ENVIRONMENTAL COMPLIANCE POLICIES

ER 200-2-3

29 October 2010

ENVIRONMENTAL QUALITY

ENGINEER REGULATION

AVAILABILITY

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DEPARTMENT OF THE ARMY ER 200-2-3

U.S. Army Corps of Engineers

CECW-ON

Washington, D.C. 20314-1000

Regulation

No. 200-2-3 29 October 2010

Environmental Quality

ENVIRONMENTAL COMPLIANCE POLICIES

TABLE OF CONTENTS

Paragraph Page

Chapter 1. Introduction

Purpose........................................................................................................ 1-1 1-1

Applicability................................................................................................ 1-2 1-2

Distribution Statement................................................................................. 1-3 1-2

References................................................................................................... 1-4 1-2

Explanation of Terms and Abbreviations.................................................... 1-5 1-3

Chapter 2. Environmental Compliance for Civil Works Operations

Responsibilities............................................................................................ 2-1 2-1

Business Program Goals and Objectives..................................................... 2-2 2-2

Chapter 3. Civil Works Operations Environmental Compliance Coordinator

(ECC) Network

The Environmental Compliance Coordinator Network............................... 3-1 3-1

ECC Network Objective.............................................................................. 3-2 3-1

Designation of ECCs.................................................................................... 3-3 3-1

ECC Roles and Responsibilities.................................................................. 3-4 3-2

ECC Network Communications, Resources, and Information

Exchange...................................................................................................... 3-5 3-4

Chapter 4. Environmental Management Systems

Policy........................................................................................................... 4-1 4-1

EMS Requirements...................................................................................... 4-2 4-1

Roles and Responsibilities........................................................................... 4-3 4-2

EMS Element Requirements Contained Within this ER............................. 4-4 4-3

Environmental Compliance Performance Measurement............................. 4-5 4-5

Management Review................................................................................... 4-6 4-6

EMS Components Not Fully Addressed Within this ER............................. 4-7 4-7

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Paragraph Page

Chapter 5. Environmental Compliance Assessments

Policy........................................................................................................... 5-1 5-1

Informal Assessments.................................................................................. 5-2 5-1

Formal Assessments.................................................................................... 5-3 5-1

Assessors...................................................................................................... 5-4 5-7

Facilities Outside of the Traditional Civil Works District Structure .......... 5-5 5-7

Releasability................................................................................................ 5-6 5-7

Funding for Environmental Compliance Assessments................................ 5-7 5-7

Chapter 6. Regulatory Inspections and Notices at USACE Civil Works

Operations Controlled Property

Policy........................................................................................................... 6-1 6-1

Escorts.......................................................................................................... 6-2 6-1

Inspection Protocols..................................................................................... 6-3 6-2

Notices of Violation of Federal, State or Local Environmental

Requirements............................................................................................... 6-4 6-3

Recording Regulatory Actions..................................................................... 6-5 6-3

Fines, Penalties, and Inspection Fees........................................................... 6-6 6-4

Chapter 7. Hazardous Materials Management

Policy........................................................................................................... 7-1 7-1

Material Safety Data Sheets......................................................................... 7-2 7-1

Hazardous Material Storage......................................................................... 7-3 7-1

Hazardous Materials Security...................................................................... 7-4 7-1

Hazardous Materials Transportation............................................................ 7-5 7-2

Chapter 8. Petroleum, Oils, and Lubricants Management

Policy........................................................................................................... 8-1 8-1

Used Oil Management................................................................................. 8-2 8-1

Spill Prevention, Control, and Countermeasures (SPCC)........................... 8-3 8-1

POL Releases............................................................................................... 8-4 8-1

Chapter 9. Waste Management

Policy........................................................................................................... 9-1 9-1

Waste Disposal............................................................................................ 9-2 9-1

Borrow Material........................................................................................... 9-3 9-1

Hazardous Waste ........................................................................................ 9-4 9-1

iversal Waste........................................................................................... 9-5 9-2

Asbestos Waste............................................................................................ 9-6 9-2

Polychlorinated Biphenyls (PCB) Waste..................................................... 9-7 9-3

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Paragraph Page

Used Oil....................................................................................................... 9-8 9-3

Treated Wood ............................................................................................. 9-9 9-3

Ozone Depleting Substances (ODS)............................................................ 9-10 9-3

Chapter 10. Spill Reporting and Response

Policy........................................................................................................... 10-1 10-1

Responsibilities............................................................................................ 10-2 10-1

Notifications................................................................................................ 10-3 10-1

Internal Agency Coordination..................................................................... 10-4 10-2

Spill Response............................................................................................. 10-5 10-2

Incident Commander................................................................................... 10-6 10-5

Public Information Related to Emergency Spill Response......................... 10-7 10-5

Spill Plans.................................................................................................... 10-8 10-5

Documentation............................................................................................ 10-9 10-5

Chapter 11. Permits

Policy........................................................................................................... 11-1 11-1

Permits for Cleanups.................................................................................... 11-2 11-1

Chapter 12. Recordkeeping

Policy........................................................................................................... 12-1 12-1

Operations and Maintenance Business Information Link,

Environmental Compliance Module (EC OMBIL)..................................... 12-2 12-1

Retention of Environmental Liability Records............................................ 12-3 12-1

Chapter 13. Environmental Contamination and Reporting Requirements

Policy........................................................................................................... 13-1 13-1

Procedures for Addressing Legacy Contamination on USACE

Property........................................................................................................ 13-2 13-1

Environmental Liabilities Recognition, Valuation, and Reporting............. 13-3 13-2

Limitations on Cleanup Actions at Non-USACE Facilities........................ 13-4 13-4

Response Actions at Outgranted USACE Properties................................... 13-5 13-4

Policies and Procedures for Potentially Responsible Party (PRP) Sites...... 13-6 13-4

Chapter 14. Real Estate

Purpose......................................................................................................... 14-1 14-1

Applicability................................................................................................ 14

-2 14-1

Policy.........................................................................................................

14-3 14-1

Implementation............................................................................................ 14-4 14-1

Environmental Condition of Property (ECP) Report................................... 14-5 14-2

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Acquisition of Fee Interests......................................................................... 14-6 14-3

Acquisition of Less than Fee Interests (Lease, Easement, License,

Right of Entry).............................................................................................

14-7 14-3

Leases.......................................................................................................... 14-8 14-3

Easements, Licenses and Use Agreements.................................................. 14-9 14-4

Outgrant Assessments and Procedures........................................................ 14-10 14-4

Consents....................................................................................................... 14-11 14-5

Disposals by Deed....................................................................................... 14-12 14-5

Transfers and Other Non-Deed Disposals................................................... 14-13 14-5

Summary...................................................................................................... 14-14 14-6

Chapter 15. Environmental Training for Civil Works Operations

Policy........................................................................................................... 15-1 15-1

Responsibilities............................................................................................ 15-2 15-1

Training Resources...................................................................................... 15-3 15-1

Training Requirements................................................................................ 15-4 15-1

Training Record Documentation................................................................. 15-5 15-3

Training Table............................................................................................. 15-6 15-3

Chapter 16. Budgeting for Environmental Compliance

Purpose........................................................................................................ 16-1 16-1

Budget Engineer Circular ........................................................................... 16-2 16-1

Glossary.................................................................................................................... Glossary-1

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CHAPTER 1

Introduction

1-1. Purpose.

a. This regulation establishes the policy for the management of environmental

compliance-related operations and maintenance (O&M) activities for the U.S. Army Corps

of Engineers (USACE).

b. The United States Army Corps of Engineers (USACE) shall fully comply with all

applicable Federal, State, and local environmental laws and regulations, Executive Orders

(EOs) and policies. This ER affirms the USACE commitment to environmental compliance

(EC) and establishes additional environmental protection policies and practices pertaining to

operation and maintenance (O&M) activities at Civil Works projects, facilities (including

outgrants), and USACE owned facilities as appropriate. USACE fully recognizes the

importance of environmental protection and strives to comply with environmental laws and

regulations, and to achieve sustainable operations by incorporating the prevention of

pollution and other sound environmental management practices in all environmentally

significant mission activities, products, and services.

c. USACE is committed to achieve, maintain, and continually improve environmental

compliance performance in all Civil Works business lines including Navigation; Flood and

Coastal Storm Damage Reduction; Environment (including Protection and Restoration and

Stewardship); Regulatory; Hydropower; Recreation; Water Supply; and Emergency

Management.

d. USACE Real Estate shall execute acquisition, outgrant and disposal transactions at

Civil Works projects in compliance with applicable Federal, state, and local environmental

laws and regulations, including performance of environmental due diligence. This regulation

establishes USACE requirements for compliance with CERCLA in the acquisition, outgrant

and disposal of real property in support of O&M activities at Civil Works projects and

facilities.

e. 33 CFR Parts 335-338 are incorporated by reference into this ER as the source for

practices and procedures to be followed by the Corps of Engineers to ensure compliance with

the specific statutes governing Army Civil Works operations and maintenance projects

involving the discharge of dredged or fill material into waters of the U.S. or the

transportation of dredged material for the purpose of disposal into ocean waters.

f. USACE Environmental Operating Principles (EOPs), as specified in ER 200-1-5,

are incorporated by reference into this ER. The EOPs shall be incorporated in all

environmentally significant USACE business.

__________________________________________________________________________

This regulation supersedes ER 200-2-3, dated 30 October 1996

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g. USACE shall ensure that this policy is communicated to, and implemented by, all

affected staff, contractors and grantees, and that all relevant activities are overseen by

qualified USACE personnel at all USACE facilities, projects, and associated lands and

waters. This policy will be implemented at outgranted facilities and in all contract actions

for work on the water resources projects to the extent provided by law, regulation, and

executive order.

h. All contracts and contract modifications shall specify that contractors and grantees

are required to comply fully with applicable Federal, state, and local environmental laws and

regulations, Executive Orders, DoD and Army, regulations, policies, and guidance and that

contractors and grantees are responsible for any enforcement actions, fines, penalties, and

cleanup costs, to the extent provided for by law and policy, resulting from their failure to

comply with applicable environmental requirements.

i. ER 1110-2-8154, Water Quality and Environmental Management for Corps Civil

Works Projects is incorporated by reference into this ER as the source for practices and

procedures to be followed by the Corps of Engineers to ensure compliance with the specific

statutes governing Army Civil Works operations and maintenance. Water quality

management shall be achieved via the management of water resources by the Corps of

Engineers to improve, restore, conserve, and protect the physical, chemical and biological

quality of the water for natural and human use.

1-2. Applicability

. This regulation applies to all USACE commands having responsibility

for Civil Works functions, and to USACE Military funded facilities as specified in the

individual chapters and sections. This regulation does not apply to Support for Others

programs managed by the Directorate of Military Programs such as support to USEPA,

including Superfund and Brownfields, nor to environmental support to other Federal

agencies. It also does not apply to the Formerly Utilized Sites Remedial Action Program

(FUSRAP).

1-3. Distribution Statement. Approved for public release. Distribution unlimited.

1-4. References.

a. P.L. 104-332, National Invasive Species Act of 1996.

b. P.L. 106-580, National Institute of Biomedical Imaging and Bioengineering

Establishment Act.

c. Executive Order 13112, Invasive Species, 3 February 1999

d. Executive Order 13423, Strengthening Federal Environmental, Energy, and

Transportation Management, 26 January 2007.

e. 33 CFR 335, Operation and maintenance of Army Corps of Engineers civil works

projects involving the discharge of dredged or fill material into waters of the U.S. or ocean

waters.

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f. 33 CFR 336, Factors to be considered in the evaluation of Army Corps of Engineers

dredging projects involving the discharge of dredged material into waters of the U.S. and

ocean waters.

g. 33 CFR 337, Practice and procedure.

h. 33 CFR 338, Other Corps activities involving the discharge of dredged material or

fill into waters of the U.S.

i. 40 CFR 261.21-261.24, Characteristics of Hazardous Waste.

j. 40 CFR 273, Standards for Universal Waste Management

k. 40 CFR 761.2, PCB Concentration Assumptions for Use.

l. DoD 4160.21-M, Defense Materiel Disposition Manual.

m. DoD 7000.14-R, Volume 4, Chapter 13, DoD Financial Management Regulation.

n. ER 200-1-5, Policy for Implementation and Integrated Application of the U.S.

Army Corps of Engineers (USACE) Environmental Operating Principles (EOP) and

Doctrine.

o. ER 1110-2-8154, Water Quality and Environmental Management for Corps Civil

Works Projects.

p. ISO 14001:2004(E) International Standard.

q. Unified Facilities Guide Specification 01 57 20.00 10, Transportation and Disposal

of Hazardous Material.

1-5. Explanation of Terms and Abbreviations. Abbreviations and terms used in this

regulation are explained in the glossary.

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CHAPTER 2

Environmental Compliance for Civil Works Operations

2-1. Responsibilities.

a. The Chief of Operations or Operations Project Manager (OPM) is responsible for

environmental compliance performance for all activities within the boundaries of their

Project, District, or Division as well as HQ USACE.

b. The contracting officer for a construction or services contract or a real estate

agreement affecting lands and waters under the control of Civil Works Operations, is

responsible for communication and coordination with the contractor or grantee about all

matters of compliance with the terms of the agreement.

c. The USACE Chief of Real Estate executing a real estate outgrant is responsible for

incorporating applicable Environmental Conditions into real estate instruments pursuant to

applicable federal, state, and local laws, regulations, executive orders and policies.

Incorporation of language into any real estate document is the responsibility of the respective

Chief of Real Estate in coordination with the respective HQ, Division, District and Project

level Operations staff and the Office of Counsel.

d. Environmental compliance requirements are an inherent part of the mission of each

business line in Civil Works Operations. The scope and magnitude of environmental

compliance requirements of each mission is a function of the potential environmental

impacts of the mission, and the associated controls defined by applicable laws, regulations,

Executive Orders and USACE policies. Therefore, each business line is responsible, in

coordination with their supporting Environmental Compliance Coordinator (ECC), to plan,

program, budget, and execute their mission, including its environmental compliance

requirements, in a manner that is fully compliant. Each business line must control the direct

environmental impacts of its mission, such as use and release of hazardous materials, as well

as indirect impacts, such as a collateral modification of lands or waters in a manner that

degrades habitat or creates opportunity for establishment or proliferation of invasive species

(P.L. 104-332, P.L. 106-580, and EO 13112).

e. Coordination of Requirements for Contracts, Real Estate Agreements, and Permit

Requests.

(1) The USACE proponent for contracts, real estate actions, permits and other

agreements affecting Civil Works Operations controlled lands and waters shall coordinate all

requirements and agreements with the Operations element for environmental compliance

review prior to finalization of requirements.

(2) The Operations element is responsible for reviewing and approving environmental

requirements for contract, real estate, and permit actions affecting lands and waters under the

control of Operations. Reviews and coordination with the OPM and Operations business line

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personnel for environmental compliance will be documented prior to submission of the

requirements to the respective Contracting, Real Estate, Regulatory, or other element for

finalization within the terms of the agreement.

(3) If the contract, real estate action, permit, or other agreement involved a discharge of

dredged or fill material into waters of the U.S., the OPM shall coordinate with the Regulatory

branch within the appropriate local district to ensure compliance with requirements of the

Clean Water Act. While the OPM may make a determination on environmental compliance,

only the District Engineer (DE) and those whom the DE has delegated authority, may make a

determination whether the proposed work is consistent with regulations associated with

Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899.

f. USACE functional elements with activities affecting Civil Works Operations

controlled lands and waters are responsible for the environmental compliance performance of

their activities.

g. Operations element staff may verbally interact with grantees or contractors as

necessary to prevent or stop activities that would result in immediate harm to the project’s

environmental performance. Such verbal field interactions must be documented in an

internal memorandum or e-mail, and provided to the appropriate real estate or contracting

officer for the official record. Any required written follow-up correspondence shall be

provided under the signature of the real estate or contracting officer.

2-2. Business Program Goals and Objectives

. An Army Civil Works mission, among other

missions, is to develop, manage, and protect water resources. This is accomplished through

business lines or programs. Goals pertaining to the environment are stated in the current

Civil Works Strategic Plan or equivalent documents issued after the date of this ER. In

general, these goals support the repair of past environmental degradation, prevention of

future environmental losses, and ensure that projects perform to meet authorized purposes

and evolving conditions. Program objectives include ensuring that the operations of Civil

Works facilities and management of associated lands, including outgranted lands, comply

with the environmental requirements of relevant applicable Federal, State, and local laws and

regulations, Executive Orders, and with DoD, Army, and USACE policy.

