On This Page...
- General Overview
- ESA versus NEPA Hazmat
- Land Acquisition under the AIP
- What Process should be used?
- What to Submit
- Resources- Forms, Publications
Environmental Site Assessments (ESA's) are a direct response to the liability provisions of Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA). Liability requirements under CERCLA allow for recovery of clean up costs from a responsible party regardless of the level of negligence. It is possible that any one of the identified responsible parties be held liable for the entire clean up cost regardless of their degree of involvement.
CERCLA further states that owners of property or those who acquire property may be held accountable for contamination found on their property whether they created it or not. Any entity that buys, sells, or leases real estate should pay particular attention to the condition of the property before a real estate transfer occurs.
In order to protect the FAA's investment in airport property, it is important that sponsors conduct ESA's before acquiring property they ultimately will seek reimbursement for under the AIP. The ESA process establishes reasonable assurance that no hazardous wastes, other wastes, or unacceptable hazards exist; or that existing hazardous wastes are manageable. Of equal importance, the ESA process constitutes appropriate inquiry into previous ownership and uses of the property thus satisfying the main requirement to qualify for the "innocent landowner defense" to CERCLA liability.
Land Acquisition under the AIP
The Airport Improvement Program (AIP) funds acquisition of land around airports for aeronautical use. Many acquisitions are sizable in acreage and costs, and are usually adjacent to existing airport property. For some locations, this may involve unimproved agricultural acreage, residential areas, or old industrial sites.
Sponsor's tasked with acquiring such locations may request and receive reimbursement of acquisition costs through AIP funding if the FAA deems the acquisition eligible under the AIP. In such cases, the FAA does not become a co-owner of the property. However, the desired aeronautical use of the acquired site can be significantly compromised if hazardous contamination is identified subsequent to the acquisition. For this reason, as well as it being a prudent action on the part of the Sponsor, the Sponsor should perform an ESA on all land acquisition intended to be reimbursed under the AIP. We request the sponsor consult with the FAA Project Manager to discuss the level o of ESA they should perform and the standards and/or standard practices they should appliy.
An exception to the above rule is residential property. For residential areas, the sponsor may make a qualified determination that an area has such low risk factors that an ESA is unnecessary. Sponsor must contact the FAA Project Manager for prior concurrence when considering this approach.
The guidance that follows provides background information that may be used to supplement the Sponsor's efforts in providing an adequate ESA commensurate with potential risks/hazards of the property.
Environment Site Assessment versus NEPA Hazmat Review
Environmental Site Assessments are different than the NEPA Hazmat review performed for an Environmental Assessment (EA). The NEPA Hazmat review for an EA is limited to whether there is any hazardous material in the project area that may be disturbed by the construction project or in rare cases if the project itself might generate hazardous emissions. Such a review would involve a visual inspection of the project area, asking airport personnel if there is any known Hazmat in the project area, and checking government databases for Hazmat sites (e.g. Superfund) in the project area. This does not usually involve much field work unless something is turned up in the preliminary review. Only after the EA is complete does land acquisition proceed forward. At that time, the Sponsor should complete an ESA for the property acquisition.
What Process Should the Sponsor Use?
The Federal Register dated November 1, 2005 published 40 CFR Part 312, Innocent Landowners, Standards for Conducting all Appropriate Inquiries and Practices for All Appropriate Inquiries (AAI) Final Rule. In 2004, a Task Group was formed to study and revise the standard ASTM E-1528, Standard Practice for Environmental Site Assessments, and to reach a consensus on a standardized tool for conducting environmental due diligence.
The provisions of the final rule become effective on November 1, 2006. The changes are expected to affect real estate transactions involving government entities. Highlighted here are several of the 74 changes that may affect Environmental Site Assessments (ESA) for Airport Improvement Program (AIP) projects.
The final rule requires that a written report be prepared and signed by an “environmental professional.” The report shall include:
- Interviews with past and present owners, operators and occupants
- Searches for environmental cleanup liens
- Federal, tribal, State and local government records reviews
- Visual inspection of the subject property and in some cases adjoining property
- A declaration by the “environmental professional” regarding any “data gaps” (missing information that could affect the discovery of hazardous conditions or contamination on a site.
The person conducting the ESA is defined as an “environmental professional” The qualifications are now more stringent and include both academic and field experience. The new requirements can be found in the final rule under Subpart B, Section 312.10 (1-5).
Consultants who presently have in-house employees providing ESA services will need to check into the new qualifications and make sure their employees meet the minimum requirements. The changes to the standard may cause delays in future projects depending upon the size of the pool of professionals that are credentialed to perform the ESAs. It is also anticipated that the final costs of the documents will rise. It should be noted however that the final rule as well as previous editions do not apply to residential property.
