UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C, 20460
APfi 2 7 2006
OFFICE OF
SOLID WASTE AND
EMERGENCY RESPONSE
MEMORANDUM
SUBJECT:
FROM:
TO:
Transmittal of "Interim Guidance for EPA's Base Realignment and
Closure (BRAC) Prof
director
i Facilities Restoration and Reuse Office (FFRRO)
Superfund Division Directors (Regions I - X)
RCRA Division Directors (Regions I - X)
Regional Counsel (Regions I - X)
This memorandum transmits interim guidance for EPA's Base Realignment and Closure
(BRAC) Program. This guidance supersedes "EPA's Guidance for Implementing the Fast Track
Cleanup Program at Closing or Realigning Bases" (February 1996).
Pursuant to Congressional mandate, hundreds of Department of Defense (DoD) military
bases have undergone realignment or complete closure. Base realignments and closures were
approved in five different rounds: 1988 (BRAC I), 1991 (BRAC II), 1993 (BRAC III), 1995
(BRAC IV), and 2005 (BRAC V). EPA has a role at BRAC installations where investigation
and environmental response to releases of hazardous substances, pollutants or contaminants is
needed and property will be transferred outside the federal government.
The purpose of this interim guidance is to provide direction to Regional Federal Facility
Programs on responding to installations that will close, realign or experience net growth in
personnel and/or functions as a result of BRAC V actions. The guidance also addresses EPA's
continuing role at BRAC I - IV installations.
If you have questions about this guidance, please contact Tracey Seymour on my staff at
(703) 603-8712 or scymour.tracev@epa.eov.
. UW
Internal Addmss (UHL) http://www.tpa.gov
Primed with Vegetable Oil Based Inks on 100% Postcorwumer, Process Chlorine Free Recycled Paper
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cc:
Susan Bodine, OSWER
Barry Breen, OSWER
Renee Wynn, OPM
Richard Jeng, FFRRO
Federal Facility Regional Program Managers (Regions I - X)
Patrick Meehan, OSD/AT&L/ESOH
Col. Richard Ashworth, Department of Air Force
Col. Tad Davis, Department of Army
VADM Keith Lippert, DLA
Donald Schregardus, Department of Navy
Mike Cook, OSRTI
David R. Lloyd, OBCR
Matt Hale, OSW
Scott Sherman, OGC
FFRRO Regional Coordinators
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Interim Guidance for EPA's
Base Realignment and Closure (BRAC)
Program
Federal Facilities Restoration and Reuse Office
Office of Solid Waste and Emergency Response
U.S. Environmental Protection Agency
April 2006
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TABLE OF CONTENTS
1 BACKGROUND 1
2 PURPOSE AND SCOPE 2
3 OVERVIEW OF FEDERAL STATUTES, REGULATIONS, AND
OTHER AUTHORITIES 4
4 WORKING WITH OTHERS IN THE BRAC PROCESS 7
S EPA'S ROLE AT BRAC I - IV INSTALLATIONS 11
5.1 BRAC CLEANUP TEAMS (BCTs) 11
5.2 MANAGEMENT FRAMEWORK FOR BRAC I - IV INSTALLATIONS 12
5.3 BRAC QUARTERLY REPORTS 13
5.4 FUTURE WORK AT BRAC I-1V SITES 13
6 EPA'S ROLE AT BRAC V INSTALLATIONS 13
6.1 BRAC CLEANUP TEAMS (BCTs) AT BRAC V INSTALLATIONS 14
6.2 RESOURCE FRAMEWORK 14
6.3 DoD POLICY AND GUIDANCE 15
7 EPA RESPONSIBILITIES FOR CLEANUP AND PROPERTY TRANSFER AT BRAC
INSTALLATIONS (ROUNDS I - V) 15
7.1 ENVIRONMENTAL CONDITION OF PROPERTY (ECP) REPORTS 15
7.2 UNCONTAMINATED PARCEL DETERMINATIONS 15
7.3 REMEDY DECISIONS AT BRAC INSTALLATIONS 16
7.3.1 Reopening Remedy Decisions 17
7.4 REQUESTS FOR EARLY TRANSFER OF CONTAMINATED PROPERTY 18
7.4.1 Early Transfers, Cleanup, and Privatization 19
7.5 POST-CONSTRUCTION COMPLETION REQUIREMENTS 21
7.5.1 Five Year Reviews 21
7.5.2 Operation and Maintenance (O&M) 21
7.5.3 OPS Determinations 22
7.6 REVIEWING FINDINGS OF SUITABILITY TO TRANSFER (FOSTs) 23
7.6.1 Fed-to-Fed Transfers 23
7.7 REVIEWING FINDINGS OF SUITABILITY TO LEASE (FOSLs) 23
7.8 NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) 24
7.9 RCRA & CERCLA INTEGRATION 25
7.10 POST-TRANSFER LIABILITY ISSUES FOR THE TRANSFEREE 26
7.11 CERCLIS REPORTING 27
APPENDIX A: EPA RESPONSIBILITIES RELATED TO BRAC I -IV INSTALLATIONS 28
REGIONAL MANAGEMENT RESPONSIBILITIES 28
SPECIFIC RPM RESPONSIBILITIES 28
ACCOUNTABILITY FOR RESOURCES 29
APPENDIX B: BRAC 1 - IV SITES DESIGNATED AS FAST TRACK LOCATIONS 33
APPENDIX C: BRAC V INSTALLATIONS LISTED ON THE NPL 36
APPENDIX D: SELECT EPA AND DOD POLICY AND GUIDANCE DOCUMENTS 39
APPENDIX E: MEMORANDUM OF UNDERSTANDING fMOUl FOR BRAC I - IV 43
APPENDIX F: CERCLA SECTION 120. FEDERAL FACILITIES 55
APPENDIX G: 40 CFR PART373 64
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1 BACKGROUND
Pursuant to Congressional mandate, numerous Department of Defense (DoD) military bases have
undergone realignment or complete closure. Base realignments and closures were approved to
occur in five different rounds: 1988 (BRAC I), 1991 (BRAC II), 1993 (BRAC III), 1995 (BRAC
IV), and 2005 (BRAC V), EPA has a role at BRAC installations where environmental response
to releases of contamination is needed and contaminated property will be transferred outside the
federal government.
BRAC I - IV (former Fast Track Cleanup Program)
To address the installations closed and realigned in BRAC I-IV, a five-part program to mitigate
economic dislocation and speed economic recovery of communities near military bases
scheduled for realignment or closure was announced by President Clinton on July 2, 1993. Rapid
redevelopment and job creation were the top goals of this community reinvestment program,
commonly referred to as the "Five Point Plan." The program called for the Federal Government
to give priority to local economic redevelopment, provide transition and redevelopment
assistance to workers and communities, put cleanup on a fast-track, provide transition
coordinators at major bases scheduled for closure or substantial realignment, and allocate more
funds for economic development planning grants.
The "Fast Track Cleanup Program" was an essential component of the President's Five Point
Plan. The United States Environmental Protection Agency (EPA), the Department of Defense,
and the states were charged with creating a working partnership to implement the Fast Track
Cleanup Program with the objectives of "quickly identifying clean parcels for early reuse,
selecting for appropriate leasing parcels where cleanup is underway and hastening cleanup." A
list of BRAC installations which were designated as Fast Track locations can be found in
Appendix B. While the Fast Track Cleanup Program no longer exists in name, the principles,
relationships, and framework established are still ongoing at many BRAC I-IV installations.
BRACV
The selection of installations for the most recent round of closures and realignments became final
on November 9,2005. The 2005 BRAC (BRAC V) is the largest, most joint-service-oriented
round ever attempted, and affects more than 800 installations spanning active, National Guard,
and Reserve components. With ten years between the 2005 BRAC and BRAC IV, several
significant differences exist concerning implementation of the BRAC V round based on the
experiences of BRAC I-IV.
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Many of the bases to be realigned or closed under BRAC V have ongoing environmental
response programs in place, and as a result a substantial portion of the required assessment and
characterization of the environmental condition of these properties is in process or completed.
Many facilities also have environmental remedies in place at contaminated sites. In addition,
BRAC V calls for significant growth at some installations already surrounded by communities
and development, a challenge DoD has not previously encountered to this magnitude when
implementing prior BRAC actions. At BRAC National Priorities List (NPL) sites, and
particularly those where accommodating for growth may affect, or be affected by, environmental
conditions at the installation, and for certain actions at non-NPL BRAC sites, EPA has statutorily
required responsibilities.1 In addition, EPA may be requested to assist DoD, the receiving entity,
and the community.
Turning Bases into Great Places-New Life for Closed Military Facilities
EPA's Federal Facilities Restoration and Reuse Office (FFRRO) teamed up with EPA's
Smart Growth offices at Headquarters and EPA Region 1 in drafting the guidebook,
Turning Bases into Great Places - New Life for Closed Military Facilities, to help
communities facing base closure develop redevelopment plans. This guidebook may also
be a helpful tool as communities and DoD find ways to accommodate the substantial growth
expected at many installations as a result of the 2005 round of BRAC.
This guidebook is intended to help communities incorporate smart growth principles into
their redevelopment plans in order to:
create vibrant neighborhoods;
bring amenities to residents and the surrounding neighborhoods;
provide a balanced mix of jobs and housing; and
capitalize on historic, cultural, and natural assets.
The guidebook can be found at http://www.epa.gov/smartgrowth/military
2 PURPOSE AND SCOPE
This guidance supersedes "EPA's Guidance for Implementing the Fast Track Cleanup Program
at Closing or Realigning Bases" (February 1996). This document provides guidance for EPA
support at installations identified in the five rounds of BRAC. EPA's role at BRAC I-IV
installations, as addressed in this document, applies to bases previously identified by DoD and
EPA as Fast Track Cleanup locations (see Appendix B). Fast Track Cleanup locations are
1 For example, at NPL BRAC installations EPA is to provide concurrence on uncontaminated parcel determinations,
NEPA review and comment, early transfer approval, approval of operating properly and successfully (OPS)
determinations, and consultation on leases, among other activities. At non-NPL BRAC installations, some of the
activities EPA is responsible for include cleanup oversight in non-authorized RCRA states, NEPA review and
comment, consultation on leases, and OPS determinations.
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locations closed or realigned under the Base Closure and Realignment Act of 1988 (P.L 100-
526) (BRAC I) or the Defense Base Closure and Realignment Act of 1990 (P.L 101-510) (BRAC
II, HI, and IV) where there is environmental contamination, that may or may not be on the
National Priorities List (NPL), and where property will be available for transfer at these
locations. In addition to statutory and regulatory requirements to be fulfilled by EPA, DoD and
EPA have entered into a Memorandum of Understanding (MOD) (see Appendix E) that further
defines EPA's role and responsibilities at BRAC I - IV installations.
At BRAC V bases, EPA will conduct its statutory obligations at bases listed on the NPL, and, at
certain non-NPL bases, where EPA has a regulatory role. In addition, EPA regions may be
requested to perform activities by states, tribes, local governments, the Military Services or
others at certain facilities where EPA has no formal regulator role. Given EPA's resource
constraints, each region has to examine those requests individually and determine whether it can
positively respond. EPA will fulfill statutory responsibilities related to contaminated federal
property transfers as they apply to both properties listed on the NPL, and where applied to those
not listed on the NPL.
Because of changes in DoD policy and implementation between BRAC I - IV and BRAC V, this
guidance separately addresses EPA's role and responsibilities for each group of installations.
Please note that EPA's established role at BRAC I-IV facilities through the former Fast Track
Cleanup Program may create expectations regarding EPA's role at non-NPL BRAC sites which
may not be realized at BRAC V installations.
This guidance:
Reiterates EPA's role and responsibilities at BRAC I-IV installations;
Addresses EPA roles and responsibilities at BRAC V installations;
Establishes accountability for resources provided to EPA by DoD under the BRAC I-IV
Memorandum of Understanding (MOU);
Establishes guidelines for coordination and interaction with DoD and state counterparts,
Restoration Advisory Boards, (RABs), and Local Redevelopment Authorities (LRAs), at
all BRAC installations; and
Addresses methods for accelerating cleanups and property transfer, including
performance based contracting, cleanup privatization and early transfers.
This document provides guidance to EPA Regions on how EPA intends to exercise its discretion
in implementing the statutory and regulatory provisions that concern BRAC installations. The
guidance is designed to implement national policy on these issues. The statutory provisions and
EPA regulations described in this document contain legally binding requirements. This
document does not substitute for those provisions or regulations, nor is it a regulation itself.
Thus, it does not impose legally binding requirements on EPA, States, or the regulated
community, and may not apply to a particular situation based upon the circumstances. EPA
decision makers retain the discretion to adopt approaches on a case-by-case basis that differ from
this guidance where appropriate. Any decisions regarding a particular facility will be made
based on the statute and regulations. This guidance is a living document and may be revised
periodically without notice.
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For specific guidance referenced throughout this document, the website address for each can be
found in Appendix D.
3 Overview of Federal Statutes, Regulations, and other authorities
This guidance will discuss environmental cleanup, property transfer, leasing, and environmental
review requirements established by a number of federal statutes and regulations, including but
not limited to the following:
Base Closure and Realignment Acts: Provide for closing and realigning of military
installations based on revised force structure needs. Selection of bases have occurred in
1988 (BRAC I), 1991 (BRAC II), 1993 (BRAC III), 1995 (BRAC IV), and 2005 (BRAC
V).
The Acts allow for the establishment of Local Redevelopment Authorities (LRAs) at
BRAC installations and outlines DoD, LRA, and other parties' responsibilities in the
BRAC process. The Act was amended in 2003 to require DoD to seek fair market value
for specific forms of property conveyance, including economic development conveyances
(EDCs), negotiated sales, public sales, sales under Section 2905(e) of the Act, and
conveyances to a depository institution. This amendment applies to all BRAC property
(Rounds I-V) remaining in DoD's property inventory at the time the amendment was
authorized.
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA): Authorizes response actions at federal facilities where hazardous
substances, pollutants, or contaminants have been released and present a threat to public
health and the environment. DoD is responsible for the restoration of all facilities that it
has owned or operated where there have been releases from its operations into the
environment, as well as those facilities where hazardous substances from its operations
have come to be located. CERCLA section 120(h) contains provisions that establish
requirements for the transfer or lease of federally owned property based on storage,
disposal, or known release of hazardous substances. All contracts for transfer or lease
must include notice of this storage, disposal or release. Except as noted below, CERCLA
section 120(h)(3) requires that transfers of federal real property by deed must also
include: a) a covenant by the United States that all remedial action necessary to protect
human health and the environment has been taken prior to transfer, b) a covenant by the
United States to undertake any further remedial action found to be necessary after
transfer, and c) a clause granting access to the transferred property in case remedial
action or corrective action is found to be necessary after transfer.
For parcels requiring remediation, CERCLA section 120(h) (3) (B) provides for transfer
by deed at the point where the successful operation of an approved remedy has been
demonstrated to EPA, unless an "early transfer" occurs under CERCLA section 120(h)
(3) (C). CERCLA section 120(h) (3) (C) allows for the transfer of property from the
federal government prior to the completion of cleanup activities as long as specific
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requirements are met. CERCLA 120(h) (4) provides for the identification of
uncontaminated parcels with regulatory concurrence. (See Appendix F for the full text of
CERCLA Section 120)
* Reporting Hazardous Substance Activity When Selling or Transferring Federal
Real Property (40 CFR Part 373): Whenever any department, agency, or
instrumentality of the United States enters into any contract for the sale or other transfer
of real property (including public benefit conveyances, economic development
conveyances, etc.) which is owned by the Federal government and where any hazardous
substance was stored for one year or more, known to have been released, or disposed of,
a notice of the type and quantity of the hazardous substance and notice of the time at
which the storage, release or disposal took place, to the extent the information is
available, must be included in the contract or agreement for transfer. (See Appendix G
for the full text of 40 CFR Part 373)
National Contingency Plan (NCP): The National Oil and Hazardous Substances
Pollution Contingency Plan, more commonly called the National Contingency Plan or the
NCP, is the federal government's regulation for carrying out CERCLA response actions
and serves as the blueprint for responding to both oil spills and hazardous substance,
pollutant or contaminant releases. The National Contingency Plan is the result of our
country's efforts to develop a national response capability and promote overall
coordination among the hierarchy of responders and contingency plans.
The NCP applies to releases into the environment of hazardous substances, and pollutants
or contaminants which may present an imminent and substantial danger to public health
or welfare of the United States. At BRAC bases, DoD, as the "lead agency" for cleanup
under CERCLA (as established by Executive Order 12580), is required to follow the
NCP when conducting CERCLA response actions.
Community Environmental Response Facilitation Act (CERFA): CERFA amended
CERCLA section 120 in an effort to facilitate base closure and reuse; however, it also
affected a broad range of federal real property transfers. CERFA, which amended
CERCLA to include section 120(h) (4), requires the Federal government to identify
"uncontaminated parcels" at: 1) all real property owned by the United States and on
which the United States plans to terminate Federal Government operations, or 2) real
property that is or has been used as a military installation and on which the United States
plans to close or realign military operations pursuant to a base closure law. While the
mandated timeline for uncontaminated parcel determinations has expired for BRAC I-IV
installations, the obligation to obtain EPA and/or State concurrence continues beyond
those dates. For BRAC V installations, uncontaminated parcel determinations and
regulatory concurrence are to be completed by no later than May 9, 2007. (See section
7.2 for additional information on uncontaminated parcel determinations)
For parcels requiring remediation, CERFA clarifies CERCLA section 120(h)(3) to allow
transfer by deed at the point when the successful operation of an approved remedy has
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been demonstrated to EPA, unless an early transfer occurs under CERCLA section
120(h)(3)(C).
