Significance and Use
4.1 Uses—This practice is intended for use by DoD components and environmental professionals in order to facilitate EBS efforts. It is also intended for use by preparers and reviewers of environmental condition of property maps and EBS Reports used to support CERFA uncontaminated property identifications and property suitable for transfer by lease or by deed.
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.
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 EBS 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 EBS, their occupants shall not be treated as key site personnel with regard to the housing occupied for the purpose of conducting an EBS.
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 E1528.
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 EBS or in judging whether a user or environmental professional has conducted appropriate inquiry or has otherwise conducted an adequate EBS.
4.4.1 Uncertainty Not Eliminated—No EBS 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 (see 7.1.3.2).
4.4.2 Not Exhaustive—Appropriate inquiry does not mean an exhaustive assessment of an uncontaminated property. There is a point at which the cost of information obtained or the time required to gather it outweighs the usefulness of the information and, in fact, may be a material detriment to the orderly completion of transactions. One of the purposes of this practice is to identify a balance between the competing goals of limiting the costs and time demands inherent in performing an EBS and the reduction of uncertainty about unknown conditions resulting from additional information.
4.4.3 Level of Inquiry Is Variable—Not every property will warrant the same level of EBS effort. Consistent with good practice, the appropriate level of EBS will be guided by the type of property subject to EBS and the information developed in its conduct.
4.4.4 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 EBSs must be evaluated based on the reasonableness of judgments made at the time and under the circumstances in which they were made. Subsequent EBSs should not be considered valid standards to judge the appropriateness of any prior EBS based on hindsight, new information, use of developing technology or analytical techniques, or other factors.
4.5 Continued Viability of Environmental Baseline Survey—An EBS 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 EBS 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 EBS Usage—This practice recognizes that EBSs 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 EBS procedures. Therefore, this practice describes procedures to be followed to assist users in determining the appropriateness of using information in EBSs performed previously. The system of prior EBS 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 EBSs 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 EBS which, as a whole, fails to meet or exceed the requirements of this practice, the use shall be limited to those portions of the EBS which, based upon the limitations and methodology of the EBS Report, the environmental professional finds to be reasonably accurate.
4.6.2 Prior EBS Meets or Exceeds—Subject to 4.6.4, a prior EBS 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 EBS 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 EBS was conducted. In making this judgment, the user should consider the type of property subject to the EBS and the conditions in the area surrounding the property.
4.6.3 Current Investigation—Except as specifically provided in 4.6.2, prior EBSs 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 EBS was conducted. For an EBS 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 EBS has actual knowledge that the information being used from a prior EBS is not accurate or if it is obvious, based on other information obtained by means of the EBS or known to the person conducting the EBS, that the information being used is not accurate, such information from a prior EBS may not be used.
4.6.5 Contractual Issues Regarding Prior EBS Usage—The contractual and legal obligations between prior and subsequent users of EBSs or between environmental professionals who conducted prior EBSs and those who would like to use such prior EBSs 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 conducting an environmental baseline survey (EBS) in order to determine certain elements of the environmental condition of federal real property, including excess and surplus property at closing and realigning military installations. This effort is 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). As such, this practice is intended to help a user to gather and analyze data and information in order to classify property into seven environmental condition of property area types (in accordance with the Standard Classification of Environmental Condition of Property Area Types). Once documented, the EBS 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. 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 EBS or during the identification and use of the standard environmental condition of property area types.
1.1.1 Environmental Baseline Survey—In accordance with the Department of Defense (DoD) policy, an EBS will be prepared or evaluated for its usefulness (and updated if necessary) for any property to be transferred by deed or leased. The EBS will be based on existing environmental information related to storage, release, treatment, or disposal of hazardous substances 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 EBS to support the FOST or FOSL. A previously conducted EBS may be updated as necessary and used for making a FOST or FOSL. An EBS 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 EBS provides a useful reference document and assists in compliance with hazard abatement policies related to asbestos and lead-based paint. The EBS process consists of discrete steps. This practice principally addresses EBS-related information gathering and analysis.
1.1.2 CERCLA Section 120(h) Requirements—This practice is intended to assist with the identification of 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.).
1.1.3 CERFA Requirements—This practice can be used to provide information that can be used 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. 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 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 DoD Component 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. 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.
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. Users are cautioned that federal, state, and local laws may impose additional EBS 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.
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 EBS, (2) to facilitate the development of high quality, standardized environmental condition of property maps to be included in an EBS 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, and ( 4) to facilitate the development of a standard guide for preparing and updating EBS reports.
1.3 Limitations—Users of this practice should note that, while many of the elements of an EBS are performed in a manner consistent with other “due diligence” functions, an EBS is not prepared to satisfy a purchaser of real property's duty to conduct an “appropriate inquiry” in order to establish an “innocent landowner defense” to CERCLA § 107 liability. Any such use of any EBS by any party is outside the control of the United States Department of Defense and its components and beyond the scope of any EBS. No warranties or representations are made by the United States Department of Defense, its components, its officers, employees, or contractors that any EBS 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 EBS process. Section 14 briefly describes the EBS Step 3 classification of environmental condition of property area types. Section 15 contains a list of keywords.
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 and health practices and determine the applicability of regulatory limitations prior to use.
