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OFFICE OF THE
UNDER SECRETARY OF DEFENSE
3000 DEFENSE PENTAGON
WASHINGTON DC 20301 3000 |
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ACQUISITION AND
TECHNOLOGY |
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March 2, 2001 |
DUSD ( ES /CL)
MEMORANDUM FOR ASSISTANT SECRETARY OF THE ARMY
------------------------------(INSTALLATIONS AND
ENVIRONMENT)
--------------------------ASSISTANT SECRETARY OF
THE NAVY
------------------------------(INSTALLATIONS AND
ENVIRONMENT)
--------------------------ASSISTANT SECRETARY OF
THE AIR FORCE
------------------------------(MANPOWER, RESERVE
AFFAIRS,
-------------------------------INSTALLATIONS AND
ENVIRONMENT)
--------------------------DIRECTOR, DEFENSE
LOGISTICS AGENCY (D)
SUBJECT: Guidance on Land Use Control Agreements with Environmental
Regulatory Agencies
Attached is the template, referenced in the January 17, 2001, DoD
"Policy on land Use Controls Associated with Environmental Restoration
Activities," that shall be used when drafting a voluntary agreement for
the implementation of land use controls (LUCs) at DoD installations. As
stated in the DoD LUC policy, there is no legal or regulatory requirement for
these agreements; they are voluntary and are intended to improve the
visibility and viability of LUCs at an installation.
These voluntary agreements with environmental regulatory agencies should
only be developed in exceptional cases to facilitate the use of LUCs at a
specific installation (normally active installations only) for property under
the control of the Component, and are primarily a description of the parties'
specific responsibilities within the existing framework of laws and
regulations regarding land use controls. They are not enforceable regulatory
documents, nor are they to be an enforceable term or condition of an
environmental restoration decision document or interagency agreement.
Components may elect to adopt a LUC management strategy at installations
consistent with the principles stated in this guidance without necessarily
entering into an agreement with regulatory agencies. An agreement is normally
effected through a memorandum of agreement (MOA) or memorandum of
understanding (MOU). Generally, MOUs memorialize agreements and MOAs
additionally contemplate a reimbursable support requirement.
This guidance provides flexibility to Components to develop tailored
installation agreements that are consistent with DoD policy. As stated in the
DoD LUC policy, an agreement with a regulatory agency that is consistent with
the attached template and the principles outlined below is exempt from the
72-hour review requirement. Significant deviations from the template,
however, are subject to the 72-hour review requirement.
As stated in the DoD LUC policy, whenever possible, installations shall
use existing processes and mechanisms (e.g., the installation environmental
restoration management action plan, existing land use management practices)
for the implementation and management of LUCs. For property being transferred
out of Federal control, documents such as the deed and contract for sale are
appropriate places to define-LUC responsibilities. A separate agreement may
be needed with a private party (such as the transferee) assuming LUC
responsibilities. Neither the DoD LUC policy nor this guidance restricts such
agreements. Such agreements with private parties, however, should be
consistent with the DoD LUC policy and the principles and template contained
in this guidance.
Principles incorporated in the template and to be highlighted in
Agreements with regulatory agencies are as follows:
- Agreements shall be consistent with applicable law and authority.
Agreements shall not include additional substantive requirements beyond
those authorized in Federal and applicable state or local laws and
regulations not in conflict with Federal law.
- Responsibility for managing and monitoring LUCs should be at the local
level; the property owner should have the primary responsibility, and
existing local processes should be used.
- Agreements should address only specific sites where LUCs will be
employed, not the installation as a whole, and preferably should be drafted
only after the remedy is proposed or selected.
- As DoD does not have authority to dispose of any real property rights at
an active installation (e.g., recording a restrictive covenant or
easement), implementing LUCs will not create, dispose, or alter any real
property rights on active installations.
- DoD has authority to make land use decisions at active installations;
however, where a proposed land use change requires a change to the decision
document, the decision document change normally will require the same level
of regulatory involvement as the original decision document.