Defense Environmental Restoration Act (DERA): DERA established the Defense
Environmental Restoration Program (DERP) (10 U.S.C. 2701). DERP activities are to be
carried out subject to, and in a manner consistent with, CERCLA section 120. The Act,
enacted in 1986 as part of the Superfund Amendments, also requires for the program to
be implemented in consultation with EPA. Goals of the DERP program include:
The identification, investigation, research and development, and cleanup of
contamination from hazardous substances, pollutants, and contaminants.
Correction of other environmental damage (such as detection and disposal of
unexploded ordnance) which creates an imminent and substantial endangerment
to the public health or welfare or to the environment.
Demolition and removal of unsafe buildings and structures, including buildings
and structures of the Department of Defense at sites formerly used by or under the
jurisdiction of the Secretary.
Resource Conservation and Recovery Act (RCRA): Closing installations may be
subject to facility-wide corrective action under the Hazardous and Solid Waste
Amendments (HSWA) as well as to closure of RCRA regulated units in compliance with
40 CFR Parts 264 and 265. In those states that do not have authorized Corrective Action
programs under HSWA, EPA is responsible for the oversight and enforcement of
corrective action by the owner/operator of the facility. Transfer of parcels of land which
remain subject to the RCRA/HSWA permit due to ongoing corrective actions (early
transfers) or regulated units will require the new property owner to be either a holder or
co-holder of the permit (See 40 CFR 270.40).
National Environmental Policy Act (NEPA): Although the decision to close or realign
installations is not subject to NEPA, DoD is required to follow NEPA requirements
during the process of property disposal and during the process of relocating functions
from one installation to another. NEPA requires DoD (or any federal agency) to consult
with and obtain the comments of other federal agencies that have jurisdiction by law or
special expertise with respect to any environmental impact involved with the action.
Under Section 309 of the Clean Air Act, EPA must review, and comment in writing on,
the environmental impact of major federal actions that will have significant
environmental impacts; if the Administrator determines that an action is unsatisfactory
from the standpoint of public health or welfare or environmental quality, EPA must refer
the matter to the Council of Environmental Quality (CEQ).
* Toxic Substances and Control Act (TSCA): TSCA is the primary federal statute
regulating the use of certain chemicals and substances, including asbestos, PCBs, radon
and lead. Federal facilities have regulatory responsibilities under TSCA, including
complying with regulations governing the proper handling, use, storage and disposal of
certain substances and maintaining records. Most TSCA authorities are non-delegable,
and EPA remains the principal regulatory authority under this statute.
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Small Business Liability Relief and Brownfields Revitalization Act: The Small
Business Liability Relief and Brownfields Revitalization Act was signed by the President
in January 2002, and provided amendments to CERCLA. The amendments changed
some of the provisions in CERCLA section 107 regarding Superfund liability. The
amendments allow parties to purchase a contaminated property with the knowledge that
the property is contaminated, and not be held liable for the known contamination if
certain statutory requirements are met. Most notably for BRAC properties, the
amendments may provide bona fide prospective purchaser (BFPP) liability protections
for qualified transferees of BRAC property (or other government property) if certain
statutory requirements are met. In addition, the amendments include a definition of a
brownfields site that specifically excludes property under the jurisdiction or control of the
federal government, and establishes a grant program for eligible entities to assess and
cleanup properties that meet the definition of a brownfields site.
Other Federal authorities: Other federal authorities, such as the Safe Drinking Water
Act (SDWA) and the Clean Water Act (CWA), may also apply at BRAC installations in
either the cleanup or transfer of these properties.
Non-federal authorities at BRAC installations
States often have independent authorities, regulations, and cleanup standards that may affect
cleanup at BRAC installations, including laws that are similar to CERCLA. In general,
CERCLA section 120(a) (4) provides that state laws concerning removal and remedial action
shall apply at federal facilities that are not listed on the NPL. In addition, section 121 (d) of
CERCLA requires that remedial actions undertaken at a federal facility attain a level of cleanup
that meets Federal applicable or relevant and appropriate requirements (ARARs). Such cleanups
must meet state ARARs when state ARARs are more stringent than Federal laws, and identified
by the State in a timely manner. The statute also allows ARARs to be waived in limited
circumstances.
In addition, RCRA corrective action authorities may be carried out by authorized states, and
those states are responsible for issuing permits under RCRA.
4 Working with others in the BRAC process
DoD and the Military Services
EPA has established a collaborative working relationship with the Department of Defense (DoD)
and the Military Services while maintaining it's regulatory and enforcement responsibilities.
EPA Regional Remedial Project Managers (RPMs) should continue to work in a cooperative
manner with their DoD counterparts in implementing BRAC actions. The EPA Federal Facilities
Restoration and Reuse Office (FFRRO) will continue to work with its counterparts at DoD and
the Military Services, and offer assistance where the EPA is able to do so, to ensure that
environmental cleanup is consistent with the reasonably anticipated future use of BRAC property
so it remains protective of human health and the environment.
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States
States often have an integral and significant role in the cleanup and transfer of BRAC property.
At many sites, they will be the lead environmental regulator for several or all environmental
activities. Existing EPA relationships with state counterparts at particular installations may be
heightened due to BRAC. EPA RPMs and regional management should continue to work in a
constructive manner with states. FFRRO will continue to work with the Association of State and
Territorial Solid Waste Management Officials (ASTSWMO), the Environmental Council of
States (ECOS), the National Association of Attorneys General (NAAG), the National Governors
Association (NGA), and other state organizations, as well as individual states on an as needed
basis, to ensure that cleanup and property transfer at BRAC installations occurs appropriately
and expeditiously.
Tribal Nations
Many Tribal nations have distinct roles in cleanups of federal facilities under treaties and other
arrangements with the U.S. government. The Office of Solid Waste and Emergency Response
(OSWER) Superfund Federal Facilities Response Program works with tribes on a government-
to-government basis consistent with the federal trust responsibility to federally-recognized tribes.
Base closures often can lead to land transfers to tribes, and under such circumstances the land
may be held in trust by the Department of the Interior's Bureau of Indian Affairs. Affected tribes
may have opportunities for economic development or land transfer, as well as access to
archeological sites or other cultural resources.
There are several programs available to assist tribal nations throughout the BRAC cleanup
process. One such program is the Technical Outreach Services for Native American
Communities (TOSNAC) program, which provides technical assistance to Native Americans
dealing with hazardous substance issues. This program is national in scope and is currently
coordinated through the Haskell Environmental Research Studies Center at Haskell Indian
Nations University. It provides first contact, needs assessment, initial support, and long-term
technical support arrangements by regional TOSC programs and other resources, as necessary.
Additional information can be found at the following Web site:
http://bridge.ecn.purdue.edu/~tosnac/
Other Federal Agencies
Other federal agencies and departments have significant roles and responsibilities throughout the
BRAC process. Where EPA will most likely be involved with the other federal agencies is
where property will be transferred either to another federal agency ("fed-to-fed transfers") or
where the other federal agencies sponsor a public benefit conveyance (PBC). In public benefit
conveyance situations, EPA will abide by the terms set forth in the 1997 Memorandum of
Agreement between the Departments of Education, Health and Human Services, Interior, and
Transportation, and the Department of Defense and the Departments of Army, Navy, and Air
Force regarding responsibility for releases of hazardous substances, pollutants or contaminants
on real property transferred through a public benefit conveyance. (Please see section 7.6.1 for
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EPA's role in fed-to-fed real property transfers.) Where EPA regions are approached by another
federal agency for assistance in a BRAC-related transaction, the EPA region will evaluate its
ability to assist based on the availability of resources.
Local Redevelopment Authorities
Local Redevelopment Authorities (LRAs) are authorized by the Base Closure and Realignment
Act.2 Their primary purpose is to prepare a redevelopment plan for property that will be leaving
the Department of Defense and incorporate that property back into the local community. By
statute, when considering the future use of the property, the LRA must take into consideration
the economic effect of the closure or realignment of the installation and how the community can
best recover. While there is no official role for the LRA in the cleanup process, it is highly
recommended that the LRA be cognizant and aware of the environmental condition of the
property as it begins to plan reuse alternatives. EPA's Regional offices and FFRRO are expected
to assist LRAs when requested. The more the LRA is aware of the environmental condition of
property as it develops future redevelopment plans, the more appropriate reuses and cleanup
activities can be incorporated into the redevelopment plans for BRAC sites.
Local Governments
Local governments may be part of the LRA. In some cases, a local government office(s) may be
designated as the LRA. Local governments often regulate zoning and planning, enforce
adherence to building, fire, plumbing, and electrical codes, and in general could have an impact
on how BRAC properties are reused by the community.
EPA Regional program offices, working with DoD as the lead response agency at BRAC
installations (per Executive Order (E.O.) 12580 and the NCP), have likely established working
relationships with the local governments proximate to a given BRAC installation that is listed on
the NPL. Where a local government official approaches an EPA regional office to participate in
the cleanup process at a BRAC installation, that office should discuss and define precisely what
the local government desires and whether these needs are being met through already established
mechanisms, such as Local Redevelopment Authorities (LRAs) and Restoration Advisory
Boards (RABs).
Where existing mechanisms will not suffice, regional program offices should work with DoD
and the local governments) to identify means to facilitate local government involvement.
Where a local government not in the vicinity of the BRAC facility approaches EPA and/or DoD
seeking additional involvement, the EPA regional program should review the request in
coordination with DoD and make a determination whether to grant the request.
If a local government requests participation outside of existing structures, EPA Regions, in
collaboration with the local officials and DoD, should identify precisely what materials are
needed and provide them in a timely fashion. As appropriate, local government officials should
also be afforded the opportunity to participate in briefings, discussions or other exchanges of
information to facilitate their understanding of the remedial process and decisions.
2 Public La»> 101-510, as amended by the National Defense Authorization Act ofFY 2003, Section 2905
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Local Community Members
EPA RPMs (in consultation with community involvement personnel), regional management and
Headquarters should oversee and assist DoD in meeting the community relations requirements
under CERCLA, and EPA's Early and Meaningful Community Involvement Guidance. The
principal function of CERCLA community relations efforts is to provide a fair and open process
for community involvement throughout the decision making process at both NPL and non-NPL
sites. This process reflects the fact that EPA and DoD are accountable, not only for the cleanup
decisions, but for ensuring that public input is solicited and that responses are considered in a
meaningful way.
At BRAC installations, community concerns often extend beyond the cleanup program, and
focus on how the cleanup may affect the potential reuse of the property and local economic
recovery. EPA should assist DoD in helping community members understand the environmental
condition of the property and the actions the government is taking to address contamination.
Restoration Advisory Boards (RABs) have been established at most of the BRAC I-IV bases as
well as active installations which are to be closed or realigned under BRAC V. RABs are
formed in accordance with 10 U.S.C. 2705(d), the DoD/EPA Restoration Advisory Board
(RAB) Implementation Guidelines of 1994, and the DoD RAB Rule (when finalized). A RAB
is a stakeholder forum that includes community members and advises DoD on cleanup actions.
EPA RPMs attend RAB meetings as a representative of the U.S. EPA for NPL sites and/or
BRAC sites where EPA is involved in the cleanup. It is expected that this role for EPA RPMs
will continue as long as EPA is involved in the cleanup at the installation or until such time the
RAB may be adjourned or disbanded.
Environmental Justice Communities
In November, 2005, EPA's Administrator restated the EPA's commitment to Environmental
Justice (EJ), which generally seeks the fair treatment and meaningful involvement of all people
while conducting the EPA's work. To accomplish environmental justice goals, RPMs should
work with their federal facilities partners to implement Executive Order 12898, "Federal Actions
to Address Environmental Justice in Minority Populations and Low-income Populations."
RPMs should consider the practices listed in EPA's Early and Meaningful Community
Involvement Guidance, as well as the information in EPA's Community Involvement
Handbook and Community Involvement Toolkit, to both monitor and support their federal
facility partners when identifying disproportionably-impacted communities and implementing a
public participation program that meets the specific needs of these communities.
RPMs should consult with their EPA Community Involvement Coordinator (or if a CIC is not
assigned to the site, the Community Involvement Manager) and the Region's environmental
justice coordinator. EPA RPMs should encourage the Military Services to meet the intent of
EPA's Public Involvement Policy, in particular Element 6: "Review and use input and provide
feedback to the public." Additional guidance to support environmental justice may be developed
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by FFRRO in response to the National Environmental Justice Advisory Council's report on
improving stakeholder involvement at federal facilities.
5 EPA's Role at BRAC I - IV Installations
As mentioned earlier, cleanup at BRAC I - IV installations was addressed through the Fast Track
Cleanup Program under President Clinton's Five Point Plan. The following identifies EPA's
continuing responsibilities at BRAC I - IV Fast Track locations. Please also see Appendix A
for more detailed information regarding Regional Management Responsibilities, Regional
Project Manager Responsibilities, and Accountability for BRAC I - IV Resources.
5.1 BRAC Cleanup Teams (BCTs)
Environmental experts from EPA, DoD, and the applicable State3, working as a BRAC Cleanup
Team (BCT), have been assigned to BRAC I - IV bases. EPA's goal remains to place decision
making authority at the lowest practical level. Where possible, EPA RPMs should be
empowered to make decisions to expedite the cleanup and property transfer process. The teams
have conducted "bottom-up" reviews of the environmental conditions of the base (i.e.,
environmental baseline surveys), with the objective of accelerating cleanup while integrating
base reuse priorities.
EPA's Regional representative on the BCT is the Remedial Project Manager (RPM). The RPM
designated for each BRAC I-IV cleanup location is expected to have the substantive
responsibilities and implementation authorities for EPA's technical assistance, guidance, and
oversight of environmental cleanup programs related to the transfer of the installation's real
property. The RPM should have experience and grade commensurate with the senior-level
responsibilities of the position.
The EPA RPM should be supported by a team of EPA experts that will work at BRAC I-IV
locations, depending upon the needs at a particular location at a given time. The EPA support
team typically will include experts in such areas as hydrogeology, health risk assessment and
toxicology, ecological risk assessment, engineering, community relations, field work support
(sampling and site assessment), and clean parcel identification. Administrative, management,
NEPA, and legal support also may be necessary to address regulatory complexities and policy
issues.
The EPA RPM and the support team should be empowered to make decisions locally to the
maximum extent possible. EPA has delegated BRAC related authorities to the Regional
Administrators (RAs), i.e., delegation 14-39, "Concurrence on Identification of Uncontaminated
Federal Real Property," and 14-40, "Evaluation of Approved Remedial Design". The RAs have
in turn re-delegated the authorities to lower levels within their organizations. Should the need
arise, the EPA RPM and support team are empowered to raise issues immediately to
3 In some cases the state may choose to not participate in the BCT or the RAB. This does not change EPA's
participation under the BCT framework. However, EPA cannot replace the State if it is the lead regulator for the
installation cleanup. EPA should continue to work with the State, as necessary, to facilitate cleanup and property
transfer.
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senior EPA Regional or Headquarters (FFRRO) management for resolution as
appropriate. When elevating an issue to Headquarters, the regions should work through their
FFRRO regional coordinator.
Traditionally the Military Service's representative on the BCT has been either physically present
at the installation to see day-to-day activities, or located relatively nearby. However, this is
changing as fewer DoD Base Environmental Coordinators (BECs) are physically present onsite
due to Service management and organization changes, and where DoD has privatized the cleanup
at a facility using performance based contracting. When presented with this situation, the EPA
RPM should maintain communication with the DoD BEC, and, as a member of the BCT, try to
work through issues that may arise where a BEC is not onsite. In instances where a performance
based contractor is conducting the cleanup activities and the BEC is no longer onsite, EPA RPMs
should consider OSWER's guidance, "Performance Based Contracting by Other Federal
Agencies at Federal Facilities," (OSWER Guidance 9272.0-21) in evaluating how to best
approach this situation.
5.2 Management Framework for BRACI-IV Installations
Beginning in FY 1994, DoD provided EPA, via an interagency funding agreement, with
reimbursable resources to support EPA's Fast Track Cleanup Program activities. For FY 2006,
EPA's BRAC program has 75.5 reimbursable full time equivalents (FTE) to support EPA work
at 73 BRAC I - IV installations. An interagency funding agreement has continued for specified
BRAC I - IV installations through Memorandums of Understanding (MOU) between DoD and
EPA. The MOU in place for fiscal years 2006 through 2008 provides DoD resources for EPA
support at selected BRAC I - IV installations only (excludes BRAC V installations).
In FY 2006, the majority (96%) of EPA's BRAC I - IV reimbursable FTE are allocated to the
Regions. EPA uses BRAC funding for EPA personnel that participate on BCTs as either the
EPA designated team member or as technical experts and support personnel that assist the teams.
BRAC funds can be used for contractor support by EPA only if the Military Service approves the
use of funds for that purpose. Regions should work with FFRRO if BRAC funding is required
for contractor support at BRAC installations.
In fulfilling budgetary obligations to DoD and others regarding site and non-site specific BRAC
charges, the Office of the Chief Financial Officer (OCFO) Cincinnati Finance Center provides
support to EPA's BRAC program. EPA utilizes site-specific charging to track resource
utilization directly to actual sites and site work. EPA also tracks non-site work that is performed
to support the BRAC I - IV program. Accounting for EPA use of DoD's BRAC funds is required
by the nature of BRAC appropriations and the BRAC legislation. EPA's Office of the Chief
Financial Officer, Office of Financial Services, and Cincinnati Finance Center invoices DoD on
actual program expenditures incurred by EPA.