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CHAPTER 3

Civil Works Operations Environmental Compliance

Coordinator (ECC) Network

3-1. The Environmental Compliance Coordinator Network. The ECC Network is composed

of four levels that work closely together to provide consultation and support to the USACE

Civil Works Operations business lines. The ECC Network also provides consultation and

support to other functional elements supporting Operations, including Planning, Engineering

and Construction, Project Management, Logistics, Safety and Occupational Health, and Real

Estate.

a. At the top of the ECC Network, the Headquarters USACE component (HQ ECC)

has overall responsibility for the USACE Civil Works environmental compliance program

and serves as the HQ ECC, Community of Practice Leader, and Senior Environmental

Compliance Policy Advisor.

b. At the Division level, the Division ECC serves as program manager and coordinates

with the Districts and the HQ ECC.

c. At the District level, the District ECC serves as the environmental compliance

coordinator for the District and coordinates with Project ECCs and the Division ECC.

d. At the Project/Facility level, which may include “regional” groupings of projects

below the District level, the Project ECC serves as the environmental compliance coordinator

at the Project/regional level and coordinates with the OPM and the District ECC.

3-2. ECC Network Objective. The objective of the ECC Network is to develop and

maintain, Corps-wide, a comprehensive and consistent environmental compliance program

for the Operations element.

3-3. Designation of ECCs.

a. The Chief of Operations shall formally designate and provide resources for training

(see Chapter 15 for training requirements) of ECCs within the Operations element at the

Division, District, and project/facility level. The designation of an ECC outside of the

Operations element shall be approved by the Chief of Operations at the next higher level of

command, and the HQ USACE Chief of Operations shall be notified.

b. Operational projects and facilities shall have a designated Project ECC. Each

Project ECC shall report to the Operations Project Manager. Where applicable, the District

Chief of Operations shall designate regional ECCs. Regional ECCs shall report to the

Operations Project Managers at the projects within their assigned region, as well as the

District ECC.

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3-4. ECC Roles and Responsibilities.

a. General Responsibilities of ECCs at all levels of USACE:

(1) ECCs serve as the primary interface with local, state and federal environmental

regulatory authorities.

(2) ECCs are responsible for accessing current environmental compliance requirements

through use of state and federal websites, most recent versions of TEAM/ERGO and State

supplement manuals; and by seeking input from technical experts as needed.

(3) ECCs provide environmental compliance and EMS implementation advice,

consultation and support to the Operations Project Manager, the Operations business lines,

and supporting functional elements, as appropriate at their level of USACE. However, the

ECC shall not assume responsibility for environmental compliance performance of any

business line or supporting functional element.

(4) ECCs prepare, review and advocate for support of the EC program and for EC

funding requirements, such as compliance initiatives, EMS, training, and closure of ERGO

findings, within the budgeting processes at their level of the Corps for all relevant Civil

Works Operations business lines.

(5) ECCs serve as the point of contact for compiling and maintaining environmental

performance measurement and compliance-related policies, procedures and records

appropriate for their level of the USACE. Examples include documents such as permits,

Resource Conservation and Recovery Act (RCRA) hazardous waste manifests, exception

reports, training records, assessment and inspection records, biennial reports, and

environmental study, clean-up and liability documentation.

(6) ECCs support management review of environmental compliance performance using

the performance measures, data, and standard formats established by HQ USACE Chief of

Operations.

(7) ECCs promote environmental compliance awareness, guide and oversee

environmental compliance program implementation and performance, provide support for

unplanned environmental compliance issues, support ERGO assessments for others, and

perform other duties as assigned by the Chief of Operations or OPM.

(8) ECCs develop and oversee Civil Works Operations environmental compliance

policy and advocate for resources for policy implementation, at their level and for each

subordinate organizational level.

(9) ECCs support environmental compliance reporting requirements by compiling and

submitting, or directing and overseeing the compilation and submission of, data required to

support environmental compliance program management requirements.

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(10) ECCs ensure the review of contracts, outgrants, and other agreements for

appropriate coverage of environmental compliance requirements, and they provide

government oversight for the execution of the environmental compliance requirements of

contracts, outgrants and other agreements that affect the project(s) they support.

b. Specific Responsibilities:

(1) HQ ECC Responsibilities:

(a) The HQ ECC tracks legislative and regulatory changes with impacts to Civil Works

Operations business lines and associated environmental programs; establishes program

initiatives; ensures timely distribution of information; promotes a capable workforce of

trained and qualified ECCs; fosters communication within the ECC community; maintains

intra and inter-agency relationships and coordination; initiates data calls and evaluates data;

assesses and reports on attainment of goals; identifies compliance trends; captures lessons

learned; and takes actions necessary to support Divisions, Districts, and projects in

accomplishing their environmental compliance responsibilities.

(b) The HQ ECC shall convene Project Delivery Teams (PDTs) comprised of

members of the ECC Community of Practice (CoP) and other CoPs, when appropriate, to

develop and standardize tools, practices, guidance and policy for the USACE Environmental

Compliance Program.

services from environmental compliance subject matter experts of the USACE

Environmental and Munitions Center of Expertise (EM CX) to support new or evolving Civil

Works Operations environmental compliance requirements.

(d) HQ ECC shall program funding for updates of the Environmental Assessment

Manual (TEAM), the Environmental Review Guide for Operations (ERGO) and State

supplement manuals and take action to ensure Corps-wide access to the latest manuals.

(2) Division ECCs are responsible for environmental compliance programs at their

Division and on USACE owned and/or operated Civil Works Districts and projects/facilities

within their Division boundaries. They are responsible for quality assurance, regional

interface, and consistency regarding policy implementation; supporting the HQ ECC in

efforts to develop and maintain policy and doctrine; promoting a capable workforce of

trained and qualified ECCs; fostering communication within the ECC community; and

maintaining intra and inter-agency relationships and coordination.

(3) District ECCs are responsible for environmental compliance programs at their

District and on USACE owned and/or operated Civil Works projects/facilities within their

District boundaries. Responsibilities include supporting implementation of EC program

initiatives; providing oversight and monitoring for compliance related to the protocols

identified in The Environmental Assessment Manual/Environmental Review Guide for

Operations Supplement (TEAM/ERGO); developing and maintaining internal and external

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assessment schedules; implementing ERGO assessments; and assuring entry and updating of

all EC OMBIL data.

(4) Project/Facility ECCs, including ECCs assigned to support multiple Civil Works

projects within a District, are responsible for providing environmental compliance guidance,

leadership, and oversight at the project/facility locations(s) and/or floating plant facility.

They manage and conduct EC program activities at project/facility location(s); serve as the

single point of contact for hazardous waste recordkeeping relative to the project EPA ID

number(s); conduct internal assessments and support external assessments of project/facility

following the protocols prescribed in the ERGO/TEAM Manuals; implement EC program

initiatives; provide environmental compliance inspector escort; report releases to USACE

and regulatory authorities; oversee oil spill prevention and response; enter and update EC

OMBIL data for internal assessments; and enter and maintain data in all EC OMBIL data

input forms in coordination with the District ECC.

3-5. ECC Network Communications, Resources, and Information Exchange.

a. The Environmental and Munitions Center of Expertise (EM CX) is a resource for

information on a broad spectrum of environmental requirements. The EM CX regulatory

compliance staff specializes in the understanding and application of environmental

requirements such as the Clean Air Act, Clean Water Act, the Comprehensive Environmental

Response, Compensation, and Liability Act, the Federal Insecticide, Fungicide and

Rodenticide Act, the Resource Conservation and Recovery Act, the Safe Drinking Water

Act, the Toxic Substances Control Act, and the Hazardous Materials Transportation Act.

Their website address is

http://www.environmental.usace.army.mil/tech_reg.htm

b. The Environmental Compliance component of the Natural Resources Management

(NRM) Gateway provides internet access to information helpful in successfully maintaining

compliance initiatives at every level of program management. The site was created as a

knowledge management system, providing the environmental compliance community with a

USACE-specific source for evaluating and maintaining proactive compliance programs.

Regulatory information is provided and is enhanced by information sharing links pertinent to

USACE activities. The site address is

http://corpslakes.usace.army.mil/employees/envcomp/envcomp.html.

c. FedCenter.gov is the Federal government's home for comprehensive environmental

stewardship and compliance assistance information. It supports all aspects of environmental

management and compliance, to include automatic notifications of draft and final regulatory

changes, an automated tool to assist users in identifying the regulations that apply to their

activities and facilities, OMB scorecard reporting tools supporting the President’s

Management Agenda and Executive Order reporting requirements for EMS, and it provides

on-line training resources. FedCenter is developed and maintained by the Federal

community to support requirements defined by the Federal community. The site address is

http://www.fedcenter.gov.

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d. The ECC network and the NRM Gateway,

http://corpslakes.usace.army.mil/employees/envcomp/envcomp.html, shall be used to

exchange both positive and negative lessons learned regarding compliance and pollution

prevention activities. The goal is to share knowledge.

e. Information on becoming involved in the Gateway Initiative is available at

http://corpslakes.usace.army.mil/employees/gateway/gateway.html. Opportunities include

serving as subject matter experts within special areas of interest or as technical coordinators

for maintaining current and relevant information on the web pages.

f. The environmental compliance list server was created to manage email

correspondence for members of the ECC community. It provides a forum for guidance

distribution, group discussion of issues, and general information sharing on specific topics of

interest. Email may be distributed to ECCs via links provided on the NRM Gateway site or

via the USACE Outlook distribution list,

DLL-ECCnetwor[email protected].

g. HQ/DIVISION Teleconferences. Generally, on a quarterly basis, the HQ ECC sets

up a teleconference with the Divisions to exchange information, discuss hot topics, and

follow up on previous action items.

h. Environmental Compliance Advisory Team (ECAT). An Environmental

Compliance Advisory Team shall be established to provide oversight of the Environmental

Compliance Program. Voting members of the ECAT shall be nominated by Divisions and

appointed through the HQ USACE Civil Works Operations Natural Resources Management

Branch and may be comprised of a combination of Division, District and Project

Environmental Compliance Coordinators. Two non-voting members shall represent HQ

USACE, and the EM CX. Additional non-voting members may be proposed by the ECAT,

and appointed at the discretion of the HQ USACE Chief of Operations. The ECAT shall

evaluate significant EC policy, funding, performance measurement, and other compliance-

related management proposals, and shall recommend appropriate action(s) with regard to

each proposal to the HQ USACE Civil Works Operations Natural Resources Management

Branch.

(1) Meetings. The ECAT shall meet at least annually. The HQ ECC shall participate

in all meetings of the ECAT.

(2) Each voting ECAT member shall coordinate within their Division on matters

addressed by the ECAT, and represent the interests of their respective Division, Districts and

Projects in all deliberations of the ECAT.

(3) The ECAT shall support strategic planning for the EC program, to include

sustainability initiatives adopted by USACE or Civil Works Operations, and shall serve in an

active advisory role to the HQ USACE Civil Works Operations Natural Resources

Management Branch.

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(4) The ECAT is funded by the O&M General appropriation. The HQ USACE Civil

Works Operations Natural Resources Management Branch shall provide conceptual approval

(subject to the availability of funds) for all new starts and other program funding adjustments

by July of each year.

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CHAPTER 4

Environmental Management Systems

4-1. Policy. An Environmental Management System (EMS) provides a framework through

which an organization identifies attainable indicators of environmental performance, seeks

continual improvement in its environmental performance, and documents improvements. It

is USACE policy to implement an EMS in accordance with Executive Order (EO) 13423,

“Strengthening Federal Environmental, Energy, and Transportation Management,” January

26, 2007, Instructions for Implementing EO 13423, March 29, 2007, and subsequent Federal

guidance for EMS. Civil Works Operations’ EMSs shall be based upon the International

Organization for Standardization framework, ISO 14001, “Environmental Management

Systems – Requirements with Guidance for Use.” Funding for central development,

maintenance, and awareness training for EMS shall be provided by HQUSACE.

4-2. EMS Requirements.

a. Federal agencies are required by Executive Order to implement environmental

management systems at all appropriate organizational levels. The HQ USACE Chief of

Operations, in conjunction with the Divisions, has determined, based on interpretation of

Federal guidance, that the appropriate type of EMS for Civil Works Projects and Facilities is

a multi-site organization EMS. This determination applies generally to USACE Civil Works

Operations, and it may be amended to accommodate future Federal guidance and USACE

mission requirements. The USACE Civil Works Operations EMS shall be developed and

managed centrally and adapted to locally specific requirements and situations at the division,

district and project levels, as appropriate. The USACE Civil Works Operations EMS will

focus initially on environmental compliance, and it will be implemented through targeted

enhancements of the ERGO process. EMS guidance, DoD, Army, and USACE policies and

other tools for EMS implementation can be found in the EMS section under the Civil Works

Compliance Tab on the Natural Resources Management Gateway website at:

http://corpslakes.usace.army.mil/employees/envcomp/envcomp.html.

b. Civil Works Operations activities that are managed within the framework of the

Civil Works Operations EMS are those having aspects with potential to cause significant

environmental impacts. For purposes of this ER, environmentally significant activities are

those that are regulated by federal, state, or local environmental laws, regulations, Executive

Orders, or as directed by USACE policy or the responsible Chief of Operations or OPM.

Some environmentally significant activities will be defined centrally based on laws,

regulations, Federal executive orders, or USACE policy. Centrally defined environmentally

significant activities shall be managed within the EMS at each organizational level of

USACE (HQ, division, district and project) as required to meet environmental performance

requirements. Additional environmentally significant activities may be defined by the OPM

or the District or Division ECC and Chief of Operations.

ER 200-2-30

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4-2

c. Contract and outgrant activities will be addressed in the USACE Civil Works

Operations EMS as required by Federal law, regulation or Executive Order, and as required

by the Division or District Chief of Operations or the OPM in coordination with the

respective Chief of Real Estate or Contracting.

d. The EMS shall address all significant environmental aspects on USACE controlled

lands and waters and at outgrants.

4-3. Roles and Responsibilities. Roles and responsibilities for environmental compliance as

they relate to the Civil Works Operations EMS are provided in Chapters 3, 4, 5 and 16 of this

ER. In general, the requirements for implementation and operation of the Civil Works

Operations EMS are enhancements of the ERGO process. Beyond those defined elsewhere

in this ER, the specific EMS roles and responsibilities are as follows:

a. HQ USACE Operations Division.

(1) The HQ USACE Chief of Operations establishes the Civil Works Operations EMS

policy and oversees implementation. The HQ USACE Chief of Operations responsibilities

include performing HQ level management review of the EMS; development of EMS

procedures and implementation tools intended to be applied Corps-wide; overseeing the

Divisions’ EMS implementation; ensuring the availability of resources necessary to

establish, implement, maintain and improve the Civil Works Operations EMS; and ensuring

that a management representative is appointed as necessary at the appropriate organizational

levels and/or Projects or Facilities within the EMS.

(2) The HQ ECC is the overall proponent for the Civil Works Operations EMS. As

such, the HQ ECC supports the HQ USACE Chief of Operations in all EMS responsibilities

listed above, and provides EMS implementation advice and support to CW Operations

business line personnel.

b. Division. The Division ECC is the Division-level proponent for EMS

implementation, known as the EMS Management Representative (EMS MR). The EMS MR

shall provide environmental compliance and business line expertise to support HQ USACE

efforts for central development of EMS procedures and implementation tools, and ensure that

ISO 14001 elements assigned to their division, districts and projects/facilities for execution

are implemented and maintained using the centrally developed Civil Works Operations EMS

procedures and implementation tools. In addition, the EMS MR shall report the performance

of their EMS and recommendations for improvement in accordance with the management

review procedures in Section 4-6.

c. District. The District ECC is the proponent for the implementation of the EMS

elements appropriate to their organizational level for projects and facilities within their

district boundaries. Responsibilities include periodically reviewing district and

project/facility EMS procedures, providing EMS implementation advice and support to CW

Operations business line personnel, reviewing the project/facility significant aspect list

periodically to ensure it is representative of actual activities conducted at the project/facility;

ER 200-2-3

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4-3

establishing and reviewing progress of EMS objectives and targets; and providing input for

management reviews.

d. Project/Facility. The Project/Facility ECC is the proponent for implementing the

EMS procedures assigned to their project/facility; providing EMS implementation advice and

support to CW Operations business line personnel; reviewing their environmental aspects

periodically to ensure they are representative of activities associated with their

project/facility; establishing objectives and targets to address locally and centrally defined

environmentally significant activities; providing EMS awareness training to project/facility

employees; and providing required input for EMS management review.

e. All Civil Works Operations personnel whose duties entail environmentally

significant activities are responsible for understanding their role in the Civil Works

Operations EMS and executing their duties in a manner that is protective of human health

and the environment and fully compliant with the requirements of this policy.

