Pre-Acquisition Environmental Assessment Guidance for Federal Land Transactions - final - 9 February 2009.doc

* * * February 9, 2009 * * *

Pre-Acquisition Environmental Assessment Guidance for Federal Land Transactions

Pre-Acquisition Environmental Assessment Guidance for Federal Land Transactions Table of Contents

1Purpose

1Background

2“All Appropriate Inquiries” Regulations

5Qualifications of an Environmental Professional

9Supervision or Responsible Charge of Assistants

11Contracting for Pre-acquisition Environmental Site Assessments

13Report Content and Recommended Format

16Appendix A: Land Acquisition Screening Process Worksheets

78Appendix B: Environmental Professional Relevant Experience/Training Questionnaire

84Appendix C: Training Relevant to Conducting Environmental Site Assessments

86Appendix D: EPA Fact Sheet: Assessing Contractor Capabilities for Streamlined Site Investigations --Additional Information Regarding All Appropriate Inquiries and Hiring an Environmental Professional (EPA-560-F-06-243)

90Appendix E: Sample Statement of Work

96Appendix F: Model Report Outline

100Appendix G: Acronym List

Purpose Both the United States Department of the Interior (DOI) and the United States Department of Agriculture (USDA) have established policies to minimize environmental liability by not acquiring contaminated real property. Consistent with those policies, both departments require that the nature and extent of any potential liability resulting from hazardous substances or other environmental problems associated with such real property be determined prior to acquisition. This guidance provides a coordinated approach for the Federal Land Managing agencies (FLMs) to use in the development of pre-acquisition environmental site assessments to meet the requirements of departmental policy, as well as secure to the extent possible the protections of the liability defenses set forth in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Oil Pollution Act (OPA).

Background As two of the principal public land holders in the nation, DOI and USDA together prepare more than 4,500 pre-acquisition environmental site assessments annually. These pre-acquisition environmental site assessments are primarily prepared using in-house expertise and staff and are intended to identify liabilities associated with real property prior to acquisition by the Federal agencies.

Although environmental site assessments have, for many years, been required elements of Federal real property transactions, FLMs have not always employed standard practices and protocols in conducting such assessments. The importance of such assessments, and the need for consistency in their application, was heightened by the Small Business Liability Relief and Brownfields Revitalization Act of 2002, PL 107-118 (Brownfields Amendments) which amended CERCLA to clarify and expand the liability protections afforded certain landowners from CERCLA liability. At the same time, the Brownfields Amendments directed the U.S. Environmental Protection Agency (EPA) to promulgate regulations establishing Federal standards and practices for the conduct of environmental site assessments or, using the phrase in the statute, for the conduct of “all appropriate inquiries,” necessary to claim these defenses to environmental liability. With the participation of USDA, DOI, other Federal agencies, and a variety of interested parties, EPA ultimately issued its final rule, entitled “Standards and Practices for All Appropriate Inquiries,” 70 Fed. Reg. 66070 (Nov. 1, 2005). Subsequently, the U.S. Coast Guard issued a final rule, 73 Fed. Reg. 2146 (January 14, 2008) addressing all appropriate inquiry requirements to clarify the standards and practices necessary to claim the protection of the innocent landowner defense to liability under OPA.

Following publication of these rules, the FLMs and other Federal agencies involved in land transactions convened a working group to develop implementation guidance for use by their agencies in conducting all appropriate inquiries. The FLMs and other agencies met on numerous occasions over the course of two years to develop this guidance. It addresses environmental site assessment activities for CERCLA hazardous substances, as well as non-CERCLA environmental concerns, such as petroleum products, asbestos, lead-based paint, and invasive species that FLMs routinely consider during real property transfers because of the liability concerns they raise or their potential impacts on land management activities. The intent of this guidance is to provide an overview of the All Appropriate Inquiries (AAI) regulations, to assist the agencies in implementing the regulations so as to identify environmental conditions associated with real property, identify during the acquisition process the impacts of past land use on the mission suitability and future land use, and to enable the agencies to secure, to the extent possible, the protections of the liability defenses set forth in CERCLA and OPA.

