&ER&
United States
Environmental Protection
Agency
Solid Waste and
Emergency Response
(5101)
EPA505-98-007
January 1999
www.epa.gov/swerffrr
Overview of
Early Transfer Guidance
What Are the Facts?
To implement Congressionally
mandated action, the U.S.
Environmental Protection Agency
(EPA) has issued guidance on the
transfer of federal property
contaminated with hazardous wastes,
before cleanup completion. This fact
sheet explains the early transfer process
and EPA's guidance. For a full
explanation of acronyms used
throughout this document, please refer
to the box on page two.
What Is the Early
Transfer Guidance?
The guidance, entitled 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), was issued
on June 16, 1998, in response to a
recent change in the Superfund law. In
the past, prior to transfer, contaminated
federal property had to undergo
complete cleanup if hazardous waste
was released from, disposed of, or
stored on-site for more than one year.
Now, property can be transferred prior
to cleanup, as long as certain conditions
are met. The guidance establishes the
process EPA will use to review requests
at National Priorities List (NPL) sites
for early transfers and to determine,
with concurrence from the state
governor, if property is suitable for
transfer before cleanup completion.
Who Can Benefit
From Early Transfer?
By transferring property that poses no
unacceptable risks, EPA helps
communities benefit from faster reuse
and redevelopment. For example, early
transfer allows new businesses to open
sooner and generate new employment
opportunities. Early transfer also can
expedite construction of recreational
facilities or community centers. This
process not only expedites beneficial
reuse projects, but also can result in
savings to taxpayers in the long run.
EPA's main function in the early
transfer process is to ensure that
proposed transfer and land use protects
human health and the environment.
The federal department or agency
transferring the property remains
responsible for the cleanup, and the law
mandates certain assurances so that
cleanup occurs in a timely fashion.
Printed on paper that contains at least 20 percent postconsumer fiber.
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When Does the Early
Transfer Guidance Apply?
EPA's early transfer guidance applies
to any federal entity selling or
transferring contaminated federal
property at NPL sites to non-federal
parties. These parties may include
developers, local redevelopment
authorities, or state or local
governments. EPA's guidance covers
all "early transfers" by deed under
Superfund, including Department of
Defense (DoD) installations selected
for closure or realignment. The
guidance does not apply to
uncontaminated property or transfers
to federal entities.
The guidance can be used, however,
as a model for transferring property
for "public benefit"—when a
sponsoring federal agency acts as a
conduit through which title will
ultimately pass from the United
States to a public benefit recipient.
A Memorandum of Understanding
signed by DoD and the federal
agencies that sponsor public benefit
transfers (dated April 21, 1997)
exists for Base Realignment and
Closure (BRAG) property.
BRAC: Base Realignment and Closure—Refers to
obsolete or unnecessary military bases that are being
restructured or closed.
BCT: BRAC Cleanup Team—Comprised of staff
from DoD, EPA regions, and the state environmental
agency. Promotes cleanup actions that facilitate reuse
and redevelopment of closing military bases.
CERCLA: Comprehensive Environmental Response,
Compensation, and Liability Act—The law that gives
EPA authority to clean up abandoned or uncontrolled
hazardous waste sites, a.k.a. Superfund.
CDR: Covenant Deferral Request (see box on
page 3 for explanation).
DoD: Department of Defense.
IAG: /nteragency Agreement—A legally enforceable
written agreement between EPA and another federal
agency to perform cleanup work at an NPL facility.
NPL: National Priorities List—EPAs list of the nation's
most serious uncontrolled or abandoned hazardous
waste sites that are being cleaned up under the
Superfund program.
RAB: Restoration Advisory Board—Comprised of
representatives from DoD, EPA, the state agency, and
the local community, RABs help DoD make informed
cleanup decisions at military bases.
SSAB: Site-Specific Advisory Board—Comprised of
representatives from the Department of Energy (DOE),
EPA, the state agency, and the local community, SSABs
help DOE make informed cleanup decisions at DOE
properties.
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What Is a Covenant
Deferral Request (CDR)?
Filing a CDR is a key step in the early
transfer process. Federal departments
transfer must include the following
information in the CDR they submit to
EPA and other stakeholders:
Property Description—a legal
description of the property.