4-4. EMS Element Requirements Contained Within This ER. The primary EMS document

for the Civil Works Operations EMS shall be ER 200-2-3. Table 4-1 shows generally how

the various EMS elements relate to the ERGO assessment process and serves as a conceptual

gap analysis for a compliance focused EMS.

Table 4-1. ISO 14001 Elements – ERGO Process Crosswalk

ISO 14001 (2004) Elements

ERGO Process

4.2 Environmental Policy

ER 200-2-3 (Section 1-1 and Chapter 5, ERGO)

4.3 Planning

4.3.1 Environmental Aspects

ERGO Pre-visit Questionnaire

4.3.2 Legal and Other Requirements

ERGO Manual/TEAM Guide

4.3.3 Objectives, Targets and Programs

ERGO Performance Measures, ER 200-2-3

4.4 Implementation and Operation

4.4.1 Resources, Roles, Resp., Authority

ER 200-2-3, Chapter 5 (ERGO)

4.4.2 Competence, Training, Awareness

ECC, ERGO, and OMBIL training

4.4.3 Communication

ER 200-2-3 internal comm. for ERGO

4.4.4 Documentation

ERGO Manual, including procedures

4.4.5 Control of Documents

Procedure for annual updates of ERGO manual

4.4.6 Operational Control

CW Operations mission SOPs

4.4.7 Emergency Preparedness and

Response

Spill Plans, exercises, etc…

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4-4

ISO 14001 (2004) Elements

ERGO Process

4.5. Checking

4.5.1 Monitoring and Measurement

Operations mission SOPs and permits

requirements

4.5.2 Evaluation of Compliance

ERGO and other relevant compliance

requirements

4.5.3 Non-conformity, Corrective &

Preventive Action

N/A for ERGO

4.5.4 Control of Records

Tracking findings to closure; OMBIL data entry

4.5.5 Internal Audit

Project-level audits; HQ-level audits

4.6 Management Review

Done as part of ERGO process

Table 4-2 lists the locations within this ER containing specific ISO 14001 elements and

requirements. Those EMS elements not fully addressed within this ER are discussed further

in paragraph 4-7.

Table 4-2. Location of ISO 14001 Elements in ER 200-2-3

ISO

Element

Title

Responsible Organization**

Location in ER

(Chapter or Paragraph)

4.1

General Requirements

4-2

4.2

Environmental Policy

1-1

4.3.1

Environmental Aspects

HQ, Dist, and Proj/Fac

4-2(b) and 4-7

4.3.2

Legal and Other Requirements

HQ, Dist, and Proj/Fac

3-4, 5-2, and 4-7.

4.3.3

Objectives, Targets and

Programs

HQ, Div, Dist, and Proj/Fac

4-5, and 4-7.

4.4.1

Resources, Roles,

Responsibility and Authority

HQ, Div, Dist, and Proj/Fac

3-1, 3-2, 4-1, 4-3, 5-7

and 16-2

4.4.2

Competence, Training, and

Awareness

HQ, Div, Dist, and Proj/Fac

Chapter 15

4.4.3

Communication

HQ, Div, Dist, Proj/Fac

Chapter 3, Chapter 6,

5-4 and 4-7

ER 200-2-3

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4-5

ISO

Element

Title

Responsible Organization**

Location in ER

(Chapter or Paragraph)

4.4.4

Documentation

ER 200-2-3

4.4.5

Control of Documents

HQ and Proj/Fac

4-7

4.4.6

Operational Control

Div, Dist, and Proj/Fac

Chapters 7, 8, 9, 10,

and 4-7

4.4.7

Emergency Preparedness and

Response

Div, Dist, and Proj/Fac

Chapter 10, Chapter

13, and 7-3

4.5.1

Monitoring and Measurement

HQ, Div, Dist, and Proj/Fac

4-7

4.5.2

Evaluation of Compliance

HQ, Div, Dist, and Proj/Fac

Chapter 5

4.5.3

Nonconformity, Corrective

and Preventative Action

HQ, Div, Dist, and Proj/Fac

Chapter 5 and 4-7

4.5.4

Control of Records

HQ, Dist, and Proj/Fac

4-7

4.5.5

Internal Audit

HQ, Dist, Proj/Fac

4-7

4.6

Management Review

HQ and Div

4-6

** Organization responsibility for ISO elements may be full or only partial. The level to which each

organization is responsible is provided in the specific chapter or paragraph referenced or in the specific

procedure or tool developed for the ISO element (see paragraph 4-7, below)

4-5. Environmental Compliance Performance Measurement. Environmental compliance

performance measures shall be established, reviewed at least annually, and updated as

required by the HQ USACE Chief of Operations. Data supporting the environmental

compliance performance measures shall be compiled, evaluated, reviewed, and certified by

the OPM or Chief of Operations as complete and accurate at least annually at all USACE

Divisions, Districts and Projects.

a. Performance measures shall be utilized by Civil Works Operations business lines to

guide and support management decisions for attaining environmental compliance and

sustainability goals, objectives and targets associated with statutory, regulatory, Executive

Order and USACE policy requirements.

b. The current version of the Civil Works Operations environmental compliance

performance measures is available on the Environmental Compliance page of the Natural

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4-6

Resources Management Gateway,

http://corpslakes.usace.army.mil/employees/envcomp/envcomp.html.

c. Civil Works Operations environmental compliance performance measures shall be

incorporated into appropriate Project, District, Division and HQ USACE management review

processes as described in Section 4-6.

d. All environmentally significant activities on USACE Civil Works-controlled land

and waters, including those at outgrants, are subject to the performance measurement

requirements established by the HQ USACE Chief of Operations.

e. Outgrant performance shall be tracked in EC OMBIL separately from USACE

operated activities and incorporated into both Real Estate and Operations management

review business processes.

f. The Operations and Maintenance Business Information Link, Environmental

Compliance Module (EC OMBIL) is the authoritative source for environmental compliance

performance measurement data, except for program areas that are specified in separate policy

with data requirements supported by other Army, DoD or Federal systems.

g. The completion of the environmental compliance performance evaluation, as part of

the Management Review process described in Section 4-6, shall be documented in EC

OMBIL as supported by OMBIL capabilities.

4-6. Management Review. Management reviews of the multi-site organization EMS shall

be conducted at all organizational levels within USACE. Management reviews at each

organizational level shall include, at a minimum, the EMS elements implemented at the

respective organizational level, as shown in Table 4-2, above.

a. The HQ USACE Chief of Operations shall annually initiate the management review

by specifying any new or modified timeline, content, and format requirements for the

upcoming performance period. Management Reviews meeting the requirements specified by

the HQ USACE Chief of Operations, in addition to the general requirements in 4-6.b., shall

be conducted at least annually by the OPM or Chief of Operations for each Project, District

and Division, as well as HQ USACE.

b. General requirements for Management Reviews.

(1) Environmental compliance (ERGO) performance measures and a summary-level

assessment of trends, successes and challenges in the ERGO process.

(2) A summary of the results of annual reviews and certifications, such as the

coordination to verify completion of ERGO assessments (5-3.c.(7)), annual review of the

Previsit Questionnaires (5-3.c.(10) and 5-3.d.(4)) and the Summary of Uncorrected Findings

(5-3.c.(16)) that are executed as part of the Management Review process.

ER 200-2-3

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4-7

(3) Environmental compliance program and performance data required by USACE

policy or relevant statutes, regulations or executive orders, such as Federal and USACE goals

and metrics for reducing consumption of energy, water, petroleum, and green house gases.

(4) Status of EMS implementation and operation assessed using relevant Federal and

USACE EMS metrics, and the results of EMS conformance audits, when applicable.

(5) An assessment of progress, successes and challenges in implementation of

sustainable practices defined in USACE policy and Federal executive orders.

c. Project ECCs shall coordinate with the District ECC to compile the Management

Review data for their project. The Project ECC shall report all relevant data to the OPM, and

the OPM shall certify the completeness and accuracy of the data by sending it forward to the

District ECC.

d. District ECCs shall compile the Management Review data for the District’s Projects

and report it to the District Chief of Operations. The District Chief of Operations shall

certify the completeness and accuracy of the data by sending it forward to the Division ECC.

e. Division ECCs shall compile the Management Review for all Districts within the

Division and report to the Division Chief of Operations. The Division Chief of Operations

shall certify the completeness and accuracy of the data by sending it forward to the HQ ECC.

f. The HQ ECC shall compile and present to the HQ USACE Chief of Operations and

higher levels of command, as directed, all Division level Management Review data. The HQ

USACE Chief of Operations shall summarize and convey to Division level Chiefs of

Operations and the HQ ECC any substantive management feedback received from HQ

USACE leadership along with recommendations (such as formation of a PDT) for corrective

actions, continual improvement, and special recognition/awards.

4-7. EMS Components Not Fully Addressed Within this ER.

a. EMS elements listed in Table 4-2 that reference this paragraph are not fully

addressed in this ER. These elements will have either supplemental EMS procedures and/or

other implementation tools developed for them that will satisfy the requirements of the ISO

14001 standard. Development of these supplemental procedures and tools will be centrally

funded by HQUSACE.

b. Supplemental procedures for the following ISO elements will be posted on the

HQUSACE QMS website at https://kme.USACE.Army.mil/CE/QMS/ as developed.

4.3.1 Environmental Aspects

4.3.2 Legal and Other Requirements

4.3.3 Objectives, Targets and Programs

4.4.3 Communication

4.4.5 Control of Documents

4.4.6 Operational Control

ER 200-2-30

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4-8

4.5.1 Monitoring and Measurement

4.5.3 Nonconformity, Corrective and Preventative Action

4.5.4 Control of Records

4.5.5 Internal Audit

4.6 Management Review

c. EMS procedures and tools developed centrally will incorporate present and future

requirements for sustainability, carbon footprint, pollution prevention, energy, water,

transportation, and environmental management as specified in law, regulation, and Executive

Order. For example EMS procedures and tools may be centrally developed to (i) reduce the

quantity of toxic and hazardous chemicals and materials acquired, used, or disposed of; (ii)

improve the energy and water efficiency of USACE facilities; (iii) reduce petroleum

consumption and improve the fuel efficiency and alternative fuel capabilities of the USACE

non-tactical vehicle fleet and USACE vessels; (iv) increase diversion of solid waste as

appropriate; (v) maintain cost-effective waste prevention and recycling programs in its

facilities; and to implement sustainable practices as required by applicable laws, regulations

or executive orders.

d. Tools to assist project/facilities in executing EMS procedures for which they are

responsible can be found at the EMS section under the Civil Works Compliance Tab on the

Natural Resources Management Gateway website at:

http://corpslakes.usace.army.mil/employees/envcomp/ems.html.

ER 200-2-3

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5-1

CHAPTER 5

Environmental Compliance Assessments

5-1. Policy. USACE organizations shall conduct informal assessments of activities on a

day-to-day basis, as well as periodic formal internal and external environmental compliance

assessments. It is the policy of USACE to conduct recurring environmental compliance

assessments using protocols and checklists in The Environmental Assessment Manual

(TEAM), the Environmental Review Guide for Operations (ERGO) supplement, and State

specific supplements in conjunction with applicable environmental laws and regulations to

evaluate environmental compliance status of current activities.

5-2. Informal Assessments. Informal assessments of day-to-day operations shall be

continuous and ongoing. ECCs shall monitor environmental laws and regulations to identify

compliance requirements and to be cognizant of new or developing standards; utilize ECC

networks for sharing and distribution of information; coordinate with USACE elements to

promote awareness of and compliance with new and existing environmental requirements;

and notify the Chief of Real Estate to inform affected entities of the need for action and the

basis of any compliance deficiency. If the affected entity is unable or unwilling to undertake

necessary corrective actions within a reasonable timeframe, compliance deficiencies shall be

reported upward to the District Chief of Operations. If the affected entity is a grantee or

contractor, the Operations element shall notify the Chief of Real Estate or Contracting, as

appropriate. The Real Estate or Contracting point of contact will initiate formal notifications

of non-compliance and/or corrective actions and is responsible for follow-up on compliance

issues in accordance with the terms of the outgrant or contract. Real Estate, Contracting and

Operations elements shall coordinate notifications and follow-ups to ensure USACE interests

are protected. Team response: Global recommendation: do not include “contracts” or

“contractors” in RE comments.

5-3. Formal Assessments.

a. Each Division shall develop a baseline Division-wide schedule for ERGO external

assessments and for those internal assessments to be conducted in the next Fiscal Year. The

internal assessment schedule for the coming Fiscal Year, and the external assessment

schedule for the ERGO cycle, shall be entered, verified as accurate, or updated in EC

OMBIL by the end of August in each Fiscal Year.

b. Each Division’s ERGO assessment schedule shall meet the following requirements:

(

External Assessments.

(a) USACE Civil Works (CW) facilities operated by CW personnel: External

assessments are required once in the 5 year ERGO cycle at CW facilities operated by CW

personnel.

ER 200-2-3

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5-2

(b) Outgrants of real property on CW Projects: External assessments are required once

in each 5 year ERGO cycle at those outgrants determined by the District to require support

and oversight through the ERGO process. During the scheduling of ERGO assessments for

each 5 year ERGO Cycle, the District ECC, in coordination with the Real Estate element,

shall make determinations of outgrants requiring ERGO oversight and support based on the

following criteria:

• The presence of outgrant activities regulated under Federal, state or local

environmental law, regulation, permit, or executive order, or as specified by USACE policy.

• The presence of outgrant activities that warrant ERGO oversight and support based

on a local determination.

(2) Internal Assessments.

(a) The baseline list of Corps-operated and outgrant facilities potentially requiring

internal assessments shall be the list developed for external assessments in response to the

requirements in paragraph 5-3 b (1), above.

(b) Beginning in FY11, the Districts may select facilities at which they shall schedule

and execute internal ERGO assessments, to the extent that the facilities have documented in

EC OMBIL performance data meeting the ERGO performance measure goals. The selection

process shall be based on objective, District-level evaluations of the most recent ERGO

assessment data in EC OMBIL and the criteria listed below:

• EC OMBIL data demonstrating facility attainment of HQ USACE-established goals

for completion of ERGO assessments, entry of ERGO data into EC OMBIL, and closure of

ERGO findings.

• Facility performance indicating a need for additional oversight, such as regulatory

enforcement actions or reports by Corps staff of questionable environmental compliance

practices, or if new environmentally significant activities are established at the facility.

• Applicability of new regulatory requirements at the facility or special emphasis areas

specified by higher command.

• EC OMBIL data indicating that the time elapsed since the most recent ERGO

assessment warrants an internal assessment in the coming year. The period of time between

ERGO assessments at Corps-operated or outgrant facilities identified using the procedures at

5-3 b.(1) shall not exceed 5 years.

established ERGO goals as listed in 5-3.b.(2)(b), above for the previous fiscal year, or the

most recent assessment, are required to schedule and conduct internal environmental

compliance assessments annually, except for the year in which an external assessment is

conducted.

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5-3

c. Requirements for Conducting Formal Internal and External ERGO Assessments.

(1) Operations Project/facility managers shall provide appropriate staff to support the

assessment team, shall participate in review of assessment findings, and shall take action to

correct findings and continually improve environmental performance.

(2) The first formal external assessment conducted at any USACE operating location

after the effective date of this ER shall evaluate and document whether there is or is not a

reasonable basis for concern regarding legacy contamination caused by USACE operations.

This information shall be recorded in EC OMBIL. See Chapter 13 for legacy contamination

and PRP evaluation and reporting procedures.

(3) Assessments shall be coordinated with the project/facility Operations Manager.

(4) The Project ECC shall coordinate with the District ECC prior to starting an

assessment.