“All Appropriate Inquiries” Regulations On November 1, 2005, the EPA promulgated the AAI regulation (40 CFR 312), as required by the Brownfields Amendments to CERCLA. The regulation establishes specific requirements and standards for conducting AAI into the previous ownership and uses of a property for the purpose of qualifying for the landowner liability protections of CERCLA. A party to commercial land transactions completed on or after November 1, 2006, must comply with 40 CFR 312 and satisfy other statutory requirements in order to claim protection from liability under CERCLA as an innocent landowner, a bona fide prospective purchaser, or a contiguous property owner. Grantees under the EPA’s Brownfields Grant program to assess and characterize properties must also comply with the AAI standards. Additionally, the Coast Guard and Maritime Transportation Act of 2004, PL 108-293, amended OPA to create a new “innocent landowner” defense to liability. It also required the U.S. Coast Guard to promulgate AAI regulations to establish standards and practices for claiming this defense to liability for oil discharges. On January 14, 2008, the U.S. Coast Guard published final regulations (73 Fed. Reg. 2146) for AAI at facilities that are the source of a discharge or a substantial threat of a discharge of oil into the navigable waters or adjoining shorelines, or the exclusive economic zone (33 CFR 137). The U.S. Coast Guard rule is consistent with the EPA rule.

In order to claim the protections from liability provided under CERCLA or OPA, a pre-acquisition environmental site assessment, consistent with the new AAI regulations, must be conducted by those acquiring the property. Assessments or reports prepared by the seller, or other third parties, without review and oversight on the part of the FLM are not acceptable as they do not meet the requirements of the regulations. This guidance highlights AAI provisions of most relevance to FLMs. For example, it discusses the qualification of individuals, known as environmental professionals, who may conduct and oversee the conduct of the pre-acquisition environmental site assessment, discusses contracting of the pre-acquisition environmental site assessment, provides a sample outline for the final report, and a model statement of work for contracting the assessment. The guidance also includes sample checklists and questions for the records review, site visit and owner/operator/occupant interviews portions of the site assessment.

Pre-acquisition environmental site assessments are usually conducted in phases. The first phase of assessment typically involves gathering information from a records review, interviews with owners/operators/occupants, and a site visit. A second phase, if necessary, may involve environmental sampling and analysis. Most pre-acquisition environmental site assessments are conducted using a team approach involving agency personnel or contractors who collectively possess the qualifications and experience necessary to evaluate environmental conditions associated with a particular area or property type, or familiarity with the kinds of concerns warranting evaluation. Ordinarily, a single individual will not possess all of the expertise required to prepare the pre-acquisition environmental site assessment. The team is usually multi-disciplinary and may include realty specialists, environmental compliance specialists, geologists, biologists, environmental engineers, and archeologists. The skills of a particular team, however, vary with the nature and history of the site. Additionally, information collected during the preparation of the pre-acquisition environmental site assessment may overlap with information collected to meet other existing requirements. Agencies should review acquisition procedures to ensure efficient collection and dissemination of required information.

This guidance applies to fee simple and less than fee simple acquisitions to which liability may attach. Agencies should review programs involving the acquisition of interests that are less than fee simple, such as easement programs, to determine if liability may attach. Agencies must consult with counsel with respect to the applicability of this guidance to transactions involving the acquisition of less than fee simple interests. When making determinations on applicability, agencies should consider the requirements of CERCLA and OPA, as well as the Chief Financial Officer’s Act requirements for reporting of environmental liabilities.

A pre-acquisition environmental site assessment meeting the requirements of the regulations must be prepared within one year before the date of acquisition. However, the regulations provide that specific elements of the pre-acquisition environmental site assessment must be conducted, or updated, within 180 days of the date of acquisition. These elements are the site interviews, the site visit, the record review, searches for recorded environmental cleanup liens, and the declaration of the environmental professional that all appropriate inquiries into the previous ownership and uses of the property, consistent with Federal regulations, have been conducted.

Both EPA and the U.S. Coast Guard agree that the ASTM International E1527-05, “Standard Practice for Environmental Site Assessments: Phase 1 Environmental Site Assessment Process,” is consistent with the regulations. Federal agencies, however, must be careful to comply with applicable copyright laws as well as the Federal Acquisition Regulations regarding non-competitive procurements. Additionally, the ASTM standard does not cover the breadth of non-scope issues of regular concern to FLMs. The joint working group developed an extensive checklist contained in Appendix A for three broad areas: records review, site interviews, and site inspections. The checklists are provided for agency use and are designed to collect the information necessary for developing the final report. The checklists contain information necessary to meet the requirements of 40 CFR 312 and 33 CFR 137, as well as frequently encountered non-scope items of interest to the FLMs. These checklists were developed from existing checklists used by the DOI Bureaus and the USDA Forest Service. Agencies may have additional mission-specific needs that may require the inclusion of additional questions or the collection of additional information. We encourage tailoring of the checklists to agency specific needs. Tailoring of the worksheets should be done using professional judgment and agency specific requirements.

