ECOP Policy MEMO 210512_signed.pdf

NATIONAL GUARD BUREAU

111 SOUTH GEORGE MASON DRIVE

ARLINGTON VA 22204-1373

ARNG-IEZ 13 May 2021

MEMORANDUM FOR SEE DISTRIBUTION

SUBJECT: Updated Policy/Supplemental Guidance for Army National Guard (ARNG) Environmental Condition of Property (ECOP) Documentation

1. Reference:

a. The Army National Guard Environmental Condition of Property Handbook, The ARNG’s ECOP Process Handbook (Final), 1 June 2011.

2. Purpose.

a. To supplement Reference 1a and provide guidance regarding updates to ARNG ECOP documentation and procedures.

b. Moving forward, States should use the enclosed supplemental guidance when preparing and submitting ECOP documents to ARNG G-9, NEPA/ECOP Branch (ARNG-IES-E).

3. Discussion.

a. The enclosed guidance emphasizes important points and explains their application to ARNG;

however, this guidance is not a substitute for existing laws, Army regulations, or the American Society of Testing and Methods (ASTM) standards.

b. ARNG G-9 is consolidating this updated guidance and plans on publishing an official update to the ECOP Handbook NLT FY23.

4. Applicability. This policy applies to ECOP documents in support of ARNG Federal real estate transactions, MILCON projects and/or properties being added to or removed from the Facilities Inventory and Support Plan (FISP).

5. The point of contact for this memorandum is LTC Tony Hassler, ECOP/NEPA Branch Chief, 703- 607-7685 or tony.l.hassler.mil@mail.mil.

Encls ANTHONY HAMMETT

1. as COL, GS

2. Table 3-3 G-9, Army National Guard

DISTRIBUTION:

Environmental Program Manager, All States, Territories, District of Columbia Construction and Facilities Maintenance Officer, All States, Territories, District of Columbia Plans, Operations and Training Officers, All States, Territories, District of Columbia

Updated Policy/Supplemental Guidance for Army National Guard (ARNG) Environmental

Condition of Property (ECOP) Documentation

1. References.

a. Comprehensive Environmental Response Compensation and Liability Act, 42 United States Code (USC) §9601 et seq.

b. Innocent Landowners, Standards for Conducting All Appropriate Inquiries 40 Code of

Federal Regulations (CFR) Part 312

c. Army Regulation (AR) 200-1, Environmental Protection and Enhancement, Section 15-

5 and Section 15-6, 13 December 2007

d. AR 405-80, Management of Title and Granting Use of Real Property, 10 October 1997

e. Army Environmental Per-and Polyfluoroalkyl Substance (PFAS) Policy, 8 January

f. Memorandum, ARNG Environmental Programs Divisions, ARNG-ILE, 3 March 2011, Subject: Environmental Document Review Policy

g. The Army National Guard Environmental Condition of Property Handbook, The

ARNG’s ECOP Process Handbook (Final), 1 June 2011

h. ARNG Military Construction (MILCON) Budget and Programming Guidance, ARNG-G- 9 IEP-M, 7 Feb 2020

i. ASTM International E1527-13, Standard Practice for Environmental Site Assessments:

Phase I Environmental Site Assessment Process

j. ASTM International D6008-96 (Reapproved 2014), Standard Practice for Conducting Environmental Baseline Surveys

k. ASTM International E1528-14, Standard Practice for Limited Environmental Due

Diligence: Transaction Screen Process

2. ECOP Reporting Requirements and Process.

a. Reference 1.c. identifies an ECOP report as the document the Army requires to fulfill Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) due diligence.

(1) The ECOP report shall be prepared in accordance with applicable ASTM

International Standards (see Enclosure 2, Table 3-3).

(2) The individual conducting the site investigation for an ECOP Report must qualify as an Environmental Professional (EP) as defined by 40 CFR §312.10. (Appendix Q-4).

[Updates Section 1 of 2011 ARNG ECOP Handbook].

Encl 1

b. Per reference 1.b., CERCLA section 101 (35) (B) “All appropriate inquiries” must be conducted within one year prior to the date of acquisition of the subject property; and certain components of the appropriate inquiries must be conducted or updated within 180 days before the date of acquisition.