(5) After each assessment, the Project ECC shall coordinate the completion of the

assessment through the project/facility chain-of-command to the District ECC.

(6) The District ECC shall coordinate with the District Chief of Operations through

their chain of command.

(7) The District or Project ECC shall retain documentation that coordination was

completed.

http://corpslakes.usace.army.mil/employees/cecwon/pdfs/03dec19-

compliance.pdf

(See memo at

). Annual completion of management review of ERGO performance data in

accordance with the requirements of section 4-6 of this regulation constitutes documentation

of the required coordination.

(8) For each documented finding, corrective action plans shall be developed, and after

the plans are developed, persons responsible for closing each finding shall be formally

tasked, including the responsible party’s name, phone, and e-mail address, and the target date

for completion of the task(s). Funding and manpower shall be allocated by Civil Works

Operations and grantees, when supported by outgrant terms and conditions, as required, and

tasks shall be executed as necessary to close all findings.

(9) Formal external assessment teams shall include persons not employed at the facility

under review. For sake of cost efficiency and learning opportunities, use of USACE staff

(ECCs or EM CX staff) is preferred over contract staff. RATS in which ECCs under

different divisions or districts cross assess one another’s projects is highly encouraged.

Memo 18 Dec 2003, CECW-ON, Subj: Environmental Compliance Assessments Conducted at Civil Works

Projects and Facilities

ER 200-2-3

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5-4

(10) Pre-Visit Questionnaires (PVQ). The Project ECC shall complete the PVQ

through interviews with the facility manager of each activity with potential to cause

significant environmental impact at the project location. PVQs for Corps controlled

activities and outgrants are provided in the ERGO manual. The ECC shall compare the

results of the PVQ with the ERGO/TEAM protocols to determine which environmental

requirements and associated protocols relate to project activities. The PVQ shall be

completed prior to the first internal and external assessment at each activity. It shall be

reviewed annually by the ECC in conjunction with the management of each relevant project

activity, and its completeness and accuracy shall be certified in writing, annually, by the

OPM.

(11) Current environmental compliance status shall be evaluated as well as status of

findings from the last external assessment and any subsequent internal assessments. All

ERGO assessments shall include:

(a) Review and follow-up on all incomplete corrective actions pertaining to findings

from any previous assessment.

(b) A visual walk-through inspection of the project facilities.

(d) Review and follow-up on all incomplete corrective actions pertaining to Notices of

Violation (NOV), Notices of Non-Compliance (NON), or other enforcement actions. For

outgranted areas, coordination with grantees and responsibility for the NOV and NON is the

responsibility of the Chief of Real Estate. See 6-4.c. for further guidance on regulatory

actions at outgranted areas.

(e) Evaluation of compliance with any new regulatory requirement promulgated since

the previous assessment.

(f) Evaluation of compliance with respect to any special emphasis areas specified by

higher command.

(g) Whether additional measures are recommended to ensure sustained compliance.

(12) Internal and external assessment data shall be reviewed by the Project ECC, and

its completeness and accuracy shall be certified in writing by the OPM using the ERGO

Assessment Checklist available at

http://www.fedcenter.gov/programs/compliance/assessment/teamguides/

(13) Responsibility for ERGO assessment data entry into EC OMBIL shall be

determined and documented by the District ECC in coordination with the Project ECCs.

(14) The District ECC shall ensure complete, accurate and timely entry of ERGO

assessment data into EC OMBIL for all internal and external assessments. The District ECC

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5-5

shall apply data quality assurance/quality control checks, as supported by OMBIL,

throughout the year to ensure continual improvement of data quality.

(15) All ERGO-related data for outgrants will be tracked separately from data for

Corps operated activities and reported to the District Real Estate element for any corrective

action.

(16) For each internal and external assessment at Corps-operated and outgrant

facilities, all findings and closure information from the previous Fiscal Year shall be

documented in EC OMBIL by the last business day in October.

(17) Not later than the first business day after October 31

, the District ECC shall

generate from OMBIL a “Summary of Uncorrected Findings” report and distribute it to all

affected OPMs

. The report shall be reviewed, updated as necessary, and certified as

complete and accurate by each affected OPM. The OPM shall provide rationale for each

finding that remains open, as well as the OPM’s plan for closing each finding. Feedback

from the OPMs shall be provided to the District ECC for incorporation in the annual District-

level management review.

d. Additional Requirements for Formal Internal and External Assessments at

Outgrants.

(1) Using the list of outgrant facilities resulting from the procedures under 5-3. b., the

Operations Division and the Real Estate Division will develop a schedule for conducting

assessments at outgrants.

(2) Real Estate shall notify the appropriate grantee when their environmental

compliance assessment shall take place.

(3) The grantee will be requested to participate in pre-briefings, the Outgrant PVQ, the

assessment, and exit briefings relative to their outgranted area. The District RE element will

support the OPM, the project ECC, and the District ECC in efforts to obtain grantee

participation in environmental compliance assessments.

(4) Operations shall coordinate with Real Estate to request completion of the Outgrant

PVQ from the ERGO Supplement by the grantee prior to the assessment. The PVQ helps

identify environmentally significant activities at the outgrant, assemble appropriate team

membership, and select protocols for performing assessments. The PVQ shall be completed

prior to the first internal and external assessment at each outgrant. It shall be reviewed

annually by the ECC in conjunction with the management of each relevant outgrant, and its

completeness and accuracy shall be certified in writing, annually, by the OPM, and provided

to the District ECC and the Real Estate element.

(5) The District ECC shall notify the RE element before the OPS element begins an

ERGO assessment at an outgranted area.

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5-6

(6) All findings of non-compliance and recommended management practices identified

during assessments of outgranted areas shall be verbally communicated to the grantee during

the exit briefings. The District ECC will provide the Real Estate POC the list of findings or

the assessment report identifying each area of noncompliance to be formally communicated

to the grantee in written correspondence in accordance with the terms of the outgrant

agreement

(7) An appropriate timetable for correcting the findings of non-compliance shall be

developed by the ECC and Real Estate in consultation with the grantee. USACE shall work

with the grantees and the regulatory agencies to develop reasonable milestones for achieving

compliance, especially if significant monetary investments are required to correct the

problem. Responsibility for correction of deficiencies at outgrants shall be determined on the

basis of the requirements of the outgrant agreement. If required, grantees shall be directed to

the appropriate federal, state, or local regulatory agencies for additional guidance or

assistance in determining compliance with applicable regulations.

(8) If the grantee does not take the required corrective action, Real Estate, pursuant to

the terms of the outgrant document and in coordination with the OPM or Project ECC, as

appropriate, shall provide management consultation to assist the grantee in meeting their

responsibilities under the outgrant agreement for correcting non-compliance. If project level

discussions do not result in closure of the issue, it shall be elevated to the District level.

(9) If the grantee does not take the required corrective action, Real Estate shall inform

the Grantee that continued non-compliance may be referred to the appropriate regulatory

agency, at the discretion of the Operations element in coordination with RE. In such cases,

the appropriate regulatory agency will render final determinations with respect to compliance

with relevant laws or regulations. In addition, Real Estate shall inform the grantee that

continued non-compliance may also result in revocation of the outgrant.

(10) To ensure compliance with the grantee’s requirement to take corrective action, all

new outgrants and outgrant renewals shall contain provisions requiring the Grantee to

promptly initiate and complete corrective actions identified in Environmental Assessment

Reports conducted under the ERGO that the District Engineer determines shall be

implemented to comply with applicable laws, regulations, conditions or instructions,

including USACE policy. New Environmental Protection Provisions have been developed

for all new outgrants and outgrant renewals or modifications. These provisions are designed

to ensure grantees comply with environmental laws and participate in the ERGO process.

See the forthcoming ER 405-1-80, Management and Outgrant Programs and its

accompanying formats for these provisions.

(11) “Significant” findings identified during any environmental compliance assessment

shall be reported immediately, both verbally and in writing, to the grantee. Pursuant to the

terms and conditions of the outgrant, the Chief of Real Estate will provide written

notification to the grantee, with written copies furnished to the District Commander, Chief of

Operations, Office of Counsel, Safety Office, and the District ECC. In some cases, the

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determination of a Significant finding may lead to the immediate closure of the localized area

until USACE determines adequate precautions are taken to protect both people and the

environment. While only the District Chief of Real Estate has the legal authority to

implement an “immediate” closure of all or portions of the outgranted area, an exception

exists for situations posing an imminent threat to life or property and immediate closure is

determined by the OPM as the only cure. The Operations Project Manager will notify the

Chief of Real Estate not later than 6 hours after determination is made or at the beginning of

the next business day should this occur on a holiday or weekend.

(12) District ECCs shall provide Real Estate with EC OMBIL-generated Findings

Summary sheets and Corrective Action Plan (CAP) forms to forward to grantees. Grantees

shall complete and return the CAP forms, through Real Estate to the District ECC in a timely

manner to identify their corrective action measures for non-compliant items along with the

timetable for achieving compliance. Copies of the EC OMBIL-generated Findings Summary

sheets and CAP forms and other pertinent correspondence shall be provided to the Chief of

Operations and Real Estate.

(13) The District ECC shall ensure that scheduling of ERGO assessments at outgrants

is coordinated with the District Real Estate element, and the results of ERGO assessments

are provided to Real Estate for corrective action and inclusion in real estate compliance

inspection reports, as appropriate.

5-4. Assessors. Persons conducting ERGO assessments shall possess adequate training,

either formal or on the job, to be capable of identifying environmental compliance issues.

Environmental training requirements are addressed in Chapter 15.

5-5. Facilities Outside of the Traditional Civil Works District Structure. Division

Commanders, District commanders, and commanders/directors of facilities outside of the

traditional Civil Works District structure shall develop internal procedures to assure that

assessments are conducted in accordance with this guidance and that corrective action plans

are developed, persons responsible for closing each finding are tasked, and tasks are

executed as necessary to close all findings.

5-6. Releasability. Due to the potentially sensitive nature of compliance related findings,

self-assessment information (internal and external) shall be marked "For Official Use Only"

(FOUO), and any release outside of USACE shall be coordinated through the Office of

Counsel.

5-7. Funding for Environmental Compliance Assessments.

a. Each USACE operated project/facility shall program funding and allocate

manpower for each internal and external assessment to meet the following requirements:

(1) Form a team that is trained and qualified to assess the mission activities, including

outgrants, at the project location(s).

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(2) Ensure training of ERGO Team members in accordance with the requirements in

Chapter 15 of this ER.

(3) Travel and external manning support to form and deploy the assessment team and

support all phases of the assessment process, from planning for the assessment through

assessment report preparation and distribution.

(4) Facility managers of each organization, including outgrants, determined to have

environmentally significant activities (as defined in Section 1-5) at the project location shall

allocate time to support all phases of the assessment through the execution of tasks to close

of findings.

(5) Execute tasks to close all findings identified during the assessment.

(6) Enter all data supporting the ERGO assessment into EC OMBIL.

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CHAPTER 6

Regulatory Inspections and Notices at

USACE Civil Works Operations Controlled Property

6-1. Policy.

a. Due to the nature of enforcement inspections, it is acknowledged that advance

notice of compliance inspections is not always possible. USACE shall request rescheduling

of unannounced inspections if appropriate staff members are not available to participate.

However, if that can not be arranged, it is USACE policy to grant access to inspectors

without prior notice during normal business hours provided the inspector provides proper

credentials, the validity of the credentials can be confirmed, and the inspector meets all

safety and security requirements for the facility.

b. It is the policy of USACE to request that inspectors provide entrance and exit

briefings to management to explain the purpose and scope of the inspection and to relay any

findings or concerns.

c. It is the policy of USACE for the Project to inform the District Chief of Operations,

Office of Counsel, and District ECC of any significant regulatory activities such as

enforcement actions, including notices of violation or notices of non-compliance. In cases

involving outgranted areas, the Chief of Real Estate will be included in this notification

requirement, to the extent that USACE personal are notified of the grantee violation.

Similarly, if the Chief of Real Estate is notified of a regulatory activity at an outgrant area,

the Chief of Real Estate shall notify the Operations element at the project and District levels.

Significant regulatory activities are those that the OPM, in consultation with the project

ECC, determine to have potential to result in fines or penalties. In turn, the District ECC

shall notify the Division ECC and HQ ECC.

d. It is the policy of USACE to initiate corrective action for non-compliance noted

during an inspection as soon as possible and practical.

e. In addition to the requirements above, the project will forward to the District Office

of Counsel any written enforcement action.

6-2. Escorts. Every effort shall be taken to ensure that appropriate staff accompanies

inspectors at all times. The OPM has primary escort responsibility and shall be notified

when an inspector arrives. The OPM may delegate this responsibility. If the OPM or Project

ECC are unavailable, USACE shall request rescheduling of the inspection. However,

forethought shall be given to pre-establishing alternate escorts in the event the Project ECC is

unavailable and the inspection can not be rescheduled. Under no circumstances shall

inspectors be unaccompanied.

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6-3. Inspection Protocols.

a. An entrance briefing shall be conducted prior to the inspection.

(1) Attendance shall be requested of the Project ECC, Facility Manager, Natural

Resource Manager, Mechanical/Electrical Supervisors, Safety Officer, Office of Counsel,

and other staff likely to have involvement in the inspection or outcome of the inspection.

(2) Inspectors shall be requested to :

(a) Present official, verifiable identification.

(b) State reason for the inspection including whether it is routine or in response to a

complaint or investigation; the scope of the inspection (for example whether it is a multi-

media inspection or whether focusing on a particular aspect of the environmental program,

such as hazardous waste); and specific records to be inspected and specific areas of the

facility to be inspected (for example, areas managing hazardous waste or areas with air

emissions, etc).

protective equipment such as hard hats, safety glasses, and/or steel toed boots.

(d) Meet security requirements or arrange for an alternate inspector meeting such

requirements. (For example, USACE may have security plans in place which require

persons accessing certain hazardous materials to be U.S. citizens.)

(e) For any samples obtained, issue a receipt, provide a duplicate or split sample, and

furnish a copy of any analysis conducted.

(f) Provide an exit briefing at end of the inspection to relay any concerns or findings.

(3) If the inspector does not comply with USACE requirements listed above, the OPM

or Project ECC shall contact District Office of Counsel for additional guidance.

(4) Evaluate the need for visitor safety training, the need for personal protective

equipment, and ensure compliance.

b. The escort shall adhere to the following inspection protocol:

(1) Document the inspector's questions, comments, and statements; areas inspected;

samples collected; records reviewed and/or copied; and any corrective action taken.

(2) Inspector's inquiries shall be answered in an accurate and concise manner by

knowledgeable staff. If the answer is unknown, do not speculate. Determine the answer

from a reliable source and provide the information to the inspector in a timely manner. If

there are legal concerns, consult with Office of Counsel.

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(3) Be aware that environmental regulations and permits stipulate record retention

periods. When requested to produce records, produce only those records specifically

requested. If requested to produce records beyond record retention timeframes, produce if

available and if it is in the interest of the government to do so.

(4) Duplicate information (i.e. potential evidence) gathered by the inspector. For

example, photograph same areas as the inspector photographs, duplicate copies of any

written records collected by inspector, document verbal statements made to inspector, collect

duplicate or split samples of any sample collected.

(5) If a deficiency or alleged violation is identified, where possible immediately initiate

corrective action in the presence of the inspector.

(6) Request a copy of inspector's report, if one is generated, and copies of any

photographs or sample results associated with the inspection.

6-4. Notices of Violation of Federal, State or Local Environmental Requirements

. Upon

receipt of written notice of enforcement action from Federal, State or Local enforcement

agencies which involves non-compliance likely to result in fines or penalties:

a. Copies of written notices shall be forwarded upon receipt by the Project ECC to the

District ECC. The District ECC will coordinate with the Office of Counsel, and forward as

appropriate to the District Commander, Division ECC, and HQ ECC. Electronic forwarding

is encouraged.

b. District ECC shall coordinate with District Office of Counsel (OC) regarding any

violation in dispute or involving fines or penalties against USACE.

c. For enforcement actions involving outgranted areas, the Operations element shall

coordinate with the Chief of Real Estate. The Chief of Real Estate has the responsibility for

the formal enforcement action and coordination with grantees.

d. Where Regulatory entities offer an opportunity to meet either in person or via a

conference call, USACE shall accept in order to resolve any misunderstandings, to

demonstrate interest, and to gain a better understanding of any concerns. USACE

representation shall include, as appropriate, the Operations Manager, ECC, OC, and other

relevant staff.

e. Written responses shall be coordinated with OC and provided promptly.

f. Corrective action shall be promptly initiated and documented.

g. Lessons learned shall be shared via the ECC network and NRM Gateway as

appropriate.

