&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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