Qualifications of an Environmental Professional The pre-acquisition environmental site assessment is developed and conducted by an environmental professional meeting the requirements of 40 CFR 312 and 33 CFR 137. Such a person can exercise professional judgment to identify past and/or current practices or operations at the property that may have caused the release of hazardous substances or petroleum products, and to determine the likelihood and significance of such releases. Additionally, the pre-acquisition environmental site assessment may be developed and conducted by an individual or individuals under the supervision or “responsible charge” of an environmental professional.

As defined in 40 CFR 312 and 33 CFR 137, there are several ways to meet the required combination of specific education, training, and full-time relevant experience. The requirements are specified in Section 312.10(b) of the EPA regulation and in Section 137.25 of the U.S. Coast Guard regulation. During the notice and comment period commenters requested additional guidance on the definition of “full-time relevant experience.”

In its “Response to Comment Document” released with the final AAI rule, EPA defined “full-time relevant experience” as follows:

“The use of the phrase ‘full-time’ within the definition of environmental professional and the definition of relevant experience is meant to require that an individual has accumulated the equivalent of 3, 5, or 10 years of experience. An individual may accumulate such experience over a longer length of time than the 3, 5, or 10 years, as long as the total time of accumulated experience would be the equivalent of 3, 5, or 10 years of full-time experience. Even after an individual accumulates the required number of years of full-time experience, that individual does not have to conduct environmental site assessments, or all appropriate inquiries investigations, on a full-time basis to qualify as an environmental professional.”

Relevant Experience for an Environmental Professional

This guidance addresses the following three categories of experience:

(1) Phase I or Phase II environmental site assessment experience, as described below, is always relevant;

(2) CERCLA Preliminary Assessment and Site Inspection experience, usually is relevant; and

(3) Other environmental experience, or similar experience under other Federal cleanup laws (the Resource Conservation and Recovery Act, OPA) and similar State cleanup laws, with equivalent underlying processes of conducting environmental site assessments, must be evaluated for relevancy on a case-by-case basis.

(1) The most direct relevant experience an individual can possess to qualify as an environmental professional under 40 CFR 312 and 33 CFR 137 is from either conducting, reviewing, and/or making recommendations to approve or disapprove, Phase I and/or Phase II environmental site assessments. ASTM International Standards E1527-05 (“Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”) and E1903-97 (2002) (“Standard Guide for Environmental Site Assessments: Phase II Environmental Site Assessment Process”) describe Phase I and Phase II environmental site assessments. Except as described below, Phase I and/or Phase II experience is relevant experience for purposes of qualifying as an environmental professional within the meaning of the AAI regulations. All Phase I experience is relevant. That portion of Phase II experience associated with planning the investigation, evaluating data, drawing conclusions, preparing a written report, and reviewing or making recommendations about approval of the report is relevant. By contrast, actual sample collection, such as that typically conducted by a field technician is not relevant by itself, as it does not involve the exercise of professional judgment regarding potential releases of hazardous substances or petroleum products.

An environmental professional’s specific Phase I or Phase II experience should be considered when assigning the environmental professional to a particular AAI assignment. For example, a person with 20 years of experience conducting Phase I environmental site assessments at residential and commercial properties would clearly qualify as an environmental professional. However, that same person may lack the specific expertise to solely conduct an AAI investigation at a property with a history of industrial manufacturing or mining operations. Similarly, agencies should consider selecting an environmental professional with both Phase I and II environmental site assessment experience at a property where the agency anticipates that Phase II work may be needed.

(2) Experience conducting or reviewing and making recommendations to approve or disapprove Preliminary Assessments (PAs) and Site Inspections (SIs) as part of the CERCLA response planning process is similar to Phase I and II environmental site assessment experience and ordinarily would be considered relevant experience. Such experience is typically relevant experience for purposes of conducting AAI. In some situations, however, the sources of potential contamination at a site undergoing PAs are already well known. In such cases, the investigator likely will not gain experience in discovering and identifying potential releases of hazardous substances and petroleum products. In determining the extent to which PA/SI experience is relevant, FLMs should ensure that personnel have experience in discovering and identifying potential releases or sources of contamination.

(3) Other types of environmental experience may be relevant to qualify an individual as an environmental professional if such experience is equivalent to the underlying processes of conducting environmental site assessments. For example, experience conducting or making recommendations regarding investigations for purposes of compliance with other Federal cleanup laws, such as the Resource Conservation and Recovery Act and OPA, may also be similar to Phase I and Phase II environmental site assessments. Many State cleanup laws, such as State “mini-CERCLA” statutes and voluntary cleanup programs also involve work that is similar in scope and purpose to Phase I and Phase II environmental site assessments. Additionally, analyses undertaken to meet the requirements of the National Environmental Policy Act (NEPA) to identify and evaluate potential environmental impacts of proposed Federal projects likely would be relevant experience. If these projects involve evaluating properties at which releases of hazardous substances or petroleum products may have occurred, the environmental portion (as distinct from the socioeconomic portion) of NEPA-related experience may be relevant. Alternatively, the planning process for developing an environmental management system at a facility frequently involves identifying environmental aspects of facility operation and evaluating the impacts of those aspects. If the facility handles or has handled hazardous substances or petroleum products, the environmental management systems experience may be “relevant full-time experience.” The FLMs will need to evaluate such experience on a case-by-case basis to determine if it is relevant to qualify an individual as an environmental professional.