- Mutually acceptable and reciprocal reservation of rights clauses should
be used to avoid otherwise irreconcilable conflicts and stalemates in the
development of the Agreement.
- State services in support of LUC Agreements and implementation of LUCs
are not covered by the Defense State Memorandum of Agreement (DSMOA)
process and related funding. Payment of applicable, nondiscriminatory state
and local fees for LUC implementation and monitoring activities are
allowable but must be consistent with DoD policy and guidance.
- Agreements will not limit the ability of the parties to delete any site
from the Agreement based on a change in cleanup standards that obviates the
need for the LUC.
- The Agreement shall specify that it will terminate upon transfer of the
subject property, and LUC responsibilities should be incorporated into the
contract for sale and deed.
The point of contact for this guidance and template is Mr. Shah A.
Choudhury at (703) 697-7475.
Gary D. Vest
Principal Assistant Deputy Under Secretary of Defense
(Environmental Security)
Attachment: as stated
CC:
DUSD(I)
DGC(E&I)
Template for Land Use Controls Agreement
with Environmental Regulatory Agencies
This template provides an annotated outline for agreements
with regulatory agencies for the management and monitoring of Land Use
Controls (LUCs) on property under the control of an installation. The outline
consists of section headings with a short description of what should be
contained; additional explanatory matter is provided in italics. The template
provides a wide range of circumstances to cover the greatest extent possible
in an Agreement; Components and installations are encouraged to eliminate
inapplicable provisions and tailor Agreements by using only those specific
sections and provisions relevant to the specific circumstances of the remedy
and site. In drafting an Agreement, the emphasis should be on what is to be
done by the installation or the regulatory agency; describing an existing
process and responsibilities may suffice. Neither taxpayers nor protection of
human health and the environment are served by developing redundant processes
or paperwork that divert funding, effort, and focus away from the substance of
environmental restoration efforts and management of LUCs. Any additional
requirements contemplated under the Agreement must be cost-effective and
directly assist in addressing risks.
Background
This section describes the background and reasons why LUCs
are being used at the installation. The following descriptions, as
applicable to the installation and specific sites with LUCs, are to be used.
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Statement that investigative activities have revealed
contamination and a list (if available) of
those sites for which site-specific remedies with associated land use
controls have been
selected or previously implemented.
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Statement that Federal or state risk-based cleanup criteria
were applied in the remedy
selection process to prevent unacceptable exposure.
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Statement that installation desires that site remedy
determinations take future land use into
account.
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Statement that land use controls are intended to ensure land
use restrictions remain in place
and effective as long as necessary to ensure remedy remains protective of
human health and
the environment.
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Statement that existing processes and mechanisms are to be
used in the implementation,
management, and monitoring of LUCs.
Definitions
This section is intended for defining terms specific to the
Agreement, such as definitions of LUCs or decision documents tailored to the
installation and specific sites subject to the Agreement.
Purpose
This section should state the objective(s) to be
accomplished through execution of the
Agreement. The objective(s) will be one or more of the following:
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To implement a process to ensure appropriate long-term
maintenance of LUCs. The process will elevate general awareness of LUCs by
installation personnel to ensure long-term protection.
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To implement a process for the installation to periodically
update the appropriate regulatory agency concerning the continuation of any
LUCs and any planned changes in land use that may affect any site remediated
in accordance with risk-based criteria.
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To integrate site remedies with LUCs into the installation's
facility planning process.
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To provide reasonable assurances that pathway and exposure
assumptions relied upon in making the remedial decision will remain valid
until different site controls or unrestricted use are appropriate.
Applicability
Agreements should focus on site-specific remedies, rather
than general provisions relating to the entire installation or the remedy
selection and remedial action process.
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Statement that any future decisions involving LUCs on the
installation must be consistent with the Agreement.
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Statement that the Agreement will take effect only after
remedy selection.