To read more for yourself on this topic, please visit EPA’s “All Appropriate Inquiries Fact Sheet” web page or refer to ASTM Publication "E1528-06 Standard Practice for Limited Environmental Due Diligence: Transaction Screen Process".
The ESA Processes:
Transaction Screen Process: (ASTM E 1528 General Requirements)
The use of this process is limited to assessment of low risk, small value acquisitions:
- as appropriate inquiry for purposes of innocent land owner defense,
- to identify recognized environmental conditions,
- to reflect commercially prudent and reasonable inquiry.
- as an alternative to, or in addition to, the Phase I Environmental Site Assessment.
This process may be performed by:
- the user or his agent, contractor, employee or in conjunction with an environmental specialist.
- in part or wholly by an environmental specialist.
The process itself:
- interviewing of owner/occupant and others regarding history of property with respect to its use, and any environmental concerns.
- site visit - observing site conditions on and around the property
- search of reasonably ascertainable government records/historical sources inquiry, i.e. fire insurance maps, property titles, state and federal environmental records.
- completion of the Transaction Screen Questionnaire
Findings of this process:
- no need for further inquiry
- need for further inquiry
- limited to specific issues identified - no Phase I needed; or,
- proceed to full Phase I (consult your FAA Project Manager)
Phase I Environmental Site Assessment:
The purpose of this process is to evaluate property acquisitions:
- any suspected/apparent environmental hazard is anticipated,
- large valued acquisitions
- when the Transaction Screen Process has identified potential issues that need further inquiry.
When accomplished in conjunction with the Transaction Screen Process, this phase focuses on the issues cited in that process, and includes but is not limited to further site inspection, inquiry of current/past owners, users of the property, and a review of records. It does not include sampling of soils, waters, etc.
The final product should include results of the investigation and recommendations for future actions.
Phase II Environmental Oversight
The purpose of this phase is to confirm whether property under consideration for acquisition/disposal, or construction is contaminated as indicated by the Phase One ESA. This phase shall only be performed by an environmental specialist, and includes but is not limited to soil sampling, grand water sampling, indoor air quality testing, drums and waste materials testing, asbestos testing, underground tank testing.
The Phase Two ESA has the following elements:
- Sample and Analysis Plan Review
- Field Sampling and Analytical Results Review
- Phase Two Report review.
The final report should include results of the investigation, a cost benefit analysis, if further investigation is needed; and recommendations for future actions. This phase does not intend to identify the extent of contamination.
Phase III ESA Oversight
This portion of the process is intended to quantify and characterize the extent of contamination at the site and shall consist of a full site/remedial investigation and selection of an appropriate/feasibility remedy.
It should be noted that the conduct of an ESA as an environmental practice is complex and may lead to significant penalties for noncompliance. The work described above should be carried out by persons with the requisite specialized training and experience to provide for the safety of the investigators conducting the audit and to properly meet all the requirements established by both Federal and state statute. Sponsors should consult with a specialist in this area prior to beginning any environmental auditing.
What to Submit to the FAA
The Central Region Airports Division requires the sponsor to submit a completed Certification of Environmental Site Assessment for each parcel of land that is acquired. The ESA should be completed prior to the sponsor initiating the negotiation process. If at any time during the process the individual that is performing the ESA has an indication of a finding, the information must be immediately passed along to the sponsor and the appraiser/review appraiser. The ESA document need not be submitted to the FAA unless requested by the FAA project manager.
If any proposed acquisition requires a Phase II or Phase III ESA, it MUST be coordinated with the FAA prior to initiating the next phase in the ESA process, and more importantly, prior to initiating the negotiation process. Contact your FAA Project Manager for guidance for any Phase II/III ESA acquisitions.
Please note that the guidance provided within is derived from one or more of the following documents listed below. Unless otherwise directed, in the event of a conflict between this handout and the listed references, the information provided in the reference documents shall supersede that given in this guidance handout. The references listed below are not exhaustive. Other Industry-recognized methodologies may be used in conjunction with FAA consultation.
- "Comprehensive Environmental Response, Compensation, and Liability Act" (CERCLA), as amended by the "Superfund Amendments and Reauthorization Act of 1986" (SARA)
- ASTM E 1527 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process"
- ASTM E 1528, "Standard Practice for Environmental Site Assessments: Transaction Screen Process"
- DOT/FAA Order 1050.19,* "Environmental Due Diligence Audits in the Conduct of Real Property Transactions" dated 8/22/94.
*NOTE: The FAA EDDA process is intended mostly for in-house (titled directly to the FAA) leasing and acquisition activities. As such, this specific document is not generally used by environmental professional practitioners. For Airport Sponsors with land acquisition that is to be reimbursed by AIP funding, other standards such as ASTM's may be a more appropriate methodology.