As the signatory and executing agent for the reimbursable agreement with DoD, the Assistant
Administrator for OSWER will rely on Regional Administrators/Deputy Regional
Administrators, and, as the primary focus of the EPA BRAC resources, the Regional Superfund
(Regions 1-5, 7-10) or RCRA (Region 6) Division Directors (or equivalent) to ensure
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reimbursable costs are accurate and appropriate. FFRRO will periodically run financial reports
and ask the Regional Waste Management Division Directors (or equivalent) to verify the data.
The payroll verification process will consist of:
Certifying those individuals charging to BRAC are authorized to do so;
Verifying the charges in the financial system are correct;
Providing a detailed explanation stating the type of work that was performed by
individuals charging to the non-site category; and
Submitting a written statement to FFRRO's Director, explaining the course of action
planned for correcting any incorrect charges (memo must be signed by the Waste
Division Director (or equivalent)).
Please see Appendix A for additional responsibilities related to BRAC I - IV resource
accountability.
5.3 BRAC Quarterly Reports
EPA regions are required to provide to FFRRO regular program activity reports (called BRAC
Quarterly Reports) every three months that describe the progress of work at all BRAC I-IV
installations which are receiving resources from DoD and/or EPA has an active role at the
installation. The format and information required in these reports is specified in the October
2005 MOU negotiated between EPA and DoD (see Appendix E). These reports are generated by
the EPA Regional BCT personnel and are provided by EPA Headquarters to DoD/OSD and each
of the Military Services.
5.4 Future work at BRAC I-IV sites
EPA has been working at many BRAC I-IV sites for more than ten years at the time this
guidance was written. Cleanup and property transfer work has been completed at some
installations and is nearly complete at many other installations. As work comes to a close,
especially at BRAC I-IV installations where DoD no longer provides resources, regional RPMs
assigned to these installations will need to be reassigned where needed within the region.
Regions should gauge their annual authorized FTE allocation from DoD, and, when appropriate,
begin to plan for the loss of FTE funding from DoD.
6 EPA's Role at BRAC V Installations
Because DoD will be altering its approach at BRAC V installations from what has been used at
BRAC 1 - IV installations, this section addresses EPA's role and expectations at BRAC V
installations. Two major paradigm shifts between these two groups of BRAC installations are
the creation of BRAC Cleanup Teams (BCTs) and the resource framework used to support EPA
activities at BRAC V installations.
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6.1 BRAC Cleanup Teams (BCTs) at BRAC Vinstallations
DoD has stated it will not be instituting a program similar to the BRAC I-IV "Fast Track
Cleanup Program" for BRAC V installations. A central tenant to the Fast Track Cleanup
Program was creation of BRAC Cleanup Teams. While BCTs in name will not be formed as
they were, EPA RPMs already work actively with their DoD and State counterparts at NPL
BRAC V facilities. This relationship should continue and be furthered as these informal cleanup
teams work to address cleanup and property transfer issues that arise from the implementation of
BRAC V actions. However, unlike the BCT concept formed for BRAC I - IV installations,
dedicated EPA support personnel (e.g., hydro-geologist, risk assessors, etc.) will not be in place
for BRAC V sites. In addition, an RPM may be able to dedicate the attention in the same
manner as at the prior BRAC I-IV bases.
6.2 Resource Framework
EPA fully supports DoD's efforts to accelerate the cleanup and property transfer process for
BRAC installations in order to mitigate the economic effects of BRAC actions to the local
community. As stated in the EPA FY 2007 Budget Request to Congress, EPA expects the DoD
to provide resources to help facilitate our involvement at BRAC V installations, much like it
does for BRAC I - IV installations. However, at the time this interim guidance was drafted, no
arrangement has been put in place to provide additional resources to meet the increased demands
on EPA. Until additional resources are made available, EPA Regions should continue to work at
BRAC V installations within their existing budgets. This means that Regional programs may not
be able to respond to certain request or delays may occur in responding to the requests.
Military Services have indicated they may be willing to enter into site-specific reimbursable
agreements at particular NPL locations. Where the Region feels it will need additional resources
to address BRAC activities at a site in a timely and efficient manner, Regions should define their
workload as precisely as possible and work with FFRRO to approach the affected Military
Service. Regions should identify resource needs in addition to resources currently allocated to
the facility. Should no agreement be reached with the Military Service, the Regional Superfund
or Waste Division Director and FFRRO's Office Director should jointly inform the OSWER
Assistant Administrator of the situation and determine how to proceed.
EPA's priority for the Superfund Federal Facilities Response Program is to address cleanup at
NPL installations (regardless of BRAC status) and fulfill statutory requirements related to
property transfer and BRAC requirements (e.g., uncontaminated parcel determinations, NPL
early transfers). EPA's oversight and activities at non-BRAC NPL installations should not be
minimized or delayed due to NPL BRAC V installation requirements in the Region.
The EPA's priority for BRAC V are the installations listed on the NPL, however EPA may be
requested to provide assistance at non-NPL BRAC V installations. Where there are not
sufficient resources available to address the request, these situations should be handled in the
same manner as described for NPL sites above. Of course, Regions should meet their statutory
obligations at non-NPL bases.
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6.3 DoD Policy and Guidance
DoD issued the "Base Redevelopment and Realignment Manual" (BRRM) for implementing
BRAC V actions and remaining incomplete BRACI - IV actions on March 1, 2006. This
manual supersedes the 1997 Base Reuse Implementation Manual (BRIM).
The BRRM is primarily for DoD personnel who are responsible for implementing BRAC
actions. The Manual incorporates DoD's requirement to seek fair market value for certain
property conveyance methods, discusses how DoD envisions early transfer and cleanup
privatization to occur, and defines expectations regarding regulator involvement in the cleanup
and property transfer process at BRAC installations. EPA RPMs should be aware of this Manual
and familiarize themselves with the processes DoD will be undergoing to implement BRAC
actions and conduct cleanup and property transfer.
7 EPA Responsibilities for Cleanup and Property Transfer at BRAC
Installations (Rounds I - V)
Listed below are areas where EPA RPMs typically will have a role as BRAC actions are
implemented. While many of the activities discussed below have been completed for BRAC I -
IV installations, this section outlines where and in what manner EPA may be involved for all
BRAC installations.
7.1 Environmental Condition of Property (ECP) Reports
DoD guidance states that the Military Services should prepare Environmental Condition of
Property (ECP) Reports to evaluate the condition of BRAC property.4 DoD's BRRM indicates
that the ECP will be provided to EPA as information only. ECPs are not the same as the
Environmental Baseline Surveys (EBSs) prepared at most BRAC I - IV installations. EPA
RPMs and support personnel should review ECP reports to ensure their completeness. Where
ECPs are submitted to support uncontaminated parcel determinations (see next section), Regions
should review the reports to ensure they are sufficient pursuant to the criteria in CERCLA 120(h)
(4), As needed, the Region should provide comments to DoD on the basis and findings of the
reports in an effort to make them as complete and accurate as possible for the public. EPA has
no statutory or regulatory obligations regarding ECPs.
7.2 Uncontaminated Parcel Determinations
Uncontaminated parcel determinations required by CERCLA section 120(h) (4) for BRAC V
installations on the NPL must be made, and concurred on by EPA, no later than 9 months after
submittal to the base transition coordinator for a specific use proposed for all or a portion of the
real property of the installation, or 18 months after the date of approval of base closure
recommendations. The latter would be no later than May 9, 2007. The requirement to identify
the uncontaminated parcels and receive regulator concurrence on the determination they are
4 DoD Base Redevelopment and Realignment Manual (BRRM), March 1, 2006, page 100.
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uncontaniinated exists regardless of whether the Military Service has provided the determination
by the May 9,2007 date.
Uncontaminated parcels generally involve land "on which no hazardous substances and no
petroleum products or their derivatives were known to have been released or disposed of."5 The
statute requires the review of specified sources of information by the Military Service, and
current DoD guidance directs the Military Service to forward a "Request for Identification of
Uncontaminated Property" to the appropriate regulator pursuant to the criteria in CERCLA
Section 120(h)(4).6 The Military Services may also submit an ECP report to support this
identification and determination. The statute provides that EPA must concur on DoD's
determinations at properties listed on the NPL. Regions should follow the March 27,1997 EPA
guidance entitled, "Military Base Closures: Revised Guidance on EPA Concurrence in the
Identification of Uncontaniinated Parcels under CERCLA Section 120(h)(4)" when
reviewing uncontaniinated parcel determinations for BRAC installations and supporting
documentation. The guidance discusses EPA's concurrence role for parcels identified as
Uncontaminated where a de minimis quantity of hazardous substances or petroleum products has
been stored, released or disposed of, but there is no indication that the activity associated with
the storage, release, or disposal has resulted in a threat to human health or the environment (e.g.,
oil stains in parking lots).
Regions have been delegated the authority to make these determinations by section 14-39 of the
EPA Delegations Manual. As required by the Delegation. Regions must notify the Director of
the Federal Facilities Restoration and Reuse Office after exercising this authority.
Uncontaminated parcel determinations should be recorded in the Comprehensive Environmental
Response, Compensation, and Liability Information System (CERCLIS) Database as well to
ensure correct reporting as part of OSWER's Land Revitalization measures.7
7.3 Remedy Decisions at BRA C Installations
Cleanups conducted under CERCLA at BRAC installations should meet the requirements of the
statute and the NCP. The identification of a preferred alternative and final selection of a remedy
is derived from consideration of nine evaluation criteria in three major steps, as described in the
NCP (Sec. 300.430(f)(l)(ii)(E)), as well as appropriate Superfund policy and guidance. For
installations listed on the NPL, regardless of BRAC status, EPA jointly selects remedies that
address releases of hazardous substances, pollutants or contaminants. In cases where EPA
disagrees with the remedy proposed by DoD for BRAC NPL sites, EPA has the authority to
select the remedy. Particularly with respect to properties leaving federal ownership, custody, or
control, EPA regions should carefully consider the Directive, "Land Use in the CERCLA
Remedy Selection Process" (OSWER Directive No. 9355.7-04 May 1995) when analyzing the
appropriateness of remedy decisions. As stated in the Directive, it is EPA policy that reasonably
anticipated future land uses (RAFLUs) be considered as part of the process for selecting response
actions at a site, and that possible changes to anticipated land uses should be evaluated, when
appropriate, throughout the cleanup process. Other federal agencies carrying out response
5 CERCLA Section 120(h)(4)(A)
6 DoD Base Redevelopment and Realignment Manual (BRRM), March 1,2006, page 105.
7 See the 2006/2007 Superfund Program Implementation Manual (SPIM), page D-16
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actions pursuant to CERCLA (and their respective statutory authorities) should do so in the same
manner and to the same extent as any non-governmental entity.
For BRAC installations, EPA expects that for facilities on the NPL reasonably anticipated future
land use should be developed based on input from the LRA and other stakeholders. While past
land uses may inform this determination, they are not the only factor that should be considered.
The LRA's redevelopment plan for the property, if it is available at the time remedy decisions
are being made, may provide useful information and if appropriate, should be considered in
making remedy decisions. If a final redevelopment plan is not available, it may be appropriate to
seek input from the LRA and other stakeholders as to the types of uses they are considering for
the property. The Region has a responsibility to advise the LRA and other stakeholders that in
some situations the anticipated future property use may not be compatible with the type and
amount of contamination left by the response action.
Where a LRA redevelopment plan is not available and minimal input is received from the LRA
and/or community regarding anticipated future use of property, the disposal decision from the
DoD's NEPA analysis should be considered in evaluating the RAFLU for BRAC installations.
While using this may conflict in some situations with DoD's policy preference that cleanup
decisions be based on current use of the property, regions should work with their counterparts in
the Military Services, and the state regulators, to carefully evaluate the RAFLU in the remedy
decision making process.8 An integral part of achieving the Superfund program's mission of
protection of human health and the environment is ensuring that sites are cleaned up to be
protective for their use in the future.
7.3.1 Reopening Remedy Decisions
Many BRAC V installations have cleanup activities completed due to ongoing
environmental programs at these installations over the past 25 years. Many installations
already have their remedies decided and either fully constructed or in process, and some
facilities have been deleted or had parcels deleted (i.e., partial deletions) from the NPL.
However, the context in which these response action decisions were made was as an active
military installation that was expected to continue in perpetuity as a military installation.
The BRAC action changes that context for facilities that are closing or that may have
excess property through realignments. This may mean that assumptions regarding
reasonably anticipated future land use (RAFLU) may no longer be valid and that RAFLU
may need to be reexamined.
Considering the possibility for different future land uses due to BRAC actions that may not
be compatible with existing remedies at NPL BRAC sites, regions should examine
proposed property transfers to ensure protection of human health and the environment.
Generally, the Military Service and transferee or LRA should negotiate terms to address
this situation. In some instances, a contract (e.g., an Environmental Services Cooperative
Agreement) may govern relative roles and responsibilities conducting additional response
work that may be needed.
8 DoD policy preference for uses associated with remedy selection can be found in the DoD Base Redevelopment
and Realignment Manual (BRRM), March 1,2006, page 103-104.
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Given the role of the LRA in the BRAC process, its redevelopment plan should receive
strong consideration by EPA. The Agency will also consider input from other stakeholders
regarding the future use of BRAC property. However, the LRA's or stakeholders final
redevelopment plans may not align with a parcel's current use. Where institutional
controls and/or additional response work is required at NPL sites, EPA regions should
evaluate whether a note to the file, an Explanation of Significant Difference (BSD) or a
ROD Amendment is needed (see OSWER's "Guide to Preparing Superfund Proposed
Plans, Records of Decision, and Other Remedy Selection Decision Documents").
EPA's Strategy to Ensure Institutional Control Implementation at Superfund Sites
provides guidance for evaluating the implementation of past institutional controls
decisions, undertaking corrective measures, and the administrative steps that may be used
to select and/or document changes to the selected remedy. In addition, where institutional
controls are in place or will be put in place, Regions should consult the Draft Guidance
"Institutional Controls: A Guide to Implementing, Monitoring and Enforcing
Institutional Controls at Superfund, Brownfields, Federal Facility, UST and RCRA
Corrective Action Cleanups" (February 19,2003) and the Federal Facilities Land Use
Control ROD Checklist (1C Checklist) to determine if those ICs are adequate to protect
human health and the environment at a BRAC installation after it has been transferred.
Where additional response work is needed, a Military Service may elect to perform it or
negotiate with the transferee to conduct it. Where additional response actions will be
conducted by the transferee at an NPL site, EPA may enter into an enforceable agreement
(e.g., Administrative Order on Consent) with the transferee. However, the transferee does
not replace DoD as a responsible party for the contamination, and as long as certain
conditions are met, may not be considered a potentially responsible party (see section
7.10). Within a Region's available resources they should work with any transferee who is
willing to conduct additional cleanup for facilities based on anticipated future use of the
property. This may mean that a region will need to seek resources from either DoD and/or
the transferee to cover oversight costs and other site work beyond the Region's
appropriated resources. Additional work and documentation may involve ROD
Amendments or ESDs to implement different cleanup requirements from those already
undertaken by the Military Service. Where such a situation does arise, the Region must
immediately notify their regional coordinator in FFRRO.
7.4 Requests for Early Transfer of Contaminated Property
In order to conduct an early transfer of property, DoD must request a deferral of the covenant
required by CERCLA section 120(h)(3)(A)(ii)(I) ensuring that all remedial action necessary has
been completed prior to transfer by the federal government. For NPL installations, EPA and the
Governor of the State must approve such requests (at non-NPL property only the Governor is
required to approve a covenant deferral request (CDR)).
Regions should follow "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)" when reviewing covenant deferral requests from other
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federal agencies. Where institutional controls are or will be required as part of the early transfer,
Regions should also consult the "Institutional Controls and Transfer of Real Property under
CERCLA Section 120(h) (3) (A), (B) or (C) Guidance." DoD often transmits the information
used by EPA to review and approve an early transfer through a Finding of Suitability for Early
Transfer (FOSET). EPA's guidance discusses the requirements found in CERCLA 120(h) (3)
(C) and how they are related to EPA approval of the FOSET and deferral of the covenant. Every
effort should be made to review these requests in a timely and efficient manner due to the
multiple parties and agreements that are often involved in such situations.
The delegation of authority to Regions for approving covenant deferral requests can be found at
section 14-41 of the EPA Delegations Manual. Per this delegation, FFRRO must be notified
prior to exercising this authority, at the time the Federal agency requesting deferral provides
notice of the proposed transfer as required by CERCLA section 120(h)(3)(C)(i)(III). Written
notification to FFRRO from the appropriate Regional Program Division Director is required
prior to exercising this authority, as is a copy of the approval letter sent to the requesting Federal
agency after the authority is exercised.
7.4.1 Early Transfers, Cleanup, and Privatization
Where early transfers occur, response action remains to be completed. There are typically
two scenarios which can result when an early transfer is requested. In the first scenario, the
deed to the property is provided to a new owner; however the Military Service responsible
for the cleanup will continue to conduct the cleanup until it is completed. Regions should
try to ensure that the cleanup will not be delayed due to transfer of the property to a third
party, and that the transferee's use of the property will be consistent with any remedies
and/or controls implemented at the site at the time of transfer.
Another possible scenario when property transfer occurs prior to cleanup completion is the
transferee takes the deed to the property and also agrees to complete cleanup activities.
This is commonly referred to as "privatization."
At the time of this guidance, EPA has participated at several NPL installations in DoD's
efforts to privatize cleanup9. However, none of these attempts has been successfully
completed. As learned from attempts to date, there are several issues that come up in
privatization negotiations. These are discussed more fully below.
