3.1 Purpose. The purpose of this chapter is to prescribe Service policy, requirements, functions, procedures and responsibilities regarding determinations of the risk of exposing the Department to liability for hazardous substances or other environmental cleanup costs and damages associated with the acquisition of any real property by the Service for the United States. The requirements, functions, and procedures prescribed in this chapter are intended to ensure that the Service determines, prior to real property acquisition, the likelihood of the presence and extent of hazardous substance-related and other environmental liability associated with real property. Such determinations must be a consideration in any decision to acquire real property and to establish the total actual or potentialcost of or resulting fromthe acquisition.
3.2 Scope. The responsibilities and requirements of this chapter shall apply to any proposed Service acquisition of real property to which Departmental liability for hazardous substances or other environmental remediation or damages can attach. In addition, this chapter shall apply to withdrawn public domain lands returning to Departmental jurisdiction. All real property acquisitions, whether discretionary or non-discretionary, require an environmental site assessment. This includes real property acquisitions from other Department of the Interior bureaus as well as other departments and agencies of the United States. The requirements of this chapter shall not apply to real property to which liability will not attach, as determined by the Office of the Solicitor.
3.3 Policy. It is Service policy to:
A. Minimize the potential liability of the Department and the Service by acquiring real property that is not contaminated unless directed by the Congress, court mandate, or as determined by the Secretary.
B. Identify potential hazardous substance-related threats to fish and wildlife and their habitats and other environmental problems prior to real property acquisition.
3.4 Authorities and References. The primary authorities and references relevant to carrying out environmental site assessments are as follows: The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended, 42 U.S.C. 9601 et seq.; Community Environmental Response Facilitation Act, 42 U.S.C. 9621; Solid Waste Disposal Act, as amended, 42 U.S.C. 6901 et seq.; Clean Water Act, as amended, 33 U.S.C. 1251 et seq.; Clean Air Act, as amended, 42 U.S.C. 7401 et seq.; Oil Pollution Act, as amended, 33 U.S.C. 2701 et seq.; Toxic Substances Control Act, 42 U.S.C. 2601 et seq.; Emergency Planning and Community Right-To-Know Act, 42 U.S.C. 1101 et seq.; "Comprehensive Waste Management" 518 DM 1; "Compliance with Waste Management Requirements" 518 DM 2; "Real Property Environmental Site Assessments" 602 DM 2; any other applicable Federal, State, and local requirements; and the American Society for Testing Materials (ASTM) - Standards on Environmental Site Assessments for Commercial Real Estate.
A. Environmental Site Assessment. Meansan analysis ofan environmental site, prior to acquisition of real property, to determine the potential of, and extent of liability for hazardous substances or other environmental remediation or injury. This includes but is not limited to a determination of the absence or presence of hazardous substances or conditions that indicate an existing or past release, or a material threat of a release on the real property.
B. Hazardous Substances. Means all CERCLA listed substances [see 42 USC 9601(14)],petroleum products or their derivatives (including aviation fuel and motor oil), nuclear source materials, and unexploded ordnance.
C. Other Environmental Problems. Means problems associated with environmental contamination, whether or not involving hazardous substances, to which Departmental cleanup or other liability may attach under the authorities identified in 3.4 of this chapter, or under corresponding state statutes.
D. Real Property. Means any land or an interest therein, and all buildings, structures and improvements affixed to the land.
E. Real Property Acquisition. Means the acquisition ofreal property, for any period of time, through discretionary acts or when required by law, whether by way of condemnation, donation, escheat, right-of-entry, escrow, exchange, lapses, purchase, revocation, or transfer.
F. Release. Means any release [see 42 USC 9601(22)], discharge [see 33 USC 1321(a)(2)], or threatened discharge of a hazardous substance into the air, soil, sediment, groundwater, surface water, or any structures located on the real property.
G. Remediation. Means meeting the requirements and standards of applicable Federal and state laws applicable to hazardous substance management or cleanup.
H. Remediation or Other Cleanup Costs. Means the actual or potential costs to the Department or the Service for remediation or other environmental cleanup, or other damages or costs associated with hazardous substance contamination of real property.
3.6 Requirements. Environmental site assessments must be completed to satisfy the detailed planning and pre-acquisition requirements.
A. Detailed Planning Overview Surveys. During the detailed planning process, an "overview" survey or Level I Survey is completed when a new refuge or an addition to a refuge boundary is proposed [see 341 FW 2.5 F.(3)]. The purpose of an "overview" survey is to identify actual or potential hazardous substances or other environmental problems within the area proposed. This information should be included as a part of the Decision Document (DD) in the form of a section of the NEPA document or a separate written report that addresses the problems identified in an "overview" survey. These surveys should be coordinated with the Engineering Assessments (see 341 FW 2.6 B.), as appropriate, to avoid duplication of effort. A Level I Survey may be appropriate for the "overview" survey (see Exhibit 1, Form F341-3X1). This would also satisfy the Level I Survey requirements below for individual tracts if the land is purchased within one year of the date of completion of the Level I Survey.