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Statement that implementation of LUCs under the Agreement
will not have the effect of creating, disposing, or altering any real
property rights on active installations. (Note: Unless otherwise
authorized by law, e.g., BRAC, DoD is not authorized to create a use
restriction for recordation. Deed recordation by DoD of a use restriction on
active installation property is creating, disposing, or altering a real
property interest on Federal property that is prohibited by Federal property
law, regulations, and policy.)
Site Inspection/ Review/Certification
This section covers management and review of LUCs,
primarily internal installation
responsibilities. Reference to existing procedures or providing regulatory
agencies a
notification and an invitation to observe installation inspections may
suffice, and is preferred to developing duplicative inspection regimes.
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Provision for periodic (as agreed) monitoring or visual
inspections of LUC sites by the
installation.
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Statement that inspections and reviews by the installation
are for purposes of verifying that
LUCs are properly maintained.
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Provision for notice to the appropriate regulatory agency of
deficiencies, and that all appropriate measures have been taken to correct
the deficiencies.
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Provision for an annual report to the appropriate regulatory
agency confirming the continued
retention of all LUCs. (This provision is intended primarily for active
installation
Agreements; if regulatory agencies are to be notified of deficiencies and
actions taken, then this provision is redundant and may not be needed. )
Annotation
This section is intended for use in Agreements where transfer of
property is not anticipated, e.g., active installations. In some states, there
may be a requirement to record use restrictions in the local land records,
something that is prohibited by Federal property law, regulations, and policy
for active installation real property. This recordation requirement, however,
may be fulfilled through an agreement with the state to annotate use
restrictions at the installation, and some combination of describing
installation processes for monitoring and managing land use, reporting major
land use changes, and a provision for deed recordation if the property is
transferred out of Federal control in the future.
- Statement that the installation will develop and incorporate appendices
(LUC site listing and others, as needed) into the installation master
planning process and geographic information system (GIS) (as available and
applicable to the installation), and will provide written notification to
the state regulatory agency when incorporated.
- Statement, if applicable, that the Agreement satisfies state requirements
for LUC recordation.
Land Use Changes/Agency Coordination
This section is primarily intended for use in Agreements where transfer
of property is not anticipated, e.g., active installations, as an alternative
to state legal requirements for recording land use changes in local land
records, something that is prohibited by Federal property law, regulations,
and policy for active installation property. Where a land use change will
violate a use restriction or risk assumptions in the underlying remedy
decision, the installation must undertake further environmental restoration
actions to ensure compatibility of land use with residual contamination. Where
a land use change does not violate the use restrictions in the remedy but may
undermine the effectiveness of the LUCs associated with the property, the
installation may need to modify the LUCs to ensure inappropriate activities do
not occur.
- Procedure for providing notification to the appropriate regulatory agency
regarding any major land use changes.
- Definition of ''major change in land use" (as applicable):
1. Any change in land use (e.g., from industrial or recreational to
residential) that would be inconsistent with those specific exposure
assumptions in the human health and/or ecological risk assessments that
served as the basis for the LUCs that were implemented at the site.
2. Any site activity that may disrupt the effectiveness of the implemented
LUC (e.g., excavation at a landfill; groundwater pumping that may impact a
groundwater pump and treat system; a construction project that may affect
ecological habitat protected by the remedy; the permanent removal of a fence;
or the permanent removal of warning signs).
3. Any site activity intended to alter or negate the need for the specific
LUC(s) implemented at the site.
- Provision for evaluation of how a proposed major land use change will
affect the remedy and assessment of the need for additional LUCs or changes
in the selected remedy.
MOA Integration
This section, to be used only if needed, will describe the type of
information about site-specific LUCs and any standard language to be included
in decision documents. Reference to the Agreement in the decision document,
however, does not make the Agreement an enforceable term or requirement of the
decision document or in an interagency agreement/Federal facilities agreement.
