Significance and Use
4.1 Uses—This practice is intended for use by federal agencies, and environmental professionals in order to facilitate ECP efforts. It is also intended for use by preparers and reviewers of environmental condition of property maps and ECP reports used to support CERFA uncontaminated property identifications and property suitable for transfer by lease or by deed. GSA regulations addressing the disposal of federal property (41 CFR §105-72), require the landholding agency to assert either that (a) there is no evidence of hazardous substance activity, or (b) there is evidence of hazardous substance activity that occurred on the property. If there is evidence that hazardous substance activity occurred on the property, the landholding agency has a “due diligence” obligation to provide detailed, accurate information on all “reportable quantities” of hazardous substances stored, released, or disposed of on property that it reports to GSA for disposal. The specific substances that must be reported under CERCLA and their reporting limits are described in 40 CFR §302.4 and 40 CFR §373. If the landholding agency discloses that hazardous substance activity took place on the property, then the landholding agency must assert whether or not all required remedial action necessary to protect human health and the environment has been taken with respect to those hazardous substances.
4.1.1 The ECP reports prepared in accordance with this practice may be used to achieve compliance with the federal Management Regulations, Real Property Disposal rules codified in 41 CFR §102-75.
4.2 Clarifications on Use:
4.2.1 Use Not Limited to CERCLA—This practice is designed to assist the user in developing information about the environmental condition of a property and as such has utility for a wide range of persons, including those who may have no actual or potential CERCLA liability (see 40 CFR §373, 41 CFR §102-75 and Section 208 of the Federal Land Policy and Management Act, Public Law 94-579).
4.2.2 Residential Tenants/Purchasers and Others—No implication is intended that it is currently customary practice for residential tenants of multifamily residential buildings, tenants of single-family homes or other residential real estate, or purchasers of dwellings for one's own residential use, to conduct an ECP in connection with these transactions. Thus, these transactions are not included in the term commercial real estate transactions. Thus, although such property may be included within the scope of an ECP, their occupants shall not be treated as key site personnel with regard to the housing occupied for the purpose of conducting an ECP.
4.2.3 Site-Specific—This practice is site-specific in that it relates to assessment of environmental conditions of federal real property. Consequently, this practice does not address many additional issues raised in transactions such as purchases of business entities; or interests therein, or of their assets, that may well involve environmental liabilities pertaining to properties previously owned or operated or other off-site environmental liabilities.
4.3 Related Practices—See Practices E1527 and E2247.
4.4 Principles—The following principles are an integral part of this practice and all related practices and are intended to be referred to in resolving any ambiguity or exercising such discretion as is accorded the user or environmental professional in performing an ECP or in judging whether a user or environmental professional has conducted appropriate inquiry or has otherwise conducted an adequate ECP.
4.4.1 Uncertainty Not Eliminated—No ECP can wholly eliminate uncertainty regarding the potential for recognized environmental conditions in connection with a property. Performance of this practice is intended to reduce uncertainty regarding the potential for recognized environmental conditions in connection with a property to the minimum practicable level, but not eliminate such uncertainty altogether, as well as to recognize reasonable limits of time and cost for property information.
4.4.2 Level of Inquiry is Variable—Not every federal property will warrant the same level of ECP effort. Consistent with good practice, the appropriate level of ECP will be guided by the type of property subject to ECP and the information developed in its conduct.
4.4.3 Comparison with Subsequent Inquiry—It should not be concluded or assumed that an inquiry was not an appropriate inquiry merely because the inquiry did not identify recognized environmental conditions in connection with a property. The ECPs must be evaluated based on the reasonableness of judgments made at the time and under the circumstances in which they were made. Subsequent ECPs should not be considered valid standards to judge the appropriateness of any prior ECP based on hindsight, new information, use of developing technology or analytical techniques, or other factors.
4.5 Continued Viability of Environmental Baseline Survey—An ECP meeting or exceeding this practice and completed less than 180 days prior to the date of a subsequent use is presumed to be valid for that use. An ECP not meeting or exceeding this practice or completed more than 180 days previously may be used to the extent allowed by 4.6 – 4.6.5.
4.6 Prior ECP Usage—This practice recognizes that ECPs performed in accordance with this practice or otherwise containing information which was reasonably accurate at the time prepared will include information that subsequent users may want to use to avoid undertaking duplicative ECP procedures. Therefore, this practice describes procedures to be followed to assist users in determining the appropriateness of using information in ECPs performed previously. The system of prior ECP usage is based on the following principles that should be adhered to in addition to the specific procedures set forth elsewhere in this practice:
4.6.1 Use of Prior Information—Subject to 4.6.4, users and environmental professionals may use information in prior ECPs provided such information was generated as a result of procedures that meet or exceed the requirements of this practice or accurately state the limitations of the information presented. When using information from an ECP which, as a whole, fails to meet or exceed the requirements of this practice, the use shall be limited to those portions of the ECP which, based upon the limitations and methodology of the ECP report, the environmental professional finds to be reasonably accurate.