6-5. Recording Regulatory Actions. The Project ECC shall enter all regulatory actions into

EC OMBIL within 14 business days. They shall also track them and state their corrective

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actions in EC OMBIL. This includes any and all forms of notification received indicating a

non-compliant status at the facility. Examples include water sampling not done; water

sample failure; regulatory inspection findings; warning letters, etc. Fine and/or penalty

information (both amount assessed and amount paid) shall be entered into EC OMBIL for

tracking.

6-6. Fines, Penalties, and Inspection Fees.

a. Any fines or penalties assessed shall be coordinated with District OC to determine

whether appropriate and payable. Regarding alleged violations of federal law, OC shall

determine whether Congress has granted interagency authority to the federal agency.

Regarding alleged violations of state and local laws, OC shall determine whether Congress

has clearly and unequivocally waived sovereign immunity to allow payment of fines and

penalties and whether the fines and/or penalties are reasonably based, assessed within the

scope of the waiver, and applied in a non-discriminatory manner

b. Any bills for regulatory actions, including but not limited to compliance

inspections, shall be coordinated with District OC for a determination as to whether payable.

OC shall evaluate whether the bill represents payable fees for services rendered or whether

they constitute impermissible taxes for which the Federal government is not liable.

c. When consideration of a Supplemental Environmental Project (SEP) is warranted to

offset fines and/or penalties, the District Operations element, in coordination with the Office

of Counsel, shall coordinate with regulators to determine whether it is advantageous for

USACE to pursue a SEP.

15 Aug 2007 Memo, Subject: Guidance for Counsel of Responding to State Allegations of USACE Violations of

Environmental Compliance Law or Regulation and Demand for Payment for Fines and Penalties Associated with

Civil Works Facilities or Operations. http://corpslakes.usace.army.mil/employees/cecwon/memos-drill.cfm?Id=743

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CHAPTER 7

Hazardous Materials Management

7-1. Policy. USACE shall manage hazardous materials in a manner that is protective of

human health and the environment; ensure hazardous materials are transported safely and

securely; comply with all applicable Federal, state, and local laws and regulations, Executive

Orders, and USACE/DoD policy regarding the management and transportation of hazardous

material; and report releases of reportable quantities promptly in accordance with applicable

regulations. (Remediation of spills is addressed in Chapter 10.)

7-2. Material Safety Data Sheets.

a. Material Safety Data Sheets (MSDSs) are manufacturer generated forms provided

with hazardous products that provide detailed information including potential health effects,

physical and chemical characteristics, and recommended handling and protective measures.

MSDSs shall be maintained for hazardous chemicals used in the workplace. In addition, they

shall be made readily accessible to employees, and employees shall be informed as to the

physical location of MSDSs.

b. A central repository for MSDS information, the Hazardous Materials Information

Resource System (HMIRS) is maintained by the Defense Logistics Agency and can be

accessed at

http://www.dlis.dla.mil.hmirs/default.asp.

7-3. Hazardous Materials Storage.

a. Hazardous materials on Civil Works controlled lands and waters, including

contracts and outgrants shall be stored in a protective manner to minimize the threat of

release, fire, or explosion. Hazardous materials shall be:

(1) Evaluated for and protected from security threats.

(2) Stored in containers in good condition.

(3) Clearly marked or labeled to indicate the identity of the material and/or the hazard.

(4) Segregated according to compatibility.

(5) Provided secondary containment as determined appropriate by Project ECC in

accordance with applicable laws and/or regulation.

(6) Stored away from unprotected drains and unauthorized public access.

b. In addition, non-hazardous materials resembling hazardous materials shall be

marked so as not to be mistaken for unidentified hazardous materials.

7-4. Hazardous Materials Security. Efforts shall be taken to evaluate whether types and/or

quantities of hazardous materials, including hazardous wastes, represent security risks with

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7-2

respect to potential terrorist acts or other unauthorized access. Actions shall be taken to

minimize such risks. Procedures shall be implemented to notify local emergency planning

authorities in the event that any significant amount of hazardous material, including

hazardous waste, is stolen from the premises.

7-5. Hazardous Materials Transportation.

a. USACE complies with DoD hazardous material transportation policy established in

DoD 4500.9-R, Defense Transportation Regulation. Consequently, USACE hazardous

materials shipping activities, whether conducted by government employees or contractor

personnel, shall comply with the Hazardous Materials Regulation (HMR) requirements of 49

CFR parts 100-175, International Maritime Dangerous Goods Code (IMDG-C) for domestic

and international shipments by surface or water conveyance, and International Air

Transportation Association (IATA) or International Civil Aviation Organization (ICAO) for

shipments by air.

b. Hazmat employees

c. As specified within DoD policy, USACE shall not use the Federal exemption from

the HMR in 49 CFR 171.1(d) (5). However, the material of trade exception in 49 CFR 173.6

may still be utilized where applicable.

(including but not limited to persons who prepare, transport,

load, or unload hazardous materials) shall be trained and tested on hazardous materials

regulations.

d. USACE hazardous material cargo transported by government operated or

commercially operated conveyances shall be in accordance with DoD 4500.9-R, Defense

Transportation Regulation and shall be properly described, packaged, marked, labeled,

placarded, segregated, and provided emergency response information unless excepted.

e. Transportation of USACE hazardous materials by privately-owned motor vehicle is

prohibited.

Defined in 49 CFR 171.8

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CHAPTER 8

Petroleum, Oils, and Lubricants Management

8-1. Policy. It is the policy of USACE to manage petroleum, oils, and lubricants (POL) in a

manner that is protective of human health and the environment; to proactively prevent spills;

to promptly report releases in accordance with applicable regulations; and to maintain

readiness to act as First Responders.

8-2. Used Oil Management.

a. Used oil shall be collected and stored in a manner which prevents releases to the

environment. Used oil shall be recycled for energy recovery or by reprocessing to the

maximum extent practicable. Disposal of used oil is the least favored option.

b. In addition to complying with applicable Federal, State, and local used oil

regulations, efforts shall be taken to ensure hazardous wastes do not become inadvertently

mixed into used oil. In addition, used oil shall not be intentionally mixed with hazardous

waste except in extraordinary circumstances specifically authorized by regulation and for

which the resultant mixture remains used oil, not hazardous waste. This shall be documented

via analysis demonstrating that the mixture does not exhibit any hazardous waste

characteristic.

c. Offsite used oil shipments shall be presumed to be "off-specification" unless tested

and documented as meeting the used oil specification in 40 CFR 279.11.

d. During accumulation, used oil collection containers shall be protected from

infiltration of rainwater and shall be sited to minimize the likelihood of releases to surface

waters (e.g. shall be sited away from drains and/or provided secondary containment.) Oil

shall be regularly recycled to minimize the potential for significant releases.

8-3. Spill Prevention, Control and Countermeasures (SPCC). USACE shall evaluate

volumes and locations of POLs and shall prepare and maintain SPCC plans where required.

8-4. POL Releases.

a. If despite preventive measures, a POL is released outside of the facility to "waters

of the United States" such that an applicable water quality standard is violated or it causes a

film or sheen upon or discoloration of the surface of the water or adjoining shorelines or

causes a sludge or emulsion to be deposited beneath the surface of the water or upon

adjoining shorelines, USACE shall notify the National Response Center (NRC) immediately.

POL wholly contained within the facility, for example within buildings or oil/water

separators, is generally not reportable but shall be evaluated on a site-specific basis in

accordance with Federal, state, and local regulations.

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b. Forethought shall be given to spill reporting and responsibilities shall be designated

within spill plans, contingency plans, and/or SPCC plans.

c. See Chapter 10 - Spill Reporting and Response.

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CHAPTER 9

Waste Management

9-1. Policy. USACE shall comply with applicable Federal, state, and local environmental

laws and regulations, Executive Orders, and USACE policy for management, generation,

transportation, treatment, storage, and disposal of waste. This includes terms and conditions

of Federal and state permits. USACE shall:

a. Establish local procedures and responsibilities for the execution of waste

management programs.

b. Minimize the need for RCRA permits through use of offsite treatment, storage, and

disposal facilities.

c. Implement waste reduction and recycling programs and procedures to support

pollution prevention goals. Waste generation shall be reduced to the maximum extent

practicable. When waste can not be eliminated, and where it is economically feasible, efforts

shall be taken to minimize volumes and/or toxicity through reuse, recycling, or treatment.

9-2. Waste Disposal. USACE shall not engage in onsite disposal of hazardous waste,

industrial waste, municipal solid waste, or construction/demolition waste. Open dumps are

strictly prohibited. Plant material (e.g. tree limbs, grass clippings, etc.) and other non-

regulated, compostable materials may be disposed onsite as allowed by State or local

regulation.

9-3. Borrow Material.

9-4. Hazardous Waste. USACE organizations shall:

Soils containing hazardous waste, even if naturally occurring, are

not eligible as borrow material. Though extensive analysis is not mandated, to minimize

inadvertent transfer of contamination, borrow material whether being brought onto USACE

property or taken from USACE property shall be screened for environmental contaminants

prior to transfer. Professional judgment and consultation with the EM CX, as necessary,

shall be used to determine whether material is suitable for on or off-site transfer. Generally,

in addition to the above, soil significantly exceeding background levels is unsuitable as

borrow material.

a. Make hazardous waste determinations for all discarded material. However, this

shall not be construed to mean that USACE shall provide non-hazardous waste certifications.

This determination does not apply to dredged material which is excluded as hazardous waste

under 40 CFR 261.4(g).

b. Determine applicable hazardous waste generator status (large quantity generator,

small quantity generator, or conditionally exempt small quantity generator), and shall comply

This paragraph does not apply to dredged material.

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with corresponding requirements. In determining generator status, careful consideration

shall be given to hazardous wastes generated during execution of contracts and whether

waste is the responsibility of USACE or the contractor. Only USACE generated wastes shall

be counted toward USACE generator status, not contractor generated waste. The

Environmental Protection Specification, Unified Facilities Guide Specification 01 57 20.00

9, defines "contractor generated hazardous waste" as "material that, if abandoned or disposed

of, may meet the definition of hazardous waste. These waste streams would typically consist

of material brought on site by the Contractor to execute work, but are not fully consumed

during the course of construction." Thus, for example, paint thinners brought on site and not

fully consumed would be the responsibility of the contractor and would not count toward

USACE generator status, however, hazardous waste generated by a contractor as a result of

lead-based paint removal from a USACE structure would count toward the USACE

generator status.

c. For each assigned EPA ID number, make the Project ECC or the person responsible

for shipments of hazardous waste the single point of contact responsible for compiling and

maintaining all RCRA hazardous waste related records including copies of manifests,

exception reports, training records, inspection records, and biennial reports.

d. Not receive regulated hazardous waste from an offsite generator thereby triggering

hazardous waste permit requirements unless specifically authorized or permitted. However,

this prohibition does not apply to hazardous waste generated on public vessels and exempt

from RCRA regulation in accordance with Section 3022 of the Solid Waste Disposal Act.

Such wastes are not subject to RCRA regulation until transferred ashore. However, once

transferred ashore, these wastes become subject to RCRA and can not be accumulated for

such time as to trigger a permit requirement. (Typically, this limits accumulation to less than

90 days.)

9-5. Universal Waste

a. To the extent practicable, waste eligible to be managed as universal wastes

(batteries, mercury containing equipment, recalled/cancelled pesticides, and lamps/light

tubes) shall be managed under the universal waste rules, which provide streamlined

hazardous waste management standards. To reduce compliance requirements, USACE shall

strive to maintain small quantity handler status. Universal Waste regulations can be found in

40 CFR 273. Also check for any applicable state rules since states can modify the universal

waste rules.

b. Maintain records of universal waste in support of solid waste and hazardous waste

diversion programs required by EO 13423.

9-6. Asbestos Waste. USACE shall maintain compliance with all pertinent regulations and

prevent human exposure to asbestos hazards. Regulated asbestos-containing material shall

be removed/abated only when necessary for operational purposes; it presents a hazard; it can

not be managed in place; it shall be disturbed during maintenance, repair, or construction

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projects; it is friable or likely to become friable during demolition; economically justified to

be removed during building deconstruction; or identified to be a hazard and ownership is

being transferred to a non-federal entity.

9-7. Polychlorinated Biphenyls (PCB) Waste.

a. PCBs in service shall be managed in place unless operational, economic, or

regulatory considerations justify removal. Economic analysis includes potential

environmental damage.

b. For pre-1980 electrical equipment in service for which the PCB concentration is

unknown, the PCB concentrations shall be presumed as specified within TSCA regulations

(40 CFR 761.2) and shall be managed accordingly. For example, mineral oil transformers

shall be presumed to be PCB contaminated (between 50 and 500 ppm PCB) and transformers

other than mineral oil transformers shall be presumed to be PCB transformers (> 500 ppm

PCB). Once removed from service, equipment shall be managed at actual concentration.

c. Small, intact PCB capacitors, such as from light ballasts, that are to be landfilled for

disposal shall be managed to preserve the integrity of the equipment so as not to cause

leakage of PCBs.

d. Personnel who handle or manage PCBs shall receive training in performing PCB

related responsibilities in a safe and environmentally sound manner and shall also be

included in exposure monitoring and medical surveillance programs in accordance with

OSHA, DoD, DA, and USACE requirements.

9-8. Used Oil. Used oil shall be managed and recycled in accordance with applicable used

oil regulations. See Section 8-2 regarding Used Oil Management.

9-9. Treated Wood. Burning of waste wood products treated with hazardous constituents,

including but not limited to arsenic or pentachlorophenol may present an environmental

hazard due to concentration or transformation of hazardous constituents during the

combustion process. Therefore, USACE shall not engage in or allow burning of treated

wood on USACE property.

9-10. Ozone Depleting Substances (ODS). ODS shall not be disposed of as waste.

Recovered ODS can not be bartered, sold, or traded. Return excess ODS to the DoD ODS

Reserve. See Chapter 9 of DoD 4160.21-M.

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CHAPTER 10

Spill Reporting and Response

10-1. Policy. USACE shall prevent spills of oil and hazardous substances due to USACE

activities and maintain readiness to rapidly respond to contain and clean up USACE spills.

10-2. Responsibilities.

a. District Chief of Operations and OPMs are responsible for:

(1) Providing oversight, assuring spill plans are adequately prepared, and that

emergency spill response methods are appropriate.

(2) Evaluating options for spill response support and seeking contract(s),

Memorandum of Agreements (MOAs), or mutual assistance agreements to provide response.

In the event that the OPM determines an in-house team is needed, establish and maintain a

trained and qualified emergency spill response team at the appropriate response level, and

assure annual training, appropriate medical surveillance, availability of proper equipment and

supplies, etc.

(3) Reviewing the status of spill planning and response requirements and assuring

that spill prevention or contingency plan requirements are met.

(4) Routinely evaluating and updating existing spill prevention and contingency plan

documents to assure they meet current criteria specified in applicable Federal and state

regulations. Where extremely hazardous substances

10-3. Notifications.

are present, plans shall specifically

address emergency notification under Section 304 of the Emergency Planning and

Community Right-to-Know Act (EPCRA). Corrective actions shall be initiated immediately

for plans that do not meet regulatory requirements.

a. In accordance with the National Contingency Plan, the Project shall immediately

notify the National Response Center of any discharge in violation of the Clean Water Act

and/or any discharge of a reportable quantity of a hazardous substance that occurs within a

24 hour period.

b. The requirement to internally coordinate is not a pre-requisite to notifying the

National Response Center and shall not delay such reporting.

c. Where an extremely hazardous substance is involved, USACE operated facilities

will provide emergency release notifications as required by 40 CFR Part 355.40.

See 40 CFR 355.

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d. Where state and local notifications differ from Federal requirements, USACE

facilities shall comply with all applicable requirements. Where applicability of law is in

question, the Office of Counsel shall be consulted.