(1) Therefore, ARNG ECOP reports for ARNG real estate actions have a shelf life of one year.

(2) However, if the real estate instrument (e.g., license) has not been submitted to

USACE, HQDA, or GSA prior to 180 days from the report’s initial site inspection date, then the state Guard organization’s EP (or contractor’s EP) will update the ECOP report before submission.

(3) The updated ECOP report will be developed with a Memorandum for Record

(MFR) summarizing updated findings and any new environmental conditions. [Updates Sections 3, 5, 6, 8, 10, 11, and 12 of 2011 ARNG ECOP Handbook and Table 3-1, Figure 3- 1, and Appendix P].

c. Per reference 1.g., Updated ECOP reports must be developed using the appropriate outline per the ASTM standard. An Updated ECOP report, at a minimum, consists of the following components:

(1) Reviews of federal, tribal, state, and local government records within applicable

ASTM radii to include site specific records (Appendix R and S).

(2) Searches for recorded environmental cleanup liens.

(3) Interviews with owners, operators, occupants, and those familiar with the site

(Appendix T).

(4) Visual inspections of the property and of adjoining properties (Appendix U).

(5) A signed declaration by the Environmental Professional (EP) who is responsible for conducting the update and review of final report submitted to ARNG-G-9 (Appendix Q-4 and ARNG’s ECOP Handbook Section 1.8; p7). [Updates Sections 1, 5, 6, 8, and 10 2011 ARNG ECOP Handbook]

d. Per reference 1.i., Phase I Environmental Site Assessments (ESAs) conducted for real estate transactions involving non-DoD and non-federal land acquired for a federal objective must be completed in accordance with reference 1.i. ASTM E1527-13.

(1) Significant changes to this standard address vapor intrusion; place a stronger emphasis on regulatory file reviews; and include additional or revised key definitions.

(2) For additional information, see reference 1.i. [Updates Section 8 2011ARNG ECOP

Handbook.]

e. Per reference 1(f), ARNG-G-9 strives to complete ECOP document reviews within 30 business days for documents that do not require legal review and 45 business days for documents which require a legal review.

(1) If the ECOP report identifies Area Types 5-7 or other recognized environmental conditions of concern, then the National Guard Bureau Office of the General Counsel (NGB- GC) will review the report and determine if the ECOP document is legally sufficient.

(2) All ECOP documents submitted to ARNG-G-9 for review shall be reviewed first by the designated Regional Subject Matter Expert (SME) to ensure the documents comply with ASTM Standards and that Army and ARNG regulations and/or policies have been addressed. [Updates Sections 2.2 and 12 2011 ARNG ECOP Handbook.]

f. Per reference 1.k., Transaction Screen Assessments (TSAs) will be used as a screening tool to identify potential environmental concerns for commercial, non-federal property proposed for acquisition or divesture such as, but not limited to, in-leases or easements.

(1) ARNG G-9 does not require State Guard organizations to complete a TSA for proposed Store Front Recruiting office (SFRO) leases.

(2) Instances in which a proposed SFRO location raises environmental, or health and safety concerns may be handled on a case by case basis with support from ARNG G-9 staff.

(3) Per the ASTM standard TSAs are not required to be performed by an EP as defined by 40 CFR §312.10; however, ARNG-G-9 requires that an EP perform this investigation to ensure that personnel that perform site investigations and prepare TSAs have the appropriate skillset and relevant experience in accordance with ASTM E1528-14. [Updates Section 7 2011 ARNG ECOP Handbook.]

(4) TSAs are only to be used when:

(a) ARNG perceives that a transaction is a “Low Risk”.

(b) No extraordinary circumstances exist related to the subject property, and

(c) The real estate action conveys less than fee title to the property (i.e, lease, permit).

g. Physical constraints (i.e., snow cover, flooding, rain, impervious vegetation) during a

ECOP site reconnaissance might hinder visual observation of the subject property and adjacent properties.

(1) These physical constraints should be noted as a limiting condition in the report, along with written justification by the EP as to why the physical constraint(s) does not affect the findings and conclusions of the ECOP report.

