Guidance on EPA Concurrence in the Identification of Uncontaminated Parcels under CERCLA Section 120 (h)(4)

March 27, 1997

MEMORANDUM

SUBJECT:
Military Base Closures: Revised Guidance on EPA Concurrence in the Identification of Uncontaminated Parcels under CERCLA Section 120 (h)(4)

FROM:
Timothy Fields, Jr (Original signed on March 27, 1997)
Acting Assistant Administrator

TO:
Regional Superfund Policy Managers, Region I-X
Regional RCRA Policy Managers, Region I-X
Regional Counsels, Regions I-X
Federal Facilities Leadership Council
Base Realignment and Closure Program Managers, Region I-X

This memorandum is intended to provide guidance concerning the implementation of CERCLA section 120 (h)(4), as amended in 1996. Specifically, it addresses the approach EPA should use in determining whether to concur that a parcel has been properly identified by a military service as "uncontaminated" and therefore transferrable pursuant to CERCLA section 120 (h)(4).

1. Background

   In October 1992, Congress enacted the Community Environmental Response Facilitation Act (CERFA) which, among other things, added a new subsection (4) to CERCLA section 120 (h). Congress found that the closure of federal facilities is having adverse effects on the economies of local communities and that environmental remediation requirements are frequently a constraint to the reuse of the facilities. The Act further states that federal agencies should "expeditiously identify real property that offers the greatest opportunity for reuse and redevelopment..." CERCLA section 120 (h)(4) directed federal agencies with jurisdiction over real property on which federal government operations are to be terminated to identify parcels of 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."

   In October 1996, Congress amended this language via the Defense Authorization Act of FY-1997, by deleting the "storage" provision. The language now reads:

   "on which no hazardous substances and no petroleum products or their derivatives were known to have been released, or disposed of."

   CERFA and this guidance refer to such parcels as "uncontaminated". The reference to "storage" was deleted to allow property where hazardous substances or petroleum products had been stored but no release or disposal had occurred, to meet the "uncontaminated" criteria in order to facilitate the transfer, reuse and redevelopment of real property. The identification must be based on an investigation of the property including minimum requirements set forth in CERCLA section 120 (h)(4)(A). For parcels of property that are part of a facility on the National Priorities List, the identification is not complete until the EPA concurs in the results. For other parcels, the identification is not complete until the appropriate state official concurs in the results.

   The identification of a parcel is based on a review of available information. The military service remains obligated to address any contamination found to pose a threat to human health or the environment. Although parcels that are identified as satisfying the CERCLA section 120 (h) (4) requirements can be sold or otherwise transferred expeditiously, any such transfer must include a covenant committing the United States to perform any remedial action or corrective action found to be necessary after the date of the transfer.

   For real property that is part of a military base which was slated for closure prior to CERFA's enactment, the identification and concurrence is to be completed within 18 months of CERFA's enactment. For real property on military bases designated for closing subsequent to CERFA, the identification and concurrence is to be completed within 18 months of the designation. [For property subject to Public Law 103-160, Base Closure Community Assistance Act, Section 2910 (November 30, 1993) concurrence may be mandated at an earlier point in time. This section provides that "the concurrence required under Section 120 (h)(4)(b) of such Act, shall be made not later than the earlier of--(1) the date that is 9 months after the day of submittal, if any, to the transition coordinator for the installation concerned of a specific use proposed for all or a portion of the real property of the installation; or (2) the date specified in Section 120 (h)(4)(C)(iii) of such Act ". ] The mandated period for BRAC 1995 installations to identify parcels expires March 28, 1997. For parcels not identified prior to the statutory deadline the military service has a continuing opportunity to identify these parcels and seek regulatory concurrence. EPA believes that the identification of such parcels by the military service, with regulatory concurrence, will facilitate their reuse by providing the transferee with the CERCLA section 120 (h)(4) covenant. This position is consistent with DoD's May 18, 1996 policy statement on CERFA implementation.

2. Purpose

   In meeting its obligation under CERCLA section 120 (h)(4), EPA is concerned with both protecting human health and the environment and achieving Congress' goal of expeditiously transferring uncontaminated real property to communities for economic redevelopment. Interpreting CERCLA section 120 (h)(4) to allow the expeditious transfer of parcels where there is no indication that the release or disposal of hazardous substances or petroleum products poses a threat to human health or the environment would aid Congress' intent by increasing the amount of real property which would be available for expedited reuse and redevelopment.

   EPA believes that there may be instances in which it would be appropriate to concur with the military service that certain parcels can be identified as uncontaminated under CERCLA section 120 (h)(4) although some limited quantity of hazardous substances or petroleum products have been released or disposed of on the parcel. If the information available indicates that release or disposal was associated with activities which would not be expected to pose a threat to human health or the environment, such parcels should be eligible for expeditious reuse and redevelopment.

3. Guidance

   The determination of whether to concur in the identification of an uncontaminated parcel, where the information provided by the military service reveals some level of release or disposal of hazardous substances or petroleum products, should be made on a case-by-case basis. The decision-maker should apply best professional judgement based on the available information in making determinations under CERCLA section 120 (h)(4). The objective should be to include parcels where there is no indication that the release or disposal of hazardous substances or petroleum products has resulted in an environmental condition that poses a threat to human health or the environment. The decision-maker should assume that the real property may be transferred to the public or private sector without any environmental response action being taken on the property.

   EPA's ability to concur with the identification of parcels will depend on the information available concerning the current and historical uses of the parcel, the proximity of the parcel to sources of contamination requiring response actions, and the nature of the threat, if any, reasonably associated with the type of activity or contamination associated with the parcel.

   Where the information presented by the military service does not provide a sufficient basis for concurrence, the EPA Region may elect to withhold concurrence until sufficient information is available. EPA's response to the request for concurrence should specify the additional information required to support concurrence.

   The following are examples of three categories of parcels where EPA would generally concur:

   1. Housing

      In housing areas, it is likely that hazardous substances and petroleum products contained in heating oil and household products have been released or disposed; but it is unlikely that, in the absence of evidence of significant releases (e.g. fuel spills), such materials would pose a threat to human health or the environment.

   
   

   2. Stained Pavement

      There may be evidence of incidental releases of petroleum products on roadways and parking lots, but no indication that such releases pose a threat to human health or the environment.

   
   

   3. Pesticides

      In the absence of evidence indicating a threat to human health or the environment, e.g., contamination of surface or groundwater, or proximity to sensitive habitat, the routine application of pesticides in a manner consistent with the standards for licensed application should not disqualify a parcel under CERCLA section 120 (h)(4). If information concerning the use of the parcel indicates extensive application of pesticides, EPA may determine that the particular circumstances require that its concurrence be conditioned on further information concerning the nature and quantities of pesticides applied or the results of confirmatory sampling to assure that residual levels do not pose a threat to human health or the environment.

      The examples and guidance described above are intended to provide assistance to the decision-maker, but not to strictly limit the application of the policy. The authority to make these determinations has been delegated to the Regions. For questions or further information concerning this revised guidance, please contact Lisa Tychsen at 202/260-9926.

NOTICE: The policies set out in this memorandum do not represent final agency action and are intended solely as guidance. They are not intended, nor can they be relied upon, to create any rights enforceable by any party in litigation with the United States. EPA officials may decide to follow the guidance provided in this memorandum, or to act at variance with the guidance, based on an analysis of specific site circumstances. Remedy selection decisions are made and justified on a case-specific basis. The Agency also reserves the right to change this guidance at any time without public notice.