities described in paragraph

(2) from and against any suit, claim, demand or action, liability, judgment, cost or other fee arising

out of any claim for personal injury or property damage (including death, illness, or loss of or

damage to property or economic loss) that results from, or is in any manner predicated upon, the

release or threatened release of any hazardous substance, pollutant or contaminant, or petroleum

or petroleum derivative as a result of Department of Defense activities at any military installation

(or portion thereof) that is closed pursuant to a base closure law.

(2) The persons and entities described in this paragraph are the following:

(A) Any State (including any officer, agent, or employee of the State) that acquires ownership or

control of any facility at a military installation (or any portion thereof) described in paragraph (1).

(B) Any political subdivision of a State (including any officer, agent, or employee of the State)

that acquires such ownership or control.

(C) Any other person or entity that acquires such ownership or control.

(D) Any successor, assignee, transferee, lender, or lessee of a person or entity described in

subparagraphs (A) through (C).

(3) To the extent the person and entities described in paragraph (2) contributed to any such

release or threatened release, paragraph (1) shall not apply.”

APPENDIX F

GSA ENVIRONMENTAL GUIDEBOOK

(Material reformatted from original presentation)

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Appendix F

GSA Environmental Guidebook

(Material reformatted from original presentation)

Contents

Environmental Requirements by Topic for Acceptance and Disposal............................................1

National Environmental Policy Act (NEPA) ................................................................................2

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)...............3

Underground Storage Tanks (UST).............................................................................................4

Asbestos .....................................................................................................................................5

Lead-Based Paint ........................................................................................................................5

Polychlorinated Biphenyls (PCB).................................................................................................6

Flood Plains................................................................................................................................7

Wetlands.....................................................................................................................................9

Coastal Zone Management ....................................................................................................... 10

Endangered Species .................................................................................................................. 11

Historic and Cultural Resources ................................................................................................ 12

Environmental Guidebook

The Environmental Guidebook is designed to provide the Realty Specialist in the Office of Properly

Disposal with an easy to apply framework for achieving compliance with the environmental laws

and regulations that are applicable to the acceptance and disposal of interests in real property. The

guidebook provides step-by-step direction and can be used as a stand-alone document or as a

companion guide to GSA’s Environmental Resource Book.

Realty Specialists should physically inspect the property before accepting any property. The

environmental checklist provided in the Resource Book should be completed during the inspection.
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Environmental Requirements by Topic for Acceptance and Disposal

Topic Acceptance Disposal

National Environmental Policy Act (NEPA)  ̋  ̋  ̋

Comprehensive Environmental Response, Compensation, & Liability Act

(CERCLA)

 ̋  ̋  ̋  ̋  ̋

Underground Storage Tanks (UST)  ̋  ̋  ̋  ̋

Asbestos  ̋  ̋  ̋

Lead-Based Paint  ̋  ̋  ̋  ̋

Polychlorinated Biphenyls (PCB)  ̋  ̋  ̋  ̋  ̋

Flood Plains  ̋  ̋  ̋  ̋

Wetlands  ̋  ̋  ̋  ̋

Coastal Zone Management  ̋  ̋  ̋  ̋

Endangered Species  ̋  ̋  ̋  ̋

Historic and Cultural Resources  ̋  ̋  ̋  ̋  ̋

Acceptance

 ̋ Information needed but not required for acceptance.

 ̋  ̋ Information required; if data not forthcoming, acceptance of property is conditional.

Disposal

 ̋ Information needed in file, but language not required in the Invitation for Bids (IFB), Offer

to Purchase, or deed.

 ̋  ̋ Language required in IFB or Offer to Purchase.

 ̋  ̋  ̋ Language required in deed.

National Environmental Policy Act (NEPA)

Acceptance Disposal

Did the holding agency comply with NEPA? Does the disposal action qualify for a categorical

exclusion (CATEX)?

No Yes No Yes 

GSA should pursue agency

NEPA analysis

Accept property and get

information from holding

agency for file

Prepare an Environmental

Assessment or

Environmental Impact

Statement (EIS).

Document with a property

disposal CATEX checklist

in the Resource Book.

Are there significant effects

on the environment?

No Yes

Prepare a Finding of No

Significant Impact

(FONSI).

Prepare an EIS

Yes 

Prepare a Record of

Decision (ROD).
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Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

Acceptance

Before accepting property the following questions should be answered yes in order to accept

property:

Did the holding

agency include a

statement that

indicates whether

the property or any

portion thereof is

proposed for or

listed on the

National Priorities

List of Superfund?

Yes Did any hazardous

substance activity

take place on the

property? (Holding

agency should

include information

on hazardous

substances in the

Report of Excess.)

Yes Has holding agency

conducted an

environmental

study?

Yes Obtain copy of the

study and accept

property.

No No No 

Obtain statement

from holding

agency.

Obtain information

on hazardous

substance activity.

Based on review of

file information, are

all necessary

clauses provided by

holding agency?

No Pursue discussion

with holding agency

to obtain necessary

information. Accept

property

conditionally.

Yes 

Accept property.

If the Report of Excess indicates that there was activity involving hazardous substances on the

property, the holding agency must include the following:

• Information on the type and quantity of such hazardous substance

• Information on the time at which such storage, release, or disposal took place

And one of the following:

• A statement that all remedial action necessary to protect human health and the environment

has taken place before date declared excess or

• A statement that all remedial action is in place and has been determined by EPA that it is

operating “properly and successfully” or

• A statement that if such action has not taken place, when it will be completed and why it has

not been completed

• If the Report of Excess states that no hazardous substance activity occurred on the property,

the holding agency must include the following language:

[The holding agency] has determined, in accordance with regulations issued by the

Environmental Protection Agency at 40 CFR Part 373, that there is no evidence to

indicate that hazardous substance activity took place on the property based on a complete

search of agency files.

Note: Hazardous substance activity is defined as storage of hazardous substances for one year or more or known to

have been released or disposed of (40 CFR Part 373).
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Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

Disposal

Was hazardous substance activity ever

conducted on the property?

No Include generic language for future

contamination and responsibility and access.

Yes 

Provide specific language relating to

contamination.

If there was activity involving hazardous substances on the property, the Invitation for Bids or

conveyance document must include the following statement:

Notice regarding hazardous substance activity:

• The information contained in this notice is required under the authority of regulations

promulgated under section 120(h) of the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA) or "Superfund” 42 U.S. C. section 9620(h).

• [The holding agency] advises that [provide information on the type and quantity of

hazardous substances; the time at which storage, release, or disposal took place; and a

description of the remedial action taken]. All remedial action necessary to protect human

health and the environment with respect to the hazardous substance activity has been taken.

Any additional remedial action found to be necessary shall be conducted by the United States.

In the event remedial action is found to be necessary after the date of transfer, the United

States shall have access to the property for such remedial purposes.

Underground Storage Tanks (UST)

Acceptance

The Report of Excess from the holding agency should include the following information about any

underground storage tanks (UST) currently or formerly located on the property:

• Past or current contents • Location

• In compliance with current UST regulations? • Capacity

• In use? • Number

Disposal

Each Invitation for Bids and conveyance document needs:

1. All available information about the presence or USTs (see acceptance chart).

2. Statement from the holding agency that the USTs have been maintained and currently are in

compliance with applicable laws as of the date of transfer.

Note: The December 1998 deadline for upgrading tanks may affect the compliance status of a

tank. New requirements address:

• Spill protection

• Overfill protection

• Corrosion protection.
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Asbestos

Acceptance

Has the holding agency provided all available information about condition, type, and location of asbestos

incorporated in the construction, repair, or alteration of any building or improvement on the property?

Has the holding agency provided a description of any asbestos control measures taken for the property?

Yes No 

Obtain copies of all available

information

Assume that asbestos is likely to

be present in building

Accept property.

Disposal

The Realty Specialist shall incorporate all information from the Report of Excess regarding asbestos in any FB or

Offers to Purchase and include the language set forth in FPMR 101-47, 304-13.

Note: The appraisal should reflect the cost of abatement only if demolition of the building is anticipated.

Lead-Based Paint

Acceptance

1. Does the Report of Excess provide an inventory of all buildings constructed or renovated before 1978?

Yes No 

2. Does the report indicate where

lead-based paint is located?

Obtain Inventory.

 No

Yes Inspect and identify any lead paint

hazards in residential housing

built before 1978

3. Is the property residential and

built before 1960?.

Yes No

Accept property and abate the

identified lead hazard

Accept property

Disposal

• Provide the IFB, notification and disclosure language to alert the bidder to the presence of lead-based paint.

• Each bidder must complete and execute the form entitled United States of America (“Seller”) Disclosure of

Information on Lead-Based Paint and/or Lead-Based Paint Hazards and submit it with the bid.

• A statement of responsibility must go into the deed and the pamphlet entitled “Protect Your Family From Lead

In Your Home” for the US Environmental Protection Agency and the US Consumer Product Safety

Commission must be provided to the purchaser. The pamphlets and all documents related to lead-based paint

must be provided to the purchaser.

* Lead-paint on pre-1960 housing must be abated prior to transfer

** Lead contamination in soils must be addressed prior to transfer
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Polychlorinated Biphenyls (PCB)

Acceptance

1. Does the Report of Excess contain certification that the property does or does not contain

government-owned PCB transformers or other equipment regulated under 40 CFR 761?

Yes No

The Report of Excess should provide an

inventory of all PCB-containing equipment and

an assurance that they are currently and will

continue to be maintained by the holding

agency in a state of compliance until the date

of transfer (or the date of sale?) of the property.

(Note: this is the responsibility of the holding

agency.)

Yes No 

Accept Property. Conditionally accept property. Holding agency

should provide inventory of all PCB equipment

and assurance regarding compliance if property

contains government-owned PCB-containing

equipment

Disposal

If the property has PCB-containing equipment, the IFB or Offer to Purchase must provide a

statement that the property does contain PCB-containing equipment and that the equipment has

been maintained in compliance until the date of transfer (or date of sale).
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Flood Plains

Acceptance

Does each Report of Excess include detailed information about any known flood hazards, and a list of

citations for all flood-related restrictions on land use under Federal, state, and local regulations?

If the property is located in or adjacent to the 100-year flood plain, GSA must review that information in

the Report of Excess to ensure compliance with state and local laws.

Yes No 

Accept Property. Conditionally accept property and obtain

information.

Note: If property is located in a community that is participating in the National Flood Insurance

Program, this information should be readily available.

Disposal

Screening for disposal is an eight-step

decision-making process conducted in

accordance with GSA ADM 1095.2 and

Executive Order (EO) 11988 that determines

whether

1) the property is in a flood plain;

2) the disposal action adversely impacts the

flood plain, or indirectly supports

development in the flood plain; and,

3) if so, is the disposal action the only

practicable alternative?

The IFB and conveyance document shall

reference the Federal, state, or local land use

restrictions and include any other appropriate

use restrictions.

Has GSA determined that the action is in or

affects a flood plain and is the only practicable

alternative?

If the property is being disposed of as a public

benefit conveyance, when GSA knows the

future land use, information about the flood

plain must be included in the assignment letter.

The Realty Specialist must evaluate known

reuse against critical actions and identify all

those critical actions.

Note: Realty Specialist determines by

completing Flood Impact Assessment checklist

(if action is considered categorical exclusion

under NEPA). If an EA or EIS is being done by

GSA, a Flood Impact Analysis must be done

concurrent with the NEPA EA or EIS.

Convey property with deed restrictions or

withhold property from conveyance.
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Flood Plains

Disposal of real property currently requires following certain procedures to address the

requirements of both GSA ADM 1095.2 and the Water Resources Council’s Flood Plain

Management Guidelines to meet the eight-step screening process required under EO 11988.

Actions are being taken to revise the GSA ADM 1095.2.

Eight-Step Screening Process

1. Determine whether the property is in a flood plain or whether its disposal would affect a flood plain or

indirectly supports development in the flood plain. Use the Federal Emergency Management Agency’s

(FEMA) flood hazard boundary map (FHBM), a flood insurance rate map (FIRM), or the best

available information to determine whether or not the property is located in a flood plain.

2. Solicit early public review and identification of restrictions from agencies, organizations, or parties that

have jurisdiction over, expertise about, or interest in flood plain management.

3. Identify and evaluate action alternatives.

4. Identify impacts of the proposed action.

5. Issue the decision.

6. Minimize effects.

7. Publish findings and a public explanation.

8. Implement the proposal.

Wetlands

Acceptance

Does the Report of Excess include detailed information regarding any known wetlands including any

existing delineations, and a listing of citations to relevant requirement under applicable Federal, state,

or local regulations?

Yes No 

Accept Property. GSA should use existing information, such as

the appropriate National Wetland Inventory

(NWI) map, or GSA may conduct a field

investigation to determine whether wetlands

are present on the property. Then accept

property.

Disposal

If excess real property located partially or entirely in a wetland is proposed for disposal to

nonfederal, public or private parties, the IFB and conveyance document must include information

about the locations of any wetlands and specific restrictions on the use of the property.

If the property is disposed of as a public benefit conveyance when GSA knows the future land

use, information about the presence of wetlands must be included in the assignment letter.
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Coastal Zone Management

Acceptance

Has the holding agency provided necessary information regarding coastal zone management issues?

Yes No 

Accept Property. Determine if the property is located in a coastal

zone management area.

Disposal

If the property is affected by a coastal zone management area, the following steps must be taken:

Will the activity have reasonably foreseeable effects (including cumulative or secondary) upon any

coastal use or resources?

No Yes 

Is a negative determination required? Has the state requested a determination of

consistency for this type of case, either in an

approved plan or by specific request?

Yes No Yes No 

Submit a negative

determination at least 90

days before the agency takes

action.

GSA may

proceed with

disposal of the

property.

Undertake a thorough review for

consistency and provide to the state initial

findings that would be of value to its

management effort.

File a Federal determination of consistency

according to the established six-step, 60-day

process, at least 90 days before action by the

Federal agency. A consistency review should be

done when the proposed method of conveyance

is determined.

Does the state agree with the determination of consistency?

No Yes 

Attempt to resolve within the remainder of 90-day

period. Informal negotiations or Secretarial

mediation may be necessary to resolve dispute.

GSA may proceed with disposal of the property.

Note: 1. Designated coastal zones include shorelines of interior lakes (such as the Great Lakes),

as well as properties that reside in off-shore ocean waters (such as lighthouses).

2. No action is required unless the state has expressed interest in early participation in the

federal program, and cooperates when feasible.
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Endangered Species

Acceptance

Does the holding agency provide in the Report of Excess information about the presence or likely

presence of any Federally designated or state designated threatened or endangered species on the

property?

Yes No 

Accept Property. The Realty Specialist should obtain information

available about the consideration of, or adverse

effects(s) on such species for documentation

as part of the real property case file. (See

Note)

Note: A letter is to be sent to the US Fish and Wildlife Service (FWS) to request a list of the

endangered species in the vicinity of the property. (Information also may be obtained

from state agencies if Federal sources do not provide complete information.)

Disposal

Does the disposal action(s) affect threatened or endangered species?

Yes No 

1. The Realty Specialist must contact the regional office of the FWS to obtain

additional information.

Proceed with

disposal.

2. If the FWS indicates that a potential effect on a threatened or endangered

species or a designated critical habitat may occur as a result of a disposal

action(s), informal or formal consultation with the FWS is to be initiated in

accordance with Section 7 of the Endangered Species Act.

3. In the IFB and deed, GSA must provide notice of restrictions on the property

with regard to threatened and endangered species (and include the

restrictions in the deed).

GSA Realty Specialists must obtain and document any available information regarding

consideration of or adverse effects to threatened or endangered species. Where a disposal action

might affect such species, the Realty Specialist must contact the regional office of the FWS to

obtain additional information. If FWS indicates that there is a potential impact to threatened or

endangered species or a designated critical habitat as a result of a disposal action, GSA must

initiate informal consultation (concurrence from FWS) or formal consultation (preparation and

submission of a Biological Assessment in the case of construction projects) with the FWS in

accordance with Section 7 of the Endangered Species Act. In addition, the Realty Specialist must

consider threatened or endangered species in the evaluation of disposal alternatives and document

this consideration in any NEPA documentation.
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Historic and Cultural Resources

Acceptance

Does the Report of Excess include:

1. A statement about the historical significance of the property, if any, and whether the property is

listed, is eligible, or has been nominated for listing in the National Register of Historic Places, or is

in proximity to a property on the National Register?

and

2. Any information available about any effort by the public to have the property listed on the National

Register?

No Yes 

Conditionally accept property until the holding agency has secured a

formal eligibility determination from the State Historic Preservation

Officer (SHPO).

Accept the property.

Screening

Has compliance with Section 106 of the National Historic Preservation Act been met?

Yes No 

Property may be disposed. Property may not be disposed until compliance

with Section 106 has been met.

Disposal

Each IFB and conveyance document must include a statement that sets forth in detail any and all

restrictions or requirements imposed on potential purchasers because of the historic significance or the

property.

Note: GSA is responsible for conveying properties under historic monument public benefit

conveyances.

Section 106 Process

The Section 106 process is as follows:

1. Identify and evaluate historic properties.

2. Assess effects of government actions on historic property.

• No effect; the undertaking will not affect historic properties

• No adverse effect; the undertaking will affect one or more historic properties, but the effect will not

be harmful.

• Adverse effect; the undertaking will affect one or more historic properties

If an adverse effect is anticipated, consult with SHPO and Advisory Council on Historic

Preservation (ACHP) to identify ways to minimize effects of the undertaking. Consultation is

designated to result in a Memorandum of Agreement (MOA). If consultation is unproductive, it

may be terminated. Agency submits documentation to ACHP to obtain written comments.

3. Provide the ACHP an opportunity to comment.

4. Proceed under the terms of the MOA. In the absence of an MOA, the considers the ACHP’s written

comments to make its decision about how to proceed.

APPENDIX G

GSA GENERAL REFERENCE GUIDE

FOR

REAL PROPERTY POLICY

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General Reference Guide for Real Property Policy

U.S. General Services Administration

Office of Government-wide Policy

Office of Real Property

April 1998

(Reformatted from internet source document found at

http://policyworks.gov/org/main/mp/library/policydocs/agpolicy.htm)

Foreword

The Office of Government-wide Policy is pleased to issue the General Reference Guide for Real

Property Policy. I think you will find that it contains valuable information that can be used by all

real property professionals.

This Guide was written to provide an easy-to-understand “map” to legal authorities relating to

real property policies. It is an additional tool that the Federal real property community can use to

keep educated and informed on current issues regarding real property policy.

I want to recognize David L. Bibb whose Office of Real Property researched and compiled the

listing of the Guide. Under the leadership of Stanley C. Langfeld, the Real Property Policy

Division assumed responsiblity for the planning and completion of this timely document. Deborah

Connors researched and wrote the report under Team Leader Sheldon Greenberg’s guidance.

I would like to also recognize and thank the General Services Administration’s (GSA), Office of

General Counsel who assisted in the review of this Guide. Your assistance in dealing with the

legal cites and wording in the document has been an integral step in accomplishing what we set

out to do: to provide an easy-to-understand reference of legal authorities applicable to GSA and

Federal agencies to whom GSA real property management and operations have been delegated.

G. Martin Wagner

Associate Administrator, Office of Governmentwide Policy, U.S. General Services Administration
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Table of Contents

Foreword ....................................................................................................................................ii

Executive Summary.................................................................................................................... iv

I. Introduction.....................................................................................................................1

II. Delegation of Authority ...................................................................................................2

III. Real Property Acquisition ................................................................................................3

IV. Facility Management........................................................................................................8

V. Real Property Disposal .................................................................................................. 14

VI. Design and Construction................................................................................................ 18

VII. Art-in-Architecture ........................................................................................................ 21

VIII. Historic Preservation ..................................................................................................... 22

IX. Assignment and Utilization of Space .............................................................................. 24

X. Safety and Environmental Management.......................................................................... 26

XI. Security ......................................................................................................................... 30

XII. Public Utilities............................................................................................................... 31

Index of Laws, Federal Property Management Regulations and Executive Orders.........................I
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Executive Summary

This General Reference Guide for Real Property Policy consists of a listing, by subject area, of

applicable laws, GSA Federal Property Management Regulations (FPMR’s) and Executive

Orders. The subject areas include: Delegation of Authority; Real Property Acquisition; Facility

Management; Real Property Disposal; Design and Construction; Art-in-Architecture; Historic

Preservation; Assignment and Utilization of Space; Safety and Environmental Management;

Security; and Public Utilities. An index is included at the end of the Guide for cross-reference

purposes. This Guide is a listing only, and does not have any recommendations or policy

implications for these authorities.

I. Introduction

The following Guide was written because the Office of Real Property identified a need for an

easy-to-understand reference guide to the legal authorities which serve as the basis for the current

real property policies applicable to GSA and Federal agencies to whom GSA real property

management and operations have been delegated. An additional need was for the user of the

document to be able to relate laws, Executive Orders and/or Federal Property Management

Regulations (FPMR’s) to a specific real property policy area. This General Reference Guide for

Real Property Policy will serve these purposes while not providing any policy implications for

these authorities.

This Guide consists of a listing, by subject area, of applicable laws, FPMR’s and Executive

Orders. The subject areas include: Delegation of Authority; Real Property Acquisition; Facility

Management; Real Property Disposal; Design and Construction; Art-in-Architecture; Historic

Preservation; Assignment and Utilization of Space; Safety and Environmental Management;

Security; and Public Utilities. An index is included at the end of the guide for cross-reference

purposes. This Guide is a listing only, and does not have any policy implications for these

authorities.

This General Reference Guide is available on the Office of Governmentwide Policy Homepage at:

http://policyworks.gov/realproperty.

Any additional questions can be answered by contacting the Office of Real Property at

(202) 501-0856.

This Reference Guide, and the summaries contained herein, are issued only for the convenience of

its users and are not intended: (i) to be a complete listing of all laws, regulations or Executive

Orders applicable to GSA or Federal real property policy; (ii) to be cited or relied upon as legal

authority for any purpose whatsoever; (iii) to serve as the basis for any suit, claim, right or causeof-action against GSA or any person; or (iv) to cover any changes in law or policy after the time

of its initial issuance.
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II. Delegation of Authority

A. Laws

1. Federal Property and Administrative Services Act of 1949, as amended, (40 USC§§486(d) and (e)) Authorizes

the Administrator of General Services to delegate and to authorize successive redelegation of any authority or

function transferred to or vested in the Administrator by this Act to any GSA official or to the head of any

other Federal agency.

2. Public Buildings Act of 1959, as amended, (40 USC §614) Provides that the performance, in accordance with

standards established by the Administrator of General Services, of the responsibilities and authorities vested in

him under this Act shall, except for the authority to alter any public building and to acquire such land as may

be necessary to carry out such alteration upon request, be delegated to the appropriate agency where the

estimated cost of the project does not exceed $100,000, and may be delegated to the appropriate Federal

agency where the Administrator determines that such delegation will promote efficiency and economy.

III.Real Property Acquisition

A. Laws

1. Architectural Barriers Act of 1968 (42 USC §§4151-4157) Establishes standards for accessibility by physically

disabled persons and requires compliance with the standards in the design, construction and alteration of

buildings and facilities leased, in whole or in part, by the Federal Government.

2. Coastal Zone Management Act of 1972 (16 USC §§1451 et seq.) Requires each Federal agency conducting or

supporting activities directly affecting a designated coastal zone to conduct or support those activities in a

manner which is to the maximum extent practicable, consistent with approved State management programs.

3. Competition in Contracting Act of 1984 (31 USC §§3551-3556 and 41 USC §§251-260) Requires GSA to

acquire supplies and services including leased space through the use of full and open competitive procedures.

4. Earthquake Hazards Reduction Act of 1977 (42 USC §§7701-7706) Requires leased buildings to meet seismic

safety standards.

5. Energy Policy and Conservation Act (EPACT) (42 USC §§6201 et seq.) Requires Federal agencies to

implement programs that reduce energy consumption in Federal facilities. This includes Federally leased

space.

6. Federal Water Pollution Control Act of 1972 (Clean Water Act), as amended, (33 USC §§1251-1263, and

elsewhere) Requires Federal agencies to develop a comprehensive program for the control of pollutants to

water. Federal agencies must consider the environmental impact of their actions so as to avoid water

pollution.

7. Federal Property and Administrative Services Act of 1949, as amended, (40 USC §§471 et seq.) Authorizes

GSA to: acquire, by purchase, condemnation, or otherwise, real estate and interests therein; and to enter into

leases of real property not exceeding 20 years in duration and to repair, alter and improve rented premises, to

condemn interests in real estate, and to assign and reassign space in leased buildings to other Federal tenants.

8. Fire Administration Authorization Act of 1992 (15 USC §2227) Requires that an entire building be

sprinklered or provide an equivalent level of life safety when Federal funds are used to lease 35,000 square feet
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or more of space in a building (under 1 or more leases) and some portion of the leased space is on or above the

6th floor. Also requires that all hazardous areas be sprinklered in all Government leases.

9. Federal Urban Land Use Act (40 USC §§531 et seq.) Requires GSA to consult with planning agencies and

local elected officials and to the greatest extent practicable, coordinate Federal projects with development

plans and objectives of the State, region, and locality where the project is to be located.

10. National Environmental Policy Act of 1969, as amended, (42 USC §§4321 et seq.) Requires Federal agencies

to consider the effects of all actions on the environment, to consider alternatives that reduce impacts, and to

prepare detailed statements for public and Federal agency review where significant impacts may occur. Real

estate actions such as leasing are among the actions that must be reviewed.

11. National Historic Preservation Act of 1966, as amended, (16 USC §§470 et seq.) Requires Federal agencies to

manage historic properties under their jurisdiction or control. Historic properties include buildings, structures,

districts, sites, and objects included or eligible for inclusion in the National Register of Historic Places.

Requires Federal agencies to consider the effects of their actions, including real estate actions, on such

properties regardless of ownership.

12. Occupational Safety and Health Act of 1970 (29 USC §§651-678) Requires GSA to ensure that space leased

and assigned to Federal agencies provides safe, healthful working conditions, including building features such

as lighting, guard rails, indoor air quality, fire safety features, emergency elevator requirements, etc.