10-4. Internal Agency Coordination.

a. Where notification is required under paragraph 10-3, internal agency coordination

shall occur as specified in spill response plans, but shall generally include notification of:

(1) The functional element that is responsible for operation of a facility. (In many

cases, but clearly not all, this shall be the Operations element and its sub-element(s).)

(2) The District and Division Commanders.

(3) The Project and District ECCs.

(4) The Readiness Branch evaluates severity of incident and can utilize ENGLINK to

further distribute information to higher authority. In Corps labs, reports shall be made

through command channels to the appropriate level.

(5) The Real Estate Office, when the affected area includes an outgranted area.

(6) The Safety Office.

(7) The Public Affairs Office.

(8) Office of Counsel.

(9) The HQ USACE Civil Works Operations Natural Resources Management Branch

via Division.

10-5. Spill Response.

a. Initiation of Response Action.

(1) If despite preventive measures a USACE spill occurs, USACE shall initiate

response action. This may be in the form of formal notification to outside response

authorities and/or active response by USACE. USACE policy first and foremost provides for

protection of human life and health but requires optimal effort to protect the environment,

particularly in sensitive areas identified in geographic response plans, and to protect property

and structures. USACE personnel shall not respond to any spill unless it is safe to do so, and

personnel are adequately trained and equipped. USACE may partner with others, such as

States or Coast Guard on regional response teams. USACE personnel shall not respond at a

level higher than the "First Responder, Operations Level

29 CFR 1910.120(q).

" unless authorized by the OPM

and appropriately trained to do so.

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(2) USACE personnel shall not respond to non-USACE spills off USACE operated

facilities, except as provided in paragraph 10-5.c. of this guidance.

b. Potential USACE Emergency Spill Response Scenarios. OPMs, with the

assistance of the appropriate Safety and Occupational Health elements, shall anticipate the

appropriate level of emergency spill response to be provided at USACE operated facilities

and to plan accordingly. Each OPM shall maximize the use of qualified non-USACE spill

response sources to minimize the risk to in-house personnel. Potential spill response

scenarios are as follows:

(1) No USACE Response Team - Many USACE operated facilities are or shall be

able to rely on public or private Hazardous Materials Emergency Response Teams in their

area for assistance. USACE personnel from these facilities may not need to provide any

emergency spill response.

(2) USACE First Responder In-House Team - A few facilities may need to establish

their own in-house spill response teams. In some cases facilities shall establish in-house spill

teams for limited emergency spill responses to meet initial emergency spill response needs

until full scale emergency spill responders can arrive at a spill site. USACE personnel would

typically be trained and qualified at the "First Responder, Operations Level

(3) Non-USACE Response Team - Riskier, more demanding emergency spill

response levels would typically be performed by a well-trained and experienced contractor or

other non-USACE responder.

". USACE First

Responders would then manage the spill scene until the arrival of a responder with whom the

USACE facility has made previous arrangements for spill response services. This second

responder may be a contractor, MOA partner, or mutual assistance agreement as discussed

below.

c. Non-USACE Spills.

(1) Except for personnel serving in an Emergency Management function or as part of

a mutual assistance agreement, emergency spill responses by USACE personnel shall be

limited to spills on USACE lands or facilities or caused by USACE activities. USACE

contractor spills on USACE lands and waters are the responsibility of the contractor. The

contractor shall be required to report spills to the Contracting Officer’s Representative and

the OPM or the District ECC immediately. In the event that a USACE contractor causes a

spill on a USACE operated facility or from USACE activities and is unwilling or unable to

respond, USACE shall provide a response to contain and clean up the spill. As in any case of

a contractor's non-compliance with safety and environmental standards, USACE officials

have the option of stopping contractor work and/or seeking compensation from the contractor

for expenses incurred in fulfilling spill response obligations. Office of Counsel shall be

29 CFR 1910.120(q).

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consulted to assure compliance with all legal requirements, proper documentation, and

presentation of any claim under the contract or any other applicable statute.

(2) Spills from a grantee on USACE lands are the responsibility of outgrant area

operator. Where outgranted areas are mandated by Federal or state regulations to have and

maintain a spill plan, Real Estate, in consultation with OPM, shall require the grantee to

comply with spill planning requirements and to be able to clearly provide for an adequate

response in the event of a spill. This requirement shall be an element of lease compliance

inspections. Where outgranted areas are not required by Federal or state regulations to have

a spill plan, OPMs in coordination with the Chief of Real Estate, shall encourage lease area

operators to coordinate with local emergency response authorities to obtain necessary

support in the event of a spill. In the event that any outgranted area facility appears to

present a high risk of a spill of oil or a hazardous substance without being able to provide for

an adequate response, the OPM shall, in coordination with the Chief of Real Estate, take

prompt action to reduce the potential risk. In the case of very high risks of a spill without

provision for adequate response, the OPM shall notify verbally notify the grantee and the

Chief of Real Estate. The Chief of Real Estate will, in turn, notify the grantee pursuant to the

terms of the outgrant. The Chief of Real Estate is the primary responsible agent for

notifications to the grantee within outgranted areas.

(3) USACE responders may respond to non-USACE spills on USACE lands and

waters at the discretion of the OPM when the spill poses an immediate threat to USACE

operated facilities or personnel, is not being adequately controlled or contained by another

spill response team, and when USACE responders are adequately trained and qualified to

respond.

(4) OPMs may authorize emergency spill responses to non-USACE spills off

USACE property when they determine the spill poses a threat to USACE operated facilities

or personnel, is beyond the capability of available emergency spill responders, and that

USACE personnel are adequately trained and qualified to provide such a response. OPMs

are encouraged, in coordination with the Office of Counsel, to establish mutual assistance

agreements for such situations. When incidents are resolved to the point that available

emergency spill responders are capable of managing and controlling the spill, the OPM shall

withdraw USACE personnel from the emergency spill scene.

(5) A follow-up report regarding such a spill response shall be prepared and

submitted to the District Chief of Operations for review.

(6) Where determined that it is advantageous, the OPM may fulfill requests from the

U.S. Coast Guard (USCG) EPA, or other agencies for assistance from USACE vessels to

assist clean up operators when oil-saturated debris hampers cleanup efforts. Costs shall be

reimbursed.

(7) USACE Response Cost Recovery. When USACE responds to spills caused by

others, whether off-site sources, grantees, or invitees, costs may be recovered either through

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lease or contract provisions, or by claims under CERCLA for recovery of response costs, or

by other legal authority. The Office of Counsel shall be involved as early as possible and at

every stage to assure compliance with legal requirements, proper documentation, and

presentation and pursuit of any claims.

d. Spill Response Equipment. Equipment and supplies purchased and stored shall be

consistent with the level of spill response training and qualifications maintained for USACE

employees by the USACE facility. Purchase and storage of equipment and supplies for

response to USACE spills on behalf of a spill response contractor or spill response MOA

partner is permitted. All spill response equipment stored at USACE facilities shall be

regularly inspected, maintained and serviced in accordance with manufacturer and USACE

requirements.

e. Facilities that train employees to respond at the First Responder or higher levels

shall include training in initiating an Incident Command System. (See Chapter15.)

10-6. Incident Commander. The OPM at each USACE facility where there is a potential

for a spill of oil or hazardous substances from the USACE facility or from USACE activities,

shall designate in writing an Incident Commander (IC) who is responsible for executing the

project’s response plan.

10-7. Public Information Related to Emergency Spill Response. Release of information

regarding spills of oil or hazardous substances shall be conducted per the following

guidelines:

a. Officials assigned to release information about the spill shall ensure public safety,

seek to prevent or reduce widespread public alarm, and ensure public understanding of the

extent and nature of the public hazard resulting from the spill.

b. The public is entitled to all unclassified information concerning a spill. Furnishing

such information in a timely, positive manner that assures accuracy and reflects

consideration of the public welfare is in USACE interest and is a function of Command.

c. Information proposed for release shall be coordinated with the District Public

Affairs Office and the District Office of Counsel.

d. Prompt release of information, not otherwise required by statute or regulation,

shall be made at the discretion of the District Commander for spills that are contained within

the project boundaries and pose no threat to public health and welfare or the environment.

The OPM, in coordination with District PA and OC will advise the District Commander.

10-8. Spill Plans. For Civil Works Projects not subject to Federal spill planning

requirements, the OPM shall prepare and maintain a spill response plan appropriate for local

mission activities. See EP 200-2-3 for additional guidance on spill response plans.

10-9. Documentation. Records shall be maintained for all reportable releases of oil,

hazardous substance, and extremely hazardous substance. Records shall include initial

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notification, subsequent written reports, and response actions. The goal is to be able to

demonstrate that all necessary action has been completed. In the event of a spill emergency,

the requirements established by statutes and regulations are appropriate.

ER 200-2-3

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CHAPTER 11

Permits

11-1. Policy.

a. USACE shall apply for environmental permits where legally required, but shall

utilize management practices to avoid the need for environmental permits to the maximum

extent practical in order to simplify compliance requirements.

b. During planning activities, in addition to considering the need for environmental

permits to operate, USACE shall evaluate whether "permits to construct" or "permits to

modify" are needed prior to commencing construction activities.

c. Permit related invoices/bills shall be coordinated with Office of Counsel for

assistance in determining whether they constitute reasonable fees that are payable or whether

they are inappropriate taxes for which the Federal government is not liable.

11-2. Permits for Cleanups.

a. CERCLA Hazardous Substance Response Actions. When responding under

CERCLA, USACE shall not obtain any Federal, State, or local permit for any removal or

remedial action conducted entirely onsite. Within the context of CERCLA, “onsite” does not

refer to property boundaries, but rather refers to "the areal extent of contamination and all

suitable areas in very close proximity to the contamination necessary for implementation of

the response action."

b. RCRA Corrective Actions. When conducting cleanups under RCRA, USACE

shall obtain all applicable permits.

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ER 200-2-3

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CHAPTER 12

Recordkeeping

12-1. Policy. USACE shall retain environmental records onsite as required by regulation.

Once regulatory record retention periods are exceeded, environmental records are archived as

required by Army policy.

12-2. Operations and Maintenance Business Information Link, Environmental Compliance

Module (EC OMBIL). EC OMBIL is the management tool for recording environmental

compliance related information for Civil Works. Use of EC OMBIL is mandatory. It is used

for collecting data relative to environmental compliance performance measures as specified

within the Civil Works Strategic Plan. Data tracked includes internal and external

environmental compliance assessments and associated scheduling; corrective actions;

regulatory actions; storage tank data (all above ground, under ground, and day tanks

regardless of size); EPCRA status; water quality, wastewater and permit information; and

hazardous waste generator status. HQUSACE is responsible for establishing annual

reporting deadlines. District ECCs are responsible for ensuring all project information is

entered into EC OMBIL. Specifics on what shall be entered into the EC OMBIL system can

be found in the Environmental Compliance section of the Help Manual in the Data Entry

Form Definitions screens.

12-3. Retention of Environmental Liability Records. Retention of Environmental Liability

Records. The retention periods for environmental records may differ depending on the

Army’s disposition instructions for records and the applicability of any statutory, legal,

financial, or administrative requirements. For example, financial accounting policy requires

records used to establish environmental liability amounts to be retained on file for a

minimum of six years, three months, and one day after the environmental liability no longer

exists. When more than one record retention requirement applies, the longer retention period

shall be followed

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ER 200-2-3

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CHAPTER 13

Environmental Contamination and Reporting Requirements

13-1. Policy.

a. USACE shall plan for and respond to unpermitted releases of CERCLA hazardous

substances, CERCLA pollutants or contaminants, and petroleum on or from USACE owned

property as required by environmental law or regulation.

b. USACE shall report Civil Works properties with known or suspected unpermitted

releases of hazardous substances, pollutants, or contaminants to EPA in order to facilitate

EPA’s compilation of the Federal Agency Hazardous Waste Compliance Docket under

CERCLA 120(c) to the extent required by law.

c. USACE shall exercise its lead agency authority under CERCLA when responding

to releases or potential releases of hazardous substances, pollutants, or contaminants except

in rare cases where remediation is controlled by another program and can not be deferred to

CERCLA. See ER 1165-2-132 Hazardous, Toxic and Radioactive Waste (HTRW) Guidance

for Civil Works Projects for additional guidance on managing HTRW sites on Civil Works

project lands.

d. USACE shall disclose environmental liabilities in financial statements. See

section 13-3 for discussion regarding environmental liability.

e. Funding priority shall be given to sites listed on the National Priorities List (NPL)

or for which there is a state or Federal environmental law or regulation mandating response

beyond the PA/SI phase.

f. On lands and waters not controlled by USACE, USACE shall not remediate

contamination for which it has not been determined liable.

g. USACE shall seek cost recovery where appropriate.

h. USACE shall ensure employees involved in site remediation are properly trained.

13-2. Procedures for Addressing Legacy Contamination On USACE Property.

a. USACE shall evaluate the potential for legacy contamination (as defined in

Section 1-5) on USACE controlled lands and waters. This shall be accomplished through the

external environmental compliance assessment process. The first external assessment

conducted after the effective date of this ER shall include evaluation of whether there is or is

not a reasonable basis to suspect legacy contamination.

b. The potential for legacy contamination shall be evaluated using a legacy

contamination questionnaire and supplemental guidance issued by the HQ USACE Chief of

Operations. Spills that were immediately cleaned up and areas where hazardous materials

ER 200-2-3

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were merely used, not disposed, do not constitute a reasonable basis for legacy

contamination concern. Known historic releases of hazardous substance or suspected

unpermitted disposal of hazardous substance substantiated through written records, historic

photographs, or credible personnel interview statements constitute a reasonable basis for

concern.

c. The assessment team shall interview personnel, review available records, and use

the questionnaire available on the Environmental Compliance Topics page of the NRM

Gateway at

http://corpslakes.usace.army.mil/employees/envcomp/topics.html to evaluate

whether there are legacy contamination concerns.

d. Determinations regarding the presence or absence of legacy contamination

concerns shall be documented in assessment reports and data resulting from the questionnaire

shall be captured through EC OMBIL.

e. As required by RCRA 3016, USACE shall undertake a continuing program to

update information regarding inventory of Federal Agency Hazardous Waste Facilities.

Information shall be updated at the request of EPA. Upon receipt of request from EPA, HQ

ECC shall coordinate with the ECC network to ensure timely and accurate update of the

USACE inventory.

13-3. Environmental Liabilities Recognition, Valuation and Reporting.

a. The HQ ECC shall take actions to ensure completeness, accuracy and suitability

for audit of the identification, valuation and reporting of USACE Civil Works environmental

liabilities limited to those sites referred to as “non-FUSRAP,“ which specifically excludes

sites managed under the Formerly Used Defense Sites (FUDS) program and the Formerly

Utilized Sites Remedial Action Program (FUSRAP).

b. The HQ ECC shall conduct regular (at least annual) evaluations of contaminated

sites that are identified on the Federal Agency Hazardous Waste Compliance Docket to

identify potential USACE environmental liabilities at a national level.

c. The HQ ECC shall issue environmental liabilities (EL) Reporting Guidance and

quarterly data calls for updates of USACE environmental liabilities.

d. Each Division and District shall identify and provide to the HQ ECC the contact

information for their EL reporting official. EL reporting officials shall be persons with the

training, experience, and direct knowledge of or accountability for the identification and

management of sites that may constitute USACE environmental liabilities. District and

Division EL reporting officials shall follow the procedures described below for recognition,

valuation and reporting of environmental liabilities in coordination with Resources

Management, Office of Counsel, and Internal Review.

OMBIL page to capture information is under development.

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e. Districts.

(1) Districts shall recognize, valuate, and report environmental liabilities to the

Division for submittal to the HQ ECC.

(2) Districts shall retain records on environmental liability cost estimates, supporting

documentation used to develop cost estimates, e.g. documents resulting from study or clean-

up actions, and the name and position of the person(s) who developed and approved the cost

estimate at the District level. In accordance with financial accounting guidance, records shall

be retained for a minimum of six years, 3 months, and one day after the environmental

liability no longer exists and must be producible within 48 hours of request.

(3) Districts shall distinguish between reasonably estimable measures of liability and

liabilities for which costs can not be reasonably estimated. In situations where there is an

on-going negotiation regarding the nature or extent of clean-up required on USACE

controlled lands or waters and the cost of the liability is not reasonably estimable, it shall be

reported as a probable EL site, but with an unknown EL cost estimate.

