- Notice under the FSFREA. Section 504
(d) (3) (A) states, "provide notice to the person or entity acquiring
the administrative site of the presence of the lead-based paint or
asbestos-containing building material;" The following interpretation
of this section is to be used when meeting this requirement.
Lead Based
Paint (LBP)—For non-residential facilities constructed before 1978
notice shall be provided by disclosing the presence of known
lead-based
paint and/or LBP hazards. For residential facilities constructed before
1978 notice shall be provided in the form of a documented inspection,
completed by a certified LBP inspector, of painted surfaces. LBP will
be defined
by the Housing and Urban Development (HUD) levels: that is, any paint
that includes 0.5% of lead by weight (paint chip) or 1 mg/cm² (X-Ray
Fluorescence).
Notice shall be provided to offerers for all facilities
that EPA and OSHA regulations may be triggered by lead levels below the
HUD level;
future
construction activity may trigger OSHA requirements under 29 CFR 1926.62
and EPA requirements under 40 CFR Part 261.
Note that in some cases additional
disclosure requirements will apply:
If the Forest Service is transferring
a facility that was used as "target
housing" as that term is defined under 24 CFR 35.86, then the full
Title X disclosure requirements found at 24 CFR Part 35, Subpart A, shall
apply, unless the facility is exempted from these requirements under 24
CFR 35.82. Additionally, if a facility being transferred was used in the
past as "residential property" as that term is defined at 24
CFR 35.110, then the Forest Service must conduct the risk assessment required
pursuant to 24 CFR Part 35, Subpart C, prior to closing and provide a copy
to the transferee, unless the facility meets one of the numerous exemptions
from this requirement under 24 CFR 35.115. Note that this determination
is based on the past use of the property. If a property was not used as "target
housing" or "residential property" in the past, then
the transferee will be responsible for compliance with the applicable requirements
if the transferee decides to convert the property to use as "target
housing" or "residential property" after the transfer.
In all cases, the FSFREA exempts the Forest Service from any abatement
or mitigation requirements described in Subpart C of the Title X regulations.
Lead
based paint on the exterior of any structure that has flaked into the
surrounding soil is considered a release under CERCLA 120(h). Therefore
it is important that this media be sampled during the lead inspection
or Phase I/II assessment. The release may require a CERCLA response and/or
reporting based on concentration levels. When the bare soil contains
total
lead equal to or exceeding 400 ppm (mg/kg) (EPA guidance), the Regional
Environmental Engineer shall be consulted to determine what, if any,
additional steps are necessary including risk assessment, deed restrictions,
cleanup,
and so forth. Although abatement is not required under FSFREA, CERCLA
120(h) requires that the release be addressed prior to transfer. See
paragraph
on "environmental due diligence" below.
Asbestos Containing
Materials (ACM)—For all facilities, notice shall be provided in
the form of a documented inspection, completed by a certified
asbestos inspector, including the type, location, condition, and quantity
of ACM. Notice shall be provided to offerers that future construction
activity,
including renovation or demolition, may trigger OSHA requirements under
29 CFR 1926.1101 and/or EPA requirements under 40 CFR 61.145.
These inspections,
if not already completed under the requirements of FSH 7309.11 Chapter
62 or 29 CFR 1910.1001(j), could be incorporated
into the
Phase I or Phase II environmental assessment (CERCLA 120(h); 40 CFR 373)
included in each conveyance package.
It is imperative to note that the
Act did not waive CERCLA Section 120(h) requirements, including the "environmental due diligence" requirement
(40 CFR 373) for selling or transferring federal real property. CERCLA
Section 120(h) requires that each contract for the sale or other transfer
of real property owned by the United States on which any hazardous substance
was stored for one year or more, known to have been released, or disposed
of, contain a notice of the type and quantity of such hazardous substances
and the time at which such storage, release, or disposal took place, to
the extent that such information is available based on a complete search
of agency files. CERCLA Section 120(h) also provides certain notice and
deed covenant requirements. Application of CERCLA Section 120(h) will depend
on the facts of a particular case. Requirements of CERCLA Section 120(h)
should be discussed with the Regional Engineer’s staff early in
the conveyance process.
- Written Assurance under the FSFREA.
The FSFREA requires the Forest Service
to "obtain written assurance
from the person or entity acquiring the administrative site that the
person or entity will comply with applicable Federal, State, and local
laws relating
to the management of the lead-based paint and asbestos-containing building
materials."
The following clause shall be included in the invitation
for bid, purchase and sale agreement, lease, or other documentation associated
with the
transfer to be signed by the person or representative of the entity
acquiring the
site:
- [Person/entity acquiring site] hereby agrees to comply with any
and all applicable Federal, State, and local laws relating
to the management of lead-based paint and asbestos-containing building
material
associated
with
the property, including but not limited to, any such laws relating
to the mitigation, abatement, remediation, cleanup, renovation,
demolition, and
disposal of lead-based paint and asbestos-containing building
material. Accordingly, [Person/entity acquiring site] hereby agrees
to indemnify,
release, defend, and hold harmless the United States, its agencies,
employees,
agents, assigns, and successors from and against any liability,
judgment, claim, penalty, fine, or other adverse action (whether
legal or equitable
in nature, and including without limitation, court costs and
attorneys’ fees)
brought against the United States after the date of this agreement
by any person or entity under any Federal, State, or local
law, including
but
not limited to environmental and tort laws, with respect to
any lead-based paint and/or asbestos-containing building material
associated
with the
property. This covenant to indemnify, release, defend, and
hold harmless the United States shall survive the subsequent conveyance
of all or any
portion of the property to any person and shall be construed
as
running with the real property, and may be enforced by the
United States in a
court of competent jurisdiction.
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