13. Public Buildings Act of 1959, as amended, (40 USC §§601-619) Authorizes GSA to: acquire, by purchase,

condemnation, donation, exchange, or otherwise, any building and its site; alter any public building and to

acquire such land as may be necessary to carry out such alteration; acquire by purchase, condemnation,

donation, exchange, or otherwise such lands or interests in lands as necessary for use as sites for public

buildings; and to make such building project surveys (11b reports) as may be requested by resolution of

appropriate Congressional committees. Requires submittal of a prospectus to Congressional committees for

proposed construction, alteration, purchase, or acquisition of a building to be used as a public building which

involves a total expenditure in excess of $1,810,000 (indexed for Fiscal Year 1998) and for lease alteration

projects in excess of $905,000 (indexed for Fiscal Year l998). Places limits on GSA’s ability to lease space for

computers or courtrooms. Imposes certain rules for buildings constructed for lease to the United States,

including the use of detailed construction specifications and the use of competitive procedures for lease

construction projects.

14. Public Buildings Cooperative Use Act of 1976 (40 USC §§490(a)(16)-(19), 601a and 612a) Authorizes GSA to

enter into leases of certain space in public buildings with persons, firms or organizations engaged in

commercial, cultural, educational or recreational activities or to make such space available on an occasional

(temporary) basis (or by lease) to persons, firms or organizations engaged in cultural, educational or

recreational activities. This Act also encourages GSA to acquire and use buildings of historic, architectural

and cultural significance.

15. Randolph-Sheppard Act, as amended, (20 USC §§107 et seq.) Requires, with certain exceptions, that blind

persons licensed under the provisions of the Act be authorized to operate vending facilities on any Federal

property, including leased buildings. Federal agencies must ensure suitable areas for vending facilities in

buildings to be acquired.

16. Reorganization Plan No. 18 of 1950 (40 USC §490 note) Transferred to GSA all functions with respect to

acquiring space in buildings by lease, and all functions with respect to assigning and reassigning space in

buildings.

17. Rural Development Act of 1972 (42 USC §3122) Requires Federal agencies to give first priority to rural areas

in locating offices and facilities.
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18. Safe Drinking Water Act (42 USC §§300f et seq.) Establishes standards for drinking water quality and

regulates activities affecting drinking water supplies.

19. Small Business Act, as amended, (15 USC §§631 et seq.) Requires Federal agencies to utilize small and small

disadvantaged (economically or socially disadvantaged) business concerns and to ensure such concerns have

the maximum practical opportunity to participate as subcontractors in the performance of Federal contracts.

Requires effort by Federal contractors to place subcontracts with small and small disadvantaged business

concerns. The Act also requires publication of Federal procurement requirements and further requires large

businesses to submit small business subcontracting plans.

20. Telecommunications Act of 1996 (47 USC §332 note) Authorizes, to the extent that it does not interfere with

Federal agency programs or missions or security issues, Federal agencies to make available on a fair,

reasonable and nondiscriminatory basis, property, rights-of-way, and easements under their control for the

placement of new telecommunications services; and authorizes agencies to charge reasonable fees for the use

of such property, right-of-way or easements.

21. Toxic Substance Control Act (15 USC §§2601 et seq.) Regulates specific chemical substances, including PCBs

and asbestos, and requires labeling, notice and/or remediation if there is a danger to public safety.

22. Treasury, Postal Service and General Government Annual Appropriation Act (P.L. 101-136) November 3,

1989 Enables GSA to have permanent 30 year leasing authority on Government-owned land.

23. Treasury, Postal Service and General Government Annual Appropriation Act (P.L. 104-208) September 26,

1996, and (P.L 104-134) April 26, 1996 Transfers functions of the former Pennsylvania Avenue Development

Corporation to the General Services Administration.

24. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, (42 USC

§§4651-4655 and elsewhere) Requires Federal agencies to make every effort to acquire real property by

negotiation by initially offering the appraised fair market value for property to be acquired. Requires that

eminent domain acquisitions of land or space by formal condemnation proceedings and that the landowner be

fairly compensated for any buildings or structures condemned including the fair rental value of Federal

holdover tenants.

25. Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-17,

Assignment and Utilization of Space (41 CFR Subchapter D, Appendix, Temp. Reg. D-1) Prescribes the

policies and procedures for the assignment, utilization and location of Government-owned or leased space

under the authority of the Administrator of General Services.

26. Federal Property Management Regulations Subchapter D, Public Buildings and Space, Part 101-18,

Acquisition of Real Property (41 CFR Part 101-18) Prescribes the policies and procedures governing the

acquisition of interests in real property.

B. Real Property Acquisition Executive Orders

1. Executive Order 11988 - Floodplain Management Requires Federal agencies to avoid contributing to

development of floodplains unless there is no practicable alternative. Real estate actions are among the kinds

of actions that can contribute to such development.

2. Executive Order 11990 - Protection of Wetlands Requires Federal agencies to avoid causing wetlands to be

filled (e.g., through lease construction) unless there is no practicable alternative to doing so.

3. Executive Order 12072 - Federal Space Management Requires Federal agencies to give first consideration to

the Centralized Community Business Area when locating Federal facilities in urban areas.
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4. Executive Order 12699 - Seismic Safety of Federal and Federally Assisted or Regulated New Building

Construction Requires new buildings, leased for Federal use, to meet seismic safety standards.

5. Executive Order 12902 - Energy Efficiency and Water Conservation at Federal Facilities Requires that

appropriate consideration be given to building efficiencies in the leasing process.

6. Executive Order 12941 - Seismic Safety of Existing Federally Owned or Leased Buildings Requires buildings

leased to the Federal Government meet certain seismic safety standards.

7. Executive Order 13006 - Locating Federal Facilities in Historic Properties in Our Nation’s Central Cities

Encourages Federal agencies to locate Federal facilities on historic properties in our Nation’s central cities.

IV.Facility Management

A. Laws

1. American Indian Religious Freedom Act of 1978 (42 USC §§1996-1996a) Requires Federal agencies to review

their policies and procedures with the aim of protecting Indian religious freedom, to refrain from prohibiting

access to native religious and cultural objects or ceremonies, and to consult with Indian organizations

concerning proposed Federal agency actions.

2. Archeological Resources Protection Act of 1979, as amended, (16 USC §§470aa-470mm) Prohibits any person

from excavating or removing archeological resources (defined as sites or items of archeological interest) from

Federal or Indian land without a permit from the appropriate Federal land manager.

3. Coastal Barrier Improvement Act of 1990 (16 USC §§3501 et seq.) Restricts Federal expenditures and

financial assistance to projects which have the effect of encouraging development of coastal barriers.

However, permits such expenditures in certain exceptions.

4. Coastal Zone Management Act of 1972 (16 USC §§1451 et seq.) Requires each Federal agency activity within

or outside a designated coastal zone that affects any land or water use or natural resource of a designated

coastal zone to be consistent with the relevant State’s management program.

5. Davis-Bacon Act (40 USC §276) Requires the payment of minimum wages for laborers and mechanics

employed under Government contracts for the construction, alteration or repair of public buildings or public

works. Wages are established by the Department of Labor and are based on the prevailing wage rate in the

locality in which the contract is to be performed.

6. Edgar Amendment (40 USC §490c) Prohibits GSA, with certain exceptions, from contracting for guard,

elevator operator, messenger, and custodial services, if any permanent veterans preference employee of GSA

would be terminated as a result of the procurement of such services.

7. Energy Policy and Conservation Act (EPACT) (42 USC §§6201 et seq.) Requires Federal agencies to

implement programs that reduce energy consumption in Federal facilities.

8. Federal Property and Administrative Services Act of 1949, as amended, (40 USC §§471 et seq.) Provides GSA

with the authority to procure and supply real and personal property and non-personal services. Specifically,

the Act authorizes the Administrator of General Services to maintain, operate, and protect buildings, property

or grounds, including the construction, repair, preservation, demolition, furnishing, and equipping of such
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buildings (40 USC §490). In addition, the Act authorizes GSA to enter into leases of real property not

exceeding 20 years in duration.

9. Federal Urban Land Use Act (40 USC §§531 et seq.) Requires that, before a change of use of any real property

situated in an urban area as a site for a public building, GSA must comply with general local government

regulations and to consider all objections on the grounds that the change or use would conflict with zoning

regulations or planning objectives.

10. Fire Administration Authorization Act of 1992 (15 USC §2227) Requires that an entire building be

sprinklered or provide an equivalent level of life safety for Federally owned buildings and when Federal funds

are used to lease 35,000 square feet or more of space in a building (under 1 or more leases) and some portion

of the leased space is on or above the 6th floor. Also requires that all hazardous areas in all Federally

controlled space (owned or leased) be sprinklered.

11. Health Service Programs (5 USC §7901) Authorizes Federal agencies to establish health care facilities.

12. Javits-Wagner-O’Day Act (41 USC §§46-48c) Establishes the Committee for Purchase from the Blind and

Other Severely Disabled which regulates the procurement of specified commodities and services from

authorized non-profit agencies for the blind and severely disabled.

13. National Environmental Policy Act of 1969, as amended, (42 U.S.C §§4321 et seq.) Requires Federal agencies

to consider the effects of all actions on the human environment, to consider alternatives that reduce impacts,

and to prepare detailed statements for public and Federal agency review where significant impacts may occur.

Facility management can result in environmental impacts that must be reviewed.

14. National Historic Preservation Act of 1966, as amended, (16 USC §§470 et seq.) Requires Federal agencies to

manage historic properties under their jurisdiction or control. Historic properties include buildings, structures,

districts, sites, and objects included or eligible for inclusion in the National Register of Historic Places.

Requires Federal agencies to consider the effects of their actions, including ongoing facility management, on

such properties regardless of ownership.

15. Native American Graves Protection and Repatriation Act (23 USC §§3001 et seq.) Clarifies the ownership

rights to Native American remains and artifacts found on Federal or Indian land. Establishes rules for the

disposition and control of cultural items and establishes penalties for illegally trafficking in Native American

remains and cultural items. Requires Federal agencies that have custody and control over such remains or

items to inventory them and notify the affected Indian or cultural groups for possible repatriation.

16. Public Buildings Act of 1959, as amended, (40 USC §§ 601-619) Provides that only the Administrator of

General Services may construct public buildings, including the repair and alteration of such buildings.

Establishes requirements for the acquisition, alteration, and construction of public buildings. A public

building means any building, whether for single or multitenant occupancy, its grounds, approaches, and

appurtenances, which is generally suitable for office or storage space or both, and for the use of one or more

Federal agencies or mixed ownership corporations.

17. Public Buildings Amendments of 1972, as amended, (40 USC §§490(f), (a)(18) and (j)) Establishes a fund

(Federal Buildings Fund) in the United States Treasury into which Federal agency rent and certain other

moneys are deposited. Moneys deposited into the fund are available, subject to Congressional appropriation,

for real property management and related activities.

18. Public Buildings Cooperative Use Act of 1976 (40 USC §§490(a)(16)-(19), 601a and 612a) Authorizes the

Administrator of General Services to enter into leases for certain space (pedestrian access levels, rooftops, and

courtyards) in public buildings with persons, firms or organizations engaged in commercial, cultural,

educational or recreational activities or to make such space available on an occasional (temporary) basis (or by

lease) to persons, firms or organizations engaged in cultural, educational or recreational activities where the
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Administrator deems the activities to be in the public interest and where the activities will not disrupt the

operation of the building. Under this authority, receipts from leases or rentals are credited against

appropriations for building operations. The Act also authorizes the Administrator to furnish utilities,

maintenance, repair, and other services to persons, firms or organizations leasing space.

19. Randolph-Sheppard Act, as amended, (20 USC §§107 et seq.) Requires that blind persons licensed under the

provisions of the Act be authorized to operate vending facilities on any Federal property including leased

buildings. Federal agencies must ensure suitable areas for vending facilities in buildings to be acquired.

20. Service Contract Act of 1965 (41 USC §§351-358) Requires the payment of minimum wages for service

employees employed under service contracts to which the Government is a party. Wages are established by the

Department of Labor and are based on the prevailing wage rate in the locality in which the contract is to be

performed.

21. Small Business Act, as amended, (15 USC §§631 et seq.) Requires that a fair proportion of all Federal

contracts be awarded to small and small disadvantaged (economically or socially disadvantaged) business

concerns.

22. Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976 (42 USC

§§6901 et seq.) and Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) Regulates hazardous and

solid waste activities and underground storage tanks (UST’s). GSA must assure that any UST’s are in

compliance with Federal, State and local laws, including the removal or remediation of any contamination

prior to real property disposal.

23. Telecommunications Act of 1996 (47 USC §332 note) Authorizes, to the extent that it does not interfere with

Federal agency programs or missions or security issues, Federal agencies to make available on a fair,

reasonable and nondiscriminatory basis, property, rights-of-way, and easements under their control for the

placement of new telecommunications services; and authorizes agencies to charge reasonable fees for the use

of such property, right-of-way or easements.

24. Treasury, Postal Service, and General Government Annual Appropriation Act (P.L. 104-52) November 19,

1995 Requires that the head of each Federal agency shall promulgate regulations that prohibit the sale of

tobacco products in vending machines in or around Federal buildings, and the distribution of free samples of

tobacco products in or around Federal buildings.

25. Treasury, Postal Service, and General Government Annual Appropriation Act (40 USC §490 (h-l)) September

30, 1996 Authorizes the Administrator of General Services to establish, acquire space for, and equip flexiplace

work telecommuting centers for use by employees of Federal agencies, State and local governments, and the

private sector. Non-Federal employees may use the center to the extent that it is not being fully used by

Federal employees.

26. Trible Amendment (40 USC §490b) Authorizes the provision of space, services and equipment for child care

services in Federal facilities without charge for rent or services.

27. Federal Property Management Regulations, Amendment A-52, September 1994, Subpart 101-6.6, Fire

Protection (Firesafety) Engineering Requires that an equivalent level of life safety evaluation be performed by

a qualified fire protection engineer in buildings covered under the Fire Administration Authorization Act of

1992. After this evaluation is determined to be acceptable, a record should be maintained of the evaluation

and appropriate copies given to fire departments or other local authorities for use in developing prefire plans.

28. Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-19,

Construction and Alteration of Public Buildings (41 CFR Part 101-19) Prescribes the policies and procedures

for the alteration of public buildings, including standards for the alterations of buildings to ensure, whenever

possible, that physically disabled persons will have ready access to and use of such buildings.
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29. Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-20,

Management of Buildings and Grounds (41 CFR Part 101-20) Prescribes the policies and procedures for the

management, operations, protection, and maintenance of Government-owned and leased properties under the

assignment responsibility of GSA.

30. Federal Property Management Regulations, Subchapter H, Utilization and Disposal, Part 101-42, Utilization

and Disposal of Hazardous Materials and Certain Categories of Property (41 CFR Part 101-42) Prescribes the

special policies and procedures governing the utilization, donation, sale, exchange, or other disposition of

hazardous materials, dangerous property, and other categories of property with special utilization and disposal

requirements.

B. Facility Management Executive Orders

1. Executive Order 11988 - Floodplain Management Requires Federal agencies to avoid contributing to

development of floodplains unless there is no practicable alternative. Facility management activities that

could contribute to such development must be reviewed under this authority.

2. Executive Order 11990 - Protection of Wetlands Requires Federal agencies to avoid causing wetlands to be

filled (e.g., through landscaping as part of facility management) unless there is no practicable alternative to

doing so.

3. Executive Order 12856 - Federal Compliance With Right-To-Know Laws and Pollution Prevention

Requirements Requires Federal agencies that manage facilities to reduce the amount of toxic chemicals

entering any waste stream through source reduction, and requires that agencies report any introduction of toxic

chemicals into the waste stream to the public.

4. Executive Order 12871 - Labor Management Partnerships Establishes labor-management partnerships

throughout the Executive branch for unskilled, skilled, and technical/professional employees.

5. Executive Order 12873 - Federal Acquisition, Recycling, and Waste Prevention Requires each Executive

agency to incorporate waste prevention and recycling in its daily operations including the requirement to use

printing and writing papers with set minimum content standard of post-consumer materials.

6. Executive Order 12898 - Environmental Justice Requires Federal agencies to take all practicable measures to

avoid disproportionately high and adverse environmental impacts on low-income and minority populations.

7. Executive Order 12902 - Energy Efficiency and Water Conservation at Federal Facilities Requires that

appropriate consideration be given to efficient buildings in the design and construction process. Increases

Federal energy reduction goals to 30 percent by the year 2005, measured relative to 1985 energy use.

8. Executive Order 13007 - Indian Sacred Sites Requires Federal agencies that manage land, to the extent

practicable, to avoid impeding the access of American Indians to traditional sacred sites, and to avoid physical

impact to such sites.

9. Executive Order 13058 - Protecting Federal Employees and the Public From Exposure to Tobacco Smoke in

the Federal Workplace Prohibits, with limited exceptions, the smoking of tobacco products in all interior space

owned, rented, or leased by the Executive branch of the Federal Government, and in any outdoor areas under

Executive branch control in front of air intake ducts.

V. Real Property Disposal
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A. Laws

1. American Indian Religious Freedom Act of 1978 (42 USC §§1996-1996a) Requires Federal agencies to review

their policies and procedures with the aim of protecting Indian religious freedom, to refrain from prohibiting

access to native religious and cultural objects or ceremonies, and to consult with Indian organizations

concerning proposed Federal agency actions.

2. Coastal Zone Management Act of 1972 (16 USC §§1451 et seq.) Requires each Federal agency conducting or

supporting activities directly affecting a designated coastal zone to conduct or support those activities in a

manner which is, to the maximum extent practicable, consistent with approved State management programs.

3. Comprehensive Drug Abuse and Prevention and Control Act (21 USC §881) Provides for the forfeiture to the

United States of any real property which is used or intended to be used in illegal drug activities and provides

for the disposal of such real property.

4. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended

by the Superfund Amendments and Reauthorization Act of 1986 (SARA), and the Community Environmental

Response Facilitation Act (CERFA) (42 USC §§9601 et seq.) Regulates the disposal of contaminated real

property, requires full disclosure of all known hazardous substance activity, requires the identification of

uncontaminated parcels, and specifies covenants to be provided in most deeds for disposal of Federal real

property.

5. Defense Authorization Amendments and Base Closure and Realignment Act, as amended, (P.L. 100-526 and

P.L. 101-510, 10 USC §2687); Base Closure Community Development and Homeless Assistance Act of 1994

(P.L. 103-421, 10 USC §2687 note) Mandates that the Administrator of General Services delegate his

authority under the Act to the Department of Defense (DOD); however, GSA has oversight responsibility and

provides technical assistance. These laws set forth the process for recommending the closure of military bases

and the requirements for the disposal of real property located at these installations. In addition, these laws

modify the process for McKinney Act screening and outreach by requiring specific actions by the disposal

agency, local redevelopment authorities, and other entities involved in the disposal of military bases to ensure

potential reuses, including homeless needs, are considered in community reuse plans.

6. Disposal of Lands Acquired by Devise (40 USC §304) Authorizes GSA to take custody and dispose of, as

excess property, any real property acquired by the United States by devise.

7. Endangered Species Act of 1973 (16 USC §§1531 et seq.) Requires Federal agency consultation with the

Department of Interior, where endangered or threatened species are likely to be impacted, to ensure that

Federal agency actions do not jeopardize endangered or threatened species.

8. Farmlands Protection Act of 1981 (7 USC §§4201 et seq.) Requires Federal agencies to take into account the

adverse impact of its programs on the preservation of farmland and, as appropriate, consider alternatives

which could lessen such adverse effects.

9. Federal Property and Administrative Services Act of 1949, as amended, (40 USC §§471 et seq.) Authorizes

GSA to dispose of surplus property by sale, exchange, lease, permit, or transfer, for cash, credit, or other

property, upon such terms and conditions as deemed appropriate. Pursuant to the provisions of the Act,

Federal real property may be transferred to other Federal agencies to promote maximum utilization of real

property; conveyed for public uses such as education, health, park and recreation, correction, etc.; or sold by

negotiated or public sale. Requires that explanatory statements of negotiated sales be transmitted to the

appropriate Congressional committee.
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10. Federal Urban Land Use Act (40 USC §§531 et seq.) Requires GSA to give reasonable notice of prospective

sales of real property located within an urban area to the unit of local government having jurisdiction over

zoning and land-use regulations in the geographic area within which the property is located. This will afford

the local government the opportunity to zone the property in accordance with local comprehensive planning.

11. Federal Water Pollution Control Act of 1972 (Clean Water Act), as amended, (33 USC §§1251-1263, and

elsewhere) Requires Federal agencies to develop a comprehensive program for the control of pollutants to

water. Federal agencies must consider the environmental impact of their actions to avoid water pollution.

12. Gifts for Reduction of the Public Debt (31 USC §3113) Authorizes GSA to accept for the Government a gift of

real property made on the condition that it be sold and the proceeds from the sale be used to reduce the public

debt. Proceeds from such sale are to be deposited into a specific Treasury account.

13. National Environmental Policy Act of 1969, as amended, (42 USC §§4321) Requires Federal agencies to

consider the effects of all actions on the human environment, to consider alternatives that reduce impacts, and

to prepare detailed statements for public and Federal agency review where significant impacts may occur.

Real property disposal actions are among those that must be reviewed.

14. National Historic Preservation Act of 1966, as amended, (16 USC §§470 et seq.) Requires Federal agencies to

manage historic properties under their jurisdiction or control. Historic properties include buildings, structures,

districts, sites, and objects included or eligible for inclusion in the National Register of Historic Places.

Requires Federal agencies to consider the effects of their actions, including real property disposal actions, on

such properties regardless of ownership.

15. Property for Wildlife Conservation Act (16 USC §§667b-d) Allows surplus Federal real property to be

conveyed to State agencies for wildlife conservation purposes (other than migratory birds) without

reimbursement.

16. Property Transferred in Connection with Debts (40 USC §301) Governs the acceptance and sale of real

property conveyed to the United States in payment of debts excepting the internal-revenue laws.

17. Reconveyance of Real Estate on Payment of Debt (40 USC §306) Authorizes GSA to release or otherwise

convey real estate to a debtor from whom it was taken upon receipt of full payment of the debt to the United

States excepting the internal-revenue laws.

18. Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 USC §§4822 et seq., and §§4851 et seq.)

Requires the inspection and abatement and/or notice of possible presence of lead-based paint hazards in the

disposition of Federally owned housing.

19. Safe Drinking Water Act (42 USC §§300f et seq.) Establishes standards for drinking water quality and

regulates activities affecting drinking water supplies.

20. Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976 (42 USC

§§6901 et seq.) and Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) Regulates hazardous and

solid waste activities and underground storage tanks (UST’s). GSA must assure that any UST’s are in

compliance with Federal, State and local laws, including the removal or remediation of any contamination

prior to real property disposal.

21. Stewart B. McKinney Homeless Assistance Act of 1987, as amended, (42 USC §11411) Provides for the use of

excess and surplus Federal real property to assist the homeless. Specifies procedures, timeframes and requires

coordination with the Department of Housing and Urban Development regarding suitable properties, and with

the Department of Health and Human Services regarding review and approval of applications to lease or

acquire property pursuant to these provisions.
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22. Surplus Property Act of 1944, Airport and Airways Improvement Act of 1946, Federal Aviation Act of 1958,

Federal Airport Act, and the Airport and Airway Development Act of 1982 (revised and recodified at Subtitle

VII, Aviation Programs, 49 USC §47151) Authorizes GSA to convey surplus Federal real property to States,

political subdivisions, or tax-supported institutions for public airport purposes.

23. Toxic Substance Control Act (15 USC §§2601 et seq.) Regulates specific chemical substances, including PCBs

and asbestos, and requires labels, notices, and/or remediation if there is a danger to public safety.

24. Wild and Scenic Rivers Act (16 USC §§1271 et seq.) Requires Federal agencies to include consideration of

potential impacts on wild and scenic rivers in all planning.

25. Federal Property Management Regulations, Subchapter H, Utilization and Disposal, Part 101-47, Utilization

and Disposal of Real Property (41 CFR Part 101-47) Prescribes the policies and procedures for the utilization

and disposal of excess and surplus Federal real property and related personal property.

B. Real Property Disposal Executive Orders

1. Executive Order 12512 - Federal Real Property Management Directs GSA to provide Governmentwide policy

oversight and guidance for Federal real property management; to establish standards and procedures for

Federal agencies’ review of their real property holdings; to conduct utilization surveys; and to provide

leadership in the development of property management information systems.

2. Executive Order 12898 - Environmental Justice Requires Federal agencies to take all practicable measures to

avoid disproportionately high and adverse environmental impacts on low-income and minority populations.

VI.Design and Construction

A. Laws

1. American Indian Religious Freedom Act of 1978 (42 USC §§1996-1996a) Requires Federal agencies to review

their policies and procedures with the aim of protecting Indian religious freedom, to refrain from prohibiting

access to native religious and cultural objects or ceremonies, and to consult with Indian organizations

concerning proposed Federal agency actions.

2. Americans with Disabilities Act of 1990 (P.L. 101-336, 104 Stat. 327) Provides, among other things,

accessibility requirements on employment, State and local government services, buildings and facilities.

3. Archeological and Historic Preservation Act of 1974, as amended, (16 USC §§469a-1- 469c-2) Requires any

Federal agency, whenever it finds that its actions in connection with any Federal construction project may

cause irreparable loss or destruction of significant scientific, prehistoric, historic, or archaeological data, to

notify the Secretary of the Department of Interior, and authorizes the agency to use project funds to undertake

the recovery, protection and preservation of such data, or to request the Secretary of the Department of Interior

to undertake such recovery, protection or preservation.

4. Architectural Barriers Act of 1968 (ABA) (42 USC §§4151-4157) Establishes standards for accessibility by

physically disabled persons and requires compliance with the standards in the design, construction and

alteration of buildings and facilities owned or leased, in whole or in part, by the Federal Government. The

ABA includes certain record keeping and reporting requirements.

5. Earthquake Hazards Reduction Act of 1977 (42 USC §§7701-7706) Requires compliance with Federally

established standards for the reduction of seismic hazards in Federally owned or leased buildings (e.g., during
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repair and alteration). These standards were adopted by Executive Order 12941 - Seismic Safety of Existing

Federally Owned or Leased Buildings.

6. Energy Policy and Conservation Act (EPACT) (42 USC §§6201 et seq.) Requires Federal agencies to

implement programs that reduce energy consumption in Federal facilities.

7. National Environmental Policy Act of 1969, as amended, (42 USC §4321 et seq.) Requires Federal agencies to

consider the effects of all actions (such as design and construction) on the human environment, to consider

alternatives that reduce impacts, and to prepare detailed statements for public and Federal agency review

where significant impacts may occur.