Documenting Qualifications

In order to facilitate the approval of an environmental professional, Appendix B contains a questionnaire that helps document the qualifications and experience of the environmental professional. Agencies may tailor the questionnaire to specific programmatic requirements as necessary.

Training and Continuing Education Many public and private sources offer courses applicable to preparing pre-acquisition environmental site assessments. Environmental professionals can take these for “continuing education” to meet the regulatory qualifications. Additionally, some of these courses may qualify as relevant experience by those personnel developing additional experience to qualify as environmental professionals. Individuals should discuss the courses with his/her supervisor and include the courses in annual individual development plans. An employee and his/her supervisor should use professional judgment to ensure that courses expand the employee’s knowledge, skills and abilities. Environmental professionals should assist employees in tailoring training to the particular issues likely to be found in the field. Appendix C contains a list of courses that may be relevant to environmental professionals conducting pre-acquisition environmental site assessments.

Supervision or Responsible Charge of Assistants

An individual meeting the regulatory definition of environmental professional does not have to personally undertake all aspects of the pre-acquisition environmental site assessment. The AAI regulations allow individuals who do not meet the education/training/experience requirements for environmental professionals to undertake activities under the “supervision or responsible charge” of an environmental professional. The AAI rules’ preambles specifically endorse a team approach for preparing pre-acquisition environmental site assessments. At least one team member, however, must qualify under the regulation as an environmental professional. A team should include individuals who collectively have the qualifications and experience suitable for a particular area or property type, or familiarity with the concerns warranting evaluation. Generally, one person will not have all the expertise required to prepare the pre-acquisition environmental site assessment. The team is usually multi-disciplinary and may include realty specialists, environmental compliance specialists, geologists, biologists, environmental engineers, and archeologists. The skills of a particular team, however, may vary with the nature and history of the site. Either the environmental professional or an individual or individuals under the supervision or responsible charge of the environmental professional must undertake the assigned tasks associated with a pre-acquisition environmental site assessment.

Equally important to ensuring that the pre-acquisition site assessment complies with AAI regulations is developing a cadre of environmental professionals. Whenever possible, environmental staff should carefully document their AAI work experiences, including time spent and activities undertaken, so that they can demonstrate that they qualify as an environmental professional.

An agency should evaluate whether an environmental professional meets supervision or responsible charge requirements for a person or persons participating in the assessment. An environmental professional who signs and makes recommendations regarding the property’s environmental condition must be able to answer questions about the pre-acquisition environmental site assessment in sufficient detail as to leave little doubt as to the environmental professional’s proficiency for and control over the work performed. The environmental professional need not be prepared to defend decisions as in an adversarial situation, but rather must be prepared to demonstrate that the environmental professional has sufficient knowledge of the project to make decisions. For example, the environmental professional should be able to answer questions about the scope of work, methods of analysis, selection of materials and systems, economics of alternate solutions, and environmental considerations. The environmental professional should be able to clearly define the degree of control exercised over other participants and how it was exercised to demonstrate that other individuals involved in the conduct of the work were answerable within the degree of control necessary for the pre-acquisition environmental site assessment work.

Individuals assisting the environmental professional in the conduct of a pre-acquisition environmental site assessment must be under the supervision or responsible charge of the environmental professional. “Supervision” typically refers to the day to day oversight of an individual’s activities and performance. In the Federal government this usually includes those in the immediate chain of command that directly assign, review and approve work products.

“Under the responsible charge of the environmental professional” refers to the degree of direct control an environmental professional must maintain over the pre-acquisition environmental site assessment decisions made personally or by others over which the environmental professional exercises supervisory oversight and control authority for that pre-acquisition environmental site assessment.

A. Responsible Charge Requirements

1. Project oversight and control/direction of the work.

(a) Oversight

(i) Responsible charge does not require the environmental professional to be the direct supervisor of the individual, but does mean that the environmental professional must be able to impact the scope, performance and ultimate quality of the work.

(ii) The environmental professional must review and approve the scope of the pre-acquisition environmental site assessment.