(2) Limiting conditions could potentially warrant additional site visits in order to make accurate site observations leading to an ECOP determination. The EP conducting a site visit with physical constraints should exercise professional judgment when determining if additional site visits will be needed to complete the ECOP report. [Updates Sections 5, 6, 8, and 10 2011 ARNG ECOP Handbook.]

h. Per reference 1.e., ARNG will research and identify locations where an Aqueous Film

Forming Foam (AFFF) is known or suspected. This reference 1.e. forms the rationale for researching and identifying storage, use, and releases of AFFF in the ARNG ECOP process. Per- and Poly-fluoroalkyl Substances (PFAS) and the ARNG ECOP process is discussed further in Appendix A-1. [Updates Sections 5, 6, 8, and 10 2011 ARNG ECOP Handbook and Appendix A.]

i. Per reference 1.a.b.c., States that propose adding real property to the FISP must provide an up-to-date ECOP document (e.g., ESA Phase I, EBS, or TSA) with the request submitted to ARNG Real Estate Branch (ARNG G-9 IEP-R). [Updates Sections 8, 12, 2011 ARNG ECOP Handbook and Appendix N-4.]

j. Per reference 1.i., ECOP information pertaining to the subject property is “reasonably ascertainable” if this information can be obtained within 20 calendar days from receiving a request in writing, via telephone, and/or in-person.

(1) ARNG-G-9 requires attempts at obtaining information from a source to be documented (i.e., e-mail, certified mail receipt) in the appendix of the ECOP report by recording the date, individual, and agency from whom the information is requested.

(2) Outside agencies may request a nominal fee from the state ARNG for processing requests for information. This should be planned for accordingly when scoping the ECOP document (e.g, collecting site information records). [Updates Sections 3, 5, 6, 8, 9, 10, and 13 2011 ARNG ECOP Handbook and Appendix B-4, K-4, N-6, P-3, P-5, and Table 3-2.]

k. Per reference 1.d., A Report of Availability (ROA) is a “Federal Property” real estate document which provides command authorities with the information necessary to determine whether real property can be used by a non-Army entity.

(1) If NGB has real property accountability at the installation then the environmental section of the ROA alone may be sufficient to document environmental requirements for permits, licenses, easements, and similar real estate interests where environmental concerns are very minor or where no extraordinary circumstances exist.

(a) Under these circumstances an ECP report would not be required.

(b) This does not pertain to forestry or agriculture leases which are managed by

ARNG-G-9 Conservation Branch IES-N.

(2) If requested by ARNG-G-9, the State ARNG should make available supporting documentation (e.g., maps, pictures, reports, etc.) for items listed in ROA Section C.

[Updates Section 7 2011 ARNGECOP Handbook.]

3. Funding Codes.

a. Funding code QMIS is the main Army Management Structure Code (AMSCO) that support ECOP documentation, including demolition actions.

b. Sampling for Asbestos Containing Material and Lead Base Paint are included in the

QDEM funding request if those contaminants are likely to be associated with the demolition project.

4. Energy Resilience and Conservation Investment Program (ERCIP) Projects.

a. All ERCIP projects are MILCON funded, therefore ECOP documentation is required for all ERCIP projects.

b. For projects designated as low-risk actions (no extraordinary circumstances exist) a

TSA report is required. All other actions require an EBS or ESA Phase 1 for the ERCIP construction projects.

5. Table 3-3 “Required ECOP and NEPA Documents by Proposed Real Estate and MILCON Actions”. This table provides directions for selecting the appropriate ECOP document for specific actions.

a. NGB-GC will review any ECOP documentation that does not adhere to Table 3-3.

b. NGB-GC will provide a legal review to ensure that all legal issues related to the

NEPA/ECOP document(s) are identified by ARNG G-9 NEPA/ECOP Branch (ARNG-IES- E).