Federal Facility Agreements (FFAs): At NPL installations, FFAs may need to be revised
to reflect the arrangement between the transferee and the Military Service for that portion
of the cleanup which will be undertaken by the transferee. However, FFAs should contain
a "comeback" clause if the transferee fails to perform adequately, under which the Military
Service would come back and continue the cleanup. Regions should work with the Office
of Enforcement and Compliance Assurance (OECA) Federal Facilities Enforcement Office
9 BRAC I - IV installations listed on the NPL where privatization efforts have been attempted to date are: South
Weymouth Naval Air Station (Region I); Alameda Naval Air Station (Region 9); McClellan Air Force Base
(Region 9); Fort Ord (Region 9).
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(FFEO), the OECA Office of Site Remediation and Enforcement (OSRE), and FFRRO
regarding these and other potential FFA changes.
In addition, Services will reexamine the properties and may discover previously unknown
sites, or identify sites it did not address previously under an FFA. Regions should evaluate
these sites for inclusion in an FFA. EPA's policy preference is to include such sites in the
FFA.
RCRA Corrective Action Permits and/or Orders: In some cases, there may be a RCRA
permit or order issued for the facility by the state or EPA. In early transfer scenarios, the
new owner(s) of the property may need to agree to sign on to the permit and/or corrective
action order for ongoing corrective action. There have been some examples where a
Military Service has sought to terminate a permit and have EPA (or a State) issue new
permit(s) or order(s) to transferees.10 Regions will need to evaluate the best approach (e.g.,
permit modification, new administrative order) given the situation at the facility and
resource requirements for the various alternatives.
In addition, Services will reexamine the properties and may discover previously unknown
sites, or identify sites it did not address previously under a permit/order. Regions should
evaluate these sites for inclusion in the permit/order. EPA's policy preference is to include
such sites in the permit/order.
Cleanup Agreements with Non-Liable Third Parties: Where a third party who is not a
PRP for the site is willing to conduct the cleanup on behalf of the Military Service, EPA
has considered using an enforceable agreement (e.g., Administrative Order on Consent
(AOC)) between EPA and the party conducting the cleanup. The cleanup agreement
should ensure that response action will not be delayed as a result of the transfer.
Financial Assurance: At most Superfund non-federal sites, responsible parties who enter
into RD/RA Consent Decrees (CDs) with EPA normally are required by the terms of the
CD to provide adequate financial assurance for completion of the cleanup at the time they
enter into the CD. In a privatization scenario, the third party taking over responsibility for
the cleanup is not necessarily a responsible party as defined by CERCLA, and may not be
entering into a CD. However, in appropriate circumstances EPA may enter into an
enforceable agreement with the party conducting the work, which is most likely to be in the
form of an AOC. As part of the enforceable agreement, the third party should still provide
adequate financial mechanisms to protect work continuity and assure completion of the
10 The Naval Activity Puerto Rico (NAPR), formerly Naval Station Roosevelt Roads, facility was directed to be
closed by the 2004 Defense Appropriations Act in accordance with procedures contained in the Defense Base
Closure and Realignment Act of 1990. The facility is a not listed on the NPL, but had a RCRA Permit for storage of
hazardous waste in six container units. EPA is working with the Navy to develop a RCRA 7003 Consent Order to
be signed by the Navy addressing the entire facility, including corrective action sites. The RCRA Consent Order
will include language to terminate the RCRA Permit upon the effective date of the Order, as well as terminate the
Navy's obligations under the Order for portions of the facility sold/acquired by other entities, provided the acquirer
enters into an Order with EPA.
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work". CERCLA section 120(h)(3)(C) requires that the covenant deferral request
submitted by the Military Service contain an assurance that DoD will seek adequate
funding to assure cleanup of the early transfer parcel and a finding that cleanup will not be
unreasonably delayed by the deferral and transfer.
Regions should work with FFRRO, FFEO, and OSRE on what constitutes adequate
financial assurance for a non-federal entity conducting a cleanup at a federal facility
pursuant to a BRAC transfer. Regions also should work with the Military Service in these
situations, as the landholding agency is to provide assurances that the transferee who will
be performing any response action has "the financial capacity to execute environmental
cleanup activity requirements that are known or can reasonably be anticipated based on
current information available,"12
7.5 Post-Construction Completion Requirements
7.5.1 Five-Year Reviews
Pursuant to CERCLA section I21, where hazardous substances, pollutants, or contaminants
have been left in place reviews are to be conducted at least once every five years to ensure
that implemented CERCLA remedies remain protective of human health and the
environment. Regions should follow the "Comprehensive Five-Year Review Guidance"
(OSWER 9355.7-03B-P, EPA 540-R-01-007 June 2001) which addresses Federal Facility
Five-Year Reviews. For NPL sites, DoD should provide its draft Five-Year Review to the
Region for review and comment. In the comments on the draft Five-Year Review, Regions
should inform the Military Service whether they believe the remedy is still protective of
human health and the environment. The Military Service is responsible for taking
appropriate action to address situations where a remedy is no longer protective. This may
include the Military Service entering into an agreement with the transferee to address the
situation.
7.5.2 Operation and Maintenance (O&M)
The NCP, 40 CFR§300.435(f)(l), generally describes O&M as the measures "initiated after
the remedy has achieved the remedial action objectives and remediation goals in the ROD
(Record of Decision), and is determined to be operational and functional, except for
ground-or surface-water restoration actions covered under 40 CFR§300.435(f)(4)."
Remedies requiring O&M may include, but are not limited to, actions that typically require
five-year reviews (e.g., landfill caps; gas collection systems; and ground-water
containment). O&M measures also may include requirements for maintaining institutional
" In many cases, the Environmental Services Cooperative Agreement (ESCA) entered into between the third party
and the Military Service may serve as an adequate financial assurance mechanism. See EPA's Early Transfer
Guidance for additional examples of acceptable forms of the demonstration of financial capacity.
12 See EPA Guidance on the Transfer of Federal Property by Deed Before All Necessary Remedial Action Has Been
Taken Pursuant to CERCLA 120(h)(3) - (Early Transfer Authority Guidance), Section IV.8
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controls. O&M activities often provide an opportunity for remedies to be optimized to
increase their efficiencies and reduce long-term costs.
At all facilities (including BRAC) where DoD is responsible for the remedial action taken
to address releases into the environment of hazardous substances, pollutants or
contaminants, DoD is ultimately responsible for O&M activities being performed. EPA
responsibilities during O&M generally include ensuring reports are submitted, reviewing
reports for required elements, reviewing data (sampling, performance, discharge, etc.),
performing inspections, and helping the Military Service fulfill five-year review
requirements.
7.5.3 OPS Determinations
CERFA amended CERCLA 120(h) (3) to clarify when all remedial action is deemed to
have been taken. Specifically, the amendment added language stating that all necessary
actions have been taken,
"if the construction and installation of an approved remedial design has been completed
and the remedy has been demonstrated to the [EPA] Administrator to be operating
properly and successfully."
A federal agency may provide the required deed covenant 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 before the date of the transfer once a remedial
action has been completely constructed and installed, but before the cleanup objectives
have been met, provided that the federal agency can demonstrate to the Administrator that
the remedial action is "operating properly and successfully" (OPS). OPS demonstrations
are required for most federal deed transfers of real property (i.e., NPL and non-NPL) that
have been contaminated with hazardous substances which exceed the threshold
requirements in the regulations at 40 CFR Part 373. The determination that an action is
operating properly and successfully has been left largely to the discretion of the
Administrator. Regions should refer to EPA's "Guidance for Evaluation of Federal
Agency Demonstrations that Remedial Actions are Operating Properly and
Successfully Under CERCLA Section 120(h)(3)" (August 1996) and the "Institutional
Controls and Transfer of Real Property under CERCLA Section 120(b)(3)(A), (B)
or (C)" for specific guidance on evaluating OPS demonstrations.
The Administrator's authority for evaluating these demonstrations has been delegated to
EPA's Regional offices (see "Evaluation of Approved Remedial Design," Delegation 14-
40). Each Regional office has designated an official with the authority to approve such
demonstrations in support of the federal agency's Section 120(h) (3) covenants. Delegation
14-40 requires Regional Administrators or their delegates to notify the Assistant
Administrator for Solid Waste and Emergency Response or his/her designee after
exercising this authority. Regions should contact the Director of the Federal Facilities
Restoration and Reuse Office with these notifications.
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7.6 Reviewing Findings of Suitability to Transfer (FOSTs)
EPA expects to retain an active role in the review and approval of DoD's findings of suitability
to transfer property. For transfers of uncontaminated parcels at NPL sites, EPA concurrence is
required on the determination that such property is uncontaminated (per CERCLA section 120(h)
(4)). For transfers under CERCLA 120(h) (3) where the Military Service finds that either: 1) no
action is required, or 2) response action is complete, EPA should review the draft POST from the
Military Service and provide comments on its findings. EPA Regions should consult the
"Institutional Controls and Transfer of Real Property under CERCLA Section 120(b) (3)
(A), (B) or (C) Guidance" when reviewing FOSTs for the transfer of federal property under
CERCLA 120(h) (3) (A) that require institutional controls. EPA comments, if unresolved,
should be attached to the POST as unresolved comments. Where the response action is not
complete, the covenant can only be given if EPA accepts the demonstration that remedies are
operating properly and successfully. (See section 7.5.3 for information on OPS demonstrations)
7.6.1 Fed-to-Fed Transfers
Typically, EPA has no explicit authority to review transfer documentation when the
property will be transferred from one federal agency to another, regardless of the status of
cleanup. It is largely up to the two federal agencies involved in the transaction to come to
agreement on who will take responsibility for any remaining cleanup work which remains
to be completed. Absent an agreement between the parties to allocate responsibility for the
contamination, EPA believes that, in accordance with the basic tenant behind CERCLA
that the entity which caused the pollution should be responsible for addressing it, the
landholding agency which owned the property at the time it was contaminated, or whose
activities resulted in such contamination, remains responsible for the contamination.
Although uncommon, fed-to-fed transfers can and do occur where other federal agencies
not originally responsible for the contamination expressly agree to take on that
responsibility.
EPA regional programs may become involved in fed-to-fed transfers when the transfer will
affect a signed FFA or an existing permit/order. The Region will need to work with each
federal agency involved in the transaction to update, or possibly re-negotiate, FFAs or the
permit/order. Regions should work with the Federal Facilities Enforcement Office (FFEO)
when such situations arise.
7.7 Reviewing Findings of Suitability to Lease (FOSLs)
CERCLA 120(h)(3)(B) requires that for all leases entered into after September 30, 1995 at
military installations approved for closure or realignment under a base closure law, the Military
Service leasing the property shall consult with the Administrator of EPA before leasing the
property. The consultation should address whether: 1) the property is suitable for lease, 2) the
uses contemplated for the lease are consistent with protection of human health and the
environment, and 3) there are adequate assurances that the United States will take all remedial
action that has not been taken on the date of the lease.
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EPA and the Department of Defense (DoD) have agreed that the May 18,1996, DoD policy
memorandum, subject: Fast Track Cleanup at Closing Installations, contains recommended
procedures and responsibilities for determining the environmental suitability for leasing property
made available as a result of BRAC I - IV, and this policy should apply to BRAC V installations
until such policy is revised or updated. The recommended procedures in that guidance calls for
regulatory agency participation in DoD's BBS (or ECP) and FOSL development and conclusions.
The procedures should apply to all leasing of property at closing or realigning bases, regardless
of whether the property is part of an NPL site.
7.8 National Environmental Policy Act (NEPA)
DoD is required to follow NEPA requirements during the process of property disposal and
during the process of relocating functions from one installation to another. Under Section 309 of
the Clean Air Act, among other things EPA is required to review and publicly comment on the
environmental impacts of major federal actions that are the subject of Environmental Impact
Statements (EISs). If EPA determines that the action is unsatisfactory from the standpoint of
public health or welfare or environmental quality, it is required by Section 309 to refer the matter
to the Council on Environmental Quality (CEQ).
The NEPA Process
There are three levels of analysis depending on whether and how an action may affect the
environment. These three levels include: categorical exclusion determination; preparation of an
environmental assessment/finding of no significant impact (EA/FONSI); and preparation of an
environmental impact statement (EIS).
At the first level, an action may be categorically excluded from a detailed environmental analysis
if the lead agency has previously defined that action as part of a category of actions which would
not individually or cumulatively have a significant effect on the environment. A number of
agencies have developed lists of actions which are normally categorically excluded from
environmental evaluation under their NEPA regulations. Procedures by other federal agencies or
departments establishing categorical exclusions must provide for extraordinary circumstances in
which a normally excluded action may have a significant environmental effect.
At the second level of analysis, a federal agency prepares a written environmental assessment
(EA) to determine whether or not a federal action would significantly affect the environment. If
the answer is no, the agency issues a finding of no significant impact (FONSI). The FONSI may
address measures which an agency will take to reduce (mitigate) potentially significant impacts
to below the significance threshold. EPA also must include brief discussions on: 1) the need for
the proposal; 2) alternatives as required by NEPA section 102(2) (E); 3) the environmental
effects of the proposed action and alternatives; and 4) a listing of agencies and persons consulted.
If the EA determines that the environmental consequences of a proposed federal action may be
significant, an EIS is prepared. An EIS is a more detailed evaluation of the proposed action and
alternatives. The public, other federal agencies and outside parties are given opportunities to
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provide input into the preparation of an EIS and then comment on the draft EIS when it is
completed.
If a federal agency anticipates that an action may significantly impact the environment, a federal
agency may choose to prepare an EIS without having to first prepare an EA.
After a final EIS is prepared and at the time of its decision, a federal agency will prepare a public
record of its decision addressing how the findings of the EIS, including consideration of
alternatives, were incorporated into the agency's decision-making process.
EPA will in some cases be a cooperating agency in the preparation of NEPA documents where
EPA has a special expertise with respect to an environmental issue or has jurisdiction by law. A
cooperating agency assists the lead agency by participating in the NEPA process at the earliest
possible time; by participating in the scoping process; by assuming, at the request of the lead
agency, responsibility for developing information and preparing environmental analyses
including portions of the environmental impact statement concerning which the cooperating
agency has special expertise; and in making available staff support at the lead agency's request to
enhance the lead agency's interdisciplinary capabilities.
Regional NEPA representatives should be brought into all BRAC-related NEPA issues as early
as possible. Regional representatives should be aware that DoD NEPA analysis will be
conducted according to the following regulations of the host Military Departments:
Department of the Air Force - 32 CFR Part 989
Department of the Army - 32 CFR Part 651 (Army Regulations 200-2)
Department of the Navy - 32 CFR Part 775
Defense Logistics Agency (DLA) - DLA Regulation 1000.22
7.9 RCRA & CERCLA Integration
Many NPL installations subject to CERCLA authority also are covered by RCRA permits and/or
orders. EPA is committed to the principle of parity between the RCRA Corrective Action and
CERCLA program and to the idea that the programs should, generally, yield similar remedies in
similar circumstances. EPA's September 1996 Policy on Coordinating RCRA and CERCLA
Activities, and EPA's December 21, 2005 memorandum, Improving RCRA/CERCLA
Coordination at Federal Facilities, are especially relevant where delays in cleanup and
property transfer at BRAC installations can negatively affect a community's ability to
economically recover from the implementation of a BRAC action.
The facility and the EPA Region or authorized State should agree early on an exit strategy in the
cleanup process that allows a facility, where appropriate, to be released from the RCRA permit
once the cleanup is completed. In addition, if a final remedy will be selected that will leave
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some contamination in place; any issues about how this might affect property transfer after
corrective action is complete should also be addressed up front in the planning process.13
There are several approaches that may be available to reduce inconsistency and duplication of
effort by program implementers. For example, deferral from one program to another is often the
most efficient and desirable way to address overlapping requirements. Another way to
coordinate RCRA and CERCLA might be for one program to accept the decisions made under
the authority of the other program. This is what was envisioned by the RCRA/CERCLA
integration clause in the model EPA/DoD Federal Facility Agreement (FFA) forNPL facilities.14
EPA Regions are encouraged, along with State environmental programs and federal agencies, to
periodically review existing RCRA requirements, permits and corrective action orders or
CERCLA IAG/FFA requirements or other federal response actions under CERCLA but not in an
IAG/FFA. The goal of such a review is to identify opportunities for integrating cleanup
activities and regulatory requirements to ensure the activities proceed as expeditiously and
efficiently as possible.
7.10 Post-Transfer Liability Issues for the Transferee
Transferees of federal property often have concerns regarding their liability at former
government facilities. These concerns have been most prevalent at BRAC installations due to
the nature of BRAC and the transfer of over 450,000 acres of BRAC I - IV property to date.
EPA's policy entitled, "EPA's Policy Towards Landowners of Former Federal Property"
seeks to assure transferees that EPA generally will not consider them liable (with certain
exceptions) for contamination that is the result of DoD, or any federal agency, activities on that
property.
Due to the additional CERCLA liability protections available to certain purchasers of
contaminated property provided through the 2002 Brownfields amendments, an addendum is
being added to the policy mentioned above. The addendum will address how transferees can
qualify for protection from CERCLA liability as bona fide prospective purchasers (BFPPs). To
obtain liability protection, BFPPs must meet the statutory requirements established for this
protection. Transferees should be made aware that these requirements include conducting all
appropriate inquiries (AAI) in compliance with the final regulations promulgated by EPA (40
CFR Part 312) prior to acquiring the property.