(iii) The environmental professional must possess the authority to require changes to the work and direct the manner and methods by which the work is conducted, or the scope of involvement by the individual even over the individual’s objections without negative effects on the environmental professional’s job status, advancement, or compensation.

(b) Control/Direction (i) The environmental professional is familiar with the capabilities and methods of the individual undertaking the work and the individual’s ability to perform the tasks.

(ii) The environmental professional personally makes decisions during the performance of the pre-acquisition environmental site assessment as well as personally reviewing and accepting the work.

(iii) The environmental professional shall be physically present or available to the personnel doing the work through the use of communication devices.

(iv) The environmental professional judges the validity and applicability of recommendations and the qualifications of those making the recommendations before incorporating those recommendations into the work.

(v) The environmental professional is actively involved from start to finish as the personnel perform the work.

B. An environmental professional who adopts, signs, and certifies to the accuracy of previous work previously undertaken by others must sufficiently review the work ensuring that all standards of practice are met. This includes satisfying the relevant criteria stated in paragraphs (a) and (b) above, and assuming professional responsibility for documents signed under his or her responsible charge.

C. The pre-acquisition environmental site assessment is a representation of the known and identifiable facts regarding the environmental condition of the property at the time the report is prepared and is only one piece of the overall information provided to real property acquisition officials for use in the decision-making process.

Contracting for Pre-acquisition Environmental Site Assessments

EPA and Coast Guard regulations at 40 CFR 312 and 33 CFR 137 require that an environmental professional, or an individual or individuals under the supervision or responsible charge of an environmental professional, conduct the pre-acquisition environmental site assessments. Given these new requirements and the specific education/training/experience standards set forth in the rules, some FLMs may discover that they lack the resources and/or qualified staff to conduct in-house pre-acquisition environmental site assessments. In these cases, agencies may need to hire a qualified environmental consultant as the environmental professional to perform the pre-acquisition environmental site assessment.

When an agency decides to hire an environmental consultant to conduct the pre-acquisition environmental site assessment, the agency must ensure that the contracting officer technical representative (COTR) or equivalent who is assigned to oversee and manage the contract(s) possess adequate training and qualifications.

The COTR is responsible for establishing and approving the scope of work for the contractor-performed pre-acquisition environmental site assessment. These staff also ensure that the contractors hired to conduct a pre-acquisition environmental site assessment are qualified, provide the contractors with guidance on any additional agency-specific requirements relevant to the scope and performance of the assessment, and coordinate contractor site visits. The COTR also ensures that the pre-acquisition environmental site assessment report meets the technical requirements of the scope of work. The COTR must have sufficient technical knowledge and understanding of the site assessment process to successfully oversee these tasks.

In addition to having the required acquisition and contract management training, agency COTRs who oversee and/or review pre-acquisition environmental site assessments prepared by contractors must, at a minimum, meet the following requirements:

A. (1) Have successfully completed at least 40 hours of classroom training in environmental due diligence (e.g., BLM/NTC 1703-13 Environmental Site Assessment or NCTC Land Environmental Site Assessment Level Procedures) or an equivalent pre-acquisition environmental site assessment program that is approved by an agency or recognized by industry, and (2) received on-the-job training from a qualified environmental professional by conducting or reviewing five or more pre-acquisition environmental site assessment reports; or

B. Have a degree in a scientific discipline relevant to the pre-acquisition environmental site assessment process (e.g., environmental science, geology, chemistry, biology, forestry, or engineering); 40-hours of pre-acquisition environmental site assessment training as described in A (1) above; and a thorough understanding of how a pre-acquisition environmental site assessment is researched and the report compiled.

When hiring an environmental consultant to conduct a pre-acquisition environmental site assessment, an agency must ensure that the contractor qualifies as an environmental professional. To assist in hiring a qualified contractor, Appendix D includes EPA guidance on hiring an environmental professional.

In determining the scope of work for an environmental consultant to conduct a pre-acquisition environmental site assessment, it is important to note that unless otherwise specified, most contractors will conduct the pre-acquisition environmental site assessments consistent with established industry standards, usually the ASTM E1527-05 standard. Agency COTRs must be familiar with the standards proposed and their inherent limitations. For example, the ASTM standard practices for environmental site assessments do not address every environmental concern that could be encountered and that are of interest to FLMs.

A Phase I assessment conducted according to the ASTM standard will focus on identifying "recognized environmental conditions.” ASTM E1527-05 defines the term recognized environmental conditions to mean that “ the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances or petroleum products into structures on the property or into the ground, ground water, or surface water of the property.” Other environmental issues and conditions are typically considered as “Non-Scope Considerations” issues under the ASTM Standard. “Non-Scope Considerations” issues include asbestos- containing materials, radon, lead-based paint, non-hazardous solid waste disposal areas, waste water disposal systems, drinking water systems, drinking water and/or other wells, ecological resources, and endangered species. FLMs should modify the contractor scope of work, as appropriate, to ensure that the contractor addresses these “Non-Scope Considerations” issues and agency-specific concerns. The checklists contained in Appendix A cover many of the non-scope items.