Table 3-3: Required ECOP and NEPA Document(s) by Proposed Real Estate and MILCON Action

Table 3-3: Required ECOP and NEPA Document(s) by Proposed Real Estate/MILCON

Action

Property Type

REAL ESTATE DISPOSALS AND OUTGRANTS (Remove from

FISP)

ACQUIRING ADDITIONAL REAL PROPERTY (Add to

FISP)

MILCON NEPA

Dispose of Real

Property

(Land

Parcels) or

*Fee-Owned

Property

Out-Grant

Easemen t to

Others

Out-Grant

Lease or

Rene w

Out-Lease

Terminate

ARNG

Out-

Lease/

Out-Grant of

Other's

Property

Out-

Grant

License

Or

Renew

Out-

License to Others

Transfer Out

Real

Property to

Others

Terminate

ARNG

In-Leased

Real Property

Dispose of

Site with

Formerly

Active

Range(s)

AR 350-19 &

405-90

Acquire

ARNG Real

Property via

Purchase

Real Property

From Others via

In-lease

Renew

In-

Lease of from Others via

In-License

Renew

ARNG In-

License for

Acquire/Renew ARNG via

Permit, In-

Permit, or MOU

MILCON

Appropriatio n &

ERCIP

Project

NEPA - Federal

Actions

*Federal ARMY Owned

*ROA-Section C

(Support

FOST/FOSET

when transferring out of Fed ownership)

& Memo

N/A

EBS Required w/

(Disposal Report)

(FOSL not required)

*ROA-Section C &

Disposal Report to

Support FOST/FOSET

(when transferring out of Fed ownership)

(Support

FOST/FOSET

when transferring out of Fed ownership)

EBS

(Army

Owned

Property)

Required

(Army Owned

Property)

Required

(ROA & REAP)

*ROA Section C & REAP

ESA/EBS

Required or

**TSA for "Low

Risk/Minor

Actions"

Categorical Exclusion

(REC/Check), EA, EIS, or REC tiering off an EA or EIS

*Federal DoD Owned

(Non-ARMY)

*ROA-Section C (to support a FOST or

FOSET) w/ (Disposal

Report & Memo)

EBS Required

(REAP/Memo &

Disposal Report)

(to support a

FOST or FOSET) w/ MFR

*ROA-Section C &

Disposal Report to support a

FOST/FOSET (when transferring out of

Fed ownership)

(REAP & ROA

Section C/Memo)

(to support a

FOST or FOSET) w/ (Disposal

(REAP & Memo)

ESA Phase I

Required w/

(REAP,

ROA/Memo)

(REAP &

ROA/Memo)

*ROA Section C/Memo &

REAP

(REAP & *ROA/Memo)

**TSA for "Low

Federal Non-DoD

*ROA-Section C (to support a FOST or

FOSET) w/ (Disposal

(Disposal Report &

Memo) w/

(REAP & Memo)

ESA Phase

I or

**TSA

(Low Risk/Minor Actions)

Required

ESA Phase I

Required w/

(REAP &

Memo) or

(**TSA for CITA)

ESA/EBS

Required or

**TSA for "Low

Non-Federal (State, County, Private, Others) Property:

Will be added to FISP

EBS required to remove from FISP

**TSA for "Low

Risk/Minor Actions"

**TSA for "Low

**TSA for "Low

**TSA for "Low

**TSA for "Low

**TSA for "Low

ESA Phase

I required to remove from

FISP.

required to add to

FISP

ESA Phase I required to add to FISP

Validate original

ECOP per ASTM standards, update if required.

required to add to FISP

Validate original ECOP per ASTM standards, update if required.

ESA Phase I required to add to

**TSA for "Low Risk/Minor

**TSA for "Low

Non-Federal (State, County, Private, Others) Property:

Will NOT be added to

No Requirement

Encl 2

ARNG ECOP

Document Types

ECOP Documents

Purpose

Relevant Standard or Reference

Approx. Period of Validity

(before an updated or new report is needed)

Sections 7 & 11

ECOP Handbook Section

Environmental Baseline

Survey

Any Property on the FISP: Property condition evaluation;

ECOP Area Type classification (Area Types 1, 2, 3, 4, 5, 6, 7); Identify environmental liabilities.

Note that, Area Types 5 - 7 may require additional reviews by NGB-GC

Establishes: Due Diligence for federal acquisitions (Lease/License), or non-federal actions where no prior due diligence documentation (ESA Phase I) was done to establish a current property status baseline .

ASTM D5746-98 (2016)

ASTM D6008-96 (2014)

CERCLA 9620(h)

AR 200-1, Chp. 15-5

ECOP Appendix: C-1, L, R, T, U

Update at 180 days (interviews, records search, site inspection, declaration of environmental professional, w/ memorandum summary of changes). *New EBS report required at 1 years from the original report site visit completion date.