Commitment to Obtain Funding
For a Memorandum of Understanding, this section describes
the installation assurance to obtain funding for the implementation,
management, and monitoring of LUCs. Please note these activities may be funded
from sources other than an environmental restoration account. In exceptional
cases, where the installation desires reimbursable services (i.e., a
Memorandum of Agreement is being used), this section should briefly describe
the funding mechanism that is contemplated. Note that use of the Defense State
Memorandum of Agreement (DSMOA) process and related funding is limited to
reimbursing state support services during remedy selection and implementation
of the physical remedy. State services in support of LUC Agreements and
implementation, management, and monitoring of LUCs are not covered by the
DSMOA process.
Future Property Conveyances
-
This section is intended for agreements both at active
installations (where transfer of property is not anticipated and the
Agreement is substituting for state legal requirement for deed recordation)
and at BRAC installations (where property transfer is anticipated). The
following provisions should be tailored to the appropriate circumstances.
Referencing an established process (e.g., Finding of Suitability to Transfer
(FOST) process for the transfer of BRAC property) may suffice, and is
preferred to creating new or additional requirements.
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Provision for written notice to regulatory agency at least
(X) days before such intended conveyance. Notice should indicate mechanisms
necessary to ensure that LUCs will remain in place after property is
conveyed. (This provision, where applicable, is intended primarily for
active installation Agreements in lieu of deed recordation. The notice is
intended to be informational to note the change in ownership and LUC
responsibilities.)
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Statement that each LUC will be reviewed and incorporated
into those property disposal procedures required to meet CERCLA
requirements.
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Statement that the LUC site will be deleted from the
Agreement upon transfer of the property.
Change in Applicable Standards
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Statement that the Agreement will not limit the ability of
parties to delete any site from the Agreement based on either a change in
cleanup standards or a change in contaminant concentration levels allowing
for unrestricted use of the formerly LUC-encumbered property, e.g., deleting
a site where groundwater contaminant levels have reached the remediation
objective through treatment.
Future Communications
Site Access
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Provision for regulatory agency access to sites covered by
the agreement at reasonable times consistent with the military mission,
security, and health/safety requirements, and upon presentation of proper
credentials.
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Statement that regulatory agency access will be coordinated
with the installation's environmental restoration program manager.
Disputes
Reservation of Rights
This section provides for mutually acceptable and
reciprocal reservation of rights clauses used to avoid otherwise
irreconcilable conflicts and stalemates in the development of the Agreement.
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Installation reserves rights granted to DoD under Federal
law, regulation, or executive order, including any right to put all property
under control of the installation commander to those uses deemed necessary
in his discretion for mission accomplishment or necessary by appropriate
military authority to meet needs of DoD. (Note: The installation must
ensure that the land use will not violate a use restriction or risk
assumptions in the underlying remedial decision and that the land use is
compatible with residual contamination.
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Statement that DoD is CERCLA lead agency.
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Statement that DoD has sole authority to make land use
decisions on active installations.
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Regulatory agencies reserve rights to require installation
to comply with Federal and state laws and regulations applicable to
investigation, cleanup, and long term maintenance of those sites covered by
the agreement.
Anti-Deficiency Act
Amendment
Termination
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Statement that Agreement terminates upon mutual concurrence
by parties that the objectives of the Agreement have been fulfilled.
Provision that in the event of a dispute, any party can withdraw from the
Agreement upon (X) days written notice to other parties, but only after
reasonable efforts have first been made by the parties to resolve any
disputes.
Representative Authority
Appendices (as applicable to the Agreement)
All appendices must be consistent with the Agreement,
creating no rights or obligations beyond those specified in the Agreement.
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LUC Site Listing. For each site it will include site name,
site description, and site location. Appendix will be updated periodically
(as agreed) to reflect additions or deletions of sites. Copies of all
updates will be sent to the regulatory authorities.
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Agency Points of Contact.
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Other appendices, as specified in the Agreement.
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