In the event an agency contracts for the pre-acquisition environmental site assessment, Appendix E includes a model statement of work that can be tailored to specific agency needs. The model statement of work includes provisions that may be used if the agency also needs to hire a qualified environmental consultant as the environmental professional.

Report Content and Recommended Format

The AAI rules require that the results of an AAI investigation be documented in a written report. While the rules do not require any specific format, length, or structure for a written pre-acquisition environmental site assessment report, they do specify four documentation requirements that must be included in every report, as follows.

A. An opinion by the environmental professional as to whether the inquiry has identified conditions indicative of releases or threatened releases of hazardous substances on, at, in, or to the subject property.

B. An identification of data gaps (as defined in §312.10) in the information collected for the inquiry that affect the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances on, at, in, or to the subject property, as well as comments regarding the significance of these data gaps.

C. Qualifications and signature of the environmental professional(s). The environmental professional must place the following statements in the document and sign and date the document:

‘‘[I, We] declare that, to the best of [my, our] professional knowledge and belief, [I, we] meet the definition of environmental professional as defined in § 312.10 of this part.’’

‘‘[I, We] have the specific qualifications based on education, training, and experience to assess a property of the nature, history, and setting of the subject property. [I, We] have developed and performed the all appropriate inquiries in conformance with the standards and practices set forth in 40 CFR Part 312.’’

‘‘[I, We] declare that, to the best of [my, our] professional knowledge, [I, we] meet the requirements under 33 CFR 137.25 for an environmental professional.’’

‘‘[I, We] have the specific qualifications based on education, training, and experience to assess the nature, history, and setting of a facility and the real property on which it is located. [I, We] have developed and conducted all appropriate inquiries according to the standards and practices in 33 CFR part 137.’’

D. The environmental professional must include an opinion regarding additional appropriate investigation in the final report if the environmental professional has such an opinion.

The model report outline in Appendix F addresses the requirements of the AAI regulations including the four key documentation items explained above. The model final report outline also includes the “non-scope considerations” required by the Chief Financial Officers Act and Departmental policy and guidance.

The worksheets in Appendix A help agencies complete the land acquisition assessment process and prepare the pre-acquisition environmental site assessment report. Completed worksheets and reports provide agencies with important tools for making informed land acquisition decisions.

This page intentionally left blank Appendix A: Land Acquisition Screening Process Worksheets

Agencies must do the land acquisition screening process for all proposed real property acquisitions to determine whether there may be any hazardous substances or other environmental problems on the real property. The purpose of the process is to help ensure that Federal agencies do not unknowingly acquire contaminated property and to limit exposure to environmental liability.

The following worksheets are required but may be accomplished in any order:

1. Worksheet 1: Records Search. Review maps, photographs, and records

2. Worksheet 2: Questionnaire for Interview. Conduct interviews of individuals familiar with the property and its history

3. Worksheet 3: Site Visit Survey. Visit site and inspect thoroughly

The completed worksheets contain information required for the land acquisition screening process. This information may also be used to complete the pre-acquisition environmental site assessment report. The worksheets are useful guides, but alone do not meet all the requirements for the CERCLA defenses. For example, the worksheets do not include the four documentation requirements that must be included in the report. Additionally, in order to meet the statutory requirements for any of the defenses to liability following acquisition, a landowner must meet certain threshold requirements and satisfy continuing obligations not addressed in this guidance. The worksheets are not exhaustive and should be tailored based on professional judgment and site conditions.

Some questions may not be applicable for the property. All questions noted as incomplete, data gaps or “not applicable” should be documented. Documenting these determinations is required in the report.

This page intentionally left blank All Appropriate Inquiry - Land Acquisition Screening

Worksheet 1: RECORDS SEARCH

This worksheet should help agencies complete the “Records Search” portion of the All Appropriate Inquiry land acquisition screening. While this worksheet should be a useful guide, by itself a completed worksheet does not meet all the requirements for the CERCLA defenses. For example, the worksheets do not include the four documentation requirements that must be included in the report. Additionally, in order to meet the statutory requirements for any of the defenses to liability following acquisition, a landowner must meet certain threshold requirements and satisfy continuing obligations not addressed in this guidance. The worksheets are not exhaustive and should be tailored based on professional judgment and site conditions.