8. National Historic Preservation Act of 1966, as amended, (16 USC §§470 et seq.) Requires Federal agencies to

manage historic properties under their jurisdiction or control. Historic properties include buildings, structures,

districts, sites, and objects included in or eligible for the National Register of Historic Places. Requires

Federal agencies to consider the effects of their actions, including design and construction, on such properties

regardless of ownership.

9. Native American Graves Protection and Repatriation Act (23 USC §§3001 et seq.) Provides, among other

things, that if Native American human remains or other cultural items are found on Federal or Indian land

during a construction project, work be halted in the vicinity of the discovery for at least 30 days while efforts

are made to consult with the relevant tribe(s) and preserve the items. Regulations at 43 CFR 10 require

Federal agencies to consult with tribes during project planning, and to implement plans of action for treating

Native American cultural items.

10. Public Buildings Act of 1959, as amended, (40 USC §§601-619) Provides that only the Administrator of

General Services may construct public buildings, including the repair and alteration of such public buildings.

Establishes requirements for the acquisition, alteration, and construction of public buildings, including design

review responsibilities. Provides the authority for the Administrator to delegate his authority to other Federal

agencies. Establishes requirements applicable to buildings constructed or altered by GSA and other Federal

agencies relating to compliance with nationally recognized building codes and State and local zoning laws.

Requires submittal of a prospectus to Congressional committees for proposed construction, alteration,

purchase, or acquisition of a building to be used as a public building which involves a total expenditure in

excess of $1,810,000 (indexed for Fiscal Year 1998).

11. Public Buildings Amendments of 1988 (P.L. 100-678, 102 Stat. 4049, specifically 40 USC §619) Provides,

among other things, the Administrator of General Services with authority to determine the extent to which a

building constructed by GSA complies with one of the nationally recognized model building codes.

12. Small Business Act (15 USC §631 et seq.) Requires a positive effort by Federal contractors to place

subcontracts with small and small disadvantaged (economically or socially disadvantaged) concerns. The Act

also requires publication of Federal procurement requirements and further requires large businesses to submit

small business subcontracting plans.

13. Visual Artists Act of 1990 (17 USC §§101, 106A et seq.) Protects the reputations of certain visual artists and

the works of visual art they create.

14. Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-19,

Construction and Alteration of Public Buildings (41 CFR Part 101-19) Prescribes the policies and procedures

for the construction and alteration of public buildings under the authority of the Administrator of General

Services.

B. Design and Construction Executive Orders
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1. Executive Order 11988 - Floodplain Management Requires Federal agencies to avoid contributing to

development of floodplains unless there is no practicable alternative to doing so. Design and Construction

actions are among the kinds of actions that can contribute to such development.

2. Executive Order 11990 - Protection of Wetlands Requires Federal agencies to avoid causing wetlands to be

filled unless there is no practicable alternative to doing so. Design and Construction actions are among the

kinds of actions that can contribute to such development.

3. Executive Order 12072 - Federal Space Management Requires Federal agencies to give first consideration to

the Centralized Community Business Area (CBA) when locating Federal facilities in urban areas.

4. Executive Order 12770 - Metric Usage in Federal Programs Mandates, with certain exceptions, the metric

system of measurement to be implemented in Design and Construction on all new projects starting January 1,

1994, or later.

5. Executive Order 12898 - Environmental Justice Requires Federal agencies to take all practicable measures to

avoid disproportionately high and adverse environmental impacts on low-income and minority populations.

Such impacts could result from a GSA design and construction project.

6. Executive Order 12902 - Energy Efficiency and Water Conservation in Federal Facilities Requires that

appropriate consideration be given to efficient buildings in the design and construction process. Increases

Federal energy reduction goals to 30 percent by the year 2005, measured relative to 1985 energy use.

7. Executive Order 13006 - Locating Federal Facilities in Historic Properties in Our Nation’s Central Cities

Encourages Federal agencies to locate Federal facilities on historic properties in our Nation’s central cities.

8. Executive Order 13007 - Indian Sacred Sites Requires Federal agencies that manage land, to the extent

practicable, to avoid impeding the access of American Indians to traditional sacred sites, and to avoid physical

impact to such sites.

VII. Art-in-Architecture

A. Laws

1. Public Buildings Act of 1959, as amended, (40 USC §611(d)) Requires that the Administrator of General

Services shall give due consideration to excellence of architecture and design.

2. Public Buildings Cooperative Use Act of 1976 (40 USC §601a) Requires that the Administrator shall

encourage the location of cultural facilities and activities within public buildings, and shall provide and

maintain space, which encourage public access to, around, into, and through public buildings so that such

activities complement and supplement cultural resources in the neighborhood of public buildings. The phrase

cultural activities includes fine arts exhibits.

3. Visual Artists Act of 1990 (17 USC §§101, 106A et seq.) Protects the reputations of certain visual artists and

the works of visual art they create.

VIII. Historic Preservation

A. Laws
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1. American Indian Religious Freedom Act of 1978 (42 USC §§1996-1996a) Requires Federal agencies to review

their policies and procedures with the aim of protecting Indian religious freedom, to refrain from prohibiting

access to native religious and cultural objects or ceremonies, and to consult with Indian organizations

concerning proposed Federal agency actions.

2. Archeological Resources Protection Act of 1979, as amended, (16 USC §§470aa-470mm) Requires any person

to apply to a Federal land manager for a permit to excavate and remove archaeological resources (i.e. pottery,

weapons, tools, structures or portions of structures, or skeletal human remains) located on public or Indian

lands.

3. National Historic Preservation Act of 1966, as amended, (16 USC §§470 et seq.) Requires that GSA consider

the effects of its actions on all historic properties and districts. In certain circumstances, the Act requires

consultation with State Historic Preservation Officers, the National Advisory Council on Historic Preservation

and other interested parties prior to the commencement of Federal agency projects (e.g., building construction

or repair and alteration projects).

4. Native American Graves Protection and Repatriation Act (23 USC §§3001 et seq.) Clarifies the ownership

rights to Native American remains and artifacts found on Federal or Tribal land. Requires Federal agencies

that have custody and control over such remains or items to inventory them and notify the affected Indian or

cultural groups for possible repatriation.

5. Public Buildings Cooperative Use Act of 1976 (40 USC §§490(a)(16)-(19), 601a and 612a) Authorizes the

Administrator of General Services to enter into leases of certain space in public buildings. This Act

encourages GSA to acquire and use buildings of historical, architectural and cultural significance.

B. Historic Preservation Executive Orders

1. Executive Order 12898 - Environmental Justice Requires Federal agencies to take all practicable measures to

avoid disproportionately high and adverse environmental impacts on low-income and minority populations.

2. Executive Order 13006 - Locating Federal Facilities in Historic Properties in our Nation’s Central Cities

Encourages Federal agencies to locate Federal facilities on historic properties in our Nation’s central cities.

3. Executive Order 13007 - Indian Sacred Sites Requires Federal agencies that manage land, to the extent

practicable, to avoid impeding the access of American Indians to traditional sacred sites, and to avoid physical

impact to such sites.

IX.Assignment and Utilization of Space

A. Laws

1. Federal Property and Administrative Services Act of 1949, as amended, (40 USC §§471 et seq.) Authorizes the

Administrator of General Services to assign and reassign space in Government-owned and leased buildings to

Federal agencies and authorizes the Administrator to charge, or exempt agencies from, rent rates which

approximate commercial charges for comparable space and services, and to deposit moneys collected in a

Federal Buildings Fund established in the Treasury of the United States.

2. Health Service Programs (5 USC §7901) Authorizes Federal agencies to establish health care facilities.
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3. Randolph-Sheppard Act, as amended, (20 USC §§107 et seq.) With certain exceptions, the Act requires that

blind persons licensed under the provisions of the Act be authorized to operate vending facilities on any

Federal property, including leased buildings. The Act imposes a positive obligation on GSA to acquire space

in buildings which have suitable sites for vending facilities.

4. Rural Development Act of 1972 (42 USC §3122) Requires Federal agencies to give first consideration to rural

areas in locating offices and facilities.

5. Telecommunications Act of 1996 (47 USC §332 note) Authorizes, to the extent that it does not interfere with

Federal agency programs or missions or security issues, Federal agencies to make available on a fair,

reasonable and nondiscriminatory basis, property, rights-of-way, and easements under their control for the

placement of new telecommunications services; and authorizes agencies to charge reasonable fees for the use

of such property, right-of-way or easements.

6. Trible Amendment (40 USC §490b) Authorizes the provision of space, services and equipment for child care

services in Federal facilities without charge for rent or services.

7. Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-17,

Assignment and Utilization of Space (41 CFR Subchapter D, Appendix, Temp. Reg. D-1) Prescribes the

policies and procedures for the assignment, utilization and location of Government-owned or leased space

under the authority of the Administrator of General Services.

B. Assignment and Utilization of Space Executive Orders

1. Executive Order 12072 - Federal Space Management Requires Federal agencies to give first consideration to

the Centralized Community Business Area (CBA) when locating Federal facilities in urban areas.

2. Executive Order 12411 - Government Work Space Management Reforms Requires the heads of Federal

Executive agencies to establish programs to produce and maintain an inventory of work space and related

furnishings, reduce the amount of work space used or held to essential minimums, and report to the

Administrator of General Services any holdings not necessary for the mission of the agency. Federal agencies

are also responsible for judicious management of funds used for furniture and other office related

accouterments. Delegates to the Administrator authority to conduct surveys and establish agencywide

objectives for each Executive agency in developing their work space management planning programs.

3. Executive Order 12512 - Federal Real Property Management Directs GSA to provide Governmentwide policy

oversight and guidance for Federal real property management; to establish standards and procedures for

Federal agencies’ review of their real property holdings; to conduct utilization surveys; and to provide

leadership in the development of property management information systems.

4. Executive Order 13006 - Locating Federal Facilities in Historic Properties in our Nation’s Central Cities

Encourages Federal agencies to locate Federal facilities on historic properties in our Nation’s central cities.

X. Safety and Environmental Management

A. Laws

1. American Indian Religious Freedom Act of 1978 (42 USC §§1996-1996a) Requires Federal agencies with

statutory or administrative responsibility for the management of Federal lands to accommodate Indian access

to and ceremonial use of Indian sacred sites.
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2. Archeological and Historic Preservation Act of 1974, as amended, (16 USC §§469a-1- 469c-2) Requires that

when any Federal agency finds that its actions in connection with any Federal construction project, Federally

licensed project, or other project may cause irreparable loss or destruction of significant scientific, prehistoric,

historic, or archaeological data, to notify the Secretary of the Department of Interior.

3. Archeological Resources Protection Act of 1979, as amended, (16 USC §§470aa-470mm) Requires any person

to apply to a Federal land manager for a permit to excavate and remove archaeological resources (i.e. pottery,

weapons, tools, structures or portions of structures, or skeletal human remains) located on public or Indian

lands.

4. Architectural Barriers Act of 1968 (ABA) (42 USC §§4151-4157) Establishes standards for accessibility by

physically disabled persons and requires compliance with the standards in the design, construction and

alteration of buildings and facilities owned or leased, in whole or in part, by the Federal Government. The

ABA includes certain recording keeping and reporting requirements.

5. Clean Air Act of 1963 (42 USC §§7401 et seq.) Requires each Federal department, agency, and

instrumentality of the United States to comply with all Federal, State, interstate, and local requirements

regarding the control and abatement of air pollution in the same manner and to the same extent as any nongovernmental entity.

6. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended

by the Superfund Amendments and Reauthorization Act of 1986 (SARA), and the Community Environmental

Response Facilitation Act (CERFA) (42 USC §§9601 et seq.) Requires each Federal department, agency, and

instrumentality of the United States to respond to releases or threats of release of hazardous substances,

pollutants or contaminants by taking actions to abate a release and contamination. Establishes a compensation

and liability scheme for clean-ups.

7. Earthquake Hazards Reduction Act of 1977 (42 USC §§ 7701-7706) Requires compliance with Federally

established standards for the reduction of seismic hazards in Federally owned or leased buildings (e.g., during

repair and alteration). These standards were adopted by Executive Order 12941 - Seismic Safety of Existing

Federally Owned or Leased Buildings.

8. Energy Policy and Conservation Act (EPACT) (42 USC §§6201 et seq.) Requires measures for energy

conservation and improved energy efficiency.

9. Fire Administration Authorization Act of 1992 (15 USC §2227) Requires that an entire building be

sprinklered or provide an equivalent level of life safety for Federally owned buildings and when Federal funds

are used to lease 35,000 square feet or more of space in a building (under 1 or more leases) and some portion

of the leased space is on or above the 6th floor. Also requires that all hazardous areas in all Federally

controlled space (owned or leased) be sprinklered in all Government leases.

10. National Environmental Policy Act of 1969, as amended, (42 USC §§4321 et seq.) Requires an assessment of

the environmental impact of each major Federal action significantly affecting the environment. This may

include the preparation of environmental documentation for major acquisition or construction projects, repair

and alterations projects, or other major actions.

11. National Historic Preservation Act of 1966, as amended, (16 USC §§470 et seq.) Requires all Federal agencies

to preserve historic properties which are owned or controlled by such agency. Prior to acquiring, constructing

or leasing buildings, each Federal agency shall use, to the maximum extent feasible, historic properties

available to the agency.

12. Native American Graves Protection and Repatriation Act (23 USC §§3001 et seq.) Clarifies the ownership

rights to Native American remains and artifacts found on Federal or Tribal land. Requires Federal agencies
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that have custody and control over such remains or items to inventory them and notify the affected Indian or

cultural groups for possible repatriation.

13. Occupational Safety and Health Act of 1970 (29 USC §§651-678) Requires all Federal agencies to provide

safe, healthful working places and conditions, including building features such as lighting, guard rails, indoor

air quality, fire safety features, emergency elevator requirements, etc.

14. Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976 (42 USC

§§6901 et seq.) and Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) Regulates hazardous and

solid waste activities including underground storage tanks (42 USC §§6991 et. seq.) All Federal departments,

agencies, and instrumentalities must be in compliance with Federal, State and local law. This Act regulates

generators, transporters, and treatment, storage and disposal facilities in their treatment of hazardous waste.

15. Toxic Substance Control Act (15 USC §§2601 et seq.) Regulates specific chemical substances, including

PCBs, lead, and asbestos. Regulates the manufacturing, processing, and disposal of such substances.

16. Federal Property Management Regulations, Amendment A-52, September 1994, Subpart 101-6.6, Fire

Protection (Firesafety) Engineering Requires that an equivalent level of life safety evaluation be performed by

a qualified fire protection engineer in buildings covered under the Fire Administration Authorization Act of

1992. After this evaluation is determined to be acceptable, a record should be maintained of the evaluation

and appropriate copies given to fire departments or other local authorities for use in developing prefire plans.

17. Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-19,

Construction and Alteration of Public Buildings (41 CFR Part 101-19) Prescribes policies and procedures for

the alteration of public buildings, including standards for the alterations of buildings to ensure, whenever

possible, that physically disabled persons will have ready access to and use of such buildings.

18. Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-20,

Management of Buildings and Grounds (41 CFR Part 101-20) Prescribes the policies and procedures for the

management, operations, protection, and maintenance of Government-owned and leased properties under the

assignment responsibility of GSA.

19. Federal Property Management Regulations, Subchapter H, Utilization and Disposal, Part 101-42, Utilization

and Disposal of Hazardous Materials and Certain Categories of Property (41 CFR Part 101-42) Prescribes the

special policies and procedures governing the utilization, donation, sale, exchange, or other disposition of

hazardous materials, dangerous property, and other categories of property with special utilization and disposal

requirements.

B. Safety and Environmental Management Executive Orders

1. Executive Order 11514 - Protection and Enhancement of Environmental Quality Places additional

responsibilities on Federal agencies to ensure their activities comply with the National Environmental Policy

Act requirements.

2. Executive Order 11988 - Floodplain Management Requires Federal agencies to evaluate the impact of their

activity to floodplains in order to protect against flood loss.

3. Executive Order 11990 - Protection of Wetlands Requires Federal agencies to evaluate the impact of their

activity to floodplains in order to protect against flood loss.
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4. Executive Order 12196 - Occupational Safety and Health Programs for Federal Employees Requires the head

of each Federal agency to establish and maintain an effective and comprehensive occupational safety and

health program. Requires Federal agencies to furnish safe and healthy places and conditions of employment.

5. Executive Order 12856 - Federal Compliance With Right-To-Know Laws and Pollution Prevention

Requirements Requires Federal agencies that manage facilities to reduce the amount of toxic chemicals

entering any waste stream through source reduction, and requires that agencies report any introduction of toxic

chemicals into the waste stream to the public.

6. Executive Order 12898 - Environmental Justice Requires Federal agencies to take all practicable measures to

avoid disproportionately high and adverse environmental impacts on low-income and minority populations.

7. Executive Order 12902 - Energy Efficiency and Water Conservation in Federal Facilities Requires each

Federal agency to develop plans and goals to reduce energy consumption.

8. Executive Order 12941 - Seismic Safety of Existing Federally Owned or Leased Buildings In Furtherance of

the Earthquake Hazards Reduction Act of 1977 (42 USC §§7701-7706) Requires Federal departments and

agencies to meet the Standards of Seismic Safety for Existing Federally Owned or Leased Buildings in order to

assess and enhance the seismic safety of existing buildings constructed for or leased by the Federal

Government which were designed and constructed without adequate seismic design and construction

standards.

9. Executive Order 13007 - Indian Sacred Sites Requires Federal agencies that manage land, to the extent

practicable, to avoid impeding the access of American Indians to traditional sacred sites, and to avoid physical

impact to such sites.

XI. Security

A. Laws

1. Assimilative Crimes Act (18 USC §13) Provides that if an individual commits an act which is not a violation

of Federal law, but is a violation of the laws of a State, district, territory, or possession in which the Federal

jurisdiction is located, and the Federal jurisdiction is exclusive or concurrent, the individual is considered to

have committed a Federal offense.

2. Edgar Amendment (40 USC §490c) Prohibits GSA, with certain exceptions, from contracting for guard,

elevator operator, messenger, and custodial services if any permanent veterans preference employee of GSA

would be terminated as a result of the procurement of such services.

3. Federal Property and Administrative Services Act of 1949, as amended, (40 USC §§471 et seq.) Authorizes the

Administrator of General Services to furnish arms and ammunition for the protection force maintained by

GSA. Authorizes officers and employees of GSA having investigatory powers to administer oaths.

4. Protection of Public Property Act (40 USC §§318-318d) Authorizes the Administrator of General Services to:

a) appoint special police for the policing of property under the charge and control for GSA.

b) make rules and regulations to govern GSA controlled property and impose penalties for the violation of

such rules.

c) to detail special police to other agencies for protection of property under that agency’s control and extend

GSA rules and regulations to that property.

d) utilize the facilities and services of existing Federal law enforcement, and, with consent, that of State and

local law enforcement agencies.

e) appoint nonuniformed special policemen in order to protect property under GSA’s charge and control.
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XII. Public Utilities

A. Laws

1. Clean Air Act of 1963 (42 USC §§7401 et seq.) Requires the utilization in Federal air control programs of all

available and appropriate facilities and resources within the Federal Government for the prevention and

abatement of air pollution.

2. Energy Policy and Conservation Act (EPACT) (42 USC §§6201 et seq.) Requires Federal agencies to

implement programs that reduce energy consumption in Federal Facilities.

3. Federal Power Act of 1920, as amended, (16 USC §§791 et seq.) Regulates power industry and appoints the

Federal Power Commission.

4. Federal Property and Administrative Services Act of 1949, as amended, (40 USC §§471 et seq.) Authorizes

GSA to manage public utility services and directs the Administrator to represent Federal agencies in

negotiations with public utilities and in proceedings involving public utilities before Federal and State

regulatory bodies.

5. National Environmental Policy Act of 1969, as amended, (42 USC §§4321 et seq.) Requires consideration of

environmental factors in the decision-making process for major Federal actions.

6. Natural Gas Policy Act of 1978 (15 USC §§3301 et seq.) Regulates natural gas supplies, pricing and related

issues.

7. Powerplant and Industrial Fuel Use Act of 1978, as amended, (P.L. 95-620, 92 Stat. 3289) Provides, among

other things, for decreasing petroleum importation and increasing the capability to use indigenous energy

resources.

8. Public Utility Holding Company Act of 1935, as amended, (15 USC §§79a et seq.) Sets rules and standards for

the ownership of publicly regulated utilities by unregulated corporations.

9. Public Utility Regulatory Policy Act of 1978, as amended, (P.L. 95-617, 92 Stat. 3117) Provides for the

conservation, distribution, and development of electric, hydro-electric, natural gas and crude oil energy

resources.

10. Small Business Act, as amended, (15 USC §§631 et seq.) Requires an effort by Federal contractors to place

subcontracts with small and small disadvantaged business (economically and socially disadvantaged) concerns.

B. Public Utilities Executive Orders

1. Executive Order 12902 - Energy Efficiency and Water Conservation at Federal Facilities Requires, among

other things, each Federal agency to develop energy consumption reduction goals.
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INDEX OF LAWS, FEDERAL PROPERTY MANAGEMENT REGULATIONS AND EXECUTIVE

ORDERS

Legend for Index of Laws, Federal Property Management Regulations and Executive Orders

Art-in-Architecture - A/A Historic Preservation - HP

Assignment and Utilization of Space - A&U Public Utilities - PU

Delegation of Authority – DA Real Property Acquisition - RPA

Design and Construction - D&C Real Property Disposal - RPD

Facility Management – FM Safety and Environmental Management - SEM

Security – S

Airport and Airways Improvement Act of 1946, Federal Aviation Act of 1958, Federal Airport Act, and the Airport

and Airway Development Act of 1982 (revised and recodified at Subtitle VII, Aviation Programs, 49 USC

§47151), RPD p. 17

American Indian Religious Freedom Act of 1978 (42 USC §§1996-1996a),

FM p. 8, RPD p. 14, D&C p. 18, HP p. 22, and SEM p. 26

Americans with Disabilities Act of 1990 (P.L. 101-336, 104 Stat. 327), D&C p. 18

Archeological and Historic Preservation Act of 1974, as amended, (16 USC §§469a-1- 469c-2),

D&C p. 18, and SEM p. 26

Archeological Resources Protection Act of 1979, as amended, (16 USC §§470aa-470mm),

FM p. 8, HP p. 22, and SEM p. 26

Architectectural Barriers Act of 1968 (42 USC §§4151-4157), RPA p. 3, D&C p. 18, and SEM p. 26

Base Closure Community Development and Homeless Assistance Act of 1994 (P.L. 103-421, 10 USC §2687 note),

RPD p. 14

Clean Air Act of 1963 (42 USC §§7401 et seq.), SEM p. 26, and PU p. 31

Coastal Barrier Improvement Act of 1990 (16 USC §§3501 et seq.), FM p. 8

Coastal Zone Management Act of 1972 (16 USC §§1451 et seq.), RPA p. 3, FM p. 8, and RPD p. 14

Competition in Contracting Act of 1984 (31 USC §§3551-3556 and 41 USC §§251- 260), RPA p. 3

Comprehensive Drug Abuse and Prevention and Control Act (21 USC §881), RPD p. 14

Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the

Superfund Amendments and Reauthorization Act of 1986 (SARA), and the Community Environmental

Response Facilitation Act (CERFA) (42 USC §§9601 et seq.), RPD p. 14, and SEM p. 26

Community Environmental Response Facilitation Act (CERFA) (42 USC §9601 et seq.; also 40 CFR 373),

RPD p. 14, and SEM p. 26

Davis-Bacon Act (40 USC §276), FM p. 8
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Defense Authorization Amendments and Base Closure and Realignment Act, as amended, (P.L. 100-526 and P.L.