Note 3: Earlier versions of this practice required the review and analysis of a significantly smaller set of records.
4.6.2 Prior ECP Meets or Exceeds—Subject to 4.6.4, a prior ECP may be used in its entirety, without regard to the specific procedures set forth in these practices if, in the reasonable judgment of the user, the prior ECP meets or exceeds the requirements of this practice and the conditions at the property likely to affect environmental condition of property area types in connection with the property are not likely to have changed materially since the prior ECP was conducted. In making this judgment, the user should consider the type of property subject to the ECP and the conditions in the area surrounding the property.
4.6.3 Current Investigation—Except as specifically provided in 4.6.2, prior ECPs should not be used without current investigation of conditions likely to affect the environmental condition of property in connection with the property that may have changed materially since the prior ECP was conducted. For an ECP to be consistent with this practice, a new visual inspection, interviews, an update of the records review, and other appropriate activities may have to be performed.
4.6.4 Actual Knowledge Exception—If the user or environmental professional(s) conducting an ECP has actual knowledge that the information being used from a prior ECP is not accurate or if it is obvious, based on other information obtained by means of the ECP or known to the person conducting the ECP, that the information being used is not accurate, such information from a prior ECP may not be used.
4.6.5 Contractual Issues Regarding Prior ECP Usage—The contractual and legal obligations between prior and subsequent users of ECPs or between environmental professionals who conducted prior ECPs and those who would like to use such prior ECPs are beyond the scope of this practice.
Scope
1.1 Purpose—The purpose of this practice is to define good commercial and customary practice in the United States for assessing the environmental condition of property (ECP) of federal real property. This practice applies to property under consideration for lease, excess and surplus property at closing and realigning military installations, claims reverting to federal ownership such as abandoned mines, and other federally-owned property. The steps in this practice are conducted to fulfill certain requirements of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) section 120(h), as amended by the Community Environmental Response Facilitation Act of 1992 (CERFA) and the federal real property disposal regulations codified in 41 CFR Subpart C (41 CFR 102-75). As such, this practice is intended to help a user to gather and analyze data and information in order to classify property into the applicable environmental condition of property area types (in accordance with the ASTM D5746, Standard Classification of Environmental Condition of Property Area Types, (see Appendix X1). Once documented, the ECP report is used to support Findings of Suitability to Transfer (FOSTs), Findings of Suitability to Lease (FOSLs), or uncontaminated property determinations, or a combination thereof, pursuant to the requirements of CERFA and CERCLA § 120(h). Users of this practice should note that it does not address (except where explicitly noted) requirements for appropriate and timely regulatory consultation or concurrence, or both, during the conduct of the ECP or during the identification and use of the standard environmental condition of property area types.
1.1.1 Environmental Condition of Property—In accordance with the federal landholding agency policies and General Services Administration’s (GSA) federal real property management regulations, an ECP will be prepared or evaluated for its usefulness (and updated if necessary) for any federally-owned property to be transferred by deed or leased. The ECP will be based on existing environmental information related to storage, release, treatment, or disposal of hazardous substances, munitions, or petroleum products on the property to determine or discover the obviousness of the presence or likely presence of a release or threatened release of any hazardous substance or petroleum product. In certain cases, additional data, including sampling, if appropriate under the circumstances, may be needed in the ECP to support the FOST or FOSL. A previously conducted ECP may be updated as necessary and used for making a FOST or FOSL. An ECP also may help to satisfy other environmental requirements (for example, to satisfy the requirements of CERFA or to facilitate the preparation of environmental condition reports). In addition, the ECP provides a useful reference document and assists in compliance with hazard abatement policies related to asbestos and lead-based paint. The ECP process consists of discrete steps. This practice principally addresses ECP-related information gathering and analysis.
1.1.1.1 Discussion—Prior versions of this practice referred to environmental baseline surveys (EBS). The 2018 Department of Defense 4165.66M Base Redevelopment and Realignment Manual changed the focus to ECP. Appendix 3 of DODM 4165.66M provides direction on the preparation of FOST and FOSL documentation. Section C2.4.2.3 of DODM 4165.66M provides direction for Department of Defense property proposed for disposal and redevelopment.
1.1.2 CERCLA Section 120(h) Requirements—This practice is intended to assist with the identification of federal real property and DoD installation areas subject to the notification and covenant requirements of CERCLA § 120(h) relating to the deed transfer of contaminated federal real property (42 USC 9601 et seq.), (see Appendix X2). Examples of other federal landholding agencies that must comply with CERCLA §120(h) requirements include the Bureau of Land Management, the Federal Aviation Administration, and U.S. Forest Service.