Nature/Extent of Contamination—
includes the degree of uncertainty
regarding the nature and extent of
contamination, the future land use,
who will perform the cleanup work,
and existing information on the
property.
Analysis of Intended Future Land Use
During the Deferral Period—includes
an analysis of whether the intended
land use might result in exposure to
CERCLA hazardous substances and a
description of response actions that
should be taken to prevent exposure.
Results From a CERCtA Risk
Assessment—an analysis of risks to
human health and the environment.
Operation and Maintenance
Requirements—includes a projected
date by which the cleanup action will
be selected and completed and/or
demonstrates that a cleanup action is
"operating properly and successfully."
Contents of the Deed/Transfer
Agreement—must include: the public
notice; a written warranty that the
federal government will conduct any
cleanup found to be necessary after
the transfer; a clause providing the
federal government with access to the
property in the future; and response
action assurances, which are written
provisions that cover property land
use restrictions, cleanup schedules,
and funding requirements.
Responsiveness Summary—the federal
agency's responses to written
comments received from the public.
How Does the
Early Transfer
Process Work?
A federal agency or department
proposing an early transfer is required
to follow these steps:
• Notify the EPA Regional
Administrator (or designee) and the
state governor of its intent to request
an early transfer.
• Work in partnership with EPA, the
state, and the public in the
development of the early transfer
request.
• Place a public notice in the local
newspaper that includes information
about the proposed transfer, the new
owner and its intended use of the
property, CERCLA/Superfund
authority to transfer property, the
decision-making process, and
avenues and timeframes for public
comment.
• Draft a Covenant Deferral Request
(CDR) (see explanation at left) and
make it available to affected
stakeholders such as the Restoration
Advisory Board (RAB), Site-Specific
Advisory Board (SSAB), local
governments, and other interested
community-based groups. Specific
efforts should be made to involve
tribes surrounding the property. At
base closure sites, EPA anticipates
that a base closure team (BCT),
including an EPA regional
representative, will develop the CDR.
• After the public comment period
expires, submit the final CDR to the
appropriate EPA regional office and
state representative.
How Does a
Property Get
Considered for
Early Transfer?
To be considered for early transfer,
the agency or department
transferring the property must
demonstrate the following:
• The new owner will use the
property in a manner suitable for
the site, and the new land use
will not pose an unacceptable
risk to human health or
the environment.
• The deed or agreement contains
certain assurances with regard to
response actions.
• The federal agency provides
public notice on the proposed
transfer, allowing the public to
provide comments.
• Early transfer will not
substantially delay any cleanup
actions on the property.
Assurances and Agreements—allow
for the transferee to conduct the
cleanup with oversight from the
federal agency.
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When Does Early Transfer Occur?
For an NPL site, both EPA and the
state governor must concur on the
early transfer approval. EPA regional
offices will work closely with state
officials to review the
early transfer request
and determine whether
the criteria have been
met to merit an early
transfer. Early transfer
cannot occur until the
CERCLA guarantee
(covenant) is explicitly
deferred by EPA and the state,
through the early transfer approval
process. An Interagency Agreement
(IAG) between EPA and the
landholding federal agency is not
required but will significantly help
EPA make the covenant deferral
decision. Once the transfer has
occurred and the
proposed remedy for the
contaminated site is
"operating properly and
successfully," the
transferring agency or
department shall provide
the new owner with a
written guarantee that all
necessary response actions have been
taken, regardless of whether the
cleanup was conducted by the federal
government or the new owner.
For more information about Early
Transfer Guidance, visit:
http://vwvw.epa.gov/swerffrr
/doc/hkcover.htm
To learn more about federal facility
cleanup and reuse, visit:
http://www.epa.gov/swerffrr
Or contact:
U.S. EPA/FFRRO
401 M Street, SW. (5101)
Washington, DC 20460
Phone: 202 260-2856
E-mail: kelly.sheila@epa.gov
For guidance issued by DoD on the early
transfer of non-NPL sites, visit the BRAC
Environmental Cleanup Web Page:
http://www.dtic. mil:80/envirodod
/braq/non-npl. html
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