(4) A materiality threshold, as established in financial accounting guidance, shall be

used as a threshold for recognition and valuation of environmental liability. The HQ ECC, in

coordination with HQ USACE CERM-F shall evaluate, update as necessary, and notify the

Division and District EL reporting officials, as identified in 13-3.d., above, of the materiality

threshold for USACE Civil Works non-FUSRAP environmental liabilities.

(5) Where there are potentially responsible parties other than USACE, unless a

settlement has been negotiated and agreed upon, the liability is not reasonably estimable and

shall not be reported as an environmental liability.

(6) Civil Works activities and operations that result in day-to-day hazardous waste

generation/ disposal are expensed and do not become an environmental liability on financial

statements. Environmental litigation liabilities are not reported as environmental liabilities.

Environmental litigation liabilities are reported separately as contingent liabilities.

f. Divisions.

(1) Shall ensure all District EL reporting officials are trained to support environmental

liabilities identification, valuation and reporting, or that each District has the resources

(manpower and funding) to execute environmental liabilities identification, valuation and

reporting, as described above, using outside support that meets the training and competence

requirements described herein.

(2) Shall verify and validate all District environmental liabilities information prior to

submittal to HQ ECC.

For training requirements, see Memorandum, ACSIM, 16 Jul 2009, subject: Army Implementing Guidance for

Environmental Liabilities Recognition, Valuation, and Reporting.

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(3) Submit to HQ ECC quarterly updates of the status of environmental liabilities

within the Division to ensure complete and accurate recognition, valuation, and reporting of

all new environmental liabilities, and to update the probability, cost estimate, and site

description and clean-up status for existing environmental liabilities. The Division EL

reporting official may authorize, at their discretion, District EL reporting officials to report

EL information directly to the HQ ECC; however, it remains the responsibility of the

Division EL reporting official to ensure the that all EL information is complete, accurate, and

available to support the annual audit of the USACE Civil Works financial statement.

(4) Division environmental liability POCs shall retain records documenting the

receipt, review, Division-level validation, and forwarding to the HQ ECC, of all

environmental liability information required for the quarterly and annual reports. The

Division EL reporting official’s record of submittal to the HQ ECC may be a hard copy

memo or an e-mail transmitting the required quarterly and annual environmental liability

reports.

g. EC OMBIL shall be used to document the rationale for environmental liability

determination.

h. Each reported environmental liability shall be reconciled with the real property

asset or assets with which it is associated, and it shall be reflected in the USACE-CW real

property asset record.

13-4. Limitations on Cleanup Actions at Non-USACE Facilities.

USACE shall not cleanup

contamination for which is it not legally liable unless authorized to do so. See additional

guidance in ER 1165-2-132 regarding Hazardous, Toxic and Radioactive Waste (HTRW)

Guidance for Civil Works Projects.

13-5. Response Actions at Outgranted USACE Properties. Grantees are responsible for

reporting and responding to releases occurring on or from USACE outgranted property as a

result of actions or activities of the Grantee. This does not, however, relieve USACE from

applicable reporting under CERCLA 120(b) regarding the Federal Agency Hazardous Waste

Compliance Docket (aka the Docket), if required, and if not already reported by the Grantee.

Where outgranted property becomes listed on the Docket, USACE shall coordinate with

Grantee for performance of the work or shall perform the work and seek cost recovery, as

provided in the lease agreement or as allowed under CERCLA.

13-6. Policies and Procedures for Potentially Responsible Party (PRP) Sites.

a. General.

(1) CERCLA, Section 107 (42 U.S.C. § 9607) imposes liability on (1) current owners

and operators of facilities where hazardous substances have been released; (2) owners and

OMBIL page is under development.

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operators of facilities at the time the hazardous substances were disposed; (3) persons who

arranged for disposal or treatment of such substances, and; (4) persons who accepted such

substances for transport, treatment or disposal. Such a person (which includes companies,

corporations, and government entities) is referred to as a Potentially Responsible Party

(PRP). Though technically not a PRP under the CERCLA definition, parties that are

responsible for contamination cleanup due to a contractual instrument are referred to as PRPs

by USACE and treated similarly to CERCLA PRPs. USACE can be a PRP or have to deal

with PRPs on a site for which USACE has responsibility. The primary goal in PRP matters

is to resolve USACE liability in a Department of Justice (DOJ) coordinated settlement

providing USACE a complete release from all claims. Pursuit of a PRP should be considered

anytime it is viewed as possible that there is a PRP for contamination for which USACE has

responsibility. Typical situations in which it might be appropriate to pursue a PRP are where

a determination is made that it is necessary to address contamination that pre-existed

construction of the project/facility but was not addressed previously, contamination that has

been addressed in a manner that is not currently considered sufficient, and contamination that

was caused by a third party at an operational facility. This list is suggestive and is not

intended to be exclusive.

(2) Paragraph 6.b. of Engineering Regulation (ER) 1165-2-132, Hazardous, Toxic,

and Radioactive Waste (HTRW) Guidance for Civil Works Projects (26 Jun 92) provides

“Construction of Civil Works projects in HTRW-contaminated areas should be avoided

where practicable” and discusses how such construction can be avoided. Still, situations may

arise where such construction in contaminated areas is unavoidable or where Civil Works

property is found to be contaminated and other parties are believed to have legal liability for

the contamination.

(3) The PRP process in a Civil Works context must keep in mind three issues that

might affect how USACE should proceed. The first is the point in the life-cycle of the

project/facility in which the contamination is discovered and addressed. The second is

whether the project/facility is cost-shared or federally funded. The third is whether USACE

maintains O&M responsibility after the facility is operational.

b. Timing of Determination that Contamination Will Need to Be Addressed. ER

1165-2-132 addresses responsibilities for HTRW activities based on the timing of this

determination.

c. Cost-sharing of Project.

(1) For cost-shared projects, paragraph 5.a(7) of ER 1165-2-132 provides that during

the construction phase, “[r]ecovery of costs from a PRP would be accomplished by the

project sponsor.” Paragraph 6.b. of ER 1165-2-132 provides that “[n]o cost sharing credit

will be given for the cost of response actions” and this includes any costs related to PRP

recovery. Paragraph 12.b. of ER 1165-2-132 also provides “[w]here sponsors have

undertaken response actions, the sponsor must provide a letter prior to construction on

impacted lands from the appropriate regulatory agency(s) confirming that response actions

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complied with regulatory guidelines and statutes.” Paragraph 10 of ER 1165-2-132 also

discusses responsibility during execution of and after a project partnership agreement (PPA)

is signed.

(2) For non-cost shared projects, the Federal government is responsible for “[r]ecovery

of costs from a PRP.” Paragraph 5.a(7) of ER 1165-2-132.

(3) As stated above, construction of Civil Works projects in HTRW-contaminated

areas should be avoided where practicable. However, it is possible for fully federally funded

projects on land that is not federally owned to be constructed knowing of the existence of at

least one other PRP. In such a situation, paragraph 8.b(2) of ER 1165-2-132 provides “the

cost of response action will be 100 percent Federal expense although the Federal

Government may seek a contribution through appropriate legal proceedings at a later date.”

d. O&M Responsibility At Operational Facilities. As stated above, a PPA likely

allocates responsibility at an operational facility to a local sponsor. This includes

responsibility for any releases associated with that operation. There might be circumstances

where USACE retains this responsibility at an operational facility, however. For instance,

this is most likely at facilities at which USACE is responsible for operating. In any

circumstance where a third party causes contamination, that party is a PRP and is responsible

for any releases they may cause.

It should be stressed that this is not a preferred course of action, but is possible. In such a

circumstance, the cost of response actions should be obtained prior to the start of

construction.

e. District Responsibilities.

(1) District Commander. The District Commander, through the Office of Counsel

(OC), Chief of Real Estate, when applicable, and project manager (PM) is responsible for

representing the USACE in the PRP process, which consists of:

(a) determining liability and contribution on restoration and remediation projects in the

District,

The ER actually uses the term local cooperation agreement (LCA). This term and also project cooperation

agreement (PCA) are synonymous with the term PPA.

As discussed more fully below, it is CW policy to not use federal appropriations to remedy contamination that is

the responsibility of others and for which there is little or no nexus between the contamination and USACE.. The

policy to not conduct response actions on sites with other viable PRPs is based on the following: fiscal law

restraints, which limit use of appropriated funds to clean up contamination not caused by USACE; lack of adequate

resources to pursue cost-recovery or contribution action; concern that the burden of proof is not unnecessarily

shifted to the United States with respect to any action; necessity to preclude diversion of program dollars from other

CW activities; desire to avoid incurrence of long-term cost demands; and consistency with the National policy that

the “polluter pays” for contamination for which it is liable and that general taxpayer funds should not be used to

relieve PRPs of their liability under CERCLA.

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(b) analyzing the appropriate position to take on behalf of the District with regulators,

other PRPs, and members of the public,

determinations, and

(d) completing negotiations and fulfilling requirements of any PRP agreement or

litigation, regarding the USACE-Civil Works (CW) environmental liability for the property.

(2) District Project Manager (PM).

(a) The District PM is the overall manager of the effort to assure that the PRP process

moves forward effectively. The PM is responsible for providing all PRP data required for

planning, programming, budgeting, execution, and reporting. The PM participates with

Counsel at the District in the negotiation effort , and is a participant in the negotiation and

settlement process. The PM, at the direction of counsel, determines if historical and

technical research of the site history is necessary

(b) The District PM, in coordination with the District Counsel, will be responsible for

reports and data calls regarding the PRP activities.

and arranges for such research as

necessary. The PM reviews and comments on PRP documents, coordinates technical input

to the historical analysis and cost allocation reports and all technical support to activities

conducted at the project, and coordinates the contract or in-house field investigation in

support of the project, if any.

(3) District Office of Counsel.

(a) The Office of Counsel bears ultimate responsibility and accountability for

developing case strategy, for leading the District team during negotiations, settlement, or

litigation, as well as any other substantive activities related to the PRP negotiation or

litigation effort, and for the legal sufficiency of all settlement arrangements and

administrative agreements.

It is quite possible that much is already known about the site and significant research and investigation is not

required. For instance, ER 1165-2-132 provides that throughout project development, information relevant to

consideration of the existence of other PRPs is gathered. For instance, during the Reconnaissance Phase, an HTRW

assessment is to be conducted. As part of this assessment: existing and past land uses should be evaluated; current

and historical aerial photographs should be studied and compared; records should be searched and should extend as

far as records are available; long-time local residents, workers, and current property owners should be interviewed

about past land uses, potential contamination, and any history of HTRW problems; and EPA, state, and local

regulatory or response agencies should be consulted for license/permit actions, for any violation, enforcement,

and/or litigation against property owners, and for general information about local HTRW problems such as illegal

dumping and past contamination. The feasibility phase includes a preliminary identification of potential source

areas of any contamination. In addition, a HTRW Documentation Report may exist to address HTRW related

construction information.

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(b) Counsel oversees legal review of PRP investigation reports, as well as any

documents and correspondence submitted to other PRPs or regulators on the USACE PRP

status.

(POC) between USACE and the Department of Justice (DOJ) on all PRP-related activities.

Requirements of AR 27-40, the Freedom of Information Act, and the Federal Rules of Civil

Procedure will control release of all documents related to the PRP investigation. The District

will provide the EM CX historical documents on topics of general applicability collected in

support of PRP activities.

(d) Counsel shall assure that PRP matters are entered into the Office of the Chief

Counsel’s Matter Tracking System (MTS) and that information is updated promptly to

ensure its accuracy and completeness.

(e) As any cost recovery claims by USACE seeking payment of response costs from

other PRPs are subject to Statutes of Limitation (SOL) under CERCLA or other laws,

Counsel must promptly evaluate the circumstances to determine the date on which the SOL

would bar the government from pursuing cost recovery and take necessary action to assure

that recovery actions are filed well within the SOL period.

(f) Any agreement that is a final settlement of claims by or against the United States, or

that preserves or waives a legal defense or claim of the United States, must be coordinated

with and approved by the Department of Justice. This coordination will be processed within

USACE by the District Counsel through the Division Counsel to CECC-E, in the case of pre-

litigation settlements and administrative orders, and to CECC-L where the settlement is

subsequent to the filing of litigation.

f. Headquarters. In the Office of the Chief Counsel, CECC-E is the primary program

legal support office for pre-litigation coordination with Department of Justice (DOJ). With

initiation of litigation, responsibility for DOJ coordination and HQ oversight of the litigation

rests with CECC-L. Pre-litigation and administrative agreements will be referred to CECC-

E; while settlement agreements and consent decrees associated with previously filed

litigation will be referred to CECC-L.

g. Environmental and Munitions Center of Expertise (EM CX). The EM CX is

available to provide legal, technical, and programmatic assistance to the Districts as

requested by the District, the Division, or HQ USACE. Though not mandatory, Districts are

strongly encouraged to seek EM CX legal and technical staff review of site history analysis,

liability and cost allocation analysis reports, administrative orders, settlement agreements,

and consent decrees.

h. PRP Requirements.

(1) Experience has shown that effective management of PRP negotiations demands

major commitments of legal, project management, and technical resources. Furthermore, the

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complexity of the legal issues that must be addressed, and the effect that those issues have on

resolving USACE CERCLA liability or on the need for litigation, requires that Counsel take

the lead in such negotiation efforts. It is especially vital that Counsel and technical resources

are adequately staffed and trained to support the negotiation requirements.

(2) PRP activities encompass the following efforts.

(a) Conducting research (historical, technical, and legal) on all PRPs related to the

property. In particular, Counsel shall search for previous litigation documentation that may

address (even absolve) United States liability at the property.

(b) Evaluating the potential liability of USACE for CERCLA hazardous substances

contaminating a property.

and allocation of CERCLA liability associated with USACE use of the property.

(d) Directing negotiations before litigation that focus on resolving CERCLA liability,

including agreements and Alternative Dispute Resolutions (ADRs) with PRPs, Federal,

tribal, and state regulatory agencies arising from CERCLA liability, and including Federal

Facility Agreements (FFA) under Section 120 of CERCLA, if appropriate.

(e) Managing USACE litigation associated with United States’ CERCLA liabilities

arising from USACE activities and USACE cost recovery initiatives against other

responsible parties at USACE Civil Works (CW) properties.

(f) Carrying out any agreements requiring further efforts by USACE arising from

settlement of CERCLA liability.

(3) USACE focuses its PRP efforts toward settlement of any USACE CERCLA

liability with other PRPs, rather than on conducting response actions using CW

appropriations. The PRP mission goal is to negotiate a fair and equitable settlement with

other PRPs who either have or will take the response action in exchange for a release of

USACE liability under CERCLA, other applicable environmental laws, and rules of common

law. These settlements should reflect any USACE contribution made toward investigating

and remediating contamination. Payments of such settlements will be certified by DOJ for

payment from the Judgment Fund. By arranging for settlement in advance of response

action, USACE avoids expending CW appropriations to address the responsibilities of

others. Absent specific legislative authority, costs recovered after the fact are not returned to

CW accounts and, thus, are lost to USACE.

(4) USACE coordinates its PRP settlement efforts with the DOJ. USACE strives to

achieve final settlement of any liabilities, using the Judgment Fund for payment of the

government’s fair share allocation of response costs sought by other PRPs. Although using

CW appropriations to respond to contamination caused by others is not the preferred

approach, USACE seeks, in appropriate cases, recovery from other PRPs of the costs it has

ER 200-2-3

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expended in response actions related to hazardous substance releases for which other PRPs

are liable.