I. Gathering Existent Records.

1. The AAI rule requires a review of historical sources to determine previous uses and occupancies of the real property since the property was first developed using sources such as those listed below. If “not available” explain in Question #3.

a. Site Description (address, site map, property boundaries, contact information)

Not Available _____ Attached _____

b. Chain of Title Documents (i.e., deeds, deed restrictions, liens, institutional and/or engineering controls, and other documentation of ownership)

Not Available _____ Attached _____

c. Aerial Photographs

d. Building Department Records

e. Land Use Records

f. Sanborn Fire Insurance Maps

g. Topographic Maps

h. Local Fire Department Records

i. Easements

j. Leases (attach copies of contract(s))

k. Concessions (attach copies of contract(s))

l. Well Permits

m. Oil Records

n. Gas Records

o. Other Mineral Records

p. Waste Water Permits

q. Lead Based Paint Survey Records

r. Asbestos Survey Records

s. Polychlorinated Biphenyls (PCBs) Survey Records

t. Drinking Water Systems

2. The AAI rule requires a review of Federal, State, Tribal and local government records. Is the property listed under any of the categories below? If yes, attach documentation. If no, explain in Question #3. Many of these databases may be queried through EPA’s Environfacts website at http://www.epa.gov/enviro/

a. CERCLA Information System (CERCLIS) or Docket List

No _____ Attached _____

b. Critical Habitat

c. DOT Hazardous Materials Information Reporting System (HMIRS)

d. EPA Aerometric Information Retrieval System (AIRS)

e. EPA Emergency Response Notification System (ERNS) Database

f. EPA FIFRA/TSCA Tracking System (FTTS)

g. EPA National Priorities List (NPL)

h. EPA No Further Remedial Action Planned (NFRAP) Database

i. EPA NPDES

j. EPA PCB Activity Database (PADs)

k. EPA PCB Transformer Registration Database

l. EPA Permit Compliance System (PCS)

m. EPA RCRA Corrective Action Report (CORRACTS) Database

n. EPA RCRA Information System (RCRIS) Database

o. EPA Safe Drinking Water Information System (SDWIS)

p. EPA Toxics Release Inventory (TRI) Database

q. EPA or State Resource Conservation and Recovery Act (RCRA), treatment, storage, or disposal (TSD) facility

r. Federal Emergency Management Agency (FEMA) Flood Map

s. Federal, State, Tribal Permitted and Closed Solid Waste Landfill or Management Facilities

t. Local Zoning and Land Use Records

u. State environmental agency equivalent of an NPL site or a CERCLIS site

v. State Leaking Underground Storage Tanks (LUSTs)

w. State Registered Aboveground Storage Tanks (ASTs)

x. State Registered Underground Storage Tanks (USTs)

y. State, Local, Tribal Environmental Liens, Deeds, and Land Use Restriction Records

z. State Local, Tribal Hazardous Materials Management Records (e.g., Business Plan, Contingency Plan.)

aa. Oil, gas or other mineral records

ab. Waste Water Systems

ac. Wetlands Inventory

3. What information sources were used in attempts to find records that could not be found? List information sources, locations where they are found and date the source was used.

4. Any other relevant records provided by owner(s) or others?

List:

II. Records Review (Subject Property). The purpose of the records review is to obtain and review records and to help agencies identify conditions indicative of releases and threatened releases of hazardous substances on, at, or in the subject property. This section will help agencies develop a chronology of the site use(s).

A. Property Use(s)

1. Is there any information in the chain of title that indicates commercial or industrial use of the property? If yes, describe current and previous property use(s) and provide information sources such as Title insurance company, abstract company, and County deed records.

Yes ___ No ___

2. Are there other records indicating commercial or industrial activities on the property? Examples of such activities include warehouses, vehicle maintenance, mixing, handling, or disposal of chemicals, paints, pesticides (e.g., insecticides, herbicides, and fungicides), petroleum products or wastes. If yes, describe site activities and document and provide information sources such as records, aerial photographs, and maps. Identify the location(s) on the property where the activities occurred and the timeframe when they occurred.

Yes ___ No ___

3. Are there records indicating current or previous agricultural use? Examples of such use include pesticide use, drainage history, surface or subsurface drains, livestock, nurseries, crops, and livestock dip tanks. If yes, describe the agricultural use and identify when the use occurred and where on the property. Provide information sources such as records, aerial photographs, and maps). Yes ___ No ___

4. Have there been any special use permits, leases, Plans of Operation, or concessionaire contracts associated with the property. Examples of such activities and uses include rights-of-way, easements, mining, landfills, solid waste transfer facilities, log transfer facilities, small arms ranges, silviculture, lodges, resorts, and campgrounds. If yes, describe the permitted activities and provide information sources such as permits, records, aerial photographs, and maps).