Updates

Section 5 &

Environmental Site

Assessment

Non-Federal Property "only" placed on the FISP: Establish Due Diligence for CERCLA protection, Identify liabilities, Identify "Recognized Environmental Conditions" RECs per

ASTM E1527-13 (3.2.78).

Establishes: Appropriate Due Diligence, Innocent Landowner/Purchaser Defense, and All Appropriate Inquiries.

Establishes a baseline to determine roles of responsibility for potential future cleanup activates.

ASTM E1527-13 or E2247-16 (For Rural Property)

CERCLA (42 USC 9601-

9675)

40 CFR Part 312.10

AR 200-1, Chp. 15-5 ECOP Appendix: F-1, S, T, U

Update at 180 days (interviews, records search, site inspection, declaration of environmental professional/ memorandum summary of changes).

*New ESA Phase I report required at 1 years from the original report site visit completion date.

Sections 8, 9, &

ESA Phase II

Non-Federal Property "only" placed on the FISP: Establish Due Diligence for CERCLA protection, Identify liabilities, Identify "Recognized Environmental Conditions" RECs per

ASTM E1527-13 (3.2.78).

Establishes: Appropriate Due Diligence, Innocent Landowner/Purchaser Defense, and All Appropriate Inquiries .

ASTM E1903-11

CERCLA (42 USC

9601-9675)

40 CFR Part 312.10

AR 200-1, Chp. 15-5

ECOP Appendix: K, O, S, T, U

Update at 180 days (interviews, records search, site inspection, declaration of environmental professional, w/ memorandum summary of changes). *New ESA

Phase II report required at 1 years from the original report site visit completion date.

Sections 9, 10, &

*Report of

Availability, Section C

Standalone document for disposal action of Federal-owned properties, out grants, and leases. *ROA, Section C that are

Low Risk action do not require additional ECOP documentaion support. ROA-C that are High risk must be suppoted by a current EBS report less than 1 years from the original report site visit completion date. Use AR 200-1 Table 15-5 d(2)as a reference to your action. Does not establish due diligence for CERCLA defense.

AR 200-1, Chp.

15-5d(2); 32 CFR

Part 643.8

ECOP Appendix: C-1, E, F-1, R, T, U

Update at 1 year (ROA, MFR, or REAP). *New

ROA required at 1 year from the document preparation or submittal date to ARNG-IEZ.

Updates

Section 5, 7, &

Preconstruction Site

Selection Formally known as PCA

MILCON & ERCIP Projects on existing ARNG-controlled land: A current baseline EBS or ESA report less than 1 years from the original report site visit completion date that also identifies Constituents of Concern, Classifies

Construction Site Categories (I, II, III). The ECOP doumnet is also used for identifying Constituents Concern and

Classifies for Demolition Site actions.

AR 200-1, Chp. 15-6

USAEC 1999

ECOP Appendix: D-1, R, T, U

Update at 180 days (interviews, records search, site inspection, declaration of environmental professional, w/ memorandum summary of changes).

*New ECOP report required at 1 years from the original report site visit completion date.

Sections 6, 11, &

**TSA

Transaction Screening

Analysis

*Real Estate and MILCON: Screening tool used for Low-Risk "No 1 Extraordinary Circumstances Exist" actions (In-

Lease, In-Permit, MOU, existing admin office space, ERCIP, and CITAs). If Potential Environmental Conditions are identified within TSA Report by the ARNG Environmental Professional, an additional level of environmental documentation (e.g., ESA Phase I or EBS) is required.

Does not establish due diligence for CERCLA defense.

ASTM

E1528-14 AR

200-1, Chp.

15-5

ECOP Appendix: H-1, S, T, U

Update at 180 days (update per TSA standard, coordinate with ARNG-IEZ). *New TSA report required at 1 years from the original report site visit completion date.

Section 10 &

For Additional Property Type Information: (Refer to ARNG's ECOP Handbook, Table 15.2.1, or contact ARNG-IER's Real Estate Team) ECOP Team GKO Portal: https://gko.portal.ng.mil/arng/ie/D01/Pages/ECOP.aspx May 2021 rev

1.0