B. Pre-Acquisition Surveys and Analysis. Before the Service acquires any real property for the United States, the Service shall:
(1) Complete an Environmental Site Assessment in accordance with 3.7 below, and ascertain the likelihood of the presence and extent of hazardous substances or other environmental problems associated with such property and any remediation or other cleanup costs.
(2) Weigh the environmental and/or public benefits relative to the total cost of the acquisition including (a) fair market value, (b) actual or potential remediation or other environmental cleanup costs, and (c) any known or reasonably estimated monetary damages that could be associated with the acquisition.
(3) Inform the appropriate Congressional committees of the total cost(s) as determined above for any Congressionally mandated acquisition of contaminated property.
3.7 Environmental Site Assessments.
A. Level I. A Level I Survey must be completed for all acquisitions of interests in real property. The Environmental Site Assessment, Level I Survey Checklist (see Exhibit 1, Form F341-3X1) is used to determine whether there are any potential hazardous substance or other environmental problems and whether a Level II or Level III Survey is needed. Remediation or other cleanup costs may be included. The requirements, procedures and Checklist for a Level I Survey are found in Exhibit 1.
B. Level II. A Level II Survey may be necessary when (1) the answer to any question on the Level I checklist is "Yes," or when no response is given, and there is insufficient information documented to conclude that no additional investigation is necessary prior to proceeding with the acquisition of an interest in the real property in question, or (2) when a bioassessment or sampling is needed to determine the presence or absence of a hazardous substance. Estimates of remediation or other cleanup costs, if any, must be included, unless a Level III Survey is recommended. It is not necessary to complete a Level II survey before commencing a Level III Survey. The requirements, procedures, and format for a Level II Survey are found in Exhibit 2.
C. Level III. A Level III survey is required when the Service determines that a hazardous substance is probably present on the site and significant sampling and original research is necessary to determine the extent of any hazardous substance and the actual or potential costs for remediation. The Level III Survey may also be used to determine the extent of other environmental problems. The requirements and procedures for a Level III Survey are found in Exhibit 3.
3.8 Assessment Standards and Conditions.
A. Minimum Standards. The environmental site assessment should recognize existing environmental conditions and include information that is reasonably ascertainable. It must be complete in terms of technical accuracy and comprehensiveness.
B. Qualifications of Personnel. Environmental site assessments must be conducted by qualified individuals.
(1) The Level I and "Overview" Surveys must be completed by Environmental Contaminants Specialists, or individuals who have received the "Pre-Acquisition Contaminants Surveys for Non-Contaminants Specialists" training course conducted by the Service's National Education and Training Center, or who have completed an equivalent course, or who are in consultation with an Environmental Contaminants Specialist during the survey.
(2) Level II or Level III Surveys must be completed by an Environmental Contaminants Specialist or contractor approved by the Regional Environmental Contaminants Coordinator.
C. Time Limit. The Environmental Site Assessment Level I Survey should be completed within 1 year prior to the real property acquisition (see Exhibit 1, Form F341-3X1, Part F., Date). If new or different information becomes available or the acquisition is delayed beyond the 1-year period, another Level I Survey must be performed to determine what, if any, changes have occurred that might alter the conclusions reached in the original Survey. The second (third, etc.) Level I Survey should be sent through the same review and approval process as the original. Exceptions to the 1-year time limit will be considered for property located in adverse climatic or geographical areas. All exceptions to the 1-year time limit must be supported by documentation and approved by the Regional Director, or the Director as provided in 3.11 of this Chapter.
3.9 Post-Assessment Procedures.
A. Acquisition. Following the preparation of the environmental site assessment, real property may be acquired, provided: (1) no evidence of hazardous substance or other environmental liability is found; (2) if there is such evidence, the acquisition will result in no increased cost to the Department of the Interior and the United States; (3) the proposal, including any liability risk associated with the acquisition, is determined to benefit the Service and is approved in accordance with 3.11 below; or (4) the acquisition is mandated by the Congress, courts, or by the Secretary of the Interior. Whenever possible, the identification of the contributions to the management of the liability by potentially responsible parties or other liable entities should be included in the contract or other legally enforceable instrument.
