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Environmental Due Diligence and
Fee-to-Trust TransactionsEvaluating and Addressing a Property’s Environmental Conditions Before Fee-to-Trust
Jennifer Casler Kuiper, RG
503.941.4022 (o)
503.724.8181 (m)
Environmental Due Diligence Basics
Environmental Due Diligence BIA vs ASTM: Key Differences
Tools You Can Use: A Scalable Approach
Environmental Due Diligence: A Visual Quiz
Beyond Fee-to-Trust: Cataloguing Environmental Conditions Identifying
Brownfield Opportunities
Environmental Due Diligence and Fee-to-Trust
INTRODUCTION
2 A presentation by Wood.
3
Environmental Due Diligence BasicsCRECs, HRECs, and RECs, oh my!
Environmental Due Diligence (EDD) is an evaluation of the environmental condition of a property generally completed prior to purchase or sale.
Satisfies one of three defenses from federal CERCLA liability:
❑ Innocent Landowner Defense
❑ Bonafide Prospective Purchasers Defense
❑ Contiguous Property Owner Defense
Environmental Due Diligence Basics
4 A presentation by Wood.
Environmental Due Diligence Basics
5 A presentation by Wood.
1980 CERCLA Law
Established liability of persons responsible for releases of hazardous waste and
established Superfund for cleanup where responsible parties could not be identified.
1986 SARA Amendments
Added the Innocent Purchaser Defense for all appropriate inquiry, but did not define
what criteria would meet “all appropriate inquiry”.
2002 Brownfield Amendments
Bona Fide Prospective Purchaser and Contiguous Property Owner as defenses.
2005 All Appropriate Inquiry (AAI) Rule
Established appropriate level of inquiry to satisfy the CERCLA liability defenses. Directly
references/approves of use of the ASTM 1527 Standard.
A Brief History of Federal Law
Times Beach, Missouri
Love Canal, New York
Valley of the
Drums, Kentucky
Environmental Due Diligence Basics
6 A presentation by Wood.
Industry’s Parallel Path
Phase I Environmental Site Assessment (ESA)
Standard Protocols Developed
Lack of guidance from CERCLA / SARA rules resulted in industry's own standard
protocol for performing appropriate level of inquiry.
American Society for Testing and Materials (ASTM)
ASTM 1527-93, 1527-97, 1527-00, 1527-05, and 1527-13
ASTM Established Definitions
Recognized environmental conditions (RECs); historical RECs, and Controlled RECs
EPA Recognizes ASTM Standard
AAI Rule officially recognizes ASTM 1527-13 (and subsequent standards) as legitimate protocol for performing “all appropriate inquiry.
Graphic courtesy of Environmental Data Resources, Inc.
Environmental Professional
Site reconnaissance
Interviews
Historical search
Environmental records review
User-Provided Information
Required to provide purchase price; activity and use limitations or environmental
liens; property title, publicly available information, specialized knowledge.
Out-of-scope services
Regulated building materials, indoor air quality issues; vapor intrusion sampling
or testing, wetlands.
7 A presentation by Wood.
Environmental Due Diligence Basics
Federal (and ASTM) Requirements – Phase I ESA
8 A presentation by Wood.
BIA Fee-To-Trust Handbook
Referenced as Step 7 in Handbook
Step 7 references Department of the Interior 602 DM 2
Department Manual Part 602: Land Acquisition, Exchange, and Disposal;
Chapter 2: Real Property Pre-acquisition Environmental Site Assessments
602 DM2 References ASTM Standard
Environmental Due Diligence Basics
BIA Requirements
9 A presentation by Wood.
• ASTM 1527-13 Standard Practice for Environmental Site Assessments:
Phase I Environmental Site Assessment Process
• ASTM E 2247-16 Standard Practice for Environmental Site Assessments:
Phase I Environmental Site Assessment Process for Forestland or Rural Property
• Shelf-Life A Phase I ESA completed in accordance with the ASTM Standard is valid
for one year, provided that the interviews, Site reconnaissance, and environmental
records reviews are conducted after six months.
Environmental Due Diligence Basics
Two ASTM Standards Applicable for Tribal Lands
Environmental Due Diligence Basics
10 A presentation by Wood.
BIA’s Requirements Follow ASTM
Environmental Professional
Site reconnaissance
Interviews
Historical search
Environmental records review
User-Provided Information
Required to provide purchase price; activity and use limitations or environmental
liens; property title, publicly available information, specialized knowledge
Out-of-Scope Services
Regulated building materials, indoor air quality issues; vapor intrusion sampling
or testing, wetlands
Environmental Due Diligence BIA vs. ASTM
Key Differences
11
DOI DM Part 602 Chapter 2
Section 4. Policy
Minimize potential liability of the Department and its Bureaus by acquiring real property that is not contaminated…. Bureau shall:
A. Ascertain nature and extent of potential liability from hazardous substances or other environmental problems.
B. Weigh benefits of acquisition relative to the total cost.
C. Inform appropriate congressional committees of total cost for congressionally-mandated acquisition of contaminated property.