Any potential liability protections provided to transferees through covenants received for
property transferred from the United States under CERCLA Sections 120(h)(3) or 120(h)(4) and
the indemnity provided in Section 330 of Public Law 102-484, as amended by Public Law 103-
160, are not changed given the passage of the 2002 Brownfields amendments. The Brownfields
amendments added a potentially useful liability relief provision that may give protection to
transferees of federal property to facilitate the transfer of that property.
13 See EPA Rule 40 CFR Parts 264,265, 270, and 271 Standards Applicable to Owners and Operators of Closed
and Closing Hazardous Waste Management Facilities; Post-Closure Permit Requirement; Closure Process
14 For example, the cleanup actions for a CERCLA operable unit that physically encompasses a RCRA regulated
unit could be structured to provide for concurrent compliance with CERCLA and RCRA closure and post-closure
requirements.
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If transferees of BRAC property are hesitant or concerned about their potential liability, please
share EPA's policy with them.
7.11 CERCLIS Reporting
As at other federal facility NPL sites, Regions are expected to maintain planning and
accomplishment data for all BRAC sites in the Comprehensive Environmental Response,
Compensation and Liability Information System (CERCLIS) Database. Regions should pay
particular attention to data related to property disposal and reuse. This includes, but is not
limited to, entering OPS determinations, acreage related to FOSTs, FOSLs, and FOSETs, and the
protect!veness statements of five year reviews. Please reference the Superfund Program
Implementation Manual (SPIM) for a complete list of the EPA data requirements that apply at
BRAC sites.
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APPENDIX A: EPA Responsibilities Related to BRAG I -IV Installations
Regional Management responsibilities to support BRACI-IV activities may include:
Identifying the RPM and other members of the support team and notifying OSWER of those
individual's names and addresses, as well as any changes
Delegating to the lowest practical level, authority and responsibility for the review and
approval of all environmental restoration activities, including those related to the transfer of
real property within a BRAC Cleanup Plan (BCP)
Ensuring that all RPMs are adequately trained to execute their responsibilities
Assisting DoD in meeting CERCLA community relations requirements and EPA guidance
(OSWER Directive 9230.0-99) for early and meaningful community involvement
Applying the joint DoD/EPA guidelines (and DoD RAB Rule, when finalized) for
establishing and operating RABs. The guidelines emphasize the need for the RAB to be
representative of all community interests. Special care should be taken to consider
community diversity and environmental justice.
Ensuring that resources (e.g., technical, legal and community involvement) are available to
the RPM and developing a means for ensuring that resources allocated are being used only
for Fast Track Cleanup locations
Providing regular reporting to OSWER, including timely elevation of issues of national
importance
Assisting FFRRO and DoD, where requested, in developing national policies and guidance
Specific RPM responsibilities (with EPA support team assistance as appropriate) for
successfully facilitating and expediting cleanup and property transfer at BRAC I-IV
installations may include the following:
Providing assistance to DoD, and to the states, in implementing all environmental cleanup
programs related to closure in an expeditious and cost effective manner in accordance with
the BCP
Supporting up-front planning and scoping
In conjunction with the other members of the BCT, conducting a "bottom-up" review of the
environmental programs and developing and updating the BCP, as appropriate
Scoping and reviewing documents, such as the sampling and analysis plan, baseline risk
assessment, the Remedial Investigation/Feasibility Study, proposed plan, record of decision,
remedial design, remedial action plan, study and sampling data
Determine appropriate cleanup and abatement actions jointly with DoD and state BCT
members
Supporting the NEPA review process, where appropriate
Assisting DoD in meeting CERCLA community relations requirements and EPA guidance
(OSWER Directive 9230.0-99) for early and meaningful community involvement.
Participating as the EPA representative on the Restoration Advisory Board, reviewing
environmental matters and the impact that contamination and cleanup may have on property
reuse
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Coordinating and exchanging cleanup and reuse information, in conjunction with the BCT
members, with the Local Redevelopment Authority (through the Base Transition
Coordinator, where appropriate)
Evaluating and providing timely recommendations and guidance to EPA Regional
management to expedite approval/concurrence regarding:
1. DoD proposals for changes to existing cleanup agreements, orders, and other
environmental procedures to achieve timely and cost effective cleanup
2. Proposed Plans and Records of Decision for cleanup actions under CERCLA
3. Decision documents for corrective actions related to cleanup under applicable state
laws, regulations and programs
4. RCRA corrective action selections and preparation of statement of Basis/Final
Decision and Response to Comments Summary
5. Covenant deferral requests, where the Military Service is requesting the transfer of
property prior to the completion of all response action (early transfers)
Working with DoD and the State participants on the BCT to collectively formulate, review,
and update components of:
1. The installation's Environmental Baseline Survey (or Environmental Condition of
Property (ECP) Report)
2. Uncontaminated parcel determinations under CERFA, and
3. Finding of Suitability to Lease and Finding of Suitability to Transfer to accelerate
revitalization through reuse
Reviewing construction requested by lessee with the BCT and ensuring that such
construction will not interfere with the environmental cleanup program
Reviewing demonstration by DoD that remedy is operating properly and successfully
The above list is not exhaustive, nor does the order indicate any kind of ranking or priority.
Accountability for Resources
The following information is provided to all EPA personnel involved with EPA BRAC program
administration, to ensure appropriate use and management of the DoD reimbursable resources.
1. BRAC I - IV Activities: BRAC I - IV activities include those detailed in this guidance and
the current MOU, such as: accelerating the identification of uncontaminated parcels under
CERFA; development of BRAC Cleanup Plans; promoting community involvement in
cleanup decision-making; preparing and reviewing site documents; studying and sampling
field data; NEPA review and analysis; assisting DoD or states with cleanup issues; support
activities related to the performance of the EPA personnel participating in BRAC I - IV
cleanup, etc. BRAC activities are outlined in the joint EPA/DoD Memorandum of
Understanding (MOU) signed on October 5, 2005, and, subsequent memorandums and
guidance related to EPA BRAC resources.
2. Reimbursable FTE: To ensure the Superfund Federal Facilities Response Program does not
exceed its reimbursable FTE ceiling, changes to installation-specific FTE levels must first be
approved by FFRRO. Regional FTE requirements are re-evaluated annually, and all
unfunded reimbursable FTEs are returned to Headquarters. Other key points:
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BRAC reimbursable FTE must be used only for EPA staff and related cost associated
with BRAC activities at designated BRAC I - IV installations, unless the Military
Service approves otherwise (e.g., privatization). A list of the 107 installations
originally designated as "Fast Track" (FT) can be found in Appendix B.
The current MOU (signed October 2005) provides the flexibility of shifting resources
from within ones own budget, but prior approval from headquarters is required and
the overall Military Service FTE level must remain unchanged.
3. Financial Accountability: As the signatory and executing agent for the reimbursable
agreement with DoD, the Assistant Administrator for OSWER will rely on Regional
Administrators/Deputy Regional Administrators, and, as the primary focus of the EPA
BRAC resources, the Regional Superfund (Regions 1-5,7-10) or RCRA (Region 6) Division
Directors (or equivalent) to ensure reimbursable costs are accurate and appropriate. FFRRO
will periodically run financial reports and ask the Regional Waste Management Division
Directors (or equivalent) to verify the data. The payroll verification process will consist of:
Certifying those individuals charging to BRAC are authorized to do so;
Verifying the charges in the financial system are correct;
Providing a detailed explanation stating the type of work that was performed by
individuals charging to the non-site category; and
Submitting a written statement to FFRRO's Director, explaining the course of action
planned for correcting any incorrect charges (memo must be signed by the Waste
Division Director (or equivalent)).
4. Monitoring BRAC Resources: FFRRO's approval is required on all reprogramming
documents submitted to the Office of Budget for approval. The EPA's Financial Data
Warehouse has proven to be a useful tool along with other financial systems for quickly
monitoring how BRAC resources are being utilized.
5. BRAC Program Elements (PE): Over the years, various program elements have been
assigned to the BRAC I - IV program. The following program codes are needed for pulling
historic data:
RS4Y9A (BRAC I funding - expired);
RS5Y9A (BRAC II funding - expired);
RP9Y9A (BRAC III funding - expired);
RY6Y9A (BRAC IV site funding - expired), and RS6Y9A (non-site funding -
expired);
50109DB4 (BRAC IV site funding - expired), and 50109DBN (BRAC IV non-site
funding - expired);
302D41CB4 (BRAC IV site iunding - established in FY 2004), and 302D41 (BRAC
IV non-site funding - established in FY 2004).
6. Charging to BRAC Site and Non-Site Accounts Appropriately: Personnel expenses,
travel, and other program costs should be accurately recorded and, where appropriate, site-
specific charging should be done. BRAC site-specific charging should be used to fund
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7.
8.
9.
personnel costs, travel, training, site related equipment, protective clothing, and assistance at
a designated BRAC I - IV installation. BRAC non-site specific charging should be used for
general BRAC program costs associated with administrative support and equipment, and may
include telephones, computers, and other equipment necessary to support the BCTs. EPA
and DoD senior management made a commitment to minimize overhead costs in the overall
BRAC cleanup program; therefore, cost to the non-site category should be applied
judiciously.
No more than 30% of a Region's BRAC allowance can be used for non-site
specific use without receiving prior approval from FFRRO. For Regions with
more than 10 reimbursable FTE, the expectation is that this percentage will be
considerably less given economies of scale.
Personnel, travel, equipment and other expenses should be charged directly to the
site-specific accounts established for these installations. (For example, if a
computer is purchased specifically for an EPA staff person assigned to one or two
installations exclusively, then the costs of that computer should be charged to the
installation-specific accounts in an appropriate proportional manner.)
This procedure should also be applied for other costs such as annual and sick
leave, training, etc. supervisors, attorneys and technical experts that work at
numerous bases should make every effort to account for their time based on the
specific installations they are working with. (For example, an attorney that
spends three hours one day reviewing documents related to site "XYZ" should
charge those three hours to the installation-specific "XYZ" account on his or her
time sheet.)
It is recognized that EPA personnel also work on non-site specific activities that
provide benefits to the BRAC I - IV accelerated cleanup program. (For example,
a Regional representative who responds to EPA Headquarters' requests to review
DoD guidance documents or is working on a crosscutting issue that concerns a
dozen or more installations, should charge his or her time to the non-site account.)
Where a Military Service provides extra FTE for site work, e.g. privatization, the
expectation is that 100% of those FTE go towards the site.
Enforcement Actions: BRAC resources cannot be used to fund enforcement actions.
Modifying permits, existing orders, or Federal Facility Agreements (FFAs) to accommodate
reuse is not considered an "enforcement action" for the purposes of this guidance.
Contractor Support: BRAC resources cannot be used to fund contractor support, unless the
work is supporting DoD's privatization effort, and DoD has granted the EPA permission to
use the funds for such an action. Language regarding contractor support was inserted into the
current EPA/DoD MOU (signed October 5, 2005), which eliminates the need for separate
Regional privatization agreements.
Billing Statements: Cincinnati Finance will provide, at a minimum, quarterly billing
statements to DoD. The financial reports must comply with the financial management
requirements provided to EPA by the Army in order to maintain accountability of funds.
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Regions should review their financial records quarterly to ensure the data HQ provides to
DoD is current.
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APPENDIX B: BRAC1 - IV Sites Designated as "Fast Track" Locations
Please note that these locations reflect EPA participation through the life of the program, and
does not reflect current EPA participation at all of these locations.
REGION 1
Site Name
Loring Air Force Base
Fort Devens
Materials Technology Laboratory (USARMY)
South Weymouth Naval Air Station
Pease Air Force Base
Davisville Naval Construction Battalion Center
Army Engine Plant/Stratford
REGION 2
Site Name
Fort Dix (Landfill Site)
Griffiss Air Force Base (I I AREAS)
Plattsburgh Air Force Base
Seneca Army Depot
Fort Monmouth # I
Military Ocean Terminal (Landfill)
US Naval Air Warfare Center/Trenton
Fort Totten
Naval Station NY
Fort Buchanan
REGION 3
Site Name
Fort George G. Meade
Letterkenny Army Depot (PDO AREA)
Letterkenny Army Depot (SE AREA)
Naval Air Development Center (8 WASTE AREAS)
US Army - Fort Ritchie
USN Naval Surface Warfare Center-White Oak
Defense Personnel Support
USN Philadelphia Naval Shipyard
Suffolk Naval Communication Area Master-Driver
USA Cameron Station
USA Fort Pickett
USA Vint Hill Farms Station
USA Woodbridge Research Facility
NPL Status
Final
Final
Final
Final
Final
Final
Non-NPL
NPL Status
Final
Final
Final
Final
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
NPL Status
Final
Final
Final
Final
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
BRAC Round
2
2
I
4
I
2
4
BRAC Round
4
3
3
4
3
4
3
4
I
4
BRAC Round
I
4
4
2
4
4
3
2
3
I
4
3
2
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REGION 4
Site Name
Homestead Air Force Base
USN Air Station Cecil Field
Memphis Defense Depot (DLA)
USA Fort McClellan Army Garrison
USN Orlando Training Center
USA Lexington Blue Grass Depot Activity
USN Naval Ord.
Naval Shipyard - Charleston
USAF Myrtle Beach AFB
USN Naval Air Station Memphis
REGION 5
Site Name
Chanute Air Force Base
Savanna Army Depot Activity
Wurtsmith Air Force Base
Rickenbacker Air National Guard (USAF)
O'Hare Air Reserve Facilities
US Army Fort Sheridan
US Navy Glenview Naval Air Station
US Army Jefferson Proving Ground
US Army Soldier Support Center
US Navy Avionics Center
USAF Grissom AFB Alert Facility
US Air Force K 1 Sawyer AFB
US Army Tank Automotive Command
Newark Air Force Base
US DoD Defense Electronics Supply Center
REGION 6
Site Name
Eaker Air Force Base
Fort Chaffee
England Air Force Base
Fort Wingate Depot Activity
Bergstrom Air Force Base
Carswell Air Force Base
Dallas Naval Air Station
Kelly Air Force Base
Red River Army Depot
Reese Air Force Base
REGION 7
Site Name
Richards Gebaur Air Force Base
NPL Status
Final
Final
Final
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
NPL Status
Proposed
Final
Proposed
Proposed
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
NPL Status
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
NPL Status
Non-NPL
BRAC Round
3
3
4
4
1
1
4
3
2
3
BRAC Round
1
4
2
2
3
1
3
1
2
4
2
3
4
3
3
BRAC Round
2
4
2
1
2
2
3
4
4
4
BRAC Round
2
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REGION 8
Site Name
Ogden Defense Depot (DLA)
Tooele Army Depot (NORTH AREA)
Fitzsimons Army Medical Center
Lowry Air Force Base
Pueblo Chemical Depot
REGION 9
Site Name
Williams Air Force Base
Alameda Naval Air Station
Castle Air Force Base (6 AREAS)
El Toro Marine Corps Air Station
Fort Ord
George Air Force Base
March Air Force Base
Mather Air Force Base (AC&W DISPOSAL SITE)
McClellan Air Force Base (Ground Water
Contamination)
Moffett Naval Air Station
Norton Air Force Base (Landfill #2)
Sacramento Army Depot
Treasure Island Naval Station-Hunters Point Annex
Federal Correctional Institute Lompoc
Fleet Industrial Supply Center Oakland
Hamilton AFB
Long Beach Naval Station
Mare Island Naval Shipyard
Naval Shipyard Long Beach
Oakland Army Base Warehouse Area
Oakland Naval Regional Medical Center
Presidio of San Francisco
Salton Sea Test Base
San Diego Naval Training Center
Sierra Army Depot
Treasure Island Naval Station
Tustin Marine Corps Air Station
Naval Air Station Agana
Naval Facility Guam
Barbers Point Naval Air Station
Midway Island Naval Air Station
REGION 10
Site Name
Adak Naval Air Station
Umatilla Army Depot (Lagoons)
US Army Fort Greely
Camp Bonneville BRAC Site
US Navy Puget Sound Naval Station Sandpoint
NPL Status
Final
Final
Non-NPL
Non-NPL
Non-NPL
NPL Status
Final
Final
Final
Final
Final
Final
Final
Final
Final
Final
Final
Final
Final
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
Non-NPL
NPL Status
Final
Final
Non-NPL
Non-NPL
Non-NPL
BRAC Round
4
3
4
2
I
BRAC Round
2
3
2
3
2
I
3
I
4
2
I
2
2
4
4
I
2
3
4
4
3
I
I
3
4
3
2
3
4
3
3
BRAC Round
4
1
4
4
2
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APPENDIX C: BRAC V Installations Listed on the NPL
A complete list of installations affected by BRAC V actions can be found in the 2005 Defense
Base Closure and Realignment Commission Final Report to the President, Volume 2, Index by
State, at http://www.brac.gov/finalreport.asp
BRAC Action Definitions
In the 2005 round of BRAC, many installations were impacted by multiple actions. The chart
below reflects the overall results of those actions on the installation.