1.1.3 CERFA Requirements—This practice provides information to partially fulfill the identification requirements of CERFA [Pub. L. 102-426, 106 Stat. 2174], which amended CERCLA. Property classified as area Type 1, in accordance with Classification D5746 is eligible for reporting as “uncontaminated” under the provisions of CERFA and the Federal Management Regulations, Real Property Disposal rules codified in 41 CFR 102-75. Additionally, certain property classified as area Type 2, where evidence indicates that storage occurred for less than one year, may also be identified as uncontaminated. At installations and federal property listed on the National Priorities List, Environmental Protection Agency (EPA) concurrence must be obtained for the property to be considered “uncontaminated” and therefore transferable under CERCLA § 120(h)(4). The EPA has stated that there may be instances in which it would be appropriate to concur with the federal landholding agency that certain property can be identified as uncontaminated under CERCLA § 120(h)(4) although some limited quantity of hazardous substances or petroleum products have been stored, released, or disposed of on the property (see EPA Office of Enforcement and Compliance Assurance, May 2019). If the information available indicates that the storage, release, or disposal was associated with activities that would not be expected to pose a threat to human health or the environment (for example, housing areas, petroleum-stained pavement areas, and areas having undergone routine application of pesticides), such property should be eligible for expeditious reuse.
Note 1: Confirmed releases of emerging chemicals of environmental concern may require additional consideration (see Office of the Undersecretary of Defense. Policy Memorandum for Clarifications and Upcoming Changes to Department of Defense Instruction 4715.18 in Response to Department of Defense Office of Inspector General Findings, April 2022).
1.1.4 Petroleum Products—Petroleum products and their derivatives are included within the scope of this practice. Areas on which petroleum products or their derivatives were stored for one year or more, known to have been released or disposed of [CERCLA§ 120(h)(4)] are not eligible to be reported as “uncontaminated property” under CERFA.
1.1.5 Other Federal, State, and Local Environmental Laws—This practice does not address requirements of any federal, state, or local laws other than the applicable provisions of CERCLA identified in 1.1.2 and 1.1.3. These applicable or relevant and appropriate requirements (ARARs) may have a bearing upon the ultimate disposition of the federal property. Users are cautioned that federal, state, and local laws may impose additional ECP or other environmental assessment obligations that are beyond the scope of this practice. Users should also be aware that there are likely to be other legal obligations with regard to hazardous substances or petroleum products discovered on property that are not addressed in this practice and that may pose risks of civil or criminal sanctions, or both, for noncompliance.
1.1.6 Other Federal, State, and Local Real Property and Natural and Cultural Resources Laws—This practice does not address requirements of any federal, state or local real property or natural and cultural resources laws. Users are cautioned that numerous federal, state, and local laws may impose additional environmental and other legal requirements that must be satisfied prior to deed transfer of property that are beyond the scope of this practice.
Note 2: The General Services Administration’s Excess Real Property Due Diligence Checklist for Federal Landholding Agency Customers, November 2017, provides additional detail on federal ARARs.
1.1.7 Non-Federal Property—This standard may also be used by tribal, state and local agencies to assess the environmental condition of non-federal property.
1.2 Objectives—Objectives guiding the development of this practice are (1) to synthesize and put in writing a standard practice for conducting a high quality ECP, (2) to facilitate the development of high quality, standardized environmental condition of property maps to be included in an ECP that can be used to support FOSTs, FOSLs, and other applicable environmental condition reports, (3) to facilitate the use of the standard classification of environmental condition of property area types (see Classification D5746), (4) to facilitate the development of a standard guide for preparing and updating ECP reports, and (5) comply with the Federal Real Property Disposal regulations codified in 41 CFR 102-75.
1.3 Limitations—Users of this practice should note that, while many of the elements of an ECP are performed in a manner consistent with other “due diligence” functions, an ECP is not prepared to satisfy a purchaser of real property’s duty to conduct “all appropriate inquiries”, as defined in 40 CFR 312, to establish an “innocent landowner defense” to CERCLA § 107 liability. Any such use of any ECP by any party is outside the control of the federal agencies and beyond the scope of any ECP. No warranties or representations are made by any federal agency, its employees, or contractors that any ECP report satisfies any such requirement for any party.
1.4 Organization of This Practice—This practice has 15 sections. Section 1 is the scope. Section 2 identifies referenced documents. Section 3, Terminology, includes definitions of terms not unique to this practice, descriptions of terms unique to this practice, and acronyms and abbreviations. Section 4 is the significance and use of this practice. Section 5 describes user's responsibilities. Sections 6 – 13 are the main body of the data gathering analysis steps of the ECP process. Section 14 briefly describes the ECP Step 3 classification of environmental condition of property area types. Section 15 contains a list of keywords. The twelve appendices are non-binding and non-mandatory; they provide background, guidance, and examples.
1.5 This standard does not purport to address all of the safety concerns, if any, associated with its use. It is the responsibility of the user of this standard to establish appropriate safety, health, and environmental practices and determine the applicability of regulatory limitations prior to use.
1.6 This international standard was developed in accordance with internationally recognized principles on standardization established in the Decision on Principles for the Development of International Standards, Guides and Recommendations issued by the World Trade Organization Technical Barriers to Trade (TBT) Committee.