101- 510, 10 USC §2687), RPD p. 14

Disposal of Lands Acquired by Devise (40 USC §304), RPD p. 14

Earthquake Hazards Reduction Act of 1977 (42 USC §§7701-7706), RPA p. 3, D&C p. 18, and SEM p. 26

Edgar Amendment (40 USC §490c), FM p. 8, and S p. 30

Endangered Species Act of 1973 (16 USC §§1531 et seq.), RPD p. 15

Energy Policy and Conservation Act (EPACT) (42 USC §§6201 et seq.),

RPA p. 3, FM p. 8, D&C p. 18, SEM p. 27, and PU p. 31

Executive Order 11514 - Protection and Enhancement of Environmental Quality, SEM p. 28

Executive Order 11988 - Floodplain Management, RPA p. 6, FM p. 12, D&C p. 20, and SEM p. 28

Executive Order 11990 - Protection of Wetlands, RPA p. 6, FM p. 12, D&C p. 20, and SEM p. 29

Executive Order 12072 - Federal Space Management, RPA p. 6, D&C p. 20, and A&U p. 25

Executive Order 12196 - Occupational Safety and Health Programs for Federal Employees, SEM p. 29

Executive Order 12411 - Government Work Space Management Reforms, A&U p. 25

Executive Order 12512 - Federal Real Property Management, RPD p. 17, and A&U p. 25

Executive Order 12699 - Seismic Safety of Federal and Federally Assisted or Regulated New Building

Construction, RPA p. 7

Executive Order 12770 - Metric Usage in Federal Programs, D&C p. 20

Executive Order 12856 - Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements,

FM p. 12, and SEM p. 29

Executive Order 12871 - Labor Management Partnerships, FM p. 12

Executive Order 12873 - Federal Acquisition, Recycling, and Waste Prevention, FM p. 12

Executive Order 12898 - Environmental Justice, FM p. 13, RPD p. 17, D&C p. 20, HP p. 22, and SEM p. 29

Executive Order 12902 - Energy Efficiency and Water Conservation at Federal Facilities,

RPA p. 7, FM p. 13, D&C p. 20, SEM p. 29, and PU p. 31

Executive Order 12941 - Seismic Safety of Existing Federally Owned or Leased Buildings,

RPA p. 7, and SEM p. 29

Executive Order 13006 - Locating Federal Facilities in Historic Properties in Our Nation’s Central Cities,

RPA p. 7, D&C p. 20, HP p. 22, and A&U p. 25

Executive Order 13007 - Indian Sacred Sites, FM p. 13, D&C p. 20, HP p. 23, and SEM p. 29
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Executive Order 13058 - Protecting Federal Employees and the Public from Exposure to Tobacco Smoke in the

Federal Workplace, FM p. 13

Farmlands Protection Act of 1981 (7 U.S.C §§4201 et seq.), RPD p. 15

Federal Airport Act, and the Airport and Airway Development Act of 1982 (revised and recodified at Subtitle VII,

Aviation Programs, 49 USC §47151), RPD p. 17

Federal Power Act of 1920, as amended, (16 USC §791 et seq.), PU p. 31

Federal Property and Administrative Services Act of 1949, as amended, (40 USC §§471 et seq.),

RPA p. 3, FM p. 8, RPD p. 15, A&U p. 24, S p. 30, and PU p. 31

Federal Property and Administrative Services Act of 1949, as amended, (40 USC §§486(d) and (e)), DA p. 2

Federal Property Management Regulations, Amendment A-52, September 1994, Subpart 101-6.6, Fire Protection

(Firesafety) Engineering, FM p. 11, and SEM p. 28

Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-17, Assignment

and Utilization of Space (41 CFR Subchapter D, Appendix, Temp. Reg. D-1), RPA p. 6, and A&U p. 24

Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-18, Acquisition of

Real Property (41 CFR Chapter 101-18), RPA p. 6

Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-19, Construction

and Alteration of Public Buildings (41 CFR Part 101-19), FM p. 12, and D&C p. 20, and SEM p. 28

Federal Property Management Regulations, Subchapter D, Public Buildings and Space, Part 101-20, Management

of Buildings and Grounds (41 CFR Part 101-20), FM p. 12, and SEM p. 28

Federal Property Management Regulations, Subchapter H, Utilization and Disposal, Part 101-42, Utilization and

Disposal of Hazardous Materials and Certain Categories of Property (41 CFR Part 101-42),

FM p. 12, and SEM p. 28

Federal Property Management Regulations, Subchapter H, Utilization and Disposal, Part 101-47, Utilization and

Disposal of Real Property (41 CFR Part 101-47), RPD p. 17

Federal Urban Land Use Act (40 USC §§531 et seq.), RPA p. 4, FM p. 9, and RPD p. 15

Federal Water Pollution Control Act of 1972 (Clean Water Act), as amended, (33 USC §§1251-1263, and

elsewhere), RPA p. 3, and RPD p. 15

Fire Administration Authorization Act of 1992 (15 USC §2227), RPA p. 3, FM p. 9, and SEM p. 27

Gifts for Reduction of the Public Debt (31 USC §3113), RPD p. 15

Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616), RPD p. 16

Health Service Programs (5 USC §7901), FM p. 9, and A&U p. 24

Javits-Wagner-O’Day Act (41 USC §§46-48c), FM p. 9

National Environmental Policy Act of 1969, as amended, (42 U.S.C §§4321 et seq.),

RPA p. 4, FM p. 9, RPD p. 15, D&C p. 18, SEM p. 27, and PU p. 31
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National Historic Preservation Act of 1966, as amended, (16 USC §§470 et seq.),

RPA p. 4, FM p. 9, RPD p. 16, D&C p. 19, HP p. 22, and SEM p. 27

Native American Graves Protection and Repatriation Act (23 USC §§3001 et seq.),

FM p. 9, D&C p. 19, HP p. 22, and SEM p. 27

Natural Gas Policy Act of 1978 (15 USC §§3301 et seq.), PU p. 31

Occupational Safety and Health Act of 1970 (29 USC §§651-678), RPA p. 4, and SEM p. 27

Powerplant and Industrial Fuel Use Act of 1978, as amended, (P.L. 95-620, 92 Stat. 3289), PU p. 31

Property for Wildlife Conservation Act (16 USC §§667b-d), RPD p. 16

Property Transferred in Connection with Debts (40 USC §301), RPD p. 16

Protection of Public Property Act (40 USC §§318-318d), S p. 30

Public Buildings Act of 1959, as amended, (40 USC §§601-619), RPA p. 4, FM p. 10, and D&C p. 19

Public Buildings Act of 1959, as amended, (40 USC §611(d)), A/A p. 21

Public Buildings Act of 1959, as amended, (40 USC §614), DA p. 2

Public Buildings Amendments of 1972, as amended, (40 USC §§490(f), (a)(18) and (j)), FM p. 10

Public Buildings Amendments of 1988 (P.L. 100-678, 102 Stat. 4049, specifically 40 USC §619), D&C p. 19

Public Buildings Cooperative Use Act of 1976 (40 USC 601a), A/A p. 21

Public Buildings Cooperative Use Act of 1976 (40 USC §490(a)(16)-(19), 601a and 612a),

RPA p. 5, FM p. 10, and HP p. 22

Public Utility Holding Company Act of 1935, as amended, (15 USC §§79a et seq.), PU p. 31

Public Utility Regulatory Policy Act of 1978, as amended, (P.L. 95-617, 92 Stat. 3117), PU p. 31

Randolph-Sheppard Act, as amended, (20 USC §§107 et seq.), RPA p. 5, FM p. 10, and A&U p. 24

Reconveyance of Real Estate on Payment of Debt (40 USC §306),

RPD p. 16 Reorganization Plan No. 18 of 1950 (40 USC §490 note), RPA p. 5

Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 USC §§4822 et seq., and §§4851 et seq.),

RPD p. 16

Resource Conservation and Recovery Act of 1976 (42 USC 6901 et seq.) and

Hazardous and Solid Waste Amendments of 1984, (P.L. 98-616), RPD p. 16

Rural Development Act of 1972 (42 USC §3122), RPA p. 5, and A&U p. 24

Safe Drinking Water Act (42 USC §§300f et seq.), RPA p. 5, and RPD p. 16

Service Contract Act of 1965 (41 USC §§351-358), FM p. 10
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Small Business Act, as amended, (15 USC §§631 et seq.), RPA p. 5, FM p. 11, D&C p. 19, and PU p. 31

Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976 (42 USC §§6901 et

seq.) and Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616),

FM p. 11, RPD p. 16, and SEM p. 27

Stewart B. McKinney Homeless Assistance Act of 1987, as amended, (42 USC §11411), RPD p. 16

Surplus Property Act of 1944, Airport and Airways Improvement Act of 1946, Federal Aviation Act of 1958,

Federal Airport Act, and the Airport and Airway Development Act of 1982 (revised and recodified at

Subtitle VII, Aviation Programs, 49 USC §47151), RPD p. 17

Telecommunications Act of 1996 (47 USC §332 note), RPA p. 5, FM p. 11, and A&U p. 24

Toxic Substance Control Act (15 USC §§2601 et seq.), RPA p. 5, RPD p. 17, and SEM p 28

Treasury, Postal Service and General Government Annual Appropriation Act (P.L. 101-136) November 3, 1989,

RPA p. 6

Treasury, Postal Service and General Government Annual Appropriation Act (P.L. 104-52) November 19, 1995,

FM p. 11

Treasury, Postal Service and General Government Annual Appropriation Act (P.L. 104- 208) September 26, 1996,

and (P.L. 104-134) April 26, 1996, RPA p. 6

Treasury, Postal Service and General Government Annual Appropriation Act (40 USC §490 (h-1))

September 30, 1996, FM p. 11

Trible Amendment (40 USC §490b), FM p. 11, and A&U p. 24

Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended,

(42 USC §§4651-4655 and elsewhere), RPA p. 6

Visual Artists Act of 1990 (17 USC §§101, 106A et seq.), D&C p. 19, and A/A p. 21

Wild and Scenic Rivers Act (16 USC §§1271 et seq.), RPD p. 17
APPENDIX H

REGULATORY OVERVIEW OF MAJOR ENVIRONMENTAL

STATUTES AND DIRECTIVES

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APPENDIX H

Regulatory Overview

INTRODUCTION

To ensure compliance, the regulatory framework, status, and permits for a given property should

be identified and clearly understood as part of an Environmental Due Diligence Audit (EDDA).

One or a combination of the following regulatory requirements may dictate the scope of property

transfer activities for the facility or portion of a facility.

• Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

• Resource Conservation and Recovery Act (RCRA)

• Toxic Substance Control Act (TSCA)

• Clean Air Act (CAA)

• Clean Water Act (CWA) and Safe Drinking Water Act (SDWA)

• Atomic Energy Act (AEA)

• National Environmental Policy Act (NEPA)

These laws have prescriptive requirements and protocols for facilities regulated, permitted, or

licensed by these authorities. An overview of each regulatory requirement is provided in the

following sections.
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COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY

ACT (CERCLA)

This section discusses how to address CERCLA requirements if the Phase I EDDA finds

suspected areas of contamination regulated under Superfund. Federal facilities can clean up

hazardous substance contamination pursuant to CERCLA, but the cleanup may not be financed

through the Superfund. Superfund was created to pay for response actions where the responsible

parties cannot be found or are unable to pay. Superfund financing is reserved for non-federal

facilities on the National Priorities List (NPL). The NPL is a group of sites with hazardous

substance contamination substantial enough to warrant federal attention and money for cleanup.

Congress required EPA to create the NPL to identify the most serious sites, ensuring that

Superfund monies are spent on the most serious problems. The purpose of the NPL is to notify

the public of sites that need remedial action and may present a long-term threat to public health or

the environment. Federal facilities may be placed on the NPL even though they cannot receive

Superfund money.

Removal actions and enforcement actions are not limited to NPL sites. CERCLA authority may

be used for responding to releases of hazardous substances into the environment. Understanding

these terms is essential to understanding the scope of CERCLA. The definitions of these terms

are provided in Section 101 of CERCLA.

In some cases the PTM may need to determine whether a CERCLA response is warranted. The

removal site evaluation process provides flexibility to determine whether a CERCLA response is

warranted or another appropriate federal or state response is available. For example, a CERCLA

response may not be necessary for a facility licensed by the NRC and being closed in conformance

with an NRC-approved decommissioning plan, for a facility being closed in compliance with a

RCRA permit or order, or if a release or a substantial threat of a release is not present at the

facility or the amount of hazardous substances present does not warrant federal response.

Under CERCLA section 120, each Federal agency is responsible for carrying out most response

actions at facilities under its own jurisdiction, custody, or control. Section 120(a) states that

Federal departments, agencies, and instrumentalities are subject to CERCLA just like

nongovernment entities, including CERCLA’s liability provisions. Pertinent guidelines, rules,

regulations, and criteria apply in the same manner and to the same extent, with the exception of

requirements pertaining to bonding, insurance, and financial responsibility.

Special requirements and timetables are established under Section 120. For example, section

120(c) requires establishment by EPA of a Federal Agency Hazardous Waste Compliance Docket

that lists Federal facilities that have reported managing hazardous substances or releases of

hazardous substances. Section 120(h) is presented in Appendix D and addresses in detail,

guidelines for the property transfer by Federal agencies.

Release Reporting, Removal, and Remedial Authority
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CERCLA gave EPA the authority to require reporting of certain releases of hazardous substances

and the authority to require cleanup of those releases through a short-term removal action and/or

a long-term remedial action. CERCLA response actions should be determined on a site-by-site

basis, and in consultation with EPA enforcement officials and the state environmental agency, as

appropriate. CERCLA response actions include removal (emergency, time-critical, or

non-time-critical) and remedial actions.

Discovery and Notification of a Release

In order for a site to be considered eligible for Superfund response, a release of a hazardous

substance must be discovered and reported to the government. If a release of hazardous

substances is discovered during Phase II EDDA activities, the owner or operator may need to

make a notification about the release and can be held liable for any contamination. Personnel in

charge of the facility should carefully examine any records on-site for information about what

types of chemicals have been used at the facility and which may have been released. If a

hazardous substance has been released into the environment in a quantity equal to or greater than

its reportable quantity (RQ) (specified in the list of hazardous substances found in 40 CFR

§302.4) within a 24-hour period, upon discovery the owner or operator of the facility must

immediately notify the National Response Center. This involves a notification to the National

Response Center by telephone at (800) 424-8802 providing detailed information about the facility

and the nature of the release (40 CFR §302.6). If the owners/operators are unsure of whether a

RQ of the hazardous substance was released and whether it occurred within a 24-hour period,

they should still report the release to the National Response Center as a precautionary measure

(55 FR 8676; March 8, 1990). Even if a release does not warrant notification, this does not mean

the owner or operator of the facility will not be held liable for the release and any cleanup costs

pursuant to the release.

After discovery or notification of a hazardous substance release, a preliminary assessment (PA) is

conducted to decide if the release is a threat to human health and the environment. If further

investigation is warranted, EPA will conduct an site inspection (SI). The information gathered

during the PA and the SI is used to develop a Hazard Ranking System (HRS) score. The HRS

evaluates relative risks to human health and the environment posed by uncontrolled hazardous

waste sites by assessing four pathways of potential human exposure to contamination (i.e.,

groundwater, surface water, soil and air). EPA uses a site’s HRS score to determine if the site

should be placed on the NPL. Information gathered on these sites is maintained by EPA in the

CERCLA Information System (CERCLIS), a comprehensive national database that inventories

and tracks releases which may need to be addressed by the Superfund program.

Removal Actions

If a release presents a serious immediate threat, the federal agency may take a removal action to

stabilize or clean up the release. Typical removal actions include removing leaking tanks or drums

of hazardous substances, installing security measures such as a fence at a site, or providing a
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temporary alternate source of drinking water to local residents. A removal action may be taken at

any time necessary during the response process.

There are three types of removal actions (emergency, time-critical, and non-time-critical), each

with different regulatory requirements, depending on the urgency of the need for a response to the

release. All removal actions have a time and spending restriction of 12 months and $2 million,

respectively. The time and spending limits may be exceeded when continuing the removal action

is necessary to prevent, limit, or mitigate an immediate risk to public health or the environment

which will not be acted upon by another party; or when continuing the removal action is

consistent with a remedial action that will be taken at the site.

An emergency removal action requires on-site activities to commence within hours of the lead

agency’s determination that a removal action is appropriate.

A time-critical removal action occurs when, based on the site evaluation, the lead agency

determines that a removal action is appropriate and that there is less than six months available

before on-site activities must be initiated. For time-critical removal actions, the community must

be involved and an administrative record of the removal action must be created

(40 CFR §§300.415(n)(2)/300.820(b)).

Non-time-critical removal actions are those where EPA determines a removal action is

appropriate and a planning period of more than six months is available before on-site activities

must commence. In accordance with §300.415(b)(4), the lead agency must conduct an

engineering evaluation/cost analysis (EE/CA) for a non-time critical removal action. The EE/CA

is an analysis of removal alternatives for a site. More information on the procedures and activities

involved in conducting an EE/CA can be found in EPA's document entitled Guidance on

Conducting Non-Time-Critical Removal Actions Under CERCLA (Office of Solid Waste and

Emergency Response (OSWER) Directive 9360.0-32). Specific administrative record

requirements for non-time-critical actions are specified in 40 CFR §300.820(a).

Remedial Actions

If a hazardous substance release does not pose an immediate threat to human health and the

environment, the federal agency may take a remedial action after further evaluation of the site.

Remedial actions are long-term and aimed at achieving a permanent remedy. Examples of typical

remedial actions include removing buried drums from a site, thermally treating wastes, pumping

and treating groundwater, and applying innovative technologies such as bioremediation to

contaminated soil.

A remedial action has two main phases: the remedial investigation/feasibility study (RI/FS) phase,

and the remedial design/remedial action (RD/RA) phase. The purpose of the RI/FS is to study

conditions at the site, identify contaminants, and evaluate cleanup alternatives. The RI entails

collecting and analyzing information to determine the nature and extent of contamination at the

site. Specific alternatives are then evaluated during the FS. After the RI/FS, the federal agency
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focuses on designing the selected cleanup alternative in the remedial design stage. The remedial

action stage follows, with a varying timeframe according to the complexity of the remedy.

A site is considered “completed” or cleaned up once the chosen remedy is operational and

functional and meets its designated environmental, technical, legal and institutional requirements.

At this stage, operation and maintenance activities are implemented to monitor the effectiveness

of the remedy and to ensure that no new threat to human health and the environment arises.

Liability

CERCLA imposes liability when there is a release or threatened release of hazardous substances.

CERCLA Section 107(a) casts an extremely broad net in defining the scope of persons who can

be liable for paying the costs of responding to a release of hazardous substances. The types of

parties that can be held liable are (1) the current facility or vessel owners or operators, (2) former

facility or vessel owners or operators, (3) those who arrange for treatment or disposal of

hazardous substances at a facility, and (4) those who accept hazardous substances for transport to

treatment or disposal sites.

There are three defenses to liability outlined in CERCLA Section 107(b):

• An act of God

• An act of war

• An act or omission of a third party who is not an employee or agent of the defendant, and

does not have a contractual relationship with the defendant.

The third-party defense, often called the “innocent landowner” provision, rebuts the presumption

of liability associated with ownership of the land by claiming the landowner made a good faith

effort to discover any contamination. In addition, the third-party defense may come into play

where a person is the victim of a so-called “midnight dumper.” To the third-party defense the

court scrutinizes the defendant's relationship to the property, specifically whether the defendants

knew or had reason to know of the disposal of hazardous substances at the facility. The elements

of the defense are found in CERCLA Sections 107(b)(3) and 101(35). The defendant raising the

third-party defense must be free of both actual or inferred knowledge and any contractual

relationship concerning the property, except as allowed under Section 101(35)(A).

If during closure of a federal facility, hazardous substance contamination is discovered, but the

federal agency is clearly not responsible for the release it is possible that the agency may not be

held liable for cleanup of the contamination. Determinations will be made on a site-specific basis.

Conditions where hazardous substances have come to be located on or in a property solely as the

result of subsurface migration in an aquifer from a source of sources outside the property, EPA

will not take enforcement actions against the owner of such property to require the performance

of response actions or the payment of response costs (60 FR 34790; July 3, 1995).
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Enforcement

CERCLA is a strict liability statute, which means that responsible parties are liable without regard

to negligence or fault. The concept of joint and several liability applies in situations where more

than one potentially responsible party (PRP) is involved and it is difficult to determine each PRP’s

contribution to the release. In these situations, the courts have held that an owner, operator,

waste generator or transporter may be held liable for the entire cost of site cleanup, unless each

party’s contribution can be identified. Federal facilities often have their own mandates for

responding to hazardous substance releases.

Community Involvement

Community involvement opportunities are tailored to each Superfund site and an integral part of

every Superfund response. The National Contingency Plan (NCP) provides the public with the

opportunity to comment on, and provide input to, decisions about response actions. Interested

persons are provided with accurate and timely information about response plans and progress, and

their concerns about planned actions are heard by the lead agency.

CERCLA/RCRA Interface

If a facility which is closing has chemical contamination, a response action may be taken pursuant

to CERCLA or RCRA regulations. The authority chosen will depend on factors such as the

timeliness of a response, and the substances involved. If CERCLA authority is used for the

cleanup the facility will need to follow procedures under the CERCLA regulations to ensure

proper cleanup of the site. If the hazardous substance released is also a RCRA hazardous waste,

the federal agency may use RCRA authority rather than CERCLA authority when cleaning up the

site. Generally, sites that may be cleaned up under RCRA or certain other laws will not be placed

on the NPL.

Resources

The following resources may assist in complying with closure requirements under CERCLA.

• CERCLA/Superfund Orientation Manual, EPA/542/R-92/005, October 1992

• Questions and Answers on Release Notification Requirements and Reportable Quantity

Adjustments, EPA/540-R-94-005, January 1995
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RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)

This section focuses on RCRA Subtitle C and the applicable closure requirements associated with

hazardous waste management activities under the EDDA. In addition to these guidelines, the

state and local environmental authority should also be consulted to determine if additional or more

stringent requirements exist. To ease the complexity and confusion of complying with RCRA, as

amended by the Hazardous and Solid Waste Amendments (HSWA) of 1984, all applicable

hazardous waste requirements will be referred to as RCRA requirements from this point forward.

Subtitle C

The RCRA Subtitle C regulations embody a “cradle-to-grave” philosophy in that hazardous waste

is managed from the time it is generated through its ultimate disposal. Hazardous waste must

always be managed by a responsible party, be it the generator; transporter; or treatment, storage,

or disposal facility (TSDF). Operations at facilities or laboratories are generally limited to

generator functions; however, there may be instances where facilities or laboratories are

designated as TSDFs.

Generators

There are three types of hazardous waste generators:

• Conditionally exempt small quantity generators (CESQG), which generate less than 100

kilograms (kg) of nonacute hazardous waste or less than 1 kg of acute hazardous waste in a

calendar month

• Small quantity generators (SQGs), which generate between 100 kg and 1,000 kg of nonacute

hazardous waste or less than 1 kg of acute hazardous waste in a calendar month

• Large quantity generators (LQGs), which generate greater than 1,000 kg of nonacute

hazardous waste or 1 kg or more of acute hazardous waste in a calendar month.

Generators must conduct closure activities based on their size (i.e., CESQG, SQG, or LQG) and

the type of unit (e.g., containers, tanks, or containment buildings) the waste is stored in on-site.

These activities involve removing and managing residues and waste, rinsing and decontaminating

temporary storage units, and decontaminating equipment. These closure activities are codified in

40 CFR Parts 261, 262, and 265.

TSDFs

Federal facilities or laboratories can also be designated as TSDFs, depending on their activities

and the amount of time hazardous waste is stored on-site. There are various types of TSDFs used

to manage hazardous waste, including containers, tanks, surface impoundments, waste piles, land

treatment units, landfills, incinerators, injection wells, corrective action management units
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(CAMUs), drip pads, miscellaneous units, and containment buildings. The definitions of each of

these units is codified in 40 CFR §260.10.

There are two sets of closure requirements for TSDFs under RCRA, including the general

requirements and the unit-specific requirements. The general closure requirements include

performance standards, the closure plan, time allowed for closure, disposal or decontamination of

equipment, structures, soil, and closure certification. The unit-specific closure requirements

include removal and management of all wastes and residues, decontamination of containment

systems and the unit, and decontamination of structures and equipment. If a facility is designated

as an interim status TSDF (defined in 40 CFR Part 265), the general closure requirements in 40

CFR Part 265, Subpart G, and the unit-specific closure requirements in 40 CFR Part 265,

Subparts I through R, W or DD apply. If the facility is designated as a permitted TSDF (defined

in 40 CFR Parts 264 and 270), the requirements in the facility permit apply. These requirements

should be reviewed, referenced, and complied with during the EDDA, if applicable.

Additionally, if protection of human health or the environment is still in question after closure

activities have been completed, the facility cannot “clean close” the unit and must conduct postclosure care activities. Clean close is not defined under RCRA; however, the March 19, 1987

Federal Register (52 FR 8706) provides language which, in essence, states clean closure is

achieved through removing all remaining wastes and residues from the TSDF, or ensuring the

contaminants do not pose a threat to human health or the environment. Clean closure is typically

left to the discretion of the federal or state enforcement authority. If clean closure is not possible,

the facility must perform post-closure care. These activities include the sampling and monitoring

of environmental media such as groundwater, surface water, soil, or sediments. Once again, there

are general requirements and unit-specific requirements. These requirements should be referenced

if “clean closure” is not feasible. These post-closure care requirements are codified in 40 CFR

Part 265, Subparts G, I through R, S, or WW for interim status facilities, and the permit for

permitted facilities.

Underground Storage Tanks (USTs)

Approximately five million USTs across the United States contain petroleum and other chemicals

potentially hazardous to human health and the environment. Many of these tanks and associated

piping systems are not protected from corrosion or overfill protection and, therefore, are leaking

product or have lost product while in service.

HSWA, Subtitle I of RCRA, established a comprehensive program for new and existing USTs of

certain size, use, and which hold regulated substances. A regulated substance is a CERCLA

hazardous substance excluding hazardous wastes and petroleum as defined in 40 CFR §280.12.

USTs currently in use must meet technical standards to ensure that regulated substances will not

leak or spill out of the tank and cause contamination. Specifically, all USTs must have spill,

overfill and corrosion protection by December 22, 1998, or be closed and/or replaced. To

prevent spills during delivery of regulated substances, by December 1998, USTs must have

catchment basins to contain spills. A tank can often be overfilled, causing a large-volume spill.
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To prevent this from occurring, USTs must have overfill protection devices, such as automatic

shutoff devices, and overfill alarms by the December 1998 deadline. Federal regulations also

require corrosion protection for USTs because unprotected steel USTs can corrode and release

substances through corrosion holes.

The requirements of 40 CFR Part 280 are currently applicable to about 1.2 million USTs.

However, there are some statutory exclusions to the definition of UST under the federal

regulatory program, including:

• Farm or residential tanks of 1,000 gallons or less capacity used for storing motor fuel for

non-commercial purposes

• Tanks used for storing heating oil for consumptive use on the premises where stored

• Septic tanks

• Pipeline facilities regulated under a federal or state pipeline safety act, surface impoundments,

pits, ponds, or lagoons

• Stormwater or wastewater collection systems

• Flow-through process tanks

• Liquid trap or associated gathering lines directly related to oil or gas production and gathering

operation

• Storage tanks situated in an underground area (such as a basement, cellar, or tunnel) if the

storage tank is situated upon or above the surface of the floor.

If a facility with a regulated UST is closing, a determination must be made on future use of the

UST, as well as whether the UST is the source of any contamination. If the decision is to close

the UST, the appropriate closure requirements must be conducted in accordance with the

regulations promulgated at 40 CFR Part 280, Subpart G.

An UST may be considered suspect or an area of potential contamination in the Agency Phase I

EDDA report for a variety of reasons, such as lack of information on the tank contents and status

or physical evidence of stressed or stained vegetation. In addition, a former UST location may

also be considered suspect unless documentation, such as sampling results, a letter documenting

the state’s approval, or a state-certified closure report, is made available during the Phase I

EDDA confirming the “clean closure” of a former UST. In cases when the UST or former UST

location is considered suspect, the Phase II sampling and analysis plan should incorporate a

strategy for characterizing the suspected area. Representative sampling should be conducted

accordingly to characterize the soil and other surrounding media of the tanks and pipelines, to

determine whether the tanks and pipelines contain product, to characterize the contents of the

tanks and pipelines, to verify the integrity and operability of the tank and pipelines. When an UST

is suspect, this general approach to characterizing an UST location should be applied to all USTs,

regulated and non-regulated.
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UST Closure

There are two types of closure for USTs per 40 CFR Part 280, including temporary and

permanent closure. When deciding which closure option to follow, facility owners and operators

should consider whether there is a potential for future use of the UST, the use planned for the

facility, and the condition of the surrounding land in general.

During temporary closure, tanks may either continue to store regulated substances or be emptied.

Temporary closure of an UST may last up to 12 months before having to be permanently closed.