Closure: Installation will be closed; Realign: Net Decrease injunctions and personnel at the
installation; Gain: Net increase in functions and personnel at the installation
REGION 1
Site Name BRAC Action
Brunswick Naval Air Station Closure
Malony U.S. Army Reserve Center (on Fort Devens) Closure
Natick Soldier Systems Center (Natick Laboratory Army Realign
Research, Development and Engineering Center)
New London Submarine Base Realign
Otis Air National Guard Base Realign
Hanscom Field/Hanscom AFB Gain
Naval Station Newport Gain
Pease Air Force Base Gain
REGION 2
Site Name BRAC Action
Naval Air Engineering Center - Lakehurst Realign
Naval Weapons Station Earle Realign
Fort Dix Gain
McGuire AFB Gain
Picatinny Arsenal Gain
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REGION 3
Site Name
Willow Grove Naval Air Station
Fort Eustis
Indian Head Naval Surface Warfare Center
Naval Surface Warfare Center - Dahlgreen
Naval Weapons Station Yorktown
Navy Ships Parts Control Center - Mechanicsburg
Washington Navy Yard
Aberdeen Proving Ground
Andrews AFB
Defense Genera! Supply Center (DLA) - Richmond
Dover AFB
Fort Meade
Langley AFB
Letterkenny Army Depot
Naval Amphibious Base - Little Creek
Naval Station Norfolk
Norfolk Naval Shipyard
Patuxent River Naval Air Station
Quantico Marine Corps Base
Tobyhanna Army Depot
REGION 4
Site Name
Camp Lejeune
Cherry Point Marine Corps Air Station
Pensacola NAS
Redstone Arsenal
Tyndall AFB
Anniston Army Depot
Homestead Air Reserve Station
Jacksonville NAS
Marine Corps Logistics Base - Albany
Robins AFB
BRAC Action
Closure
Realign
Realign
Realign
Realign
Realign
Realign
Gain
Gain
Gain
Gain
Gain
Gain
Gain
Gain
Gain
Gain
Gain
Gain
Gain
BRAC Action
Realign
Realign
Realign
Realign
Realign
Gain
Gain
Gain
Gain
Gain
REGION 5
Site Name
Rickenbacker Air National Guard
Wright-Patterson AFB
BRAC Action
Gain
Gain
REGION 6
Site Name
Lone Star Army Ammunition Plant
Tinker AFB
BRAC Action
Closure
Gain
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REGION 7
Site Name
Fort Riley
REGION 8
Site Name
Hill AFB
Tooele Depot
REGION 9
Site Name
Concord Naval Weapons Station
Riverbank Army Ammunition Plant
Andersen AFB
Barstow Marine Corps Logistics Base
Camp Pendleton Marine Corps Base
Edwards AFB
Luke AFB
March Air Reserve Base
Pearl Harbor Naval Station
Moffett Field Air Force Reserve Center
Yuma Marine Corps Air Station
REGION 10
Site Name
Umatilla Army Depot
Bangor Naval Submarine Base
Eielson AFB
Elmendorf AFB
Fairchild AFB
Fort Richardson
Fort Wainwright
McChord AFB
Mountain Home AFB
Fort Lewis
Naval Air Station, Whidbey Island
BRAC Action
Gain
BRAC Action
Realign
Gain
BRAC Action
Realign
Closure
Realign
Realign
Realign
Realign
Realign
Realign
Realign
Gain
Gain
BRAC Action
Closure
Realign
Realign
Realign
Realign
Realign
Realign
Realign
Realign
Gain
Gain
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APPENDIX D: Selected EPA and DoD Policy and Guidance Documents for
BRAG Installations
EPA Delegations
Delegation 14-39, Concurrence on Identification of Uncontaminated Federal Real Property
http://intranet.epa.gov/rmpolicy/ads/dm/14-39.htm
Delegation 14-40, Evaluation of Approved Remedial Design
http://intranet.epa.gov/rmpQlicv/ads/dm/14-40.htm
Delegation 14-41, Deferral of the CERCLA Section 120(h)(3) (A)(ii)(I) Covenant Requirement
for Parcels of Real Property at Federal Facilities Listed on the National Priorities List (NPL)
http://intranet.epa.gov/rmpolicy/ads/dm/14-41 .htm
EPA Property Transfer Policies and Regulations
Military Base Closures: Revised Guidance on EPA Concurrence in the Identification of
Uncontaminated Parcels under CERCLA Section 120(h) (4) (March 1997)
http://www.epa.gov/swerffrr/documents/97cerfa.htm
EPA's Policy Towards Landowners of Former Federal Property (June 1997)
http://www.epa.gQV/swerffrr/documents/613memo.htm
Guidance for Evaluation of Federal Agency Demonstrations that Remedial Actions are
Operating Properly and Successfully Under CERCLA Section 120(h)(3)" (August 1996)
http://www.epa.gQV/swerffrr/documcnts/896mm.htmffoper
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)
http://wwvv.epa.eov/fedfac/documents/hkfin.htm
Institutional Controls and Transfer of Real Property under CERCLA Section 120(h) (3) (A), (B)
or (C) Guidance
http://www.ej3a.gpy/fedfac/docurnents/ri-icops_l 06.htm
Reporting Hazardous Substance Activity When Selling or Transferring Federal Real Property
(40 CFR Part 373)
http://\vw%v.access.gpo.gov/nara/cfr/waisidx_02/40c fr373_02.html
EPA's Final All Appropriate Inquiries Rule (40 CFR Part 312)
http://www.epa.gov/brownfields/aai/aai final rule.pdf
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EPA Cleanup and Post-Construction Completion Policies
Land Use in the CERCLA Remedy Selection Process (OSWER Directive No. 9355.7-04 May
1995)
http://www.epa.gov/superfund/resources/landuse.pdf
Guide to Preparing Superftmd Proposed Plans, Records of Decision, and Other Remedy
Selection Decision Documents
http://www.epa.gov/superfund/resources/remedv/rods/index.htm
Strategy to Ensure Institutional Control Implementation at Superfund Sites (September 2004)
http://www.epa.gov/superfund/action/ic/icstrategv.pdf
Federal Facilities Land Use Control ROD Checklist (1C Checklist) (June 2005)
http://www.epa.gov/fedfac/documents/icchecklist.pdf
Superfund Program Implementation Manual, Appendix D
http://www.epa.gov/superfund/action/process/spim06/pdfs/appdl.pdf
OSWER Guidance 9272.0-21: Performance Based Contracting by Other Federal Agencies at
Federal Facilities (March 30, 2006)
Coordination between RCRA Corrective Action and Closure and CERCLA Site Activities
(September 1996)
http://www.epa.gov/swerffrr/documents/924memo.htm
Improving RCRA/CERCLA Coordination at Federal Facilities (December 21, 2005)
http://www.epa.gov/fedfac/pdf/oswerdir9272_0-22.pdf
Comprehensive Five Year Review Guidance (OSWER 9355.7-03B-P, EPA 540-R-01-007 June
2001)
http://www.epa.gov/superfund/resources/5vear/index.htm
EPA BRAC Policies and Related Documents
Base Realignment and Closure Memorandum of Understanding (FY2006-2008)
http://www.epa.gov/fedfac/pdf/bracjnou.pdf
EPA's Guidance for Implementing the Fast Track Cleanup Program at Closing or Realigning
Bases (February 1996)
http://www.epa.gov/swerffrr/documents/epa296.htm
Turning Bases into Great Places -New Life for Closed Military Facilities
http://www.epa.gov/smartgrowth/'militarv
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EPA Community Involvement Policies
DoD and EPA Restoration Advisory Board (RAB) Implementation Guidelines (1994)
http://www.epa.gov/swerffrr/documents/rab.htm
https://www.denix.osd.mil/denix/Public/Librar\'/Cleanup/CleanupOfc/Documents/BRAC/finalra
b.html
Early and Meaningful Community Involvement Guidance (OSWER 9320.0-99)
http://www.cpa.gov/superfund/resources/earlv.pdf
EPA's Public Involvement Policy
http://www.epa.gov/Dublicinvolvement/public/index.htm
DoD Policies, Guidance, and Regulations
DoD Base Redevelopment and Realignment Manual (BRRM) (March 1,2006)
http://www.oea.gov
DoD Policy on the Environmental Review Process to Reach a Finding of Suitability to Lease
(FOSL) (May 1996)
https://www.denix.osd.mil/denix/Public/Librarv/Cleanup/CleanupOfc/Documents/BRAC/brac f
osl.html
DoD's Fast Track to POST: A Guide to Determining if Property is Environmentally Suitable for
Transfer
https://www.denix.osd.mil/denix/Public/Librarv/Clcanup/CleanupOfc/Documents/BRAC/fosttas
t index.html
DoD Policy on the Implementation of the Community Environmental Response Facilitation Act
(CERFA)(May 1996)
https://www.denix.osd.mil/denix/Public/Librarv/Cleanup/CleanupOfc/Documents/BRAC/brac c
erfa.html
DoD Guidance on Accelerating the NEPA Analysis Process for Base Disposal Decisions
https://www.denix.osd.mil/denix/Public/Library/Cleanup/CleanupQfc/Documents/BRAC/brac_n
epa.html
Memorandum of Agreement between the Departments of Education, Health and Human
Services, Interior, and Transportation, and the Department of Defense and the Departments of
Army, Navy, and Air Force (May 22,1997)
http://www.epa.gov/swerffiT/documents/public benefit transfers.htm
Department of the Air Force NEPA Regulations (32 CFR Part 989)
http://www.access.gpo.gov/nara/cfr/waisidx 02/32cfr989 02.html
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Department of the Army NEPA Regulations (32 CFR Part 651, Army Regulations 200-2)
http://www.access.gpo.gov/nara/cfr/waisidx_02/32cfr6Sl 02.html
Department of the Navy NEPA Regulations (32 CFR Part 775)
http://www.access.gpo.gov/nara/cfr/waisidx 02/32cfr775^02.html
Defense Logistics Agency (DLA) NEPA Regulations (DLA Regulation 1000.22)
httD://www.dlaps.hq.dla.mil/dlar/rl000.22.htm
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APPENDIX E: FY 2006-2008 Memorandum of Understanding (MOU) for
BRAC I - IV Installations
MEMORANDUM OF UNDERSTANDING BETWEEN THE
US ENVIRONMENTAL PROTECTION AGENCY
AND THE
US DEPARTMENT OF DEFENSE
Subject: Support for Department of Defense (DoD) Cleanup Implementation for Base
Realignment and Closure (BRAC) Installations Rounds I - IV
1. Purpose: The purpose of this Memorandum of Understanding (MOU) is to establish
responsibilities and funding for the US Environmental Protection Agency's (EPA's) assistance
and support in accelerating environmental restoration and cleanup decisions in support of reuse
at selected Department of Defense (DoD) Base Realignment and Closure (BRAC) installations.
Funds provided though this MOU shall not be used to support EPA enforcement actions at a
BRAC installation. The EPA and DoD enter into this MOU pursuant to the Economy Act,
Section 2905(a) (1) (E) of the Defense Base Closure and Realignment Act of 1990, which states
that DoD may reimburse other Federal agencies for assistance in the base closure process, and 10
U.S.C. § 2667(f) which requires an MOU to establish procedures for DoD consultation with EPA
on environmental suitability for leasing BRAC property pursuant to that subsection.
2. Scope: As the lead agency for environmental restoration at DoD installations, DoD requires
EPA assistance to expedite a number of activities related to Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) response actions, including work to
support community involvement, facilitate property transfer, implement remedies as soon as
practicable, and maintain remedies that protect human health and the environment. The DoD
Components (hereinafter Components) conduct environmental restoration to protect human
health and the environment at BRAC installations in concert with efforts supporting economic
revitalization of surrounding communities. The DoD will make funds available annually to EPA
for the types of activities described above at selected 1988, 1991, 1993, and 1995 BRAC
installations (BRAC Rounds I - IV). This MOU also satisfies the requirement in 10 U.S.C. §
2667(f) for DoD consultation with EPA on environmental suitability for leasing property made
available by the 1988, 1991, 1993, and 1995 BRAC rounds. The scope of this MOU includes
environmental restoration activities in support of reuse at BRAC installations under statutes,
regulations, and other authorities including, but not limited to, the following:
The Base Realignment and Closure Acts (1988 and 1990).
The Comprehensive Environmental Response, Compensation and Liability Act of 1980
(CERCLA), as amended by the Superfund Amendments and Reauthorization Act (SARA) of
1986.
The Resource Conservation and Recovery Act (RCRA).
The Community Environmental Response Facilitation Act (CERFA).
3. EPA Responsibilities: In support of the DoD and its BRAC environmental restoration and
reuse efforts, EPA will provide necessary resources, as appropriate, to accelerate environmental
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restoration activities, maintain remedies that protect human health and the environment, support
public participation, and facilitate property transfer at selected BRAC installations. The EPA
will make resources readily available for actions such as, but not limited to, streamlining
decision-making, performing concurrent document review, participating in face-to-face meetings
with other BRAC Cleanup Team (BCT) members, and providing technical assistance to DoD by
making the greatest use of environmental restoration tools and promoting innovative practices.
Such actions will typically be conducted by the EPA Remedial Project Manager (RPM) assigned
to the installation. The EPA RPM will be supported by EPA technical experts such as
community relations coordinators, hydrologists, risk assessors, and toxicologists. The EPA RPM
will represent EPA on the BCT and coordinate the EPA team that works across the installation to
support the BRAC process, depending on the needs at the installation at a given time. Through
close coordination and discussion throughout the BRAC process, EPA and DoD are looking for
opportunities to streamline documents, decision making, and response actions. Areas in which
the EPA RPM and support team will work closely with DoD to support cleanup and property
transfer acceleration include, but are not limited to:
Supporting up-front planning and scoping.
Providing assistance to DoD, and to the states, in implementing all environmental cleanup
programs related to closure in an expeditious and cost effective manner in accordance with
the BRAC Cleanup Plan (BCP) and applicable laws and regulations.
Assisting in the preparation of and jointly reviewing documents related to environmental
restoration or that support the lease or transfer of property within the timeframe agreed by the
BCT to support DoD real property leasing or transfer actions. Examples of such documents
are: the sampling and analysis plan, baseline risk assessment, the Remedial
Investigation/Feasibility Study, proposed plan, record of decision, remedial design, remedial
action plan, study and sampling data, Finding of Suitability to Transfer (POST), Finding of
Suitability to Lease (FOSL), Finding of Suitability for Early Transfer (FOSET), and
Operating Properly and Successfully (OPS) determinations.
Assisting with updating existing BCPs, participating in the development of the annual BCP
abstract, and assisting with the development of the final, close out BCP.
Participating, in conjunction with the BCT members, on the community's Restoration
Advisory Board (RAB), reviewing environmental matters, as well as coordinating and
exchanging cleanup and reuse information with the Local Redevelopment Authority.
Participating in the identification of clean parcels under the CERFA, if DoD deems any
additional CERFA identification beneficial to property transfer and reuse.
Supporting and facilitating restoration privatization efforts.
4. Program Funding: The DoD shall make resources available annually to EPA to help
expedite environmental restoration and property transfer at selected BRAC installations. The
full-time equivalent (FTE) and funding ceilings will be agreed to by DoD and EPA on or about
July 15, prior to the start of the fiscal year (FY). Nothing in this MOU shall be interpreted to
require an obligation or payment in violation of the provisions of the Anti-Deficiency Act (31
U.S.C. § 1341) or Purpose Statute (31 U.S.C. § 1301(a)) or affect EPA's obligation to meet its
statutory and regulatory responsibilities.
a. To determine the appropriate number of FTEs funded by DoD, EPA will provide DoD,
on or about each February 15, EPA's annual FTE/funding estimates for the upcoming
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two FYs following the current FY for each supported BRAC installation. The annual
EPA request shall include the makeup (e.g., payroll, travel) and basis (e.g., GS-13-09
grade level) of the per FTE cost for the upcoming two FYs. FTE estimates are to be
based on anticipated workload at a given installation. Prior to providing DoD with these
estimates, EPA will develop its estimates through its Regions, coordinating anticipated
FTE needs with the supported installation. Any differences or unresolved FTE issues
will be highlighted in EPA's annual request to DoD. The DoD will evaluate the EPA
funding request and provide a written FTE and funding ceiling for the upcoming FY and
a planning estimate for the subsequent FY (i.e., current FY + 2) on or about July 31 of
each year. In DoD's review and evaluation of EPA's request, Components will consult
with EPA Regions on changes to EPA's request which may have an impact on future
EPA FTE requirements. Major issues regarding projected FTE levels will be highlighted
at the Spring DoD-EPA Management Review (See Section 7).
b. EPA will provide DoD on or about July 1 of each year, EPA's projection of
unexpended balance, expenditure rate, and carryover of funds into the upcoming FY.
DoD will use this information to determine the DoD funding to be transferred via a
Military Interdepartmental Purchase Requisition (MIPR) to EPA during the upcoming
FY. DoD will inform EPA on or about July 31 of the resource level EPA can expect to
receive during the upcoming FY.
c. If, during the term of this MOD, it is determined that DoD is not legally able to pay
for some or all of the costs DoD currently pays for, then such payment shall be
discontinued. DoD will make its best effort to provide EPA with a 45 day written
notification of this action. In the absence of funding from DoD, EPA is under no
obligation to conduct the actions described in this MOU that will no longer be funded by
DoD. Once related internal EPA billings have cleared, the remaining BRAC funds will
be returned to DoD.
d. The annual funding, as approved by the Assistant Deputy Under Secretary of Defense
(Environment, Safety and Occupational Health) (ADUSD (ESOH)) based on the EPA's
request, shall be provided to EPA in semi-annual segments through the issuance of
MIPRs by the Department of the Army (Army). The Army is DoD's lead for transferring
and managing funding pursuant to this MOU. The Army will make its best effort to
transfer the first half of the BRAC resources to EPA within 30 days of the Army's receipt
of funds and obligation authority. The Army will make its best effort to transfer the final
distribution of BRAC resources to EPA on or about April 15 of each year. Funds are to
be used for EPA personnel, and may be used for contractor support for EPA personnel if
authorized by the affected DoD Component.
e. The following provision is intended to provide Components and EPA Regions the
flexibility to use available resources from one installation to satisfy emerging
requirements at another BRAC installation. To accelerate environmental restoration in
support of reuse at supported BRAC installations, EPA may reallocate funds from one
installation to another installation if:
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the DoD installation managers and EPA remedial project managers agree to
the reallocation,
the installation from which the funds are reallocated will not suffer delays in
cleanup progress or property transfer,
the funds are being moved among installations within a DoD Component and
there is no change to the total FTE level (or contractor support) for the
Component,
the EPA Regions receive approval from the Federal Facilities Restoration and
Reuse Office (FFRRO) before any changes are permitted, and
FFRRO submits a written justification (hardcopy or electronic) for the
installation-specific changes to the respective Component within fifteen days
of approving such action.