Environmental Due Diligence BIA vs. ASTMMinimize Environmental Liability
12 A presentation by Wood.
Environmental Due Diligence BIA vs. ASTM
13 A presentation by Wood.
Fee to Trust Step-By-Step Process
On and Off Reservation
Step 1: Encode into Fee-to-Trust Tracking System Step 9: Satisfy Preliminary Title Opinion Objections
Step 2: Review Written Request or Application Step 10: Prepare Analysis & Notice of Decision
Step 3: Respond to an Incomplete Application Step 11: Provide Notice of Decision
Step 4: Site Visit and Certificate of Inspection Step 12: Prepare Final Certificate of Inspection
Step 5: Preliminary Title Opinion Step 13: Acceptance of Conveyance
Step 6: Notice of Application to Interested Parties Step 14: Final Title Opinion and Recordation
Step 7: Environmental Compliance Review Step 15: Recording at Land Titles and Records
Step 8: Comments on Notice of Application Step 16: Completed Application Packet
Timing in the Application Process
Environmental Due Diligence BIA vs. ASTM
What That Means For Your Fee-to-Trust Application
14 A presentation by Wood.
1. Reducing Liability - Make it easy for BIA to say YES
2. Timing the Phase I ESA - Address the issue of Shelf Life
Shelf-LifeA Phase I ESA completed in accordance with the ASTM standard is valid for one year, provided that the interviews, site reconnaissance, and environmental records reviews are conducted after six months.
Tools You Can UseA Scalable Approach
15
Tools You Can Use
Reduce Liability for BIA – Making It an Easy YES
Research, Discover, Address
16 A presentation by Wood.
Tribal GIS Data State and County GIS Data Federal Data
http://www.epa.gov/epahome/commsearch.htm
http://websoilsurvey.sc.egov.usda.gov/App/HomePage.htm
Tools You Can Use
Reduce Liability for BIA – Making It an Easy YES
Research, Discover, Address
17 A presentation by Wood.
Time the Phase I ESA so that the work product remains valid
through the end of the fee-to-trust process.
Tools You Can Use
Timing the Phase I ESA in BIA Transactions
18 A presentation by Wood.
19
Environmental Due DiligenceA Visual Quiz
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Beyond Fee-to-TrustCataloguing Environmental ConditionsIdentifying Brownfield Opportunities
26
Beyond Fee-to-Trust
Cataloguing Environmental Conditions
Identifying Brownfield Opportunities
27 A presentation by Wood.
Brownfield Property
The expansion, redevelopment, or reuse of which may
be complicated by the presence or potential presence
of a hazardous substance, pollutant, or contaminant.
(i.e. an opportunity!)
Beyond Fee-to-Trust
Cataloguing Environmental Conditions
Identifying Brownfield Opportunities
28 A presentation by Wood.
Now THAT’s a Brownfield
Beyond Fee-to-TrustCataloguing Environmental Conditions
Identifying Brownfield Opportunities
29 A presentation by Wood.
Contaminated
Perceived Contamination
Beyond Fee-to-TrustCataloguing Environmental Conditions
Identifying Brownfield Opportunities
30 A presentation by Wood.
Underutilized Property
Beyond Fee-to-TrustCataloguing Environmental Conditions
Identifying Brownfield Opportunities
31 A presentation by Wood.
• Community-specific
• Outreach: Concerns, Goals, Needs
• Conduct a Simple Survey
• Focus area
• ILVR
• Rank/score
• Pending transaction
Beyond Fee-to-TrustCataloguing Environmental Conditions
Identifying Brownfield Opportunities
32 A presentation by Wood.
Beyond Fee-to-Trust
33 A presentation by Wood.
Cataloguing Environmental Conditions
Identifying Brownfield Opportunities
Beyond Fee-to-TrustCataloguing Environmental Conditions
Identifying Brownfield Opportunities
34 A presentation by Wood.
Beyond Fee-to-TrustCataloguing Environmental Conditions
Identifying Brownfield Opportunities
35 A presentation by Wood.
Beyond Fee-to-Trust
Cataloguing Environmental Conditions
Identifying Brownfield Opportunities
36 A presentation by Wood.
Beyond Fee-to-Trust
Cataloguing Environmental Conditions
Identifying Brownfield Opportunities
37 A presentation by Wood.
Beyond Fee-to-Trust
Cataloguing Environmental Conditions
Identifying Brownfield Opportunities
38 A presentation by Wood.
EPA Brownfield Assessment Grants
State Community Assessment Grants
We Are Where You Are
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Jennifer Casler Kuiper, RG
503.941.4022 (o)
503.724.8181 (m)