When an UST system is temporarily closed, owners and operators must continue to comply with

normal operating requirements, such as the corrosion protection and release detection

requirements of 40 CFR Part 280, Subpart D. Release detection is not required if the UST

system is empty, meaning that all materials have been removed using commonly employed

practices so that no more than 2.5 centimeters (1 inch) of residue, or 0.3 percent by weight of the

total capacity of the UST system, remain in the system (40 CFR §280.70(a)).

When an UST system is temporarily closed for three months or more, owners and operators must

comply with additional requirements. Vent lines must be left open and functioning, and all other

lines, pumps, manways, and ancillary equipment must be capped and secured (40 CFR

§280.70(b)).

If an UST system is temporarily closed for more than 12 months, it must be permanently closed.

Permanent closure includes emptying and cleaning the UST by removing all liquids and

accumulated sludges. All permanently closed tanks must also be either removed from the ground

or filled with an inert solid material. Owners and operators must test for the presence of a release

from the UST before the completion of closure by conducting a site assessment. Records of the

site assessment must be maintained for three years after the tank is closed. If the owner or

operator is vacating the facility, the site assessment records should be forwarded to the federal

agency’s environment, health, and safety office to be maintained in an official document

management system.

Sampling and measurement methods must be appropriate for the characteristics of the site and the

regulated substance. If contaminated soils, contaminated groundwater, or free product liquids or

vapors are discovered, owners and operators must begin corrective action in accordance with

Subpart F of 40 CFR Part 280.

Release Reporting

Owners and operators of UST systems must report any suspected or known releases from an UST

within 24 hours or another appropriate time period specified by the implementing agency. The

implementing agency may direct the owner or operator to determine whether the release has

caused any off-site contamination. A suspected release must be investigated within seven days

through either a system test or a site check. If a release is confirmed, the owner or operator must

begin corrective action.
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Owners and operators of UST systems must report any suspected or known releases from an UST

within 24 hours or another appropriate time period specified by the implementing agency. The

implementing agency may direct the owner or operator to determine whether the release has

caused any off-site contamination. A suspected release must be investigated within seven days

through either a system test or a site check. If a release is confirmed, the owner or operator must

begin corrective action.

Corrective Action

Releases from USTs pose a serious environmental and human health threat in the United States.

Because USTs, by definition, are largely hidden from view, areas surrounding USTs must be

inspected carefully for any signs of contamination. The federal corrective action regulations for

USTs found at 40 CFR Part 280, Subpart F provide a flexible framework for owners/operators

and implementing agencies to work within and achieve cleanup levels protective of human health

and the environment. Corrective action consists of a series of steps which vary depending on the

severity of the release.

Short-Term Corrective Actions

Once a release is detected, immediate response activities such as release reporting, immediate

containment, and monitoring of explosive hazards should be taken (40 CFR §280.61). Following

the immediate response activities, the facility begins abatement measures (40 CFR §280.62(a)).

Examples of such measures are:

• Performing a site check to evaluate the extent of the release

• Containment of the regulated substance to prevent continued release

• Continued monitoring and mitigation of explosive hazards

• Mitigating hazards posed by soils excavated during response activities

• Determining the presence of free product in groundwater.

The owner or operator must submit a report to the implementing agency within 20 days of

confirmation of the release describing the extent of initial abatement activities (40 CFR

§280.62(b)). The owner or operator must submit a more detailed site characterization report to

the implementing agency within 45 days of confirmation of release (40 CFR §280.63(b)). After

reviewing the results, the implementing agency may decide that the release warrants further

response activities. If further corrective action is required, the owner or operator must submit

detailed corrective action plans, including provisions to remediate contaminated soils,

groundwater, and surface water to the implementing agency (40 CFR §280.66).

Long-Term Corrective Actions

Regulations for the UST corrective action program cleanup levels or administrative procedures;

are left to the discretion of the implementing agency (generally, the state). The federal regulations

require that state or local cleanup programs be protective of human health and the environment.

Although the corrective action technologies are not specified in the federal regulations, there are
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several commonly employed remediation options for soil and groundwater contamination.

Available options for soil remediation include in situ soil vapor extraction, in situ bioremediation,

excavation and off-site treatment, and natural attenuation. Technologies typically selected for

groundwater remediation include in situ air sparging with soil vapor extraction, pump and treat,

and biosparging.

Resources

The following resources may assist in complying with closure requirements under RCRA.

• Underground Storage Tanks; Technical Requirements: Final rule. September 23, 1988,

Federal Register (53 FR 37082)

• What Do We Have Here? An Inspector's Guide to Site Assessment at Tank Closure-Video

and Companion Booklet, Video, 510-K-92-006, Booklet, 510-K-92-006

• Tank Closure Without Tears - Video and Companion Booklet, Video, 510-V-92-817, Booklet

510-K-92-817

• RCRA Orientation Manual, 1990 Edition, EPA/530-SW-90-036
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TOXIC SUBSTANCE CONTROL ACT (TSCA)

By enacting TSCA on October 11, 1976, Congress established a number of requirements and

authorities for identifying and controlling toxic chemical hazards to human health and the

environment. This section will focus on TSCA polychlorinated biphenyl (PCB) regulations and

the Asbestos Hazard Emergency Response Act (AHERA) as they pertain to Agency property

transfer and the Phase II EDDA.

Polychlorinated Biphenyls

PCBs are a group of industrial chemicals that were widely used as coolants, insulating materials,

and lubricants in electrical equipment such as transformers and capacitors. PCBs were used from

their introduction in the mid-1920s until 1979 when the manufacture and distribution of PCBs in

the US was severely restricted due to adverse health effects from exposure.

PCBs are oily liquids or solids, clear to light yellow in color, with no smell or taste. Because of

PCBs’ widespread distribution and persistence in the environment, they may not only be found in

use, but also in general storage items and products or as contamination from prior spills or leaks.

It is critical that all PCBs and PCB-containing materials and equipment that may be in service or

in storage at the facility are properly identified, managed, and in some cases mitigated. PCBs

were used in paints, inks, lubricants, sealants, plasticizers, and carbonless copy paper, as well as

the following commonly encountered PCB-containing materials:

• Transformers

• Fluorescent lighting fixtures (ballasts)

• Hydraulic fluids

• Small capacitors (with < 3 pounds of dielectric fluid)

• Switches

• Large capacitors (with 3 pounds or more of dielectric fluid)

• Vacuum pumps

• Liquid-cooled electric motors

• Lab samples

• Microscopy mounting media and immersion oil

• Voltage regulators

If there is suspected PCB contamination identified from the Phase I investigation, the proper

procedures for characterizing the extent of contamination should be made part of the sampling

and analysis plan for Phase II activities. The following EPA documents, Verification of PCB Spill

Cleanup by Sampling and Analysis (EPA 560/5-85-026) and the Field Manual for Grid

Sampling of PCB Spill Sites to Verify Cleanup (EPA 560/5-86-017), provide insight on sampling

methods used to characterize PCB contamination. There are also field screening techniques to

test for the presence of PCBs, such as Clor-N-Soil and Chlor-N-Oil, but laboratory analysis

should be instituted to confirm PCB concentration before any remediation or disposal actions are

taken. The field screening techniques are a good indicator used for confirming the presence of

PCBs rather than performing an all-encompassing PCB sampling event, which can be costly. For

additional sources of information on PCB sampling, refer to Resources at the end of this section.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—H (TSCA)-14

PCB Spills

Disposal of PCBs is defined in 40 CFR §761.3 as intentionally or accidentally discarding,

throwing away, or otherwise completing or terminating the useful life of PCBs and PCBcontaining materials. Disposal includes spills, leaks, and other uncontrolled discharges of PCBs as

well as actions related to containing, transporting, destroying, degrading, decontaminating, or

confining PCBs and PCB-containing materials. Any release of PCBs to the environment greater

than 50 parts per million (ppm) is considered a prohibited act of disposal as defined in the

regulations. Facilities are required to report spills of more than 10 pounds (4.56 kg) of PCBs of

concentrations of 50 ppm to the EPA regional office. Spills of greater than 1 pound (0.45 kg)

must be cleaned up.

The federal regulations stipulate a Spill Cleanup Policy at 40 CFR Part 761, Subpart G, that is

applicable to spills which occurred after May 4, 1987. For old spills that were discovered after

the effective date of this policy (e.g., discovered as a result of a Phase I investigation) but could

have occurred before the effective date of the policy, cleanup requirements are established at the

discretion of EPA, usually through its regional offices.

There are two types of PCB spills: a low-concentration spill from a source concentration of PCBs

from 50 to 500 ppm, and a high-concentration spill from a source of 500 ppm or greater. In the

event that the source of a PCB spill is unknown, the spill is cleaned up based on the concentration

of the contaminated material.

• For low-concentration spills, refer to the cleanup requirements at 40 CFR §761.125(b)

• For high-concentration spills, refer to the cleanup requirements at 40 CFR §761.125(c).

It is important to contact the local or state environmental authority. In many cases, the local and

state authorities have cleanup requirements that are more stringent than federal regulations. Most

likely, this is reflected in the definition of “PCB contaminated.” TSCA’s range is 50 to 500 ppm,

whereas some states define this as 5 to 500 ppm.

Compliance with the Spill Cleanup Policy may prevent enforcement action and any need for

additional cleanup under TSCA. However, if the cleanup is required under RCRA, CERCLA, or

other statutes, then different standards, other than those imposed by TSCA may be applicable.

Disposal Requirements

A uniform hazardous waste manifest, EPA Form 8700-22, must be prepared if PCB waste is

being transported off-site. For each shipment of manifested PCB waste a disposal facility accepts,

the owner or operator of the facility must prepare a Certificate of Disposal. Refer to 40 CFR

§§761.60 and 761.218 for specific disposal requirements.
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August 1998—H (TSCA)-15

Resources

The following resources may assist in complying with TSCA regulations.

• CFR Part 761, Polychlorinated Biphenyls Manufacturing, Processing, Distribution in

Commerce, and Use Prohibitions

• PCB Q & A Manual, EPA, Office of Pollution Prevention and Toxics, 1994

• CFR Part 761 Subpart G, PCB Spill Cleanup Policy

• Lighting Fixture Management Options, Quick Reference Fact Sheet, EPA/200-f-94-008, Sept

1994

• TSCA Assistance Informational Hotline (202) 554-1404

Asbestos

Under TSCA, EPA regulates the use of asbestos in commerce and has issued standards for both

controlling its handling and restricting its use. Congress amended TSCA in 1986 by adding a new

Title III, AHERA, which required EPA to conduct a study to determine the extent of human

health risks posed by asbestos in public and commercial buildings. The EPA responded in

February 1988 by sending Congress a study on asbestos-containing materials (ACM) in public

buildings. On November 28, 1990, the Asbestos School Hazard Abatement Reauthorization Act

(ASHARA) was enacted. Section 15 of ASHARA amended AHERA to require accreditation for

any person who inspects for ACM in a public or commercial building, or who designs or conducts

a response action with respect to friable ACM in such a building.

AHERA defines “public and commercial buildings” as the interior space of any building which is

not a school building, except that the term does not include any residential apartment building of

fewer than 10 units or detached single-family homes. Interior space includes exterior hallways

connecting buildings, porticos, and mechanical systems used to condition interior space.

Examples of public and commercial buildings are government-owned buildings, colleges,

museums, airports, hospitals, churches, preschools, stores, warehouses, and factories.

Federal regulations define an inspection to mean those activities undertaken to specifically

determine the presence and/or location, or to assess the condition of friable or non-friable

asbestos-containing building material (ACBM) or suspected ACBM by either visual or physical

examination, or by collecting samples of such material. Therefore, if asbestos surveys or sampling

is conducted at a federal facility, the individual(s) performing the survey/sampling should be

accredited. Training requirements include:

• Individuals performing asbestos related work must take a four-day, 32-hour EPA-approved

training course consisting of topics such as potential health effects of asbestos exposure, the

use of personal protective equipment, and state-of-the-art work practices

• A contractor/supervisor must take a five-day, 40-hour EPA-approved course

• Inspectors take a three-day course
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August 1998—H (TSCA)-16

• Management planners take a two-day course

• Project designers take a three-day course.

ASHARA does not require building owners to conduct inspections for asbestos-containing

materials in public and commercial buildings. However, should the owner decide to conduct an

inspection, then he or she must use an inspector who is accredited.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—H (CAA)-17

CLEAN AIR ACT (CAA)

In addition to TSCA, regulations under other laws apply to asbestos. The Clean Air Act requires

US EPA to develop and enforce regulations to protect the general public from exposure to

airborne contaminants known to be hazardous to human health. EPA established National

Emission Standards For Hazardous Air Pollutants (NESHAP) and promulgated the asbestos

NESHAP in 40 CFR Part 61, Subpart M. The subpart addresses demolition and renovation of

facilities, and asbestos waste transport and disposal. The regulations require owners/operators to

notify the applicable state and local agencies and/or US EPA regional offices before demolition or

renovation of a building occurs which contain a certain threshold amount of asbestos.

Although the NESHAP has not been revised to alter its applicability to friable and nonfriable

ACM, nonfriable asbestos materials are now classified as either Category I or Category II

material:

• Category I material is defined as asbestos-containing resilient floor covering, asphalt roofing

products, packings and gaskets. Asbestos-containing mastic is also considered a Category I

material

• Category II material is defined as all remaining types of non-friable ACM not included in

Category I that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand

pressure. Nonfriable asbestos-cement products such as transite are an example of Category II

material.

The asbestos NESHAP specifies that Category I materials which are not in poor condition and not

friable prior to demolition do not have to be removed, except where demolition will be by

intentional burning. However, regulated asbestos-containing materials (RACM) and Category II

materials that have a high probability of being crumbled, pulverized, or reduced to powder as part

of demolition must be removed before demolition begins.

Surveys and Sampling

If ACM is identified as a suspected area of concern in the Phase I EDDA report, the ACM in the

building must be disclosed to the future occupant. Prior to real property transfer, all available

information on the existence, extent, and condition of ACM should be incorporated into the

EDDA reports or other appropriate documents to be provided to the landlord or future occupant.

The EDDA reports should include:

• Reasonably available information on the type, location, and condition of asbestos in any

building or improvement on the property

• Any results of testing for asbestos

• A description of any asbestos control measures taken for the property

• Any available information on costs or time necessary to remove all or any portion of the

remaining ACM; however, special studies or tests to obtain this material are not required
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August 1998—H (CWA)-18

• Results of a site-specific update of the asbestos inventory performed to revalidate the

condition of ACM.

If the presence of asbestos is suspected and an asbestos survey has not been performed or is not

available, an asbestos survey should be completed. The occupancy agreement will determine who

is responsible for performing the survey. The resources provided to perform an asbestos survey

at a federal agency owned or managed facility will depend on the scope of the survey.

ACM should be remedied prior to real property transfer only if it is of a type and condition that is

not in compliance with applicable laws, regulations, and standards, or if it poses a threat to human

health at the time of transfer of the property. An agreement may be reached with the landlord or

future occupant on the appropriate asbestos abatement measures to be taken.

If asbestos is suspected, it is important that the potential health risk is appropriately addressed in

the sampling and analysis plan, and in particular, the health and safety plan. Therefore, individuals

performing any demolition or renovation activities as part of Phase II or III activities are aware of

the potential hazards during abatement. As mentioned previously in this section, all individuals

performing asbestos surveys or sampling must be certified in accordance with AHERA. There are

a number of resources listed at the end of this section to help plan for asbestos sampling and preabatement activities. The manual, Demolition Practices Under the Asbestos NESHAP (EPA

340/1-92-013), can assist in planning for demolition activities.

Resources

The following resources may assist in complying with closure requirements concerning asbestos.

• CFR §1910.1001, which applies to all occupational exposures to asbestos in all industries

covered by the Occupational Safety and Health Act, except for construction work as defined

in 29 CFR §1910.12(b). Exposure to asbestos in construction work is covered by 29 CFR

§1926.1101

• CFR Part 763, Asbestos Abatement Projects

• EPA 340/1-92-013, Demolition Practices Under the Asbestos NESHAP. This manual is

designed to assist the asbestos NESHAP inspector in identifying practices that normally do or

do not make Category I nonfriable ACM become RACM

• CFR §1926.58, Asbestos Standard of the Occupational Safety and Health Administration

• EPA Region 5 Asbestos Program Overview which can be accessed via the Internet at

“http://www.epa.gov/reg5foia/asbestos/index.html”

• Asbestos/NESHAP Regulated Asbestos Containing Materials Guidance, EPA Publication No.

340/1-90-018, December 1990

• Managing Asbestos In Place, EPA Publication No. 20-T-2003, July 1990.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—H (CWA)-19

CLEAN WATER ACT (CWA) AND SAFE DRINKING WATER ACT (SDWA)

This section discusses how to address CWA and SDWA requirements if the Phase I EDDA finds

suspected areas of contamination regulated by water management programs. This section

specifically addresses requirements under the federal CWA and SDWA programs. Individual

state programs should be consulted to determine the applicability of different or more stringent

regulatory standards.

Clean Water Act Regulatory Guide

TOPIC ACTION INVOLVED REGULATORY CITATION

Oil Discharges Reporting is required for discharges of oil into

navigable waters that:

•Violate water quality standards

•Cause a film or sheen on the water or

shoreline

40 CFR Part 110

Spill Prevention Control

and Countermeasures

(SPCC) Plan

SPCC plans must be developed when

petroleum is being stored in quantities greater

than 42,000 gallons underground, 1,320

gallons total aboveground, or 660 gallons in

any single aboveground container.

40 CFR Part 112

Hazardous Substance

Release Reporting

Reporting is required for releases of

hazardous substances that exceed CWA

reportable quantities (listed in 40 CFR Part

116) within a 24-hour period.

40 CFR Part 117

National Pollutant

Discharge Elimination

System (NPDES) Permits

NPDES permits are required for point source

discharges of wastewaters into navigable

waters of the US

40 CFR Part 122

Stormwater Discharge

Permits

These requirements apply to stormwater

discharges from specific activities into

navigable waters (e.g., Agency facilities

having RCRA permits, new construction

involving more than five acres of land).

40 CFR §122.26

National General

Pretreatment Standards

Discharges of wastewater and sanitary waste

to the sewer system are subject to the

National General Pretreatment Standards,

which prohibit discharges of certain wastes to

the sewer system.

40 CFR §403.5(b)

National Categorical

Pretreatment Standards

These standards regulate discharges of

wastewater to the sewer system from specific

categories of industrial activities.

40 CFR Parts 405-471
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TOPIC ACTION INVOLVED REGULATORY CITATION

Local Pretreatment

Standards

Discharges of wastewater and sanitary wastes

to the sewer system will be regulated by a

municipal discharge permit or a local sewer

use ordinance issued by the local publicly

owned treatment works (POTW).

Municipal Discharge Permit

or Local Sewer Use

Ordinance

§404 Dredging Permits Potential discharges, water quality

impairment, hydrological, and navigational

impacts associated with dredge and fill

activities require review, approval, and

permitting by the US Army Corps of

Engineers.

40 CFR §144.31

In addition to CWA requirements, the facility may be subject to water management activities

regulated under the SDWA. The table above summarizes the major regulatory programs under

the CWA that may impact federal agency facilities.

Safe Drinking Water Act Regulatory Guide

TOPIC ACTION INVOLVED REGULATORY CITATION

General applicability of

SDWA

This subpart establishes key definitions

under the national primary drinking water

regulations (NPDWR) program, scope of

coverage, variances and exemptions, and

regulatory effective dates.

40 CFR Part 141, Subpart A

Maximum contaminant

levels (MCLs) for organic,

inorganic, turbidity, and

certain radioactive material

Public drinking water systems providing

water for widespread consumption must

meet specific maximum contaminant levels

to ensure drinking water quality and protect

public health.

40 CFR Part 141, Subpart B

and Subpart G

Monitoring and analytical

requirements for public

water systems

Periodic testing and monitoring for coliform

bacteria, turbidity, and certain organic and

inorganic contaminants is a key aspect of

EPA’s NPDWR program. The effective

dates for these monitoring requirements

has been phased in over a period of time.

40 CFR Part 141, Subpart C

Reporting, public

notification, and

recordkeeping

Reporting and public notification must be

conducted for noncompliance with SDWA

requirements for public water systems.

40 CFR Part 141, Subpart F

Filtration and disinfection Specific filtration and disinfection

requirements are established for public

water systems and supplied by a surface

water source or groundwater influenced by

surface water sources.

40 CFR Part 141, Subpart H
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TOPIC ACTION INVOLVED REGULATORY CITATION

Control of lead and copper

in drinking water

New action levels of 0.015 mg/l for lead

and 1.3 mg/l for copper were established in

1991. If these values are exceeded at the

tap in 10 percent of the public water system

subject to monitoring programs, corrective

actions must be initiated.

40 CFR Part 141, Subpart I

Underground Injection

Control

Discharges or introduction of wastewaters,

industrial wastes, and hazardous wastes

into injection wells require specific

approvals and permits.

40 CFR Parts 146-149

Per Executive Order 12088, Federal Compliance with Pollution Control Standards, October 13,

1978, federal facilities are required to comply with applicable regulations under CWA and

SDWA. For example, the National Vehicle Fuel and Emissions Laboratory in Ann Arbor

operates oil/water separators, and the Annapolis Central Regional Laboratory previously used

septic systems prior to connecting to the municipal sewage treatment works. These facilities

would be subject to CWA and SDWA requirements. The Phase I Report will have identified

situations such as these examples that may prompt further review under the Phase II EDDA.

National Pollutant Discharge Elimination System Permits (NPDES)

When transferring a federal agency’s real property, any permits acquired to operate the facility

must be terminated or transferred. Permit termination (40 CFR §122.64) generally will follow

prescribed administrative procedures. For a federal NPDES permit, a notice of termination must

be filed with the CWA Permitting Division. Contact the Office of Water, Permits Division, at

202-260-9545, for more information if a federal permit needs to be terminated. If a state NPDES

permit requires termination, contact the Department of Environmental Quality or equivalent

agency where the permit was obtained.

In addition to administrative procedures, any equipment used for wastewater treatment to fulfill

NPDES permit conditions must be decontaminated, such as cleaning out and sampling any sludge

(as with elementary neutralization tanks) and disposing of equipment or waste products in

accordance with pertinent federal and state solid and hazardous waste management rules.

Additional information on equipment decontamination and decommissioning is provided in

Section A-03 of this document.

If stormwater discharges, discharge points, or discharge transport pipelines are noted as a

potential concern in Phase I, then sampling activities should be conducted as part of Phase II to

determine the cause of the problem, and the remedy should be addressed in Phase III. Sections

A-06 and A-07 of these guidelines should be referenced for additional information on planning,

implementing, and reporting the sampling and analysis activities associated with stormwater

discharges, discharge points, or discharge transport pipelines.
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Potable Water

Although most facilities are served by public water systems and typically are not subject to

SDWA regulations for delivery of treated drinking water, facilities that have on-site wells

supplying water for consumption by an average of at least 25 people daily for at least 60 days of

the year are subject to requirements applicable to nontransient, noncommunity water systems. If

the facility is considered a drinking water supplier, it is required to be within the federal and state

maximum contaminant levels (MCLs) for any pollutants in its potable water. If the Phase I

determines that the facility is a drinking water supplier and that the water supply is likely polluted,

the Phase II activities will consist of drinking water sampling and documentation.

Septic Systems

Administrative closure procedures for septic systems need to be addressed with state authorities

and the local municipality. Although not directly part of CWA or SDWA requirements, some

municipalities have septic tank abandonment procedures that are administered through the local

health department. For example, when a sanitary system is attached to a municipal system, the

existing septic tank is required to be “caved-in” and filled with an inert material. This will ensure

that the abandoned tank does not present a safety issue when transferring the property. In

general, there may not be any Phase II sampling activities associated with the septic system unless

the facility Phase I investigation indicated discharges of industrial wastewaters or other

nonsanitary wastes.

Wells and Groundwater

Federal and state requirements may be most applicable to underground injection control wells.

Accordingly, the Phase II should document any sampling activities to verify adherence of past

practices to pertinent standards. The facility should ensure that the potential for wells to become

a route of transport for contaminants is eliminated.

If groundwater sampling is needed because of suspected contamination, Phase II analysts may use

existing wells, install monitoring wells, or use hydropunch or other sampling methods. Any

activities performed and their results should be documented.

Wetlands

Requirements for dredging or filling wetlands are issued and enforced by the Army Corps of

Engineers under Section 404 of the CWA. State Section 404 programs can be enforced on

waters not susceptible to interstate commerce, including tidal waters and wetlands. If the facility

obtained a Section 404 permit, it must be terminated with the issuing authority and any dredging

and filling activities must cease. Cases of contamination resulting from these activities and

associated sampling operations would likely fall under the federal or state Superfund statutes.
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August 1998—H (CWA)-23

Spill Containment, Control, and Countermeasures (SPCC) Plan

Some areas with suspected contamination may stem from oil stored on-site. If the facility stored

more than 42,000 gallons underground, 1,320 gallons aboveground total, or 660 gallons in any

single container aboveground, then the facility should have an SPCC plan in place in accordance

with 40 CFR Part 112. The Phase II investigation should include a review of the SPCC plan to

determine what engineering controls and systems are in place; an analysis of this equipment to

identify whether it is functioning effectively to eliminate the potential for future spills if oil is still

stored on-site; and an inspection to make sure that any incidental spills that may have occurred

were cleaned up properly.

Resources

The following resources may be helpful in obtaining further information about clean water

management:

• SDWA Hotline: hotline-sdwa@epamail.epa.gov

• Office of Water Resources Center: 202-260-7786, or waterpubs@epamail.epa.gov

• Oil Pollution Act information exchange under the EPA RCRA/ Superfund/Emergency

Planning and Community Right-to-Know Act (EPCRA) Industry Assistance Hotline:

1-800-424-9346, or 703-412-9810 for the Washington, DC, metropolitan area

• Wastewater Sampling Computer-Based Training and Manual, a set of six computer-based

training modules and complementary manual being developed for Region 1 by the EPA

SHEMD Multimedia Laboratory in conjunction with the Office of Water. Contact the

Multimedia Laboratory at 202-260-2215.
CFATF Guide on Evaluating Environmental Liability for Property Transfers

August 1998—H (AEA)-24

ATOMIC ENERGY ACT (AEA) and Nuclear Regulatory Commission Licenses

Federal agencies operate laboratories nationwide that may use nuclear material as part of their

experiments. Depending on the laboratory’s research mission and the extent to which nuclear

materials are used, the laboratory obtains a license from the Nuclear Regulatory Commission

(NRC) as part of its compliance with NRC regulations under the Atomic Energy Act (AEA).