Yes ___ No ___ B. Hazardous Substances

1. Are there records, such as State and EPA hazardous site lists, of the storage, release, or disposal of hazardous substances or petroleum products on the property? If yes, attach a list describing the type(s), quantities involved, approximate locations and dates.

Yes ___ No ___

2. Has anyone ever done an environmental investigation of the property?

Yes ___ No ___ Unknown ____(If yes, answer the following questions.)

Indicated the release of hazardous substances, petroleum products, or other potential environmental problems on the property? If yes, describe the nature and location(s) of the release and the quantities and types of hazardous substances.

Yes ___ No __ Not Applicable ___

Recommended further assessment of the property? If yes, explain and provide the information sources such as State hazardous site lists or acquisition files).

Yes ___ No___ Not Applicable ___

3. If an environmental investigation identified contamination of the property, is there information indicating that response actions have remained uninitiated or been ineffective in reducing or eliminating the contamination? Explain and provide information sources such as State hazardous site data). Yes ___ No ___ Not Applicable ___ If yes, has any response action been taken? Describe the response actions taken, who did them, and what lead regulatory agency oversaw the response action. ___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

If no, is there a cost estimate for the response actions? If a cost estimate has been provided, indicate the source of the estimate.

Has remediation been completed? If yes, indicate if a no-further action (NFA) determination has been issued by the lead regulatory agency. Also indicate if contamination still remains. Provide supporting documentation. ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

If remediation is completed, are there any institutional controls/land use restrictions in place or long term monitoring and maintenance requirements? If yes, describe and provide supporting documentation, including costs and durations for monitoring and operations and maintenance. ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

4. If acquiring land from another Federal agency, has the disposing agency notified the acquiring agency of the past or current presence of any hazardous substance, used and stored, at the property? If yes, describe the location(s), types, and quantities of the hazardous substances and the timeframes for use and storage. Provide supporting documentation.

Yes ___ No ___ Not Applicable ___

5. If acquiring land from another Federal agency, has the disposing agency notified the acquiring agency of the past or current presence of any hazardous substance release or disposal at the property? If yes, describe the date, location(s), types, and qualities of the hazardous substances release and/or disposal. Provide supporting documentation.

Yes ___ No ___ Not Applicable ___

6. Are there any records that indicate the past or present existence of transformers, capacitors, or hydraulic equipment containing Polychlorinated Biphenyls (PCBs); use, storage or disposal of PCB-containing equipment; or contaminated soils? If yes, indicate date of manufacture, size, location(s), and owner and provide information sources (e.g., EPA PCB Activity Database, local electric utility).

Yes ___ No ___

C. Water and Wastewater

1. Are there any records indicating operating or abandoned water wells on the property? If yes, indicate locations, constructed dates, well construction details, and capacities. If any well was abandoned, indicate if it was abandoned according to applicable regulatory standards? Provide abandonment date and information sources such as State water well registry.

Yes ___ No___ Not Applicable ___

2. Are there any records indicating the presence of a drinking water system on the property? If yes, describe the location, size, and age of the water system.

Yes ___ No ___

3. If the property is served by an on-site water supply well, are there any records indicating whether anyone has ever identified contamination in the well? If yes, identify the contaminants, timeframe when contamination was detected, and contaminant levels. Also, indicate the source of the contamination and any mitigation measure implemented. Provide information sources such as State water well registry and water quality data).

Yes ___ No ___ Not Applicable ___

4. Are there any records indicating the presence of an on-site waste water disposal system, including septic systems? If yes, describe the system and provide age and location. Provide information sources Yes ___ No ___

D. Compliance and Permits Attach documentation if information is found. If information is not found, list information sources that were checked, include the location, contact name and telephone number.

1. Are there any permits or plans related to activities such air or water discharges; mining; oil or gas exploration or development; hazardous substance use or storage; or solid or hazardous waste treatment, storage, or disposal? If yes, describe the location(s), types of discharges and materials, and timeframe of activities. Identify information sources. Yes ___ No ___

2. Have there been any compliance or environmental notices issued? If yes, explain and provide information sources such as State hazardous substances office or EPA Region).

Yes ___ No ___

3. Is there any information indicating recurrent violations of environmental laws with respect to the property and current and past on-site operations and activities?

If yes, describe the violations and when they occurred and provide sources. Yes ___ No ___

4. Is there any information indicating an environmental lien against the property? If yes, describe the lien and its effect on property use and provide information sources (e.g., County deed records and court judgments). Yes ___ No ___

5. Is there evidence of any past, threatened, or pending…