The Component will provide a written (hardcopy or electronic)
acknowledgement to EPA's FFRRO and a copy to the Army (as the DoD
manager of funds) within 10 days of receiving the reallocation notification.
5. Consultation for Environmental Suitability for Leasing Property: The May 18, 1996,
DoD policy memorandum, subject: Fast Track Cleanup at Closing Installations, contains the
procedures and responsibilities for determining the environmental suitability for leasing property
made available as a result of BRAC Rounds I - IV. DoD and EPA agree the guidance in the May
18, 1996, policy memorandum adequately describes the procedures for consultation with EPA on
determining the environmental suitability for leasing of BRAC properties by Components as
required by 10 U.S.C. § 2667(f).
6. Reporting:
a. The EPA will provide, at a minimum, quarterly billing statements by installation and
funds received, expended, and remaining by funding document. The financial reports
must comply with the financial management requirements provided to EPA by the Army
in order to maintain accountability of funds. In the event that the financial reports are not
deemed sufficient, EPA and the Army will work together to meet the requirements. The
EPA will send these reports to the Army (specific office will be designated by the Army
in funding documents) with a copy to the ADUSD (ESOH).
b. The EPA will provide quarterly program progress and review reports to DoD via a
searchable database of a design agreed to by DoD and EPA prior to implementation, or in
electronic form until the database design is finalized. These reports will be provided no
later than 45 days after the end of each quarter. These reports will include regional
summaries and installation specific reports (Attachment A). An EPA Headquarters mid-
year and end-of-year summary report will also be provided (Attachment B). DoD
expects that EPA's quarterly reports will include, at a minimum, the following: updates
on activities planned in the BRAC Cleanup Plan Abstract; any significant issues, to
include a discussion of schedule delays or other issues impeding progress at installations;
and any other pertinent information of which BRAC managers should be made aware.
Expenditure reports will be provided to the Army under separate cover. EPA will
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provide to each Component, reports tailored to the DoD Component and a complete copy
of the report to the ADUSD (ESOH).
7. BRAC Management Review Process: It is the intent of DoD and EPA to work
together effectively and efficiently to perform their respective duties relating to the
cleanup and reuse of BRAC properties. DoD and EPA will conduct joint management
reviews to evaluate progress and support provided under this MOU. To this end,
Biennial Management Review meetings will be held during which DoD and EPA
representatives will discuss approaches to improving the program. In preparation for, and
as part of the meetings, DoD and EPA will work together to determine the focus and
agendas of the Management Reviews, perform the analyses described below, and develop
options for improving the program. Specifically, the Management Review execution
process is:
a. Spring Management Review.DoD and EPA will analyze the data collected, as
discussed in Section 7.a.(l) and (2), and present the issues, analyses, and recommended
options for improving the program, including performance objectives and interim
milestones. Management Review participants will discuss the data and issues and
recommend options. DoD and EPA will report on progress made during the Fall
Management Review.
(1) Data collected prior to the Spring Management Review Prior to the Spring
Management Review, DoD and EPA will review the progress made in expediting
environmental restoration and property transfer activities and streamlining environmental
restoration decisions at the installations. Specifically, DoD and EPA will evaluate data,
primarily from DoD's Restoration Management Information System (RMIS) (unless
otherwise specified), on the progress made at BRAC installations during the previous FY,
including the following metrics:
Sites completing investigation phase: Number remaining for
completion/planned in the FY/completed in the FY,
Sites reaching remedy in place (RIP): Number remaining for
completion/planned in FY/completed in FY,
Sites reaching response complete (RC): Number remaining for
completion/planned in FY/completed in FY,
Number and reasons for re-opened sites in investigation or cleanup,
Installation last RIP,
Operating Properly and Successfiilly Determinations* Number completed
in FY. Updated in FY, as needed.
Number Finding of Suitability to Transfer (POST) completed in FY:**
Updated in FY, as needed.
Number Finding of Suitability to Lease (FOSL) completed in FY:'*
* - RMIS does not collect information pertaining to OPS determinations. EPA would provide this information.
** RMIS does not collect information pertaining to FOSTs, FOSLs, or FOSETs. DoD would obtain this information
from other sources.
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Updated in FY, as needed.
Number Finding of Suitability for Early Transfer (FOSET) completed in
FY:"Updated in FY, as needed.
Acres made available for lease or transfer in FY by NPL status. **
The purpose of this data review is to determine which installations should be requested to
provide more information about their progress and barriers to greater progress. In
addition to the RMIS data specified above, EPA BRAC Quarterly Reports (see section
6b), and other data as mutually agreed upon will be used to evaluate the progress made,
including EPA's support under this MOU. DoD and EPA recognize that the metrics may
need to be refined based on further review and evaluation. Adjustments to the BRAC
metrics will be made with mutual agreement by DoD and EPA.
(2) Installation Appraisals Completed prior to Spring Management Review.The
data collected under Section 7.a. will be analyzed to ascertain which installations did not
meet projected goals. Based on this review, DoD and EPA Headquarters will request that
EPA RPMs and Base Environmental Coordinators (BECs) at bases that did not meet the
planned goals complete an Installation Appraisal (see Attachment C). The purpose of the
Appraisal is to ascertain the barriers that are preventing greater progress. EPA
Headquarters and DoD will review this information in addition to the data collected in
Section 7.a. to ascertain what assistance should be provided to these RPMs and BECs so
that greater progress can be made. If the Installation Appraisal needs to be refined based
on implementation and further review, it will be done with the mutual agreement of both
organizations.
b. Fall Management Review: Focus on key issues and new approaches DoD and
EPA will determine three to five key issues to focus on during the Fall Management
Review, as well as successes and lessons learned from the implementation of new
approaches to cleanup and transfer. The key issues and lessons learned will be based on
the information in the quarterly reports, EPA and DoD areas of interest, RMIS data, the
Spring Management Review, as well as other mutually agreed upon sources. Also, there
may be an update on installations that did not meet the previous year's goals, or
discussion of potential recommendations for program improvements at installations that
indicate that they are going to have difficulty meeting end-of-year goals (see Section
7.a.). Prior to the Fall Management Review, DoD and EPA will research and analyze
data from installations that have raised these issues. During the Management Review,
DoD and EPA will present the comprehensive findings and discuss recommended options
for proceeding. Management Review participants will discuss and recommend a path
forward. DoD and EPA will report progress during the subsequent Spring Management
Review.
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8. Program duration and termination: This agreement expires September 30,2008, but may
be extended upon the agreement of the signatories to this MOU. Either DoD or EPA may make
modifications to this MOU upon the mutual agreement of the signatories; however,
modifications shall be made in writing. The MOU will remain unchanged absent a concurring
response. Conflicts arising between the signatories on the requirements or interpretation of this
MOU shall be resolved administratively between the agencies. Absent agreement, dispute
resolution shall be in accordance with procedures for resolving disputes between Federal
agencies.
/s/
Thomas P. Dunne
Deputy Assistant Administrator
Office of Solid Waste and Emergency Response
US Environmental Protection Agency
Date: 9/29/05
/s/
Alex A. Beehler
Assistant Deputy Under Secretary
of Defense (Environment, Safety,
and Occupational Health)
Department of Defense
Date: 9/26/05
/s/
Betty Utterback
Chief, Grants Operations Branch
Grants Administration Division
Office of Administration and Resources Management
US Environmental Protection Agency
Date: 10/05/05
49
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Attachment A - Regional and Installation Specific Reports
Parti
REGIONAL SUMMARY
1. Hot Issues
Issues for HQs EPA and/or HQs DoD's attention
Include Congressional or High Profile Items
2. Other Regional Issues
Successes/achievements
Region-wide issues
3. Points of Contact
EPA point(s) of contact (HQs and Region)
50
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Part II
INSTALLATION SUMMARY
1. Installation Name and Contact Information:
DoD/EPA/State BCT member contact information.
2. Significant Issues:*
a. Congressional.
b. High profile items.
c. Delays in Environmental Restoration Actions.**
3. Issues Impacting Reuse/Transfer.
4. Staffing/Funding Issues:
Staffing and funding issues at the installation affecting EPA, State, and Component
* Note if item is for information or for headquarters/management attention.
** Include if any site will not meet projections and any re-opened site, reasons, and fixes to get
back on track.
51
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Attachment C
Installation Appraisal
The BRAC Program Installation Appraisal will be used to inform senior leadership on
potential causes for delays in cleanup and reuse of BRAC property at those installations that do
not meet planned goals. The Installation Appraisal will be administered at the base level,
capturing performance data from both EPA RPMs and their DoD counterparts (BECs) at each
base. The Installation Appraisal contains basic questions aimed at characterizing base-specific
issues, budget/funding dynamics, and the level of coordination amongst stakeholders. The data
will also help DoD evaluate barriers to progress at installations, and assist DoD in evaluating
EPA support. DoD and EPA may also develop specific questions tailored to situations at
individual installations.
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INSTALLATION APPRAISAL FORM
INSTALLATION NAME:
PROJECT MANAGER NAME/ORGANIZATION
QUESTION
1. What were the
milestones/accomplishments/activities
during the past 12 months?
2. Did any significant issue or challenge
arise over the last 12 months? If so,
please describe the issue or challenge.
3. If any significant issues or
challenges arose, how were they
addressed?
4. Was the funding level adequate for
this site over the past 12 months? (Y/N)
If "no", please describe.
5. Would additional funding have
accelerated cleanup over the past 12
months? If so, how?
6. Did all BCT participants attend BCT
meetings as scheduled over the past
year?
7. Did BCT members each have an
opportunity to provide input on the
BRAC Cleanup Plan abstract prior to
submittal?
8. Can any project delays be attributed to
any party's participation on the BCT?
9. Has EPA provided technical assistance
in the past 12 months? If so, please
describe.
10. Did EPA's technical assistance help
solve/mitigate a problem or address a
potential issue in the past 12 months?
If so, please describe.
11. Were documents prepared and
reviewed in a timely manner, e.g. in
accordance with agreed upon
deadlines?
12. Are there any variables, outside the
control or influence of the BCT, which
have impeded progress at the
installation?
ANSWER
(circle one)
Y/ N
Y/N
Y/N
Y/N/NA
Y / N/ NA
Y/N
Y/N
Y/N
Y/N
Y/N
Description
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APPENDIX F
Comprehensive Environmental Response Compensation, and Liability Act (42
U.S.C. 9620) - Section 120, Federal Facilities - Application of Act to Federal
Government
SEC. 120 (a) APPLICATION OF ACT TO FEDERAL GOVERNMENT -
(1) IN GENERAL. - Each department, agency, and instrumentality of the United States (including the
executive, legislative, and judicial branches of government) shall be subject to, and comply with, this Act
in the same manner and to the same extent, both procedurally and substantively, as any non governmental
entity, including liability under section 107 of this Act. Nothing in this section shall be construed to affect
the liability of any person or entity under sections 106 and 107.
(2) APPLICATION OF REQUIREMENTS TO FEDERAL FACILITIES. - All guidelines, rules,
regulations, and criteria which are applicable to preliminary assessments carried out under this Act for
facilities at which hazardous substances are located, applicable to evaluations of such facilities under the
National Contingency Plan, applicable to inclusion on the National Priorities List, or applicable to remedial
actions at such facilities shall also be applicable to facilities which are owned or operated by a department,
agency, or instrumentality of the United States in the same manner and to the extent as such guidelines,
rules, regulations, and criteria are applicable to other facilities. No department, agency, or instrumentality
of the United States may adopt or utilize any such guidelines, rules, regulations, or criteria which are
inconsistent with the guidelines, rules, regulations, and criteria established by the Administrator under this
Act.
(3) EXCEPTIONS. -- This subsection shall not apply to the extent otherwise provided in this section with
respect to applicable time periods. This subsection shall also not apply to any requirements relating to
bonding, insurance, or financial responsibility. Nothing in this Act shall be construed to require a State to
comply with section 104(c) (3) in the case of a facility which is owned or operated by any department,
agency, or instrumentality of the United States.
(4) STATE LAWS. State laws concerning removal and remedial action, including State laws regarding
enforcement, shall apply to removal and remedial action at facilities owned or operated by a department,
agency, or instrumentality of the United States when such facilities are not included on the National
Priorities List. The preceding sentence shall not apply to the extent a State law would apply any standard or
requirement to such facilities which is more stringent than the standards and requirements applicable to
facilities which are not owned or operated by any such department, agency, or instrumentality.
(b) NOTICE. - Each department, agency, and instrumentality of the United States shall add to the inventory of
Federal agency hazardous waste facilities required to be submitted under section 3016 of the Solid Waste Disposal
Act (in addition to the information required under section 3016(a)(3) of such Act) information on contamination
from each facility owned or operated by the department, agency, or instrumentality if such contamination affects
contiguous or adjacent property owned by the department, agency, or instrumentality or by any other person,
including a description of the monitoring data obtained.
(c) FEDERAL AGENCY HAZARDOUS WASTE COMPLIANCE DOCKET. -- The Administrator shall establish
a special Federal Agency Hazardous Waste Compliance Docket (hereinafter in this section referred to as the
"docket") which shall contain each of the following:
(I) All information submitted under section 3016 of the Solid Waste Disposal Act and subsection (b) of this
section regarding any Federal facility and notice of each subsequent action taken under this Act with
respect to the facility.
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(2) Information submitted by each department, agency, or instrumentality of the United States under
section 3005 or 3010 of such Act.
(3) Information submitted by the department, agency, or instrumentality under section 103 of this Act.
The docket shall be available for public inspection at reasonable times. Six months after establishment of the docket
and every 6 months thereafter, the Administrator shall publish in the Federal Register a list of the Federal facilities
which have been included in the docket during the immediately preceding 6-month period. Such publication shall
also indicate where in the appropriate regional office of the Environmental Protection Agency additional
information may be obtained with respect to any facility on the docket. The Administrator shall establish a program
to provide information to the public with respect to facilities which are included in the docket under this subsection.
(d) ASSESSMENT AND EVALUATION. --
(1) IN GENERAL. - The Administrator shall take steps to assure that a preliminary assessment is
conducted for each facility on the docket. Following such preliminary assessment, the Administrator shall,
where appropriate -
(A) evaluate such facilities in accordance with the criteria established in accordance with section
105 under the National Contingency Plan for determining priorities among releases; and
(B) include such facilities on the National Priorities List maintained under such plan if the facility
meets such criteria.
(2) APPLICATION CRITERIA. -
(A) IN GENERAL. -- Subject to subparagraph (B), the criteria referred to in paragraph (1) shall be
applied to facilities that are owned or operated by persons other than the United States.
(B) RESPONSE UNDER OTHER LAW. - It shall be an appropriate factor to be taken into
consideration for the purposes of section 105(a) (8) (A) that the head of the department, agency, or
instrumentality that owns or operates a facility has arranged with the Administrator or appropriate
State authorities to respond appropriately, under authority of a law other than this Act, to release
or threatened release of a hazardous substance.
(3) COMPLETION. -- Evaluation and listing under this subsection shall be completed in
accordance with a reasonable schedule established by the Administrator.
(e) REQUIRED ACTION BY DEPARTMENT. --
(1) RI/FS. Not later than 6 months after the inclusion of any facility on the National Priorities List, the
department, agency, or instrumentality which owns or operates such facility shall, in consultation with the
Administrator and appropriate State authorities, commence a remedial investigation and feasibility study
for such facility. In the case of any facility which is listed on such agency, or instrumentality which owns or
operates such facility shall, in consultation with the Administrator and appropriate State authorities,
commence such an investigation and study for such facility within one year after such date of enactment.
The Administrator and appropriate State authorities shall publish a timetable and deadlines for expeditious
completion of such investigation and study.
(2) COMMENCEMENT OF REMEDIAL ACTION; INTERAGENCY AGREEMENT. -- The
Administrator shall review the results of each investigation and study conducted as provided in paragraph
(1). Within 180 days thereafter, the head of the department, agency, or instrumentality concerned shall
enter into an interagency agreement with the Administrator for the expeditious completion by such
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department, agency, or instrumentality of all necessary remedial action at such facility. Substantial
continuous physical onsite remedial action shall be commenced at each facility not later than IS months
after completion of the investigation and study. All such interagency agreements, including review of
alternative remedial action plans and selection of remedial action, shall comply with the public
participation requirements of section 117.
(3) COMPLETION OF REMEDIAL ACTIONS. - Remedial actions at facilities subject to interagency
agreements under this section shall be completed as expeditiously as practicable. Each agency shall include
in its annual budget submissions to the Congress a review of alternative agency funding which could be
used to provide for the costs of remedial action. The budget submission shall also include a statement of the
hazard posed by the facility to human health, welfare, and the environment and identify the specific
consequences of failure to begin and complete remedial action.
(4) CONTENTS OF AGREEMENT. - Each interagency agreement under, this subsection shall include,
but shall not be limited to, each of the following:
(A) A review of alternative remedial actions and selection of a remedial action by the head of the
relevant department, agency, or instrumentality and the Administrator or, if unable to reach
agreement on selection of a remedial action, selection by the Administrator.