Typical uses of nuclear materials by laboratories are presented in the following table. In most

cases, the use of nuclear material is in a sealed source state. When facilities are being prepared for

property transfer or consolidation, NRC licensees must terminate their licenses.

Overview of License Termination Process

When a licensed facility terminates its operations and ceases to use or handle radioactive

materials, the facility must notify the NRC to terminate its license. The licensee submits a request

for termination to the NRC, and in cases where contamination is significant, the facility must

develop a decontamination and decommissioning (D&D) plan to reduce radioactivity to

acceptable levels.

After NRC approval of the licensee’s termination request or D&D plan, the facility must carry out

the D&D process if applicable. This process can be simple where only sealed sources or shortlived materials are handled, or it can entail extensive efforts for large-scale nucleotide users. A

decision tree of required steps in the license termination process is shown on the following page.

Though not required, an initial radiation survey and documentation review serve as good starting

points. Results from these reviews should be included with the termination request letter to the

NRC.

The NRC will only terminate the user’s license by written notice after the user:

• Terminates the use of radioactive materials

• Properly removes and disposes of radioactive wastes

• Remediates the site, if D&D is required

• Submits NRC Form 314, a copy of which is provided on the next page

• Conducts and submits the results of a final radiation survey to confirm decontamination.

To aid in the decontamination determination, the licensee submits the results of a radiation survey

of the facility and common use areas to the NRC. If the results are satisfactory, the NRC

provides written confirmation of license termination. The licensee remains under license to the

NRC, and thus subject to NRC requirements, during D&D activities. After license termination,

the facility is no longer subject to NRC requirements regarding further unrestricted use of the

facility.

Recent NRC efforts are being studied to streamline the licensing process, and extend it to the

D&D process. NRC’s Office of Nuclear Material Safety and Safeguards has undertaken a pilot

program to determine the feasibility of performing computer-assisted review of license

applications. This system presents consolidated licensing guidance on the Internet, and
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August 1998—H (AEA)-25

significantly reduces the turnaround time on license applications. Presently the system is capable

of handling new portable gauge license application only. However, in the future, it is hoped that

the system capabilities will be expanded to include other licensing classes and decommissioning

and decontamination.

Decision Tree: NRC License Termination Process

NRC Deems

Contamination

Insignificant

Decide to Terminate

NRC License

Notify NRC of

Decision to Terminate

Submit Termination

Request Letter and Report

Terminate

By-Product Use

Remove Radioactive

Wastes

Properly Dispose

of Wastes

Submit

NRC Form-314

Conduct and Submit Results

from Final Radiation Survey

Await NRC Notification 

of License Termination

Conduct Initial Radiation

Survey and Document Review

Execute D&D Plan

Upon NRC Approval

Develop D&D Plan including:

• D&D Activities

• Radiation H&S Plan

• Final Survey Plan

• Records and Data Plan

Approval

• Update D&D Cost Estimate

Yes

No

License Termination Letter

The NRC examines license termination on a case-by-case basis. There are no defined criteria

provided for significant contamination determination and subsequent D&D plan development.

A license termination request starts by submitting a notification of termination intentions to the

NRC. This usually takes the form of an official letter that contains a description of the facility’s

nuclear material usage, spill records, site plans with pre- and post-construction modifications, a
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August 1998—H (AEA)-26

list of all regulated areas requiring documentation, and a previously prepared cost estimate for

decommissioning. An example of an NRC license termination request letter appears below.

Sample NRC License Termination Request Letter

Nuclear Regulatory Commission (Address to NRC regional office)

Office of Nuclear Material Safety and Safeguards

Division of Low-Level Waste Management and Decommissioning

Street Address

City, State zip

Dear Sir or Madam:

In accordance with 10 CFR Part 30, Subpart 36b, this letter shall serve as notice of intent to terminate

NRC license (number), which will return the property to unrestricted use. This NRC license enabled the

facility to use, store, and dispose of unsealed, radioactive by-products which were used for scientific

research and testing. Please find enclosed:

• A record of all spills or other unusual occurrences involving the spread of contamination

• As-built drawings and modifications of buildings where the unsealed sources were used and stored

and locations of possible inaccessible contamination

• A list of all regulated areas that require documentation

• Cost estimates initially performed to implement a decommissioning plan (if necessary).

This facility has experienced no spills or other unusual occurrences and has detected no residual

radioactive readings from an initial site survey, per recommended procedures. The facility expects NRC

to conclude that a decommissioning plan is not required because contamination should be deemed

insignificant.

Upon NRC’s response to this termination request, the facility will proceed with termination of by-product

use, properly dispose of remaining materials, and conduct a final radiation exit survey in anticipation of

NRC’s own exit survey validation.

If you have any questions about this termination request, please contact the Radiation Safety Officer at

(phone number).

Sincerely,

Radiation Safety Officer

 Enclosures

The facility may work with the NRC to identify additional information needs in making its

determination for a decommissioning plan submittal. Because many facilities use minor quantities

of radioactive material, the information request generally will be straightforward and limited. For

those larger radioactive material users, all information should be obtained from radiation safety

officers’ reporting requirements files.
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Laboratory Decontamination Guidance

The NRC regulations, at 10 CFR Part 20, Subpart E, establish criteria for the remediation of

contaminated sites or facilities that will allow their release for future use with or without

restrictions. The criteria include a Total Effective Dose Equivalent limit of 15 mrem/year,

meaning that the average individual should not be exposed above this level from residual activity

within the decommissioned facility. The criteria also require a licensee to reduce any residual

radioactivity to as low as reasonably achievable (ALARA).

The NRC developed the Regulatory Guide on Release Criteria for Decommissioning (NUREG1500) to assist facilities in following acceptable procedures for determining the predicted dose

level (PDL) from any residual radioactivity at the site. The criteria describes the basic features of

the NRC’s models and acceptable parameters to factor into PDL calculations.

The NRC has not developed specific guidance on acceptable procedures for decontaminating

laboratory equipment. For most facilities, decontamination will use suitable solvents. Note that

all solvent disposal must also conform strictly to requirements under CERCLA and RCRA. In

cases where ductwork, drains, or fumehoods are contaminated beyond the decontamination

abilities of certain solvents, they may have to be decommissioned, removed and disposed of as

low-level radioactive waste.

Conducting a Final Radiation Exit Survey

The extent of residual contamination will depend on the type and quantity of nuclear material

used at the facility. The NRC has developed a guidance document, entitled Manual for

Conducting Radiological Surveys in Support of License Termination (NUREG/CR-5849), to

assist all types of facilities in executing final radiation exit surveys. This document contains

procedures for conducting radiological surveys to demonstrate that residual radioactive material

satisfies release criteria. Survey methodologies describe the state-of-the-art instrumentation and

procedures for conducting radiological surveys. The document also incorporates statistical

approaches for survey design, evaluation, and quality assurance.

Resources

In preparing for facility transfer or closure, the following resources may assist in complying with

NRC regulations and NRC closure protocols.

• CFR Part 30 Subparts 35 & 36

• Manual Chapter: NRC Protocols for Decommissioning a Facility (NRC Internal Draft)

• NUREG-1500, Working Draft Regulatory Guide on Release Criteria for Decommissioning:

Staff Draft

• NUREG-1501, Background as a Residual Radioactivity Criterion for Decommissioning

(Draft)

• NUREG-5512, Residual Radioactive Contamination from Decommissioning
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• NUREG/CR-5849 Manual for Conducting Radiological Surveys in Support of License

Termination

• Regulatory Guide 1.86, Termination of Operating License for Nuclear Reactors

• Task DG-3001, Records Important for Decommissioning for Licensees under 10 CFR Parts

30, 40, 70, and 72

• NRC-7590-01, Action Plan to Ensure Timely Cleanup of Site Decommissioning Management

Plan Sites

Numerous examples of laboratory closure materials are available through the NRC’s public

document room, 2120 L Street, NW, Washington, DC 20555.
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NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

The substantive and procedural requirements of NEPA must be followed for all major

federal actions, including some activities under the EDDA

In regard to federal Agency’s real property transfers, potential major federal actions applicable for

NEPA review include lease termination, building consolidation, mission change, or construction

of a new facility or laboratory. In working with the General Services Administration (GSA) and

other federal agencies to execute the NEPA process, the Responsible Official, such as an property

transfer manager, should investigate the potential completion of NEPA documentation by other

federal agencies. If NEPA documentation does not exist for the proposed real property transfer,

then the federal agency should initiate the NEPA process.

Federal agencies follow a three-tiered procedural review process when an action that could affect

the environment is proposed. The NEPA Process Chart on the next page gives an overview of

the process. Tier 1 determines whether project qualifies for a categorical exclusion (CX). Tier 2

determines whether the project qualifies for a finding of no significant impact (FNSI) after

performing an environmental assessment (EA). If no significant impacts are discovered in the EA

process, the project qualifies for a FNSI. If significant impacts are discovered in the EA process,

an Environmental Impact Statement (EIS) must be prepared. Tier 3 entails preparing an EIS and

issuing a Record of Decision (ROD).

Some examples of real property transfer activities that require the preparation of NEPA document

include, but are not limited to, activities that:

Significantly affect the pattern and type of land use or growth and distribution of human

population

• Conflict with local, regional, or state land use plans or policies

• Significantly affect cultural resource areas, endangered or threatened species, or

environmentally important natural resource areas such as wetlands, floodplains, or coastal

waters

• Significantly have an adverse effect upon local ambient air quality, noise level, surface water

or groundwater quality or quantity, water supply, aquatic life, wildlife, and their natural

habitats.

The results of the Phase I and II EDDA will assist in determining the appropriate level

of NEPA review and documentation through the disclosure and characterization of

environmental conditions of the property.

The following provides a suggested approach for identifying the NEPA requirements and

applicability when closing or addressing environmental contamination at a federal agency’s

property transfer project. At a minimum, the PTM, laboratory director, or Phase II or III

oversight official should consult with NEPA specialist and the facility’s engineering services

division to determine the appropriate and required NEPA activities. The PTM, laboratory
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director, or Phase II and III oversight official will be responsible for ensuring the NEPA review

process is executed including, but not limited to, evaluation, document development, public

notification, and mitigation measures. Finally, all supporting materials, reports, and NEPA

documentation should be submitted to the federal agency’s headquarters to be maintained

indefinitely in an official document management system.

The NEPA Process

Tier 1 Analysis:

Categorical

Exclusion

(CX)

Tier 2 Analysis:

Environmental

Assessment

(EA)

Tier 3 Analysis:

Environmental

Impact Statement

(EIS)

Record of

Decision

(ROD)

Proposed Action

Has the

Responsible Official

for the action approved its 

disposition based

on the EA?

Prepare and publish Notice of Intent

Conduct Scoping

Prepare EIS

Issue ROD

Initiate selected action

Is action eligible

for a categorical exclusion

in accordance with

40 CFR §6.107?

Has the

Responsible

Official for the action

approved its disposition

as a categorical

exclusion?

Ensure that the

documentation in

40 CFR §6.107

is prepared

Perform an EA for the proposed action

Issue FNSI

for the action

YES

NO

NO

YES YES

NO/UNCERTAIN NO

Is action eligible

for a categorical exclusion

in accordance with

40 CFR §6.107?

YES
APPENDIX I

CONSIDERATIONS FOR EQUIPMENT

DEACTIVATION AND DECOMMISSIONING

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APPENDIX I

Considerations for Equipment Deactivation and Decommissioning

INTRODUCTION

“Deactivation” is the process of placing a facility and its systems in a safe and stable condition

until the closure activities are completed to protect workers, the public, and the environment. All

major processes, equipment, and operations at the facility should be deactivated during Phase II if

they have not already been deactivated. Filters and other such removable and replaceable

equipment that contain radioactive or hazardous materials must be removed and disposed of

properly. The process systems should be cleaned and all process materials removed, including

hazardous and nonhazardous sludges and residues. Laboratory experiments and associated

containers and equipment should be properly ceased, dismantled, and discarded. Deactivation is

particularly important if environmental contamination or hazards will not be addressed until after

the lease is terminated or the facility is vacated. Other examples of deactivation activities include:

• Removing fuel and other products from storage tanks

• Draining and/or de-energizing non-essential systems

• Emptying and flushing all process systems and pipelines

• Removing all radioactive, hazardous, and chemical materials

• Discontinuing all non-essential utility services, including electric, gas, fuel oil, propane, steam

• Removing and dismantling all temporary and portable structures, including trailers,

laboratories, and equipment

• Decontaminating, cleaning, removing, or disposing of large portable containers.

The facility should document the deactivation activities performed in a brief report to quantify and

identify the equipment deactivated, the final equipment condition, and the method of deactivation.

All operation and maintenance manuals and technical drawings of equipment and process left in

place at the facility should be included as attachments to the report. This documentation will

support future closure activities conducted during Phases II and III, and will prevent duplicating

effort by eliminating uncertainties about equipment condition. Also, a documented deactivation

will provide stakeholders and future property recipients with information on the safe and stable

condition of the process and facility systems. The scope of deactivation is not intended to include

the removal of contamination that is part of the buildings’ infrastructure, such as asbestos, or the

decontamination of complex laboratory equipment or process components contaminated with

radiological or hazardous substances. These complex and laborious activities should be

performed only after sampling and analysis has identified the extent of contamination and

evaluated closure alternatives.

Under certain circumstances, the situation may arise where deactivation activities are not

performed or documented. These circumstances may include a facility without experienced

personnel or an authorized contract to perform deactivation. If deactivation activities are not
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performed or documented, a surveillance and monitoring evaluation should be performed.

Surveillance and monitoring includes routine maintenance and inspection of the facility and related

property with verified or suspected environmental and safety hazards.

OZONE-DEPLETING SUBSTANCES (ODSs)

Because they deplete stratospheric ozone, chlorofluorocarbons (CFCs) have been banned from

production in the United States through the 1990 Clean Air Act (CAA) Amendments. The ban

officially took effect January 1, 1996, and extends with different phaseout dates to other ozonedepleting chemicals such as halons, hydrochlorofluorocarbons (HCFCs), and some chlorinated

solvents. CFCs have been used by some federal agencies as refrigerants in large and small

refrigeration systems throughout the nation at research facilities and various offices.

In July 1992, ozone-depleting substances (ODS) refrigerant venting became illegal during the

service, maintenance, repair, or disposal of appliances or industrial process cooling equipment.

Compliance officers conduct random inspections of facilities using CFCs to ensure the facilities

are operating in strict compliance with federal regulations. To date, no federal facilities have been

fined for violations of these requirements.

Federal regulations governing the use of ODSs in commerce do not require sellers of equipment

or facilities with CFC-containing equipment to provide documentation of the sale of CFCs as is

required of free-product ODS distributors. Also, these regulations do not require the removal of

CFCs or HCFCs from refrigeration or process cooling equipment before a transfer of real

property. However, the regulations mandate that the liability for violations occurring before

actual property transfer fall to the prior owner of the CFC-containing equipment. Therefore,

federal facilities must protect against leakages or improper venting of ODS material. In this way,

federal agency’s guard against undue liability from the transfer of ODS-containing equipment in

property transfer activities.

USE OF CFCs AND HCFCs

CFC use falls predominantly within the area of refrigeration use.

REQUIREMENTS FOR ODS REMOVAL

For large, non-hermetically sealed ODS-containing equipment (such as a central plant and backup

chillers), the suggested policy is to remove the refrigerant and place it in a secure and stable state.

To accomplish the removal of ODSs from facility chillers, the facility needs to have the proper

certified recycling equipment, certification for technicians, and knowledge of storage and

transportation procedures. Additional information on these evacuation requirements can be found

in the following section of this appendix, Evacuation Requirements and Equipment

Specifications.
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Small systems that are hermetically sealed do not need to undergo special deactivation

procedures. If they are being disposed of locally, the facility will need to provide documentation

to the disposal agent that the refrigerants have been recovered according to the federal agency’s

requirements. The disposal agent will keep this record on file. Federal agencies may recover used

refrigerants before disposal and must follow the procedures outlined below to recycle used

refrigerants.

EVACUATION REQUIREMENTS AND EQUIPMENT SPECIFICATIONS

In the past, a major contributor to ozone depletion has been the release of used refigerants, into

the environment, from evacuation equipment during changeout of refigerants. To prevent or

minimize the amount of refigerants venting into the environment during this process, the Clean

Air Act Amendments of 1990 required the use of approved and certified refrigerant recovery and

recycling equipment.) When evacuating refrigeration equipment except for Mobile Vehicular Air

Conditioners (MVACs) or small equipment, evacuation equipment must be able to remove the

refrigerant according to the relative vacuum levels presented in the table below under the

conditions of ARI Standard 740-1993, Performance of Refrigeration Recovery, Recycling, and/or

Reclaim Equipment (see Appendix B of 40 CFR Part 82). Under the 1990 Amendments to the

CAA, private citizens are authorized to seek civil penalties for violations of the Act. Plaintiffs

must provide at least 60 days notice of the action to the Administrator, the state, and the alleged

violator (CAA §304). To reinforce how serious Congress is about enforcement of the CAA, it

has authorized EPA to pay a “bounty” of up to $10,000 to anyone who provides information that

leads to a “criminal conviction or a judicial or administrative civil penalty” (CAA §113 (f)).

Evacuation Levels Required of Certified Recovery or Recycling Equipment

Types of Appliances Inches of Mercury Vacuum

Equipment

manufactured

before 11/15/93

Equipment

manufactured

after 11/15/93

High-pressure systems containing less than 200 pounds of HCFC-22 0 0

High-pressure systems containing more than 200 pounds of HCFC-22 4 10

Other high-pressure systems containing less than 200 pounds of

refrigerant

4 10

High-pressure systems containing more than 200 pounds of

refrigerant

4 15

Very high-pressure systems 0 0

Low-pressure systems 25 (mm Hg

absolute)

25 (mm Hg

absolute)

Evacuation equipment may also be certified if an approved third party can demonstrate that the

equipment is able to meet specific requirements outlined in 40 CFR Part 82, Subpart F. Each

piece of equipment certified by EPA must be labeled as such by the manufacturer or importer of

the equipment. Effective November 15, 1993, evacuation technicians cannot use equipment that

has not been certified according to the requirements set forth in 40 CFR Part 82, Subpart F.
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When removing refrigerants from small appliances, the evacuation equipment must be able to

recover 90 percent of the refrigerant if the system is functioning and intact and the evacuation

equipment was manufactured before November 15, 1993. When the small appliance is intact and

functioning, and the evacuation equipment was manufactured after November 15, 1993, the

evacuation equipment must be able to recover 80 percent of the refrigerant. When the

compressor of the appliance is not functioning, the evacuation equipment must be able to recover

80 percent of the refrigerant. All evacuation equipment used for small appliance refrigerant

recovery must be able to evacuate to four inches of mercury vacuum. For further details on

evacuation and equipment specification requirements, please refer to 40 CFR Part 82, Subpart F.

TYPES OF TECHNICIAN CERTIFICATION

Effective November 14, 1994, persons who maintain, service, repair, or dispose of appliances

except MVACs must receive special EPA-approved refrigerant handling certifications. There are

four types of certification depending on the type of ODS-containing appliance serviced. They are:

• Type I, for persons who maintain, service, or repair small appliances

• Type II, for persons who maintain, service, repair, or dispose of high- or very

high-pressure ODS-containing appliances except MVACs and small appliances

• Type III, for persons who maintain, service, repair, or dispose of low-pressure

appliances

• Universal, for persons who maintain, service, repair, or dispose of any type of

low- or high-pressure ODS-containing appliance.

Technicians must be able to provide proof of certification to EPA inspection officials and may

need to be recertified at some future date as determined by the EPA Administrator.

STORAGE AND TRANSPORTATION REQUIREMENTS

The handling, storage, and transportation of refrigerants are regulated by the Occupational Safety

and Health Administration (OSHA) and the Department of Transportation (DOT), rather than by

EPA under the 1990 CAA Amendments. OSHA requires that in-plant handling, storage, and use

of compressed gases must follow the guidance established in the Compressed Gas Association’s

Pamphlet P-1-1965, which has been incorporated by reference into 29 CFR §1910.6. The filling

and transportation of compressed gas refrigerants is regulated by DOT in 49 CFR Parts 171 to

177. These requirements cover:

• Compressed gases transportation requirements (49 CFR §173.315)

• Charging of cylinders with liquefied compressed gases (49 CFR §173.304)
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• Exemptions for the transportation of refrigerating machines and precharging tubes (49 CFR

§173.307).

HIERARCHY OF ODS TRANSFER OPTIONS

Deactivation activities will result in the accumulation of used CFC refrigerants at

facility locations. The priority system to ensure that recovered refrigerants are either

efficiently reused or properly disposed of is as follows:

Priority of Actions for Reuse of Old Refrigerants

• Recover refrigerants from evacuated equipment

• Recycle/ reclaim refrigerant for use by other facilities

• Send refrigerants to the Defense Logistics Agency

• Contract out refrigerant removal services with certified refrigerant technicians

The first recommended option is to recycle or reclaim the unused refrigerants. Recycling and

reclaiming refrigerant ensures that the facilities have an adequate supply of refrigerant to meet

their present and future needs. The next recommended option is evacuating the refrigerant from

the equipment and having it transported off-site to the Defense Logistics Agency (DLA). This

option allows the Agency to retain control over the removal procedures and to transfer the

refrigerant to the military’s refrigerant Defense Reserve for use by the Defense agencies or to set

up a refrigerant bank for the Agency. DLA has been operating the Defense Reserve since 1993

and now stores between 10 million and 15 million pounds of ODSs. DLA provides recovery

cylinders free of charge to agencies that are donating to the refrigerant Defense Reserve. The

remaining option recommended is to initiate a contract with a certified technician or reclamation

company to remove the refrigerant from the equipment. If this option is chosen, the facility must

maintain documentation of all transactions involving the transfer of refrigerant off-site. Although

complete records of disposal actions are not required by law, it is advisable to maintain these

records to demonstrate a clear line of custody.
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RESOURCES

Refer to the following resources for further information.

• Compressed Gas Association, Pamphlet P-1-1965

• CFR Part 82, Protection of Stratospheric Ozone

• CFR Parts 171-177, Hazardous Materials Regulations

• CFR Part 1910, Occupational Safety and Health Standards

• EPA publication, 608: The Refrigerant Recycling Rule, 1994

• EPA publication, Disposing of Applications with Refrigerants: What You Should Know, 1993

• Defense Logistic Agency, Procedures for Turning in Ozone-Depleting Substance to the

Defense Reserve, July 8, 1994.
APPENDIX J

EXAMPLES OF EPA OPERATIONS AND EQUIPMENT

WHICH MAY REQUIRE DEACTIVATION AND DECOMMISSIONING

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APPENDIX J

Examples of EPA Operations and Equipment

Which May Require Deactivation and Decommissioning

Hazardous Materials and Waste

- acid waste drain and neutralization pit

- biological species testing chemicals

- central hazardous waste accumulation areas

- chemical adoption program storage areas

- chemical storage areas

- containers/pipes for film processing racks

- containers/pipes for used fix solution (silver)

- containers/pipes for bleach replacement for

color film processor

- elementary neutralization systems

- graphics operations

- hazardous materials/waste storage building

- lead-based paint

- pathological/infections waste treatment devices

- pesticide storage areas

- refrigeration systems and equipment

- refrigerant recovery systems

- satellite hazardous waste accumulation areas

Tanks, Containers, and Other Storage

- acute hazardous waste containers

- compressed gas cylinder storage

- compressed gas cylinders

- control tanks

- corrosive solution containers

- culture and bioassay tanks

- drum storage area surfaces

- effluent collection container

- fuel oil tank

- hazardous waste containers

- head tanks

- indoor drum storage area

- medical waste containers

- modular hazardous waste storage facility

- organic solvent containers

- outdoor solvent storage building

- paint and supply storage areas

- radioactive storage facility

- satellite accumulation area, surfaces

- staging area

- storage cabinets, sheds, surfaces

- surplus property storage facility

- underground and aboveground storage tanks

- vehicular storage/maintenance areas and

surfaces

Environmental Media (Soil, Groundwater, Wetlands)

- acid neutralization pits

- chemical groundwater injection studies

- effluent discharge pipe systems

- sewer system

- test streams

- test stream sediment

- testing trailers and mobile laboratories

Radioactive Materials

- test streams

- test stream sediment

- test plots and research media

- inductively coupled plasma atomic emission

- sealed sources/isotope solutions

- radiological waste/materials storage areas

- radiological treatment systems

- atomic absorption spectrophotometer

- gas chromatograph with electron capture

- radioactive contaminated floors, wall, items

- radioisotope fume hood

- radioisotope glove boxes

- radiological fume hood air ducts
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APPENDIX J

Examples of EPA Operations and Equipment

Which May Require Deactivation and Decommissioning (continued)

Polychlorinated Biphenyls

- PCB-contaminated ballast, animal bedding/

cages

- PCB-contaminated samples & waste

containers

- pesticide storage cabinets

- PCB lysi meters

- PCB transformers or electrical equipment

- PCB waste storage areas

- test plots and research media

Asbestos

- asbestos analysis equipment

- asbestos-containing material

- asbestos samples

Indoor Air

- laboratory exhaust vents

- laboratory exposure chambers

- vent pipes

Laboratory Equipment and Pilot/Bench-Scale Experiments

- acid wash bath equipment/wastewater

- atomic absorption spectrophotometer

- boiler

- five-chamber chemical combustor apparatus

- fluid modeling facility

- laboratory fume hood stacks

- laboratory fume hoods

- gas chromatographs with electron capture

detectors

- glassware washing areas

- HPLC instrumentation

- inductively coupled plasma atomic emission

spectroscophers

- ion-exchange system

- mass spectrometer

- ozone regeneration system

- radioactive contaminated floors, walls, items

- sanitary treatment plant

- scintillation counting devices

- sealed sources/isotope solutions

- solvent extraction and distillation flasks

- wastewater treatment system and piping

- wipe test equipment

Building Systems

- boilers

- building water supply system

- emergency power generators

- exhaust stacks

- fluorescent lights and ballast

- furnace equipment

- HVAC systems (CFCs, cooling tower)

- natural gas-fired boilers

- NPDES effluent pipes

- oil-fired steam boiler

- pathological incinerator

- rotary kiln incinerator system

- sanitary sewer system and drains

- scrubber water accumulation tanks

- septic system

- wastewater treatment system
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APPENDIX J

Examples of EPA Operations and Equipment

Which May Require Deactivation and Decommissioning (continued)

Other

- drinking fountains failing to meet lead

standards

- dry system drainage

- fire extinguishers/suppression equipment

- fire-detection equipment

- personal protective equipment

- spill-control equipment

- sumps

- water deionizing systems

- wet laboratory building

- wood and metal shops

APPENDIX K

QUALIFICATIONS FOR EDDA PERSONNEL AND MANAGERS

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APPENDIX K

Qualifications for EDDA Personnel and Managers

INTRODUCTION

Agencies are responsible for ensuring personnel and managers are adequately trained and qualified

to oversee, perform, or manage the environmental due diligence audit (EDDA). The Agency

must ensure that only qualified contractors perform EDDA activities. The discussions in this

appendix assume that due to the specific and technical nature of activities, agency personnel

responsible for initiating and coordinating the EDDA will not provide direct oversight for Phases

II and III; however, should be capable of Phase I oversight. This assumption does not

automatically exclude the agency from consideration for direct oversight of Phases II and III. The

responsible agency personnel can perform the direct oversight role throughout Phases I, II, and III

as long as he/she meets the qualification criteria. Specific criteria for personnel involved in the

EDDA are discussed below.

