UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, B.C. 20460
\ OFFICE OF
* SOLID WASTE AND EMERGENCY
RESPONSE
OSWER Directive 9345.0-09
April 19, 1994 EPA 540/F-94/32
TB 94-963249
Corrected version of Document
MEMORANDUM
SUBJECT: Military Base Closures: Guidance on EPA Concurrence in
the Identification of Uncontaminated Parcels under
CERCLA Section 120(h)(4)
FROM: Elliott P. Laws /s/
Assistant Administrator
TO: Waste Management Division Directors, Region I-X
Regional Counsels, Regions I-X
Federal Facilities Leadership Council
This memorandum is intended to provide guidance concerning
the implementation of CERCLA Section 120 (h)(4). Specifically, it
addresses the approach EPA should use in determining whether to
concur that a parcel has been properly identified by the military
service as "uncontaminated" and therefore transferrable pursuant
to CERCLA Section 120(h)(4).
I. Background
In October 1992, Congress enacted the Community
Environmental Response Facilitation Act (CERFA) which, among
other things, added a new subsection (4) to CERCLA Section
120 (h). Congress found that the closure of Federal facilities
is having adverse effects on the economies of local communities
and that environmental remediation requirements are frequently a
constraint to the reuse of the facilities. The Act further
states that Federal agencies should "expeditiously identify real
property that offers the greatest opportunity for reuse and
redevelopment... ". CERCLA 120 (h)(4) directs federal agencies
with jurisdiction over real property on which federal government
operations are to be terminated to identify parcels of the real
property:
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"on which no hazardous substances and no petroleum
products or their derivatives were stored for one year
or more, known to have been released, or disposed of."
CERFA and this policy refer to such parcels as "uncontaminated".
The identification must be based on an investigation of the
property including minimum requirements set forth in CERCLA
Section 120 (h)(4)(A). For parcels of property that are part of a
facility on the National Priorities List, the identification is
not complete until the EPA concurs in the results. For any other
parcels, the identification is not complete until the appropriate
State official concurs in the results.
The identification of a parcel is based on a review of
available information. The military service remains obligated to
address any contamination found to pose a threat to human health
or the environment. Although parcels that are identified as
satisfying the CERCLA Section 120 (h)(4) requirements can be sold
or otherwise transferred expeditiously, any such transfer must
include a covenant committing the Unites States to perform any
remedial action or corrective action found to be necessary after
the date of the transfer.
For real property that is part of a military base which was
slated for closure prior to CERFA's enactment, the identification
and concurrence is to be completed within 18 months of CERFA's
enactment. The mandated period for these installations to
identify parcels expires April 19, 1994, but the obligation to
obtain concurrence continues beyond that date. For property on
military bases designated for closing subsequent to CERFA, the
identification and concurrence is to be completed within 18
months of designation.
II. Purpose
In meeting its obligation under CERCLA Section 120 (h)(4),
EPA is concerned with both protecting human health and the
environment and achieving Congress' goal of expeditiously
transferring uncontaminated real property to communities for
economic redevelopment. Interpreting CERCLA Section 120 (h)(4) to
allow the expeditious transfer of parcels where there is no
indication that the storage, release or disposal of hazardous
substances or petroleum products poses a threat to human health
or the environment would aid Congress' intent by increasing the
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amount of property which would be available for expedited reuse.
EPA believes that there may be instances in which it would
be appropriate to concur with the military service that certain
parcels can be identified as uncontaminated under CERCLA Section
120 (h)(4) although some limited quantity of hazardous substances
or petroleum products have been stored, released or disposed of
on the parcel. If the information available indicates that the
storage, release or disposal was associated with activities which
would not be expected to pose a threat to human health or the
environment, such parcels should be eligible for expeditious
reuse.
III. Guidance
The determination of whether to concur in the identification
of an uncontaminated parcel, where the information provided by
the military service reveals some level of storage, release, or
disposal of hazardous substances or petroleum products, should be
made on a case-by-case basis. The decision-maker should apply
best professional judgement based on the available information in
making determinations under CERCLA Section 120 (h)(4). The
objective should be to include parcels where there is no
indication that the storage, release or disposal of hazardous
substances or petroleum products has resulted in an environmental
condition that poses a threat to human health or the environment.
The decision-maker should assume that the property may be
transferred to the private sector without any environmental
response action being taken on the property.
EPA's ability to concur with the identification of parcels
will depend on the information available concerning the current
and historical uses of the parcel, the proximity of the parcel to
sources of contamination requiring response actions and the
nature of the threat, if any, reasonably associated with the type
of activity or contamination associated with the parcel.
The following are examples of three categories of parcels
where EPA would generally concur:
Housing: In housing areas it is likely that hazardous
substances and petroleum products contained in heating oil and
household products have been stored, released or disposed of; but
it is unlikely that, in the absence of evidence of significant
fuel spills, such materials would pose a threat to human health
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or the environment.
Stained Pavement: There may be evidence of incidental
releases of petroleum products on roadways and parking lots, but
no indication that such releases pose a threat to human health or
the environment.
Pesticides: In the absence of evidence indicating a threat
to human health or the environment, e.g., contamination of
surface or groundwater, or proximity to sensitive habitat, the
routine application of pesticides in a manner consistent with the
standards for licensed application should not disqualify a parcel
under CERCLA Section 120 (h)(4). If information concerning the
use of the parcel indicates extensive application of pesticides,
EPA may determine that the particular circumstances require that
its concurrence be conditioned on further information concerning
the nature and quantities of pesticides applied or the results of
confirmatory sampling to assure that residual levels do not pose
a threat to human health or the environment.
The examples described above are intended to provide
assistance to the decision-maker, but not to strictly limit the
application of the policy. The authority to make these
determinations has been delegated to the Regions. For questions
or further information concerning this revised guidance please
contact Bob Carr at 202/260-2035.
cc: S.Herman
J.Nelson
M.Stahl
T.Fields
S.Wa s s e rman Goodman
NOTICE: The policies set out in this memorandum do not
represent final agency action and are intended solely as
guidance. They are not intended, nor can they be relied upon, to
create any rights enforceable by any party in litigation with the
United States. EPA officials may decide to follow the guidance
provided in this memorandum, or to act at variance with the
guidance, based on an analysis of specific site circumstances.
Remedy selection decisions are made and justified on a
case-specific basis. The Agency also reserves the right to
change this guidance at any time without public notice.
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