(B) A schedule for the completion of each such remedial action.
(C) Arrangements for long-term operation and maintenance of the facility.
(5) ANNUAL REPORT. Each department, agency, or instrumentality responsible for compliance with
this section shall furnish an annual report to the Congress concerning its progress in implementing the
requirements of this section. Such reports shall include, but shall not be limited to, each of the following
items:
(A) A report on the progress in reaching interagency agreements under this section.
(B) The specific cost estimates and budgetary proposals involved in each interagency agreement.
(C) A brief summary of the public comments regarding each proposed interagency agreement.
(D) A description of the instances in which no agreement was reached.
(E) A report on progress in conducting investigations and studies under paragraph (1).
(F) A report on progress in conducting remedial actions.
(G) A report on progress in conducting remedial action at facilities which are not listed on the
National Priorities List.
With respect to instances in which no agreement was reached within the required time period, the
department, agency, or instrumentality filing the report under this paragraph shall include in such report an
explanation of the reasons why no agreement was reached. The annual report required by this paragraph
shall also contain a detailed description on a State-by-State basis of the status of each facility subject to this
section, including a description of the hazard presented by each facility, plans and schedules for initiating
and completing response action, enforcement status (where appropriate), and an explanation of any
postponements or failure to complete response action. Such reports shall also be submitted to the affected
States.
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(6) SETTLEMENTS WITH OTHER PARTIES. -- If the Administrator, in consultation with the head of the
relevant department, agency, or instrumentality of the United States, determines that remedial
investigations and feasibility studies or remedial action will be done properly at the Federal facility by
another potentially responsible party within the deadlines provided in paragraphs (1), (2), and (3) of this
subsection, the Administrator may enter into an agreement with such party under section 122 (relating to
settlements). Following approval by the Attorney General of any such agreement relating to a remedial
action, the agreement shall be entered in the appropriate United States district court as a consent decree
under section 106 of this Act.
(f) STATE AND LOCAL PARTICIPATION. - The Administrator and each department, agency, or instrumentality
responsible for compliance with this section shall afford to relevant State and local officials the opportunity to
participate in the planning and selection of the remedial action, including but not limited to the review of all
applicable data as it becomes available and the development of studies, reports, and action plans. In the case of State
officials, the opportunity to participate shall be provided in accordance with section 121.
(g) TRANSFER OF AUTHORITIES. - Except for authorities which are delegated by the Administrator to an
officer or employee of the Environmental Protection Agency, no authority vested in the Administrator under this
section may be transferred, by executive order of the President or otherwise, to any other officer or employee of the
United States or to any other person.
. (h) PROPERTY TRANSFERRED BY FEDERAL AGENCIES. --
(1) NOTICE. - After the last day of the 6-month period beginning on the effective date of regulations
under paragraph (2) of this subsection, whenever any department, agency, or instrumentality of the United
States enters into any contract for the sale or other transfer of real property which is owned by the United
States and on which any hazardous substance was stored for one year or more, known to have been
released, or disposed of, the head of such department, agency, or instrumentality shall include in such
contract notice of the type and quantity of such hazardous substance and notice of the time at which such
storage, release, or disposal took place, to the extent such information is available on the basis of a
complete search of agency files.
(2) FORM OF NOTICE; REGULATIONS. -- Notice under this subsection shall be provided in such form
and manner as may be provided in regulations promulgated by the Administrator. As promptly as
practicable after the enactment of this subsection but not later than 18 months after the date of such
enactment, and after consultation with the Administrator of the General Services Administration, the
Administrator shall promulgate regulations regarding the notice required to be provided under this
subsection.
(3) CONTENTS OF CERTAIN DEEDS. -
(A) IN GENERAL. -- After the last day of the 6-month period beginning on the effective date of
regulations under paragraph (2) of this subsection, 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 -
(i) to the extent such information is available on the basis of a complete search of agency
files -
(I) a notice of the type and quantity of such hazardous substances,
(II) notice of the time at which such storage, release, or disposal took place, and
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(Ill) a description of the remedial action taken, if any;
(ii) 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. 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; and
(iii) 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.
(B) COVENANT REQUIREMENTS. -- For purposes of Subparagraphs (A) (ii) (I) and (C) (iii),
all remedial action described in such subparagraph has been taken if the construction and
installation of an approved remedial design has been completed, and the remedy has been
demonstrated to the Administrator to be operating properly and successfully. The carrying out of
long-term pumping and treating, or operation and maintenance, after the remedy has been
demonstrated to the Administrator to be operating properly and successfully does not preclude the
transfer of property.
The requirements of subparagraph (A) (ii) shall not apply in any case in which the person or entity
to whom the real property is transferred is a potentially responsible party with respect to such
property. The requirements of subparagraph (A)(ii) shall not apply in any case in which the
transfer of the property occurs or has occurred by means of a lease, without regard to whether the
lessee has agreed to purchase the property or whether the duration of the lease is longer than 55
years. In the case of a lease entered into after September 30,1995 with respect to real property
located at an installation approved for closure or realignment under a base closure law, the agency
leasing the property, in consultation with the Administrator, shall determine before leasing the
property that the property is suitable for lease, that the uses contemplated for the lease are
consistent with protection of human health and the environment, and that there are adequate
assurances that the United States will take all remedial action referred to in subparagraph(A)(ii)
that has not been taken on the date of the lease.
(C) DEFERRAL.
(i) IN GENERAL. - The Administrator, with the concurrence of the Governor of the
State in which the facility is located (in the case of real property at a Federal facility that
is listed on the National Priorities List), or the Governor of the State in which the facility
is located (in the case of real property at a Federal facility not listed on the National
Priorities List) may defer the requirement of subparagraph (A)(ii)(I) with respect to the
property if the Administrator or the Governor, as the case may be, determines that the
property is suitable for transfer, based on a finding that -
(I) 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;
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(II) the deed of other agreement proposed to govern the transfer between the
United States and the transferee of the property contains the assurances set forth
in clause ii;
(111) 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 notice, written comments on the
suitability of the property for transfer; and
(3V) the deferral and the transfer of the property will not substantially delay any
necessary response action at the property.
(ii) RESPONSE ACTION ASSURANCES. -- With regard to a release or threatened
release of a hazardous substance for which a Federal agency is potentially responsible
under this section, the deed or other agreement proposed to govern the transfer shall
contain assurances that -
(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 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
schedules for investigation and completion of all necessary response action as
approved by the appropriate regulatory agency; and
(IV) provide that the Federal agency responsible for the property subject to
transfer will submit a budget request to the Director of the Office of
Management and Budget that adequately addresses schedules for investigation
and completion of all necessary response action, subject to congressional
authorizations and appropriations.
(iii) WARRANTY. When all response action necessary to protect human health and
the .environment with respect to any substance remaining on the property on the date of
transfer has been taken, the United States shall execute and deliver to the transferee an
appropriate document containing a warranty that all such response action has been taken,
and the making of the warranty shall be considered to satisfy the requirement of
subparagraph (A) (ii) (I).
(iv) FEDERAL RESPONSIBILITY. -- A deferral under this subparagraph shall not
increase, diminish, or affect in any manner any rights or obligations of a Federal agency
(including any rights or obligations under sections 9606,9607, and this section existing
prior to transfer) with respect to a property transferred under this paragraph.
(4) IDENTIFICATION OF UNCONTAMINATED PROPERTY. -
(A) In the case of real property to which this paragraph applies (as set forth in subparagraph (E)),
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 known to have been released, or disposed of. Such identification
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shall be based on an investigation of the real property to determine or discover the obviousness of
the presence or likely presence of a release or threatened release of any hazardous substance or
any petroleum product or its derivatives, including aviation fuel and motor oil, on the real
property. The identification shall consist, at a minimum, of a review of each of the following
sources of information concerning the current and previous uses of the real property:
(i) A detailed search of Federal Government records pertaining to the property.
(ii) Recorded chain of title documents regarding the real property.
(iii) Aerial photographs that may reflect prior uses of the real property and that are
reasonably obtainable through State or local government agencies.
(iv) A visual inspection of the real property and any buildings, structures, equipment,
pipe, pipeline, or other improvements on the real property, and a visual inspection of
properties immediately adjacent to the real property.
(v) A physical inspection of property adjacent to the real property, to the extent permitted
by owners or operators of such property.
(vi) Reasonably obtainable Federal, State, and local government records of each adjacent
facility where there has been a release of any hazardous substance or any petroleum
product or its derivatives, including aviation fuel and motor oil, and which is likely to
cause or contribute to a release or threatened release of any hazardous substance or any
petroleum product or its derivatives, including aviation fuel and motor oil, on the real
property.
(vii) Interviews with current or former employees involved in operations on the real
property.
Such identification shall also be based on sampling, if appropriate under the circumstances. The
results of the identification shall be provided immediately to the Administrator and State and local
government officials and made available to the public.
(B) The identification required under subparagraph (A) is not complete until concurrence in the
results of the identification is obtained, in the case of real property that is part of a facility on the
National Priorities List, from the Administrator, or, in the case of real property that is not part of a
facility on the National Priorities List, from the appropriate State official. In the case of a
concurrence which is required from a State official, the concurrence is deemed to be obtained if,
within 90 days after receiving a request for the concurrence, the State official has not acted (by
either concurring or declining to concur) on the request for concurrence.
(C)
(i) Except as provided in clauses (ii), (iii), and (iv), the identification and concurrence
required under subparagraphs (A) and (B), respectively, shall be made at least 6 months
before the termination of operations on the real property.
(ii) In the case of real property described in subparagraph (E)(I)(II) on which operations
have been closed or realigned or scheduled for closure or realignment pursuant to a base
closure law described in subparagraph (E)(ii)(I) or (E)(ii)(II) by the date of the enactment
of the Community Environmental Response Facilitation Act the identification and
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concurrence required under subparagraphs (A) and (B), respectively, shall be made not
later than 18 months after such date of enactment.
(iii) In the case of real property described in subparagraph (E)(I)(II) on which operations
are closed or realigned or become scheduled for closure or realignment pursuant to the
base closure law described in subparagraph (E)(ii)(II) after the date of the enactment of
the Community Environmental Response Facilitation Act, the identification and
concurrence required under subparagraphs (A) and (B), respectively, shall be made not
later than 18 months after the date by which a joint resolution disapproving the closure or
realignment of the real property under section 2904(b) of such base closure law must be
enacted, and such a joint resolution has not been enacted.
(iv) In the case of real properly described in subparagraphs (E)(I)(II) on which operations
are closed or realigned pursuant to a base closure law described in subparagraph
(E)(ii)(IH) or (E)(ii)(IV), the identification and concurrence required under subparagraphs
(A) and (B), respectively, shall be made not later than 18 months after the date on which
the real property is selected for closure or realignment pursuant to such a base closure
law.
(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;
and
(ii) 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 after such date at such
property, or such access is necessary to carry out a response action or corrective action on
adjoining property.
(E)
(i) This paragraph applies to
(I) real property owned by the United States and on which the United States
plans to terminate Federal Government operations, other than real property
described in subclause (II); and
(II) real property that is or has been used as a military installation and on which
the United States plans to close or realign military operations pursuant to a base
closure law.
(ii) For purposes of this paragraph, the term "base closure law" includes the following:
(I) Title II of the Defense Authorization Amendments and Base Closure and
Realignment Act (Public Law 100-526; 10 U.S.C. 2687 note).
(II) The Defense Base Closure and Realignment Act of 1990 (part A of title
XXIX of Public Law 101-510; 10 U.S.C. 2687 note).
(Ill) Section 2687 of title 10, United States Code.
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(IV) Any provision of law authorizing the closure or realignment of a military
installation enacted on or after the date of enactment of the Community
Environmental Response Facilitation Act.
(F) Nothing in this paragraph shall affect, preclude, or otherwise impair the termination
of Federal Government operations on real property owned by the United States,
(5) NOTIFICATION OF STATES REGARDING CERTAIN LEASES. - In the case of real property
owned by the United States, on which any hazardous substance or any petroleum product or its derivatives
(including aviation fuel and motor oil) was stored for one year or more, known to have been released, or
disposed of, and on which the United States plans to terminate Federal Government operations, the head of
the department, agency, or instrumentality of the United States with jurisdiction over the property shall
notify the State in which the property is located of any lease entered into by the United States that will
encumber the property beyond the date of termination of operations on the property. Such notification shall
be made before entering into the lease and shall include the length of the lease, the name of person to whom
the property is leased, and a description of the uses that will be allowed under the lease of the property and
buildings and other structures on the property.
(i) OBLIGATIONS UNDER SOLID WASTE DISPOSAL ACT. -- Nothing in this section shall affect or impair the
obligation of any department, agency, or instrumentality of the United States to comply with any requirement of the
Solid Waste Disposal Act (including corrective action requirements).
(j) NATIONAL SECURITY. --
(1) SITE SPECIFIC PRESIDENTIAL ORDERS. The President may issue such orders regarding response
actions at any specified site or facility of the Department of Energy or the Department of Defense as may
be necessary to protect the national security interests of the United States at that site or facility. Such orders
may include, where necessary to protect such interests, an exemption from any requirement contained in
this title or under title III of the Superfund Amendments and Reauthorization Act of 1986 with respect to
the site or facility concerned. The President shall notify the Congress within 30 days of the issuance of an
order under this paragraph providing for any such exemption. Such notification shall include a statement of
the reasons for the granting of the exemption. An exemption under this paragraph shall be for a specified
period which may not exceed one year. Additional exemptions may be granted, each upon the President's
issuance of a new order under this paragraph for the site or facility concerned. Each such additional
exemption shall be for a specified period which may not exceed one year. It is the intention of the Congress
that whenever an exemption is issued under this paragraph the response action shall proceed as
expeditiously as practicable. The Congress shall be notified periodically of the progress of any response
action with respect to which an exemption has been issued under this paragraph. No exemption shall be
granted under this paragraph due to lack of appropriation unless the President shall have specifically
requested such appropriation as a part of the budgetary process and the Congress shall have failed to make
available such requested appropriation.
(2) CLASSIFIED INFORMATION. Notwithstanding any other provision of law, all requirements of the
Atomic Energy Act and all Executive orders concerning the handling of restricted data and national
security information, including "need to know" requirements, shall be applicable to any grant of access to
classified information under the provisions of this Act or under title III of the Superfund Amendments and
Reauthorization Act of 1986.
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APPENDIX G
Reporting Hazardous Substance Activity When Selling or
Transferring Federal Real Property (40 CFR Part 373)
Authority: 42 U.S.C. 9620.
Source: 55 FR 14212, Apr. 16,1990, unless otherwise noted.
7.11.1.LI §373.1 General requirements.
7.11.1.1.2 After the last day of the six-month period beginning on April 16,1990, whenever any department,
agency or instrumental it)- of the United States enters into any contract for the sale or other transfer of
real property which is owned by the United States and at which any hazardous substance was stored for
one year or more, known to have been released, or disposed of, the head of such department, agency or
instrumentality must include in such contract notice of the type and quantity of such hazardous
substance and notice of the time at which such storage, release or disposal took place, to the extent such
information is available on the basis of a complete search of agency files.
7.11.1.1.3 §373.2 Applicability.
(a) Except as otherwise provided in this section, the notice required by 40 CFR 373.1 applies whenever the United States enters
into any contract for the sale or other transfer of real property which is owned by the United States and on which any hazardous
substance was stored for one year or more, known to have been released, or disposed of.
(b) The notice required fay 40 CFR 373.1 for the storage for one year or more of hazardous substances applies only when
hazardous substances are or have been stored in quantities greater than or equal to 1000 kilograms or the hazardous substance's
CERCLA reportable quantity found at 40 CFR 302.4, whichever is greater. Hazardous substances that are also listed under 40
CFR 261.30 as acutely hazardous wastes, and that are stored for one year or more, are subject to the notice requirement when
stored in quantities greater than or equal to one kilogram.
(c) The notice required by 40 CFR 373.1 for the known release of hazardous substances applies only when hazardous substances
are or have been released in quantities greater than or equal to the substance's CERCLA reportable quantity found at 40 CFR
302.4.
7.11.1.1.4 §373.3 Content of notice.
The notice required by 40 CFR 373.1 must contain the following information:
(a) The name of the hazardous substance: the Chemical Abstracts Services Registry Number (CASRN) where applicable; the
regulatory synonym for the hazardous substance, as listed in 40 CFR 302.4, where applicable; the RCRA hazardous waste
number specified in 40 CFR 261.30, where applicable; the quantity in kilograms and pounds of the hazardous substance that has
been stored for one year or more, or known to have been released, or disposed of, on the property, and the date(s) that such
storage, release, or disposal took place.
(b) The following statement, prominently displayed: "The information contained in mis notice is required under the authority of
regulations promulgated under section 120(h) of the Comprehensive Environmental Response, Liability, and Compensation Act
(CERCLA or"Superfund") 42 U.S.C. section 9620(h)."
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7///J5 §373.4 Definitions.
For the purposes of implementing this regulation, the following definitions apply:
(a) Hazardous substances means that group of substances defined as hazardous under CERCLA 101(14), and that appear at 40
CFR 302.4.
(b) Storage means the holding of hazardous substances for a temporary period, at the end of which the hazardous substance is
either used, neutralized, disposed of, or stored elsewhere.
(c) Release is defined as specified by CERCLA 101(22).
(d) Disposal means the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous substance into or on
any land or water so that such hazardous substance or any constituent thereof may enter the environment or be emitted into the air
or discharged into any waters, including groundwater.
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