Personnel functioning as the responsible agency EDDA coordinator should have either:

• Performed as a Safety, Health and Environmental Management Program (SHEMP) manager

for five years and have a good understanding of the Guidelines for Acquiring and

Transferring EPA Real Property and Complying with the Community Environmental

Response Facilitation Act (CERFA)

• A degree in a scientific discipline relevant to the EDDA (e.g., environmental engineering,

environmental science, geology, chemistry, biology, forestry) and have a good understanding

of the Guidelines for Acquiring and Transferring EPA Real Property and Complying with the

Community Environmental Response Facilitation Act (CERFA)

• Provided oversight for at least three Phase I EDDAs, environmental due diligence audits

(EDDAs), Resource Conservation and Recovery Act (RCRA) or base closures; or

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

remedial investigations/actions.
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PHASE I REVIEW TEAM

Internal or contract personnel performing Phase I site inspections should have at least 12 hours of

training in Phase I site assessments or environmental due diligence audits and have both:

• Conducted or participated in at least five EDDAs, environmental due diligence audits

(EDDAs), or any combination of these

• A degree in a scientific discipline relevant to the EDDA (e.g., environmental science, geology,

chemistry, biology, forestry).

Unless there is a comparable internal training program, out-of-agency training is acceptable.

Training must include instructions on visual site inspections, record searches, and site owner and

personnel interviews.

PHASE I REVIEWER

Personnel assigned to review Phase I activities or reports must have similar qualifications as those

of the facility PTM. In addition, the Phase I Reviewer must work in coordination with Facilities

Management and Services Division (FMSD) and Safety, Health and Environmental Management

Division (SHEMD) personnel.

PHASE II AND III OVERSIGHT PERSONNEL

Personnel who provide oversight for Phases II or III investigations must have at least 16 hours of

training in environmental closures or have conducted, participated in, or reviewed at least five

RCRA or base closures, environmental due diligence audits, CERCLA remedial

investigations/remedial actions, Phase I site assessments or any combination, and also have had

any additional training deemed necessary by FMSD and SHEMD.
APPENDIX L

PHASE I EDDA

CONTRACTOR SPECIFICATIONS

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APPENDIX L

Phase I EDDA

Contractor Specifications

INTRODUCTION

This section contains the minimum specifications that must be met by any contractor selected to

perform Phase I EDDAs for Agency property transfers or closures.

SPECIFICATIONS

General. When selecting a contractor to assist the Agency in performing Phase I EDDAs

consider the following general practices:

• Include an explicit scope of work as part of the request for proposals (RFP) and contract

• Conduct interviews with the contractors who meet the standard RFP criteria (including the

specific individuals who will be doing the work)

• Review standard work product as part of the proposal process

• Thoroughly verify all professional references.

Criteria. Use the following specific criteria to evaluate potential Phase I contractors.

(1) Firm Experience.

i. Years: Three (total, all activities)

ii. Subject Matter Expertise:

iii. Environmental science and engineering, including the following disciplines:

geology, asbestos management, hazardous materials management, and

hydrogeology. Regulatory expertise is also required.

iv. Two years of experience conducting Phase I site assessments.

v. Capability to perform Phase II. Requires disciplines such as toxicology, industrial

hygiene, chemistry/risk assessment, and three years experience in conducting Phase

II site assessments.

(2) Project Manager Experience.

vi. Years: Five

vii. Subject Matter Expertise: Environmental Sciences

viii. Degree: MS or Ph.D.
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ix. Phase I Experience: Two years of experience within the last five years.

 (3) Team Member Experience.

x. Years: Three

xi. Subject Matter Expertise: Environmental Sciences

xii. Degree: MS or BS

xiii. Professional Affiliations: Professional Engineer or Geologist Registration preferred

xiv. Phase I Experience: Two years of experience, within the last three years.

(4) Indemnification and Insurance. The contractor must:

xv. Be willing to indemnify the Agency for the result of its professional and other

negligence

xvi. Possess a minimum limitation of liability to $1 million

xvii. Carry limits of errors and omissions insurance of at least $1 million

xviii. Carry limits of general liability insurance of at least $1 million

xix. Carry workers compensation insurance

xx. Provide certificates of insurance (evidencing coverage) for each of the coverages.

(5) Conflicts of Interest. Consultants must not have more than 50 percent of their work

coming from developers or real estate leasing groups, the Environmental Protection Agency,

or state.

(6) Report Quality.

xxi. Report experience should show a similar approach to conducting Phase I as

outlined in Agency’s guidelines for transferring real property and complying with

the Community Environmental Response Facilitation Act (CERFA).

xxii. Reports should be readable and comprehensible by the lay person.

xxiii. Reports should explain all conclusions and explain the relevancy and implication of

findings to the Agency. Regulatory and some legal issues also should be explained.

(7) Size of the Firm. The contractor must have adequate staff in place to conduct Phase I. It

is anticipated that each Phase I will require 1.5 junior staff and 1 senior/project management

staff during the course of Phase I.

(8) Client Experience. The contractor shall have at least three years experience conducting

Phase I EDDAs.

(9) Locations. The contractor must be easily accessible to the Agency group reviewing the

Phase II work assignment.
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(10) Information Protection. The contractor must have a program in place for ensuring the

confidentiality of information provided by the government. Elements shall include specific

standards for labeling information as proprietary and policies for protection of the

information, including disciplinary procedures for employees found infringing upon the

policy. The contract between the Agency and the contractor must provide that the

contractor shall not disclose information obtained from the Agency or related to its

relationship with the Agency to third parties without the express consent of the Agency.

(11) Cost. Cost shall be reasonable and within the prevailing rates charged by similarly situated

contractors.

(12) Minority/Woman-Owned Business. The Agency, as well as other federal agencies, are

committed to hiring minority or woman-owned business where all technical qualifications

are met.

Evaluation and Balancing. The following factors shall be considered:

(1) Primary Criteria.

i. Firm and individual consultant experience (i.e., education, work)

ii. Insurance and indemnification

iii. Report quality

iv. Conflict of Interest

(2) Secondary Criteria.

i. Location

ii. Size

iii. Confidentiality and document retention programs

(3) Additional Criteria to be Considered.

i. Use of Subcontractors

ii. Formal quality control programs

iii. Cost

iv. Minority/woman-owned business status

APPENDIX M

PRE-ENVIRONMENTAL DUE DILIGENCE AUDIT QUESTIONNAIRE

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APPENDIX M

Pre-Environmental Due Diligence Audit Questionnaire

Answer the following questions to the best of your knowledge. If a question does not apply, or if

you are unsure of the answer, please indicate so in your response. If possible, please identify

which participant responded to the question or set of questions. This will assist in the verification

of suspected contamination during the site inspection, investigation, and interview process.

1. List all the personnel involved in the completion of this survey. Include names of any

individuals who have experience in operations at your site. This list of contacts will be used

to arrange interviews during the site inspection and investigation.

2. What is the basis for the Agency’s current real property interests at this location?

3. Where is the property located (complete address, longitude/latitude, parcel number, or legal

description if available)?

4. How large is the property (acreage)?

5. Is the site located on or near any waterways, schools, or recreational facilities?

6. Does the property contain new buildings, improvements, or other modifications since current

owner’s occupancy?

7. How large are the new structures?

8. What are the ages of the buildings?

9. How are the buildings being used?

10. Who are the current owners and operators?

11. Identify the main contacts for further inquiries.

12. What are the current uses of the subject property?

13. Who were the past owners and operators of the property?

14. What were the past uses of the property? (To the best of your knowledge)

15. Is the current owner or operator aware of any present or past underground or aboveground

storage tanks located on or adjacent to the subject property?

16. If yes, can the owner/ operator demonstrate that the tanks have been properly closed,

installed, certified or that existing tanks are not currently leaking?
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17. If underground storage tanks (USTs) or aboveground storage tanks (ASTs) exist, complete

the UST questionnaire in Appendix L.

18. Is the owner/ operator aware of any landfill (public or private) operators on or adjacent to the

subject property?

19. If yes, identify the waste types that were disposed of within the landfill.

20. Is the owner/ operator aware of any hazardous substances (e.g., polychlorinated biphenyls

(PCBs), asbestos) in any structures, equipment (electrical/mechanical), or on the premises?
APPENDIX N

SITE VISIT GUIDELINES

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APPENDIX N

Site Visit Guidelines

The guidelines below can be used in performing a site visit during Phase I of the environmental

due diligence process (EDDA). Answers to the questions can be helpful in identifying potential

environmental issues that should be addressed before transferring real property

General Information

1. Is the property located in an area designated as a wetland, wilderness, or historical area?

2. Are any rivers, streams, springs, lakes, or ponds located near or on the property?

3. What are the zoning requirements or intended future use for the property?

Adjacent Property

4. What are the zoning requirements or intended future use for adjacent properties?

5. Who are the adjacent property owners? What activities take place at all adjacent properties

(e.g., commercial tenants handling hazardous waste, military or industrial research, machinery

repair, landscaping, mining/quarrying, oil/gas extraction, manufacturing, agriculture)?

6. Who are the adjacent property main contacts for further inquiries and coordination?

7. Is the current owner/operator aware of any present or past underground or aboveground

storage tanks being located adjacent to the subject property? If yes, can the owner/operator

demonstrate that the tanks have been properly closed, installed, certified or that existing tanks

are not currently leaking? If underground storage tanks (USTs) or aboveground storage tanks

(ASTs) exist complete UST questionnaire in Appendix O.

Records and Documents

8. Is (or has been) the subject property on the National Priorities List (NPL) of Superfund sites?

The Comprehensive Environmental Response, Compensation, and Liability Act Information

System (CERCLIS) reports can be obtained from the Resource Conservation and Recovery

Act (RCRA)/Superfund Industry Assistance Hotline (800-424-9810), the CERCLIS Helpline

(202-260-0056), the EPA Regional Office, or from the state environmental agency.

9. Have or are nearby properties (within two miles of the site) been on the NPL?

10. Have there been any fuel leaks in the area? The State Environmental Agency Site Lists, which

is similar to CERCLIS, contain information on smaller fuel leak sites.
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Permits, Surveys, Violations

11. Has the facility possessed any environmental permits in the past or present? Indicate Y/N. ___

air quality; ___ hazardous waste treatment, storage or disposal facility;

___ public owned treatment works; ___ sanitary sewer; ___ USTs

___ National Pollutant Discharge Elimination System; ___ stormwater discharge

12. Has the facility been cited for permit violations or environmental noncompliances? If yes,

provide a brief description of all violations or noncompliance.

13. Have soil or groundwater studies been performed on the subject property or adjacent

properties? These reports and test results should be available from the owner/operator of the

properties.

14. Does the local fire department have record of any violations (impacting human health and the

environment) of the owner/operator facility? Provide a list or brief description.

15. Has an indoor air quality survey been performed recently? If so, when and what were the

results?

16. Has a radon survey been performed recently? If so, when and what were the results?

17. Has a radiological survey been performed recently? If so, when and what were the results?

18. Has an asbestos inspection or survey been performed at the facility before or during

occupancy? Are reports available documenting the inspection results? Briefly describe the

results or provide the inspection report. The report can be obtained from the owner or

operator of the facility.

19. Has an UST survey been performed by a qualified engineer? If so, when and what were the

results?

20. Were aerial photographs taken prior to the Agency occupying the property? The United

States Geological Survey (USGS) in Reston, Virginia, maintains aerial photographs of the

United States.

21. Has a lead-based paint survey been performed recently? If so, when and what were the

results?

22. Has a RCRA facility assessment or investigation been performed in the past or present?

Provide a brief description.
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Hazardous Materials Usage/Releases

23. Are any automotive or industrial batteries or paints handled or used in large volumes greater

than five gallons?

24. Are any industrial drums (15-55 gallons) used, handled, or stored at the facility? If so

approximately how many?

25. Was the site ever used for or by commercial tenants handling hazardous waste, military or

industrial research, machinery repair, landscaping, mining/quarrying, oil/gas extraction,

manufacturing, or agriculture?

26. Are hazardous substances disposed of on-site, injected into groundwater, or discharged into

drains, septic systems, ponds, or lagoons?

27. Are there any ponds or collection pits on-site? If yes, what do they contain?

28. Are the signs of stressed vegetation (browned, burned out) or stained soil?

29. Are any leaks, spills, or stains present on the property or in any buildings?

30. What hazardous materials are or have been used, treated, or otherwise handled on-site? This

information can be obtained from material safety data sheets (MSDS) or from the local fire

department.

31. Has there been any history of hazardous or municipal solid waste disposal on-site?

32. Have there been on-site or off-site releases?

33. Are there any drinking water or groundwater monitoring wells on-site?

Storage Tanks

34. Have or are wells, dry wells, or septic tanks operating? Are there any abandoned wells or

septic tanks?

35. Are any underground storage tanks on the property, close proximity to the subject propery

facility, or on the adjacent property? If yes, complete the UST questionnaire in Appendix O.

36. Are any aboveground storage tanks on or near the property? If so, describe the construction,

age, capacity, and contents of the tank(s).

37. Is there staining around any of the storage tanks?

38. Does the AST have secondary containment?
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Polychlorinated Biphenyl (PCB) Transformers

39. Are any of the following transformers on-site? Indicate Y or N. ___ electrical transformer;

___ electrical capacitors; ___ hydraulic systems; ___ waste oil tank; ___ other (specify)

40. Has or is any of the equipment leaking or damaged? If leaks or damages have occurred in the

past, provide a brief description of the incident and actions taken.

Asbestos

41. When was each building on-site constructed? Note any construction prior to 1987 that may

contain asbestos.

Pesticides

42. Are or were pesticides used, stored, or manufactured at the site?

43. Has there ever been a spill of pesticides at the site?

Radioactive Materials and Waste

44. Are or were radioactive materials used, stored, or manufactured at the site? Is a Nuclear

Regulatory Commission (NRC) license available for review?

45. Has there ever been a radioactive materials release or violation at the site?

46. What engineering controls for radioactive materials are or have been used?

47. Is or has a liquid radioactive waste storage and treatment system been operated at the facility?

48. Is or has liquid radiological waste been discharged to the sanitary sewers?

49. Were or are radiological materials used, or stored in rooms, areas or work surfaces

constructed of porous materials, tile floors, concrete, or other surfaces with cracks, crevices,

and seams?

Laboratory Operations, Analysis, and Experiments

50. Are or have experiments been conducted in the soils, groundwater, man-made streams, or

sediments at the site? Provide a brief description of each experiment.

51. What laboratory bench or pilot-scale operations or experiments have been or are conducted

that involve engineering systems or equipment exposure to hazardous materials? Provide a

description of each.
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52. What treatment systems have been or are in operation including, but not limited to, waste

water, water, incinerators, solvent recovery/recycling, elementary neutralization, sanitary?

53. Are or have laboratory activities been conducted in temporary structures or mobile trailers?

Provide a description of the structure and associated activities.

54. Are there on-site mobile equipment or temporary structures on site that may require removal,

decommissioning, shutdown, or decontamination because of exposure to hazardous or

radiological materials? Provide a list and brief description.

APPENDIX O

UST / AST QUESTIONNAIRE

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APPENDIX O

UST / AST Questionnaire

1. Quantity - How many underground storage tanks (UST) are at the facility? _____

 How many aboveground storage tanks (AST) are at the facility? _____

2. Location - Please attach site maps, facility layouts or provide a description regarding where the tanks are located relative to one

another. Include in the map/ layout/ description the location of any groundwater monitoring wells, as well as the proximity of tanks

to water retention ponds, surface impoundments, sewer and utility lines, storm/waste water lines, surface water, or stormwater

drains?

3. Ownership and Management - Please complete the following matrix for each tank at the facility, adding lines as necessary.

Tank ID Under or Aboveground

Tank (UST or AST)

Owner Operator Name /Organization Relationship of Operator to Owner

Tank Operator means any person in control of, or having responsibility for, the daily operation of the UST system. Provide the

individual's name, organization, and/or relationship to owner.

4. Who submits required notifications and reports to the implementing agency? (for example, certification of installation, release

reports, corrective action plans) (See 40 CFR §§280.22 and .34 for notifications and reports.) _____________________________

5. Who maintains tank documentation (release detection records, notification and reporting activities? _________________________

Where is this documentation kept? ____________________________________________________________________________

6. Who oversees and tracks product delivery and inventory control? Please provide the individual's name, organization, and/or

relationship to owner. (See 40 CFR §§280.40 and .43) ____________________________________________________________

7. Who performs operation and maintenance of the equipment and systems? Provide the individual's name, organization, and/or

relationship to owner. ______________________________________________________________________________________
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8. Tank Profile - Please complete the following matrix for each tank at the facility, adding lines as necessary

Tank ID Tank

Capacity

Tank

Construction

Material*

Piping

Material* Product1

Stored in

Tank

Does tank

meet 12/98

standards

(Y/N)

Release

Detection

Method**

What

equipment

does the tank

serve ?

Any release

from tank?

(Y/N)

Release

followup

action***

* Construction Material Key:

a) steel w/o protection b) steel with cathodic protection c) steel with corrosion protection d) vaulted steel e) other metal

f) fiberglass g) fiberglass-reinforced plastic h) steel-fiberglass-reinforced-plastic composite i) unknown j) other _______________

1

Please be specific, including noting if tank contains Heating Oil.

** Release Detection Key: (Indicate "T" for tank and "P" for piping.)

k) Interstitial monitoring l) Vapor monitoring m) Groundwater monitoring n) Tank tightness testing

o) Manual or automatic tank gauging p) Inventory control process

*** Followup Release Action Key:

q) release investigation r) Passive remediation s) Soil removal

t) vapor recovery u) Inert fill material v) other _______________

9. Have UST closure activities been performed in the past on any tanks at this facility? ___ Yes ___ No

10. Are groundwater monitoring wells in place? ___ Yes ___ No

11. Are monitoring well data, results, and reports available for the last two years? ___ Yes ___ No
APPENDIX P

NUCLEAR REGULATORY COMMISSION REGIONAL OFFICES

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APPENDIX P

Nuclear Regulatory Commission Regional Offices

The mission of the U.S. Nuclear Regulatory Commission (NRC) is to ensure adequate protection

of the public health and safety, the common defense and security, and the environment in the use

of nuclear materials in the United States. The NRC's scope of responsibility includes regulation of

commercial nuclear power reactors; nonpower research, test, and training reactors; fuel cycle

facilities; medical, academic, and industrial uses of nuclear materials; and the transport, storage,

and disposal of nuclear materials and waste.

The information for this appendix was extracted from the internet at http://www.NRC.gov.

In addition, the following can be obtained from the NRC internet site.

• “Radioactive Waste: Production, Storage, Disposal” (NUREG/BR-0216); July 1996

• Index of Radioactive Sealed Sources and Devices by Manufacturer and Model Number

http://www.hsrd.ornl.gov/nrc/ssdr/ssdrindx.htm

Headquarters

One White Flint North, 11555 Rockville Pike

Rockville, Maryland 20852-2738

Switchboard Telephone Number: 301-415-7000

NRC Regional Offices

Each regional office has its own switchboard, which operates during the normal business hours

only. During nonbusiness hours (evening, weekend, and Federal holidays), callers are given the

Headquarters Emergency Operations Center telephone number by means of a tape-recorded

announcement, or callers may leave a recorded message.

Region I

475 Allendale Road Switchboard Telephone Number: 610-337-5000

King of Prussia, PA 19406-1415 Hours: 7:30 a.m.-4:15 p.m., Monday through Friday

(EST)

Region II

Atlanta Federal Center (AFC) Tower Switchboard Telephone Number: 404-562-4400

61 Forsyth Street, SW, Suite 23T85 Hours: 7:30 a.m.-4:15 p.m., Monday through Friday

(EST)

Atlanta, GA 30303

Region III

801 Warrenville Road Switchboard Telephone Number: 630-829-9500

Lisle, IL 60532-4351 Hours: 7 a.m. to 4:45 p.m., Monday through Friday

(CST)
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Region IV

Harris Tower Switchboard Telephone Number: 817-860-8100

811 Ryan Plaza Drive, Suite 400 Hours: 7:30 a.m.-4:15 p.m., Monday through Friday

(CST)

Arlington, TX 76011-8064

Walnut Creek Field Office

1450 Maria Lane Switchboard Telephone Number: 510-975-0200

Walnut Creek, CA 94598-5388 Hours: 7:30 a.m.-4:15 p.m., Monday through Friday

(PST)
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DISPOSAL OF RADIOACTIVE WASTE (NRC Office of Public Affairs Fact Sheet; internet

http://www.nrc.gov/OPA/gmo/tip/drwaste.htm 5/98)

Radioactive materials that result from use of nuclear materials can be separated into two main

categories:

1. Effluents - materials discharged to the environment as gaseous or liquid effluents (the active

content of these effluents must fall within established Nuclear Regulatory Commission and

Environmental Protection Agency limits and must be as low as reasonably achievable) - and

2. Wastes - materials that are of sufficient radiological hazard that they require special care.

Radioactive wastes (the second category) are separated into two broad classifications: "high-level

wastes" and "other than high-level wastes." High-level wastes are radioactive wastes produced in

the first solvent extraction cycle of fuel reprocessing operations, and spent fuel elements should

they be discarded. At present there are no commercial reprocessing operations in this country,

and these wastes, for the most part, are contained in the used fuel. The used fuel, which is highly

radioactive and requires shielding and remote handling, is stored in specially-designed, water-filled

basins or dry casks at commercial power reactor sites or at one away-from-reactor storage

facility.

The Nuclear Regulatory Commission has regulatory authority over storage and disposal of all

commercially generated wastes and those Department-of-Energy-generated high-level radioactive

wastes that are subject to long-term storage and that are not used for, or a part of, research and

development activities. Regulations require conformance with minimum acceptable performance

criteria for waste management activities, while providing for flexibility in technological approach.

These criteria and guidelines are designed to ensure adequate protection of the public health and

safety and the environment. Facilities for storage and disposal of high-level wastes licensed by

NRC will be designed and operated in accordance with these requirements.

NRC's performance criteria for solidified high-level wastes consider the potential for accidents

during interim storage, transportation, handling, emplacement and post-emplacement. Repository

siting criteria encompass a broad spectrum of concerns, including earth science, natural resource,

demographic and socioeconomic factors.

Low-level wastes, which are generally defined as radioactive wastes other than highlevel and wastes from uranium recovery operations, are commonly buried in nearsurface shallow trenches, usually in the containers in which they are shipped. There is

no intent to recover the wastes once they are buried. There were once six operating

commercial facilities in the United States licensed to bury low-level radioactive wastes.

They are located at West Valley, New York; Maxey Flats near Morehead, Kentucky;

Sheffield, Illinois; Beatty, Nevada; Hanford, Washington; and Barnwell, South

Carolina. At the present time, only the latter two sites are receiving waste for burial.

The West Valley, Maxey Flats, Sheffield and Beatty sites have permanently stopped

receiving wastes. Burial of transuranic nuclides is limited at all of the sites.
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The two currently operating commercial burial grounds are located in Agreement States and are

regulated by the states. However, the NRC licenses special nuclear material because the

quantities received by the commercial operator exceed those that the Agreement States may

license under their agreements. The sites are all commercially operated.

Part 61 of the NRC's regulations sets forth the procedures, criteria, terms and conditions for

licensing sites for land disposal of low-level waste. The requirements established under Part 61

also provide the basis for Agreement State regulation, since State rules must be compatible with

NRC requirements.
APPENDIX Q

UNITED STATES GEOLOGICAL SURVEY OFFICES

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APPENDIX Q

United States Geological Survey Offices

For information on products and services, check the internet (http://www.usgs.gov); use the

EARTHFAX fax-on-demand system ( 703-648-4888 ); or call 1-800-USA-MAPS.

The United States Geological Survey (USGS) is organized into the following regions and centers.

Eastern Region & Headquarters Central Region Western Region

703-648-4000

USGS National Center

12201 Sunrise Valley Drive

Reston, VA 20192, USA

U.S. Geological Survey

Box 25046 Denver Fed. Ctr.

Denver, CO 80225, USA

U.S. Geological Survey

345 Middlefield Road

Menlo Park, CA 94025, USA

USGS INFORMATION AND DATA CENTERS

Earth Science Information Center EROS Data Center (EDC)

National Earthquake Information Center National Geomagnetic Information Center

National Landslide Information Center National Water Information Center

Earth Science Information Centers (ESIC) (http://www-nmd.usgs.gov/esic/esic.html) provide

nationwide information and sales services for USGS map products and earth science publications.

The Centers listed below can fill orders and provide information about:

• Geologic, hydrologic, topographic, and land use maps, books, and reports

• Aerial, satellite, and radar images and related products

• Earth science and map data in digital format and related applications software

• And geodetic data.

