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Land Transaction Screening

Land Transaction Screening. Blake Velde Sr. Environmental Scientist USDA Hazardous Materials Management Group October 2006. Overview. Environmental Liability Innocent land owner/Bona fide prospective purchaser Land transactions All Appropriate Inquiry Department Guidance

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Land Transaction Screening

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  1. Land Transaction Screening Blake Velde Sr. Environmental Scientist USDA Hazardous Materials Management Group October 2006

  2. Overview • Environmental Liability • Innocent land owner/Bona fide prospective purchaser • Land transactions • All Appropriate Inquiry • Department Guidance • Checklist Overview • Technical Assistance

  3. Environmental Liability • CERCLA and other environmental laws • Report quarterly to OCFO • OCFO Act requirement • CERCLA Liability -- $2 B plus • DM-5600-1 Goal • All Appropriate Inquiry shield

  4. Environmental Liability • Superfund Sites • USDA program • No more increase to environmental liability

  5. Innocent Landowner/BPP • Land Acquisitions after November 1, 2006 • Protection from CERCLA liability • Conduct search to determine condition of property at the time of acquisition • Includes easements • Defense for innocent landowner and a bona fide prospective purchaser

  6. Why Should NRCS Care? • WRP and other conservation programs • Trigger CERCLA or RCRA liability when lands are “managed” • Disturb hazardous substances or materials that otherwise may not be mobile • “Protective of Human Health & the Environment”

  7. Inundation • Changes to the condition of the property • Potentially increase mobility of contaminants • Management of land features (dykes, berms) where contaminants may be concentrated • Adverse impacts

  8. All Appropriate Inquiry • EPA promulgated rule (40 CRF 312) • 2002 Brownfield Act provisions • Amended CERCLA (Superfund) • Prospective land purchases afforded shield to liability • USDA/Interior Land managing agency joint guidance/policy

  9. Joint Workgroup • USDA (OPPM, OGC, Forest Service, NRCS • Interior (OEPC, Solicitors, FWS, BLM, BIA, NPS) • Justice • Others on the sidelines – GSA, Defense, EPA, USCG • Federal Land managers – over 33% of US

  10. Requirements of AAI § 312 • (a) One year prior to Acquisition • (b) 180 day refresh • (b)(1) Interviews • (b)(2) Record Search for cleanup liens • (b)(3) Record Search other Fed/State/Local • (b)(4) Visual Inspection • (b)(5) Report by Environmental Professional

  11. Guidance Overview • Interior/USDA developed guidance for each of these requirements • General overview and explanation of terms • Detailed checklists for record search, interviews, site visits • Overseeing a Contractor • Reviewing Environmental Professional qualifications

  12. AAI Process • Exercise of Professional Judgment • Current/past practices causing release of HAZMATS • Gathering records • Interviews with current/past owner operators • Site inspection • Report detailing findings • Sign-off by qualified Environmental Professional • AAI conducted by individuals under the “responsible charge of a qualified Environmental Professional

  13. Qualified Environmental Professional (EP)-- § 312.10 (a) • (1) Possesses specific training, work experience, education to conduct this work: • (2)(i) PE or PG license and 3 yrs full time relevant experience (FTRE), or • (2)(ii) Lic. or certified by Fed/State/Local to conduct this and 3 yrs FTRE, or • (2)(iii) Bachelors Science or Engineering and 5 yrs FTRE, or • (2)(iv) Equivalent of 10 yrs FTRE

  14. EP Full Time Relevant Experience • Participation in AAI’s • Env. Site Assessments • Phase 1/Phase 2’s • CERCLA PA/SI’s, RI/FS’s EE/CA’s • RCRA, NEPA or other site assessments • Full Time definition

  15. EP Relevant Experience • Years and qualifications may not be enough • Specialized experience for specific projects • Team approach • ASTM standard and “non-scope” items • Partial responsibility = partial year experience (10 yrs @ 50% duty = 5 yrs)

  16. EP Education • Bachelor of Science or Engineering and professional registration • Other AAI certification/licensing – ongoing project • Relevant Training • Possible course information provided

  17. Pre-Acquisition Environmental Site Assessment (PESA) • Similar to Phase 1 • Similar to ASTM Phase 1 – non scope items • Updated existing ASTM standard -- ASTM E1527-00 suffices for EPA rule – USDA and other federal land managing agencies have other legal requirements - CFO Act

  18. Why Non-Scope? • CFO Act “environmental liabilities” • Impact on Mission • Asbestos, Lead Paint, oil • Assess Fair Market Value • DM-5600-1 requirement to provide costs/liabilities to decision makers • Early go/no-go decision making

  19. Process • Qualified EP – Appendix C • Responsible Charge of EP • Record Search • Interviews • On-site survey • EP report

  20. Who? • Qualified EP ultimately signs report • Responsible Charge of EP may conduct actual work • §312.10(b)(5): “A person who does not qualify as an environmental professional … may assist in the conduct of all appropriate inquiries … if such person is under the supervision or responsible charge of a person meeting the definition of an environmental professional…” • Oversight, Control, Direction of Work • Does NOT have to be direct report • Contractor – new appendix under development

  21. What? • Records Search • Interviews • Site Survey • Report

  22. Record Search • Gather existing records Fed/State/Local • Old photos, maps • Check waste site inventories • Adjacent properties • Permits, wells, sewer, waste treatment

  23. Interviews • Past and current owners/operators/ occupants/employees • Subject/Adjacent properties • Site History • Use • Problems • Follow-up from record search

  24. Site Survey • On-site visit 1 yr of acquisition - 180 days prior to transaction • Waiver for unusual circumstances • Adjacent properties • Obvious contamination • Verify questions from records search and interviews • Photo log and journal

  25. EP Final Report • Critical component of AAI • Written Documentation of findings from records search, interviews, site survey • No specific format – additional guidance forthcoming on outline • Findings • ID data gaps

  26. EP Final Report Cont. • Professional judgment • Sign – qualified EP (312.10) • Sign – conducted inquiry consistent with 312 • Does not require professional “stamp” • No retention requirements, but need to retain for future court actions.

  27. Next Steps • Issue Secretary Memo authorizing use of interim guidance, checklists and other tools • Use for a year and update DM-5600-1 and AGPMRs • Continue developing common tools for use by federal land managing agencies • Develop more detailed training courses

  28. Contact Information • Blake Velde USDA HMMD 1400 Independence Ave SW MS-9100 Washington DC 20250 blake.velde@usda.gov 202.205.0906

  29. Questions?

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