B. Approval Requirements. Approval is required for all real property acquisitions that may require Departmental funding for: (1) hazardous substance or other environmental cleanup costs; or (2) potential liability risk, including remediation and other known and reasonably estimated costs associated with the acquisition. Where applicable, a formal estimate of the costs of alternatives should be included as part of the request for approval. (Also see 3.11)
C. Retention of Records. The Service Division of Realty must maintain complete documentation of the process and findings of the environmental site assessment. These records must be maintained by the Service Division of Realty as part of the planning document file or acquisition case file, as appropriate. If the real property is not acquired, the results of the environmental site assessment should be retained by the Service.
3.10 Solicitor Guidance. The Office of the Solicitor is available to provide legal review and guidance for Service-proposed real property acquisition. This includes consultation with the Service on real property which may be exempt from the requirements of this Chapter pursuant to 3.2. Solicitor guidance on minimizing potential liability for hazardous substances by conducting appropriate pre-acquisition inquiry is found in Exhibit 4.
3.11 Responsibility and Approval Authority.
A. Assistant Secretary - Policy, Management and Budget. The Assistant Secretary - Policy, Management and Budget (PMB), through the Office of Environmental Policy and Compliance, is responsible for oversight of Departmental compliance with 602 DM 2, "Real Property Pre-Acquisition Environmental Site Assessments" and for the review and approval of Service requests for PMB approval of pre-acquisition environmental site assessments involving hazardous substances or other environmental problems for which remediation or other cleanup costs are estimated to exceed $500,000.
B. Assistant Secretary - Fish and Wildlife and Parks. The Assistant Secretary - Fish and Wildlife and Parks (FWP) is responsible for oversight of Service compliance with 602 DM 2, "Real Property Pre-Acquisition site Assessments" and for review and concurrence of Service requests for PMB approval of pre-acquisition environmental site assessments involving hazardous substances or other environmental problems for which remediation or other cleanup costs are estimated to exceed $500,000, and subsequent transmittal to the Assistant Secretary - PMB.
C. Director. The Director is responsible for Service compliance with 602 DM 2, "Real Property Pre-Acquisition Environmental Site Assessments," and this Chapter and for review and approval of Regional requests for approval of environmental site assessments involving hazardous substances or other environmental problems for which remediation or other cleanup costs are estimated to exceed $250,000 but are no more than than $500,000. The Director is also responsible for review and concurrence of Regional requests for approval of environmental site assessments involving hazardous substances or other environmental problems requiring remediation or other cleanup costs in excess of $500,000 prior to transmittal to the Assistant Secretary - FWP for concurrence and the Assistant Secretary - PMB for approval. The Director's approval is required for any exception to the one-year time limit under 3.8 C. of this Chapter if the document for which the exception is requested was originally approved by the Director or the Assistant Secretary - PMB.
D. Regional Director. The Regional Director is responsible for Regional compliance with this Chapter and determining the likelihood of the presence and extent of hazardous substance-related or other environmental liability associated with real property prior to acquisition. The Regional Director must review and approve, or concur with, the environmental site assessments involving hazardous substances or other environmental problems in the Region. The Regional Director is delegated the authority to approve all environmental site assessments (i.e. Level I, II or III Surveys) for which it is determined that (1) no remediation or other cleanup costs are required, or (2) the estimated remediation or other cleanup costs will not exceed $250,000. The Regional Director's authority to approve environmental site assessments may be further assigned, in writing, to the Senior Realty Officer in the Regional Office. In addition, the Regional Director may approve an exception to the one-year time limit under 3.8 C. of this Chapter if the document for which the exception is requested was originally approved by the Regional Director or the Senior Realty Officer in the Regional Office. This approval authority cannot be redelegated. The Regional Director is responsible for review of and concurrence with Regional requests for approval of pre-acquisition environmental site assessments involving hazardous substances or other environmental problems for which remediation or other cleanup costs are estimated to exceed $250,000 and subsequent transmittal to the Director for approval or review.
3.12 Funding. Environmental site assessments will be accomplished through normal Service program appropriations. The Service must ensure that adequate appropriations are available for remediation or other cleanup costs estimated for funding by the Department as a result of the acquisition of real property. Any reprogramming proposal must be submitted according to established reprogramming procedures (253 FW 3).
A. Land acquisition budget requests should include the costs for pre-acquisition surveys.
B. Pre-acquisition environmental site assessments are pre-acquisition costs and may be charged to the Migratory Bird Conservation Fund and Land and Water Conservation Fund accounts, as appropriate.
C. Remediation or other cleanup costs are post-acquisition costs and are not chargeable to these accounts.
D. Funding of environmental site assessments and associated remediations or cleanup will not be obtained from the Departmental Central HazMat Fund.
3.13 Statutory Acquisitions. To the maximum extent possible, the Service shall ensure that reports to Congress, comments on proposed legislation, and Congressional testimony on the acquisition of real property contain environmental site assessment information and estimates of actual or potential remediation or other cleanup costs.