AK-Anchorage USGS-ESIC Phone: (907) 786-7011

4230 University Drive, Rm. 101 FAX: (907) 786-7050

Anchorage, AK 99508-4664 Email: gfdurocher@usgs.gov

CA-Menlo Park USGS-ESIC Phone: (650) 329-4309 TDD: (650) 329-5092

Building 3, MS 532, Rm. 3128 FAX: (650) 329-5130

345 Middlefield Road Email: esic_west@usgs.gov

Menlo Park, Ca 94025-3591

VA-Reston USGS-ESIC Phone: (703) 648-6045 TDD: (703) 648-4119

507 National Center FAX: (703) 648-5548

Reston, VA 20192 Email: esicmail@usgs.gov

MO-Rolla USGS-ESIC Phone: (573) 308-3500
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1400 Independence Road, MS 231 FAX: (573) 308-3615

Rolla, MO 65401-2602 Email: mcmcesic@usgs.gov

UT-Salt Lake City USGS-ESIC Phone: (801) 975-3742 TDD: (801) 975-3744

2222 W 2300 S, 2nd Floor FAX: (801) 975-3740

Salt Lake City, UT 84119 Email: slcesic@usgs.gov

SD-Sioux Falls USGS-ESIC Phone: (605) 594-6151 TDD: (605) 594-6933

EROS Data Center FAX: (605) 594-6589

Sioux Falls, SD 57198-0001 Email: custserv@edcmail.cr.usgs.gov

WA Spokane USGS-ESIC Phone: (509) 353-2524 TDD: (509) 353-3235

US PO Building, Rm. 135 FAX: (509) 353-2872

904 West Riverside Avenue Email: esnfic@mailmcan1.wr.usgs.gov

Spokane, WA 99201

DC-Washington DOI-USGS-ESIC Phone: (202) 208-4047

1849 C Street, NW, Rm. 2650 Email: esicmail@usgs.gov

Washington, D.C. 20240

CO-Denver USGS-ESIC Phone: (303) 202-4200

Box 25286, Bldg 810 FAX: (303) 202-4188

Denver Federal Center Email: infoservices@usgs.gov

Denver, CO 80225

USGS Information Services (Denver)

Map and Book Sales Phone: (303) 202-4700 or 1-800-HELP-MAP 

Fax: (303) 202-4693

Open-File Report Sales Phone: (303) 202-4200

Fax: (303) 202-4695

Where can topographic maps be purchased?

• At any USGS ESIC (listed herein and at http://mapping.usgs.gov/esic/esic_index.html )

• From a local map dealer ( http://mapping.usgs.gov/esic/usimage/dealers.htm )

• By mail through USGS Information Services in Denver, CO.

How much do maps cost?

• Nearly all USGS maps are $4.00 per sheet. A few titles include multiple sheets. A $3.50

handling charge is applied to all orders sent by mail. Call us at 1-800-USA-MAPS for more

information.

Where can map index and ordering information be obtained?
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• In person at any USGS ESIC

• By phone, call 1-800-USA-MAPS

• By fax, from the fax-on-demand system ( 703-648-4888 ) or 1-800-USA-MAPS (press 4).

Is map data available in digital form? YES.

• On the internet at http://mapping.usgs.gov/www/products/dgeosp1.html

• By phone, call for the information package on digital cartographic data.

Is stream gauging data available for a particular stream?

• USGS has real-time water data online ( http://water.usgs.gov/public/realtime.html ) for many

streams. For a specific stream, also refer to the USGS Water Resources Division.

How can aerial photographs be obtained?

• The USGS Earth Science Information Center (ESIC) maintains an informational data base

of aerial photographic coverage of the United States and its territories that date back to the

1940's. This information describes photographic projects from the USGS, other Federal,

State, and local government agencies, and commercial firms. ESIC representatives will assist

you in locating and ordering photographs. Please submit the completed checklist, geographic

coordinates (if known), and your marked map to any ESIC. The National Aerial Photography

Program (NAPP) photography can be researched and ordered online using WebGLIS

(http://edcwww.cr.usgs.gov/Webglis/glisbin/search.pl?NAPP).

What are Digital Raster Graphics?

• A digital raster graphic (DRG) is a scanned image of USGS topographic map, including all

map collar information. The image inside the map neatline is geo-referenced to the surface of

the Earth. The DRG can be used to collect, review, and revise other digital data, especially

digital line graphs (DLG). When the DRG is combined with other digital products, such as

digital orthophoto quadrangles (DOQ) or digital elevation models (DEM), the resulting image

provides additional visual information for the extraction and revision of base cartographic

information.

How can Digital Raster Graphics be obtained?

• USGS distributes DRG's on Compact Disc-Recordable (CD-R). The number of files and area

covered varies due to the irregularity of land mass shapes. For the contiguous States plus

Hawaii, the cells will usually contain sixty-four 1:24,000-scale files, two 1:100,000-scale files,

and one 1:250,000-scale file. For Alaska, the cells will usually contain thirty-two 1:63,360-

scale files and one 1:250,000-scale file. The price for a USGS CD-R is $32 for one disc, or

$42 for two disc sets (plus a $3.50 handling charge per order). Contact any Earth Science
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Information Center, call 1-800-USA-MAPS, or go online to the USGS Global Land

Information System (WebGLIS) for information on ordering DRG's on CD-R.
APPENDIX R

EXAMPLE PHASE I REPORT OUTLINE

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APPENDIX R

Example Phase I Report Outline

1.0 Introduction

2.0 Site Location and Description

3.0 Site Ownership and Use

3.1 Site Ownership

3.2 Site Use - Historical

3.3 Site Use - Current

4.0 Site Inspection

4.1 Site Buildings

4.2 Site Grounds

4.3 Underground Storage Tanks

4.4 Aboveground Storage Tanks

4.5 Transformers

4.6 Asbestos

4.7 Indoor Air

4.8 Radioactive Materials

4.9 Motor Pools, Shops and Laboratories

Operations, Analyses and Experiments

4.10 Other Information

4.11 Facility Records

5.0 Regulatory Review

5.1 Federal Records

5.2 State Records

5.3 Local Records

6.0 Adjacent and Neighboring Properties

7.0 Hazardous Materials and Waste Management

7.1 Hazardous Waste Generation, Storage and

Disposal Practices

7.2 Hazardous and Regulated Materials

Management

7.3 Nonhazardous Waste Management

8.0 Sensitive Environmental Areas

8.1 Wetlands

8.2 Historic Value

8.3 Recreational Land Use

8.4 Future Use and Zoning

9.0 Supplemental Information and

 Previous Studies

10.0 Conclusions and

 Recommendations

APPENDICES

• Site Location Map

• Site Plan

• Site Photographs

• Site Ownership Records

• Federal, State, Local, and EPA Facility Records

• Aerial Photographs

• List of Chemicals Used and In Use at the Facility

• Material Safety Data Sheets

• Groundwater Monitoring Results

• Previous Site Work Repairs

• Groundwater Monitoring Results

• Soil Boring Data

APPENDIX S

PHASE II AND III EDDA CONTRACTOR PROCUREMENT

SPECIFICATIONS

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APPENDIX S

Phase II and III EDDA Contractor Procurement Specifications

The following specifies qualifications for a Phase II EDDA contractor, and was extracted from

Federal Aviation Administration (FAA) Order 1050.19.

a. General.

Phase II EDDAs are considerably site-specific. Therefore, it is impracticable to prepare

specific, minimum contractor specifications for the conduct of these activities. However, like

the procurement approach for Phase I EDDAs, when selecting a contractor to assist the

Agency in performing Phase II EDDAs, the Agency shall consider the following general

requirements:

• An explicit scope of work shall be included as part of the request for proposals (RFP) and

contract.

• Interviews shall be conducted with the contractors who meet the standard RFP criteria

(including the specific individuals who will be doing the work).

• A recent work product on a related activity shall be reviewed as part of the proposal

process.

• All professional references shall be thoroughly verified.

b. Criteria.

As stated above, the site-specific nature of the Phase II EDDA precludes the issuance of

detailed procurement specifications. The following general criteria shall be used when

evaluating the potential Phase II EDDA contractors.

(1) Firm Experience.

i. Years: 10 (total, all activities)

ii. Subject Matter Expertise:

• Environmental science and engineering including, but not limited to, the following

disciplines: hazardous site remediation, toxicology, risk assessment, chemistry,

geology, hydrogeology, asbestos, hazardous materials management, and industrial

hygiene. Regulatory expertise also shall be required.

• Five years of experience in conducting Phase II EDDAs or related activities.

(2) Project Manager Experience.

i. Years (10)

ii. Subject Matter Expertise: Environmental Sciences

iii. Degree: M.S. or Ph.D.

iv. Professional Affiliations: Professional Engineer’s or Geologist’s Registration

v. Phase II Experience: two years of experience within the last three years.
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(3) Indemnification, Insurance and Bonding. Insurance and bonding are highly dependent

upon the nature and scope of the work to be performed. It is therefore not practical to

provide specific levels of coverage. Generally, the contractor shall:

• Be willing to indemnify the Agency for the results of its professional and other negligence

• Possess adequate bonding, including bid bonding, performance bonding, and payment

bonding

• Carry limits of errors and omissions insurance

• Carry limits of general liability insurance

• Carry workers compensation insurance

• Provide certificates of insurance (evidencing coverage) for each of the coverages.

(4) Conflicts of Interest. Consultants shall not have greater than 50 percent of their work

coming from developers or real estate leasing group, the Environmental Protection Agency, or

State environmental agencies.

(5) Report Quality.

i. Report experience should show a similar approach to conducting Phase II EDDAs

as outlined in the Agency EDDA Guidelines.

ii. Reports should be readable and comprehensible by the lay person.

iii. Reports should explain all conclusions and explain the relevancy and implication of

findings to the Agency. Regulatory and some legal issues also should be explained.

(6) Size of the Firm. The contractor shall have demonstrated capabilities to adequately staff

and conduct two Phase II EDDAs concurrently for the Agency.

(7) Client Experience. The contractor shall have some experience in working with Federal

agencies, although it does not need to be 100 percent of their experience.

(8) Location. While the primary contractor shall be easily accessible to the Agency

Headquarters, to minimize costs, the contractor shall also have staff in the areas likely to be

the location of Phase II activities.

(9) Information Protection. The contractor shall have in place a program for ensuring the

confidentiality of information provided by the Government. Elements shall include specific

standards for labeling information as proprietary and policies for protection of the information,

including disciplinary procedures for employees found infringing upon the policy. The

contract between the Agency and the contractor must provide that the contractor shall not

disclose information obtained from the Agency or related to its relationship with the Agency

to third parties without the express consent of the Agency.

(10) Cost. Cost shall be reasonable and within the prevailing rates charged by similarly

situated contractors.
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(11) Minority/Woman-Owned Business. Federal agencies, are committed to hiring

minority or woman-owned businesses, where all technical qualifications are met.

c. Evaluation and Balancing.

The following factors shall be considered:

(1) Primary Criteria.

i. Firm and individual consultant experience (years)

ii. Firm and individual consultant expertise (education, work experience)

iii. Insurance and indemnification

iv. Report quality

v. Use and quality of subcontractors

vi. Conflict of interest

(2) Secondary Criteria.

i. Location

ii. Size

iii. Confidentiality and document retention programs.

(3) Additional Criteria to be Considered.

i. Formal quality control programs

ii. Cost

iii. Minority/woman-owned business status.

APPENDIX T

DESCRIPTION OF SAMPLING AND ANALYSIS PROCEDURES

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APPENDIX T

Description of Sampling and Analysis Procedures

The components of sampling and analysis activities are defined below.

Sampling Objectives

The sampling objectives must be clearly delineated in advance

because they will dictate many of the subsequent decisions on

methodology, sampling sites, types and number of samples, and

proper sample containers.

Constituents to be Sampled

The choice of constituents to be sampled will be guided by the

results of the Phase I. Chemicals or other potentially hazardous

materials that are known to exist, were at one time present, or were

used at the facility should be sampled.

Field Sample Types

The types of field samples taken during the Phase II may include a

grab or composite sample. A grab sample is a discrete sample that

is collected once. Because it is representative of only one specific

sample point at a specific time, it is best used if the source of

contamination is likely to be stable over a geographical area. A

composite sample is non-discrete, comprised of more than one

sample collected at various sampling points and/or times,

homogenized and treated as one. Composite samples may give an

average concentration or composition and are best used to

characterize a location where contamination is not visually evident

but may be suspected.

Sampling Locations

Sampling locations and frequency should be discussed in the plan.

The locations and distance between sample points will impact the

cost of the Phase II activities and the range of data points available

to determine the extent of contamination. Sampling locations

should be as close as possible to the areas of concern and should be

based on the hydrogeologic characteristics of the site, as applicable.

The location of sampling is critical in determining the location of

the source and the degree of contaminant migration. The number

of samples can be an indicator of the validity of the information.

The frequency of sampling is also important in determining the

validity of information, particularly in the case of surface water and

groundwater sampling. For groundwater and surface water the
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frequency of sampling will impact the toxicity and mobility levels

that vary by season and weather conditions (i.e., results will vary if

samples are taken after a severe thunderstorm or during a

summertime drought).

Collection and Handling

Collection and handling methods should provide a description of

the practices to be used to ensure that samples are not

contaminated or otherwise compromised during the sampling,

transportation, and analytical process. Sample preservation

techniques should be specified to prevent the samples from

degrading or transforming, including selecting appropriate

containers and properly storing the sample. For example, some

compounds could react with plastic containers or degrade if

exposed to light.

Quality Assurance (QA)

In addition to the collection and handling techniques, QA samples

must also be taken to ensure and document the integrity of all

samples gathered at the site. QA samples include duplicate

samples, split samples, spiked samples, and blank samples. Exhibit

A-9, Definitions, provides a description of each of these. In

addition to QA, quality control (QC) procedures ensure analytical

accuracy through strict handling and documentation protocols.

QA/QC analyses should comply with procedures outlined in Test

Methods for Evaluating Solid Waste, Physical/Chemical, SW-846

Manual, 3rd edition or whichever edition is most current at the time

of sampling. Items to be included in the sampling and analysis plan

include the QA/QC samples and instrument tuning and calibration

procedures.

Site Characteristics

Topographic, geologic, and hydrologic characteristics of the site

should provide information on the potential for significant impact of

contamination on surface and groundwater.

Geographic and Demographics

Area geographic, flora and fauna, and demographic information will

help decision makers determine whether any contamination may

impact flora, fauna, or human health.

Materials Characteristics

Information regarding the physical properties and hazardous

characteristics of the materials involved will allow decision makers
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to determine the potential impact on human health and natural

resources of any contamination found in the area.

Safety and Health Plan

A safety and health (S&H) plan must be included that specifies how

workers will be protected from suspected contaminants during

sample collection. The S&H plan must ensure that necessary and

careful thought takes place before the project begins, so that

needed supporting facilities, equipment, and services are identified

or procured in a timely fashion. A written S&H plan also provides

a basis for uniform practice for both the worker and the safety

professional. Additional S&H plan guidance for sampling and

analysis projects can be found in Occupational Safety and Health

Guidance Manual for Hazardous Waste Site Activities

(NIOSH/OSHA/USCG/EPA, 1985).

APPENDIX U

EXAMPLE PHASE II REPORT OUTLINE

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APPENDIX U

Example Phase II Report Outline

1.0 Introduction

1.1 Summary of Known Information

Findings of Phase I Assessment

1.2 Scope of Investigation

2.0 Site Map/Building Plans

3.0 Likely Sources of Contamination

3.1 Likely Sources of Contamination

3.2 Location of Likely Sources

3.3 Approximate Date/Type/Quantity of

Release

4.0 Soil Sampling and Analysis

4.1 Sampling Overview

4.1.1 Types of Samples

4.1.2 Location of Samples

4.1.3 Sampling Objective and

Justification

4.1.4 Analytical Parameters Including

Justification

4.2 Sampling Methods

4.2.1 Sampling Methods and

Procedures

4.2.2 Boring Logs

4.2.3 Field Screening Data

4.3 Analytical Methods

4.3.1 Analytical Parameters Including

EPA Method Number and

Detection Limit

4.3.2 Maps and Diagrams Showing the

Extent of Contamination

4.4 Results

4.4.1 Data Presentation Including

Tables

4.4.2 Notation of Results Above

Applicable Standards

4.4.3 Maps and Diagrams Showing the

Extent of Contamination

5.0 Ground Water Sampling and Analysis

5.1 Sampling (QA/QC) Overview

5.1.1 Number of Wells

5.1.2 Surveyed Well Location

5.1.3 Well Placement

5.1.4 Well Depth and Screened

Interval

5.1.5 Well System Justification

5.1.6 Analytical Parameters Including

Justification

5.2 Sampling Methods

5.2.1 Well Drilling Methods

a. Screening Data in

Cuttings/Soil Samples

b. Drilling Logs

c. Well Construction

Descriptions and Diagrams

d. Well Development Methods

e. Well Stabilization Period

5.2.2 Sampling Methods and

Procedures

a. Sampling Rationale

b. Field Testing Results

c. Sampling Frequency

5.3 Analytical Methods

5.3.1 Analytical Parameters Including

EPA Method Number and

Detection Limit

5.3.2 Name and Certification of

Laboratory

5.4 Results

5.4.1 Data Presentation Including

Tables

5.4.2 Notation of Results Above

Applicable Standards

5.4.3 Maps and Diagrams Showing the

Potentiometric Surface and

Extent of Contamination

APPENDIX V

SAMPLE LIST OF REMEDIATION TECHNOLOGIES

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APPENDIX V

Sample List of Remediation Technologies

TECHNOLOGY DESCRIPTION

Asbestos

Containment/Removal

Immobilization of asbestos fibers to ensure that particles

cannot become friable. Traditional abatement can also

include complete removal of asbestos fibers which can be an

extremely expensive procedure.

Incineration/Thermal

Treatment

Heat is used to concentrate or alter the concentration of soil

contaminants. The technology is effective in treating organic

wastes; however, it is expensive.

Capping/Slurry Wall Wastes are isolated to prevent migration. This remedial

solution is not recommended because it simply contains

wastes and does not eliminate significant hazards.

Excavation/Off-Site

Disposal

Material is transported off-site for disposal at an approved

facility. Limited landfill capacity and RCRA Land Disposal

Restrictions have made this option increasingly expensive.

Bioremediation Microorganisms are used to consume and render the waste

less hazardous. The process is limited by several factors,

including salinity of soils, presence of metals, use of designer

microorganisms, and toxicity of contaminant substrates. This

technology tends to be among the least expensive ones and is

gaining public acceptance.

Soil Venting Air is drawn through wells drilled around the treated area and

assists in removing volatile chemicals. Soil venting is

inexpensive to install and effective for volatile chemicals only.

Soil Washing A washing solution is applied to an excavated area of

contaminated soil which removes persistent wastes. The

cleaned soil is then returned to the excavation site. This

process is effective in treating most contamination, but is

expensive and time-consuming for small quantities.

Groundwater Pump

and Treat

Wells are installed around the site of contamination and water

is pumped to retrieve contaminants. This technology tends to

be expensive and require many years to effectively remove

site contamination.

APPENDIX W

EXAMPLE PHASE III REPORT OUTLINE

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APPENDIX W

EXAMPLE PHASE III REPORT OUTLINE

1.0 Introduction

1.1 Summary of Findings from Phase I and II Investigations

1.2 Scope of Phase III

2.0 Site Maps/Building Plans

3.0 Sources of Contamination

3.1 Description of Contaminant Sources

3.2 Locations of Contaminant Sources

3.3 Approximate Date/Type/Quantity of Release

4.0 Sampling and Analysis Results

4.1 Soil Sampling

4.1.1 Sample Types

4.1.1.1 Procedures for Each Type

4.1.1.2 Boring Logs

4.1.1.3 Physical and Chemical Field Screening Data Quality Objectives

4.1.1.4 Field Analytical Procedures

4.1.1.5 Field Deviations from Sampling and Analysis Plan

4.1.2 Sample Locations

4.1.2.1 Objectives and Sampling Rationale

4.1.2.2 Distribution and Density

4.1.2.3 Deviations from Sampling and Analysis Plan

4.1.3 Laboratory Analysis

4.1.3.1 Laboratory Analysis Data Quality Objectives

4.1.3.2 Analytical Parameters (include EPA Method Number and Detection Limit)

4.1.3.3 Quality Assurance Sample Analysis Results

4.1.4 Sampling and Analysis Results

4.1.4.1 Data Presentation including Tables

4.1.4.2 Discussion of Results

4.1.4.3 Maps, cross-sections, and other diagrams depicting extent of contamination
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4.0 Sampling and Analysis Results (continued)

4.2 Groundwater Sampling

4.2.1 Sample Types

4.2.1.1 Procedures for Each Type

4.2.1.2 Physical and Chemical Field Screening Data Quality Objectives

4.2.1.3 Field Analytical Procedures

4.2.1.4 Deviations from Sampling and Analysis Plan

4.2.2 Sample Locations

4.2.2.1 Objectives and Well Placement Rationale

4.2.2.2 Surveyed Well Locations, Depths, and Screened Intervals

4.2.2.3 Sampling Depths

4.2.2.4 Field Deviations from Sampling and Analysis Plan

4.2.3 Laboratory Analysis

4.2.3.1 Laboratory Analysis Data Quality Objectives

4.2.3.2 Analytical Parameters (include EPA Method Number and Detection Limit)

4.2.3.3 Quality Assurance Sample Analysis Results

4.2.4 Sampling and Analysis Results

4.2.4.1 Data Presentation including Tables

4.2.4.2 Discussion of Results

4.2.4.3 Maps, cross-sections, and other diagrams depicting extent of contamination

4.3 Surface Water/Sediment Sampling

4.3.1 Sample Types

4.3.1.1 Procedures for Each

4.3.1.2 Physical and Chemical Field Screening Data Quality Objectives

4.3.1.3 Field Analytical Procedures

4.3.1.4 Deviations from Sampling and Analysis Plan

4.3.2 Sample Locations

4.3.2.1 Objectives and Rationale

4.3.2.2 Sediment Sampling Depths

4.3.2.3 Field Deviations from Sampling and Analysis Plan

4.3.3 Laboratory Analysis

4.3.3.1 Laboratory Analysis Data Quality Objectives

4.3.3.2 Analytical Parameters (include EPA Method Number and Detection Limit)

4.3.3.3 Quality Assurance Sample Analysis Results

4.3.4 Sampling and Analysis Results

4.3.4.1 Data Presentation including Tables

4.3.4.2 Discussion of Results

4.3.4.3 Maps and Other Appropriate Diagrams Depicting Contaminant Distribution
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4.0 Sampling and Analysis Results (continued)

4.4 Building HVAC Systems Sampling

4.4.1 Sample Types

4.4.1.1 Procedures for Each

4.4.1.2 Physical and Chemical Field Screening Data Quality Objectives

4.4.1.3 Field Analytical Procedures

4.4.1.4 Deviations from Sampling and Analysis Plan

4.4.2 Sample Locations

4.4.2.1 Objectives and Rationale

4.4.2.2 Duct Work Sampling Intervals

4.4.2.3 Duct Outlet Sampling Throughput Volumes

4.4.2.4 Field Deviations from Sampling and Analysis Plan

4.4.3 Laboratory Analysis

4.4.3.1 Laboratory Analysis Data Quality Objectives

4.4.3.2 Analytical Parameters (include EPA Method Number and Detection Limit)

4.4.3.3 Quality Assurance Sample Analysis Results

4.4.4 Sampling and Analysis Results

4.4.4.1 Data Presentation including Tables

4.4.4.2 Discussion of Results

4.4.4.3 Schematic Diagrams Depicting Contaminant Distribution

4.5 Building Surfaces Sampling

4.5.1 Sample Types

4.5.1.1 Procedures for Each Type

4.5.1.2 Physical and Chemical Field Screening Data Quality Objectives

4.5.1.3 Field Analytical Procedures

4.5.1.4 Deviations from Sampling and Analysis Plan

4.5.2 Sample Locations

4.5.2.1 Objectives and Rationale

4.5.2.2 Pipe Insulation Sampling Intervals

4.5.2.3 Ambient Air Sampling Throughput Volumes

4.5.2.4 Field Deviations from Sampling and Analysis Plan

4.5.3 Laboratory Analysis

4.5.3.1 Laboratory Analysis Data Quality Objectives

4.5.3.2 Analytical Parameters (include EPA Method Number and Detection Limit)

4.5.3.3 Quality Assurance Sample Analysis Results

4.5.4 Sampling and Analysis Results

4.5.4.1 Data Presentation including Tables

4.5.4.2 Discussion of Results

4.5.4.3 Schematic Diagrams Depicting Contaminant Distribution
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4.0 Sampling and Analysis Results (continued)

4.6 Summary of Findings

5.0 Risk and Future Land-Use Options

5.1 Risk Assessment

5.1.1 Qualitative Risk Assessment

5.1.1.1 Rationale for Performing Qualitative Risk Assessment

5.1.1.2 Discussion of Contaminants of Concern and Pathways Considered

5.1.1.3 Results of Qualitative Risk Assessment

5.1.2 Quantitative Risk Assessment

5.1.2.1 Rationale for Performing Quantitative Risk Assessment

5.1.2.2 Assessment of Carcinogens

5.1.2.3 Assessment of Noncarcinogens

5.1.2.4 Results of Quantitative Risk Assessment

5.1.3 Assessment on Overall Risk of the Property

5.2 Future Land-Use Options

5.2.1 Discussion on Future Land-Use Options

5.2.2 Rationale for Selection of Future Land-Use Option

5.2.3 Relationship Between Future Land-Use and Overall Risk at the Property

6.0 Final Technology or Alternative

6.1 Final Technology or Alternative Selection

6.1.1 Description of Screening Process

6.1.2 Description of Technologies or Alternatives Under Consideration

6.1.3 Comparative Analysis of Technologies or Alternatives

6.1.3.1 Overall Protectiveness of Human Health and the Environment

6.1.3.2 Compliance With ARARs

6.1.3.3 Long-Term Effectiveness

6.1.3.4 Reduction of Toxicity, Mobility, or Volume Through Treatment

6.1.3.5 Short-Term Effectiveness

6.1.3.6 Implementability

6.1.3.7 Cost

6.1.3.8 State Acceptance

6.1.3.9 Community Acceptance

6.1.4 Detailed Discussion of Selected Alternatives

6.1.5 Implementation Plan and Schedule for Selected Alternatives

6.1.6 Statutory Determination for Selected Alternatives
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7.0 Conclusions and Recommendations

7.1 Conclusions

7.1.1 Summary of Site Characterization

7.1.2 Discussion on Success in Meeting Remediation Goals and Objectives

7.2 Recommendations

7.2.1 Discussion on follow-up Actions

APPENDICES (as needed)

• Site location and topography

• Sampling locations and designation (excepts from FSP)

• Site safety and health plan

• Field and boring logs

• QA/QC program and documentation (e.g. chain of custody and laboratory QA/QC program)

• Laboratory analytical results

• Mapping of contamination plumes and zones

• Remedial alternative technical/cost specifications