(5) USACE PRP negotiations should strive to resolve all liability for contribution to

and indemnification for future claims including those based on CERCLA, the RCRA

sections 7002 or 7003, and any other Federal law. It is recognized that this is a matter of

negotiation and may affect other terms of the settlement; however, it is generally considered

in the best interest of the agency to fully resolve all possible liability for environmental

response actions in a single comprehensive settlement.

i. Third-Party Sites (TPS). A TPS is property owned by another party. USACE,

along with other parties, may bear potential liability for USACE hazards or hazardous

substance release at TPS. This liability may result from disposal, transport, or arranging for

transport of hazardous substances from a USACE civil works property. If a TPS is currently

used by an active military service component or has more recently or predominantly been

used by an active military service component, responsibility for representing USACE

interests regarding the property will be borne by the active military component. A

contiguous plume extending off USACE CW property or extended range fans are not TPS

projects and should be considered under the originating property. USACE will not clean up

contamination caused by civil works activities at TPS. All such contamination will be dealt

with under the claims provision in conjunction with the Department of Justice. Any such

claims received by a District should be referred to the Office of Counsel.

j. Potentially Responsible Party Actions Justification Requirements. Initiating PRP

activities is not an admission of responsibility. Activities may include investigations (e.g.,

records searches) to determine the validity of the involvement and the liability of both

USACE and any PRP(s). Activities involving PRPs should take into account the property

conditions and circumstances. Such activities should be commensurate with Counsel’s best

professional judgment of risk and needs. To declare the involvement of a PRP, the District

must ensure that there is at least one of the following:

(1) Documented or reliable testimonial evidence that USACE CW is potentially

responsible for property contamination and that the contamination may at least partially be

the result of the actions of other PRP(s).

(2) Receipt of a PRP notification letter from an environmental regulator.

(3) A letter or other notification from a private party alleging USACE CW PRP

liability and indicating intent to seek recovery under CERCLA.

(4) Filing of court action seeking contribution under CERCLA based on USACE CW

alleged responsibility for contamination.

(5) Documented or reliable evidence as to the responsibility of other parties for the

contamination.

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k. Justification for Cost Recovery.

(1) Cost recovery is to be pursued where DoD has incurred response costs above

$200,000 for which another party may be liable. Where the District’s estimate of cost

recovery potential is significantly lower than its estimate of costs to pursue recovery, counsel

will consult with CECC-E prior to any referral being made to DOJ. When the settlement

costs are not clear but may be low, the District shall do a limited amount of historical and

technical research and legal analysis before conducting a full historical analysis of the

project. In general, full research and analysis of facility history will not be justified if the

cost exceeds any anticipated recovery, or if USACE potential liability appears unfounded or

potential contribution share is de minimis.

(2) The following actions should be taken by counsel and PM for projects involving

PRPs:

(a) Review all readily available information

(b) Estimate costs of PRP investigation, preparation, and negotiation compared to the

estimated settlement cost based on assumed response costs.

proje

ct where the costs of such action exceed the anticipated removal/remedial action costs.

(d) Evaluate, in consultation with DOJ, participation under a simple contribution

agreement if liability is established and this is less costly than continuing with PRP

negotiations and investigations.

(e) Evaluate applicability of any Statute of Limitations (SOL) that would bar cost

recovery by USACE for response costs incurred.

(f) Expedite project negotiations to the maximum extent possible and reach project

closeout as soon as possible.

l. Contract Claims. USACE determination of CERCLA liability allocation will be

independent of any government contract claim entitlements raised by other parties.

Subsequent payment demands for contribution or cost recovery against a government

contractor PRP to address the contractor’s CERCLA liability will not be offset by claims the

contractor may assert under a previously issued government contract. The responsible

Contracting Office must address whether contract claims for CERCLA costs are payable

directly under the contract. This is especially important in the case of cost recovery referrals

to the DOJ, as such referrals must address potential government contract claims or equity

arguments that the PRP might seek to raise as offset to the CERCLA-based recovery claim.

These situations require that the District, the responsible contracting office, and DOJ

coordinate closely. CECC-E will be consulted should the identity of the contracting office

be in doubt or should the District require assistance in getting the contracting office to

provide its views on the PRP’s right to contract entitlements. Contract claims for payment

ER 200-2-3

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entitlement under the provisions of a contract should be distinguished from the equitable

consideration of the contracting relationship in determining a fair share allocation of

CERCLA liability for a period of government ownership and contractor operation. The

District will be responsible for evaluating the relationship of each PRP to the areas where

hazardous substances were released and their contractual roles and responsibilities. The

extent to which contractual roles and responsibilities may affect the equitable allocation of

costs among PRPs also will be addressed.

m. Real Estate Instruments. As part of the PRP investigation, real estate instruments

under which USACE CW took an interest for the property, as well as any relevant

documentation of the negotiation of the transfers, will be evaluated to determine if CERCLA

claims have been indemnified, waived, or otherwise affected by the terms of the instruments.

Real property appraisal documents and property inventories often include important

information about the condition of the site or the understanding of the parties at the time of

the transfer. These real estate documents will be evaluated early in the PRP investigation. If

a defense to a CERCLA contribution claim or a claim of indemnification in favor of the

United States is possible from the language of a real estate instrument, the validity of these

defenses or claims will be pursued prior to further expenditures on the project, except as

justified by counsel and approved by the Division and HQ USACE.

n. Project Performance.

(1) For any property or project that may involve a PRP, the District should consult with

the EM CX and the Division as to whether to build a case for cost recovery. In view of the

potential for litigation or regulatory action on such properties, all documentation shall not be

released prior to consultation with counsel.

(2) CW policy is to avoid cost recovery associated with contamination by other PRPs.

Cost sharing agreements where USACE does not perform the response action are prohibited.

CW funds should be used for conducting response actions for USACE contamination only.

However, there may be cases where expenditure of CW funds can be used to address the

remediation of non- USACE contamination that is commingled with USACE contamination

or other circumstances where public health and safety are involved. In these cases,

contribution from other PRPs must be pursued through negotiation of cost-sharing

agreements or through litigation for cost recovery under CERCLA. As a matter of policy,

USACE should pursue recovery of response costs of $200,000 or more from other PRPs. In

these cases, there is the additional burden of maintaining appropriate records to support cost

recovery and contribution claims, to demonstrate compliance with the National Contingency

Plan, 40 CFR Part 300, and to provide evidence of the response costs that are claimed.

(3) The District PM will be responsible for project management on any subsequent

response action on the CW property and is responsible for assembling and maintaining the

cost documentation for use in actions to pursue contribution from other PRPs.

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(4) Counsel will assure review and approval by DOJ of all agreements that include a

release of claims by or against the United States, admission of liability on behalf of the

United States, or waiver of any legal defense or claim of the United States, including tolling

agreements.

(5) Agreements settling a PRPs liability or contribution will be signed at HQ USACE

level. It is recommended that the EM CX legal and technical staffs be consulted by the

District in assuring that the agreement is consistent with applicable guidance. Copies of all

final signed agreements will be provided to the District and the EM CX.

(6) Use of ADR procedures in coordination with the DOJ, such as non-binding

arbitration, mediation, facilitation, mini-trial, and disputes panels, should be considered

wherever normal negotiation techniques are unsuccessful. The District Commander may

sign agreements providing for an ADR process on a PRP project but should coordinate with

counsel first. Before using an ADR procedure in a PRP negotiation, the involved Counsel

will provide notice to CECC-E. If litigation has already been filed in the matter, notice will

also be provided to CECC-L. Upon request, CECC-E will assist Districts receiving PRP

negotiation assignments in both tailoring existing ADR procedures and developing new ones.

DOJ’s involvement must be requested as early as possible to allow for participation in

developing and implementing the ADR initiatives, as any settlement payments to other PRPs

arising from the ADR would be expected to be certified by DOJ to the Judgment Fund for

payment. The District Counsel will assure that MTS reflects the status of the ADR effort.

Costs associated with undertaking ADR proposals will be coordinated between PM and

counsel elements. Copies of all agreements establishing an ADR process or settlement

agreements resulting from an ADR will be furnished to the EM CX.

o. Funding of Projects involving Potentially Responsible Parties.

(1) Funding for District PRP project activities will be provided from the annual work-

plan of the District. All anticipated costs associated with PRP activities, including any costs

required by a signed PRP agreement that are not payable from the Judgment Fund, must be

programmed through normal operational funding channels. Programming requirements

include eligible project activities anticipated in future years.

(2) The Judgment Fund is available to fund payments for settling US liabilities.

Operational funding must be used to fund other USACE work efforts related to PRP

activities (records searches, technical participation during response actions, or cost oversight)

prior to final resolution of liability.

p. USACE Programmatic Project Closeout Procedures.

(1) The District Counsel will notify the lead regulator of the completion of PRP

activities.

(2) An official closeout report for activities involving a PRP should be prepared by the

District and signed by the District Commander. Notice of closeout will be provided to the

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Division. Copies of the closeout report will be provided to the EM CX. Because certain

portions of this report may contain sensitive information, counsel will assure that portions of

the report containing such information are appropriately marked as attorney work product

privileged and that release of such information is managed in accordance with that status.

MTS will be updated regarding the project closeout. The official closeout report should have

the following attachments:

(a) A Memorandum for Record (MFR) that contains a brief history of the PRP

activities.

(b) Information on DOJ settlement (if applicable and appropriate).

(d) Any memoranda or letters from the District Commander or Counsel providing a

determination on liability, applicability of contribution, or other required action.

(e) Any comments provided by the lead regulator on the closeout.

q. Reporting for PRP Activities. During the negotiations phase, cost-to-complete data

should include only in-house expenditures and contract costs for support. Estimates of costs

of remediation or estimated settlement figures should not be included. These are costs that

must remain confidential until final negotiation and settlement.

r. Public Involvement and Administrative Record. Public involvement and

Administrative Record requirements are the responsibility of the District when USACE is the

lead agency for the response actions. These matters will be closely coordinated with the

District Counsel on properties with PRP involvement. Counsel and the PMs for all Districts

involved with response actions on projects performed by USACE will coordinate closely to

ensure compliance with CERCLA and the NCP regarding public comments and to assure the

Administrative Record file and permanent Project Files are properly assembled and

maintained.

ER 200-2-3

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CHAPTER 14

Real Estate

14-1. Purpose. This Chapter establishes policy for conducting real estate transactions in

compliance with applicable environmental laws and regulations and environmentally sound

land management practices.

14-2. Applicability. This Chapter applies to all USACE Divisions and Districts performing

real estate transactions in support of Operation and Maintenance (O&M) activities at Civil

Works projects and facilities.

14-3. Policy.

a. It is USACE policy to comply with the requirements of the Comprehensive

Environmental Response, Compensation and Liability Act of 1980, as amended, (CERCLA),

to avoid incurring liability to the maximum extent possible as a result of real estate

transactions and to avail itself of the landowner liability protections provided in the statute.

b. It is also USACE policy to protect government real estate assets by managing them

under applicable Federal, state and local environmental laws and regulations and by

performing a comprehensive environmental compliance assessment of outgrants determined

by the District to require oversight.

14-4. Implementation.

a. In order for USACE to comply with the requirements of CERCLA and avail itself

of the landowner liability protections afforded under CERCLA, USACE must perform

certain actions to assess the environmental condition of property prior to entering into

designated real property transactions. These transactions include fee acquisition of real

property on behalf of the United States, leases of USACE controlled property, transfers of

jurisdiction between federal agencies and deeds divesting title from the United States.

Generally, this requirement does not apply to reassignments within the Army or DoD

(including the Coast Guard), acquisition of less than fee or to other outgrants (easements,

licenses or permits). However, some circumstances may warrant an environmental site

assessment for these transactions as determined by the District Environmental Compliance

Coordinator (ECC) or District Engineer and coordinated with the Chief of Real Estate.

Finally, in the rare circumstance that USACE Civil Works property is made available by

license to the National Guard Bureau or State National Guard Components, this chapter will

apply to the issuance of that license as a matter of policy. These policies are similar to those

found in paragraph 15-5 of AR 200-1, Environmental Protection and Enhancement, dated

December 13, 2007 and align USACE Civil Works real property to the extent appropriate

with all other Army real property.

b. As part of the required environmental assessment for outgrants identified in

paragraph 5-3 of this regulation, the person or entity granted use of USACE real estate

ER 200-2-3

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assets, commonly referred to as the Grantee, will be informed of, and required to correct, any

compliance-related finding pertaining to its operations. Notifications regarding non-

compliance, penalties, etc. are only valid when reduced to writing and signed by the District

Chief of Real Estate. Refer to Chapter 5 of this regulation for a comprehensive description

of requirements for environmental compliance assessments on outgranted lands. Through

the District Chief of Real Estate, the Project ECC will provide consultation support to the

Grantee in close coordination with the District ECC. Where the Grantee is in substantial

non-compliance and/or is unwilling or unable to implement corrective action, Real Estate

and Operations officials will take actions as required in paragraph 5-3.d of this ER. Refer to

Chapter 5 for full details on environmental compliance assessments, Chapter 10 for spill

reporting and response and Chapter 13 for environmental contamination and reporting

requirements. Also see the forthcoming ER 405-1-80, Management and Outgrant Programs

for information on compliance inspections and other matters with regard to outgranted

USACE property.

14-5. Environmental Condition of Property (ECP) Report.

a. Generally. USACE will assess, determine and document the environmental

condition of property in an ECP Report.

b. Standards. The ECP Report must comply with applicable standards for performing

either a Phase I or Phase II Environmental Site Assessment as defined in American Society

for Testing and Materials (“ASTM”) Standard E 1527–05 entitled, “Standard Practice for

Environmental Site Assessments: Phase I Environmental Site Assessment Process,” or

ASTM E 1903 (Standard Guide for Environmental Site Assessments: Phase II

Environmental Site Assessment Process), as appropriate.

An ECP Report summarizes the historical,

cultural, and environmental conditions of the property subject to the real estate transaction

and includes references to publicly available and related reports, studies, and permits. It

provides an accurate summary of the environmental condition of the property. The ECP

Report is an integral part of the Report of Availability (ROA) or the Disposal Report which

form the basis for the USACE official with delegated authority to approve the real property

transaction and for the preparation of the required legal documents, land use controls and

covenants that may be required for a covered transaction. For details on the content of a

ROA or Disposal Report see the Real Estate Division and/or the most recent regulations on

the Real Estate management, outgrant and disposal programs. An ECP Report is also

required for any acquisition of fee land that may be required to support O&M activities at

Civil Works projects and facilities.

c. Preparation. An ECP Report must be prepared by an Environmental Professional.

An Environmental Professional is defined as a person who possesses sufficient specific

education, training and experience necessary to exercise professional judgment to develop

Prior environmental assessments conducted by USACE were referred to as an Environmental Baseline Survey

(EBS) or Preliminary Assessment Screening (PAS).

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opinions and conclusions regarding conditions indicative of releases or threatened releases

on, at, in, or to a property (See ASTM Standard E 1527–05 for additional information).

d. Approval. The ECP Report must be approved by the responsible Project or District

ECC or a person designated by the Chief of Operations.

e. Responsibility to Provide and Costs. When USACE is acquiring a fee interest in

land, acting as the disposal agent or declaring land excess for disposal by GSA, USACE is

responsible for the ECP Report. For all other transactions initiated by non-USACE entities,

the non-USACE entity is generally responsible for providing and paying for the ECP Report

or other environmental documentation or the non-USACE entity can pay for USACE to

complete the required environmental documentation. USACE may prepare and pay for the

ECP Report or other environmental documentation if there is a demonstrable benefit to

USACE in the appropriate transaction.

14-6. Acquisition of Fee Interests. Fee acquisitions from non-Federal entities in support of

Civil Works O&M activities require an ECP Report to comply with EPA’s “all appropriate

inquiry” rules (40 CFR Part 312) under CERCLA prior to obtaining title to the real property

to meet the protections afforded under Section 101(35)(A)(i) of CERCLA with respect to

releases, threatened releases, or disposal of hazardous substances.

14-7. Acquisition of Less than Fee Interests (Lease, Easement, License, Right-of-Entry).

Generally, acquisition of less than a fee interest in support of Civil Works O&M activities

does not require an ECP Report. However, some circumstances may warrant an ECP Report

for acquisition of less than fee as determined by the District ECC or District Engineer and

coordinated with the Chief of Real Estate.

14-8. Leases.

a. An ECP report is required for all leases of property in support of Civil Works O&M

activities. If the property has been the site of a release, storage, or disposal of hazardous

substances USACE will notify the Lessee of the nature of the substance involved, when the

substance was on the property, and a description of the remedial action taken, if any. A copy

of the ECP Report will be provided to the Lessee and may be attached to the lease.

b. Renewals.

(1) If the lease did not have an environmental site assessment performed originally,

one must be done prior to renewal using the ECP Report as the basis for the assessment.

(2) For renewal of existing leases that have previously had an environmental site

assessment, the Project or District ECC must ascertain if environmental conditions have

changed. If an environmentally significant change has occurred, it will be documented as a

supplement or amendment to the original assessment report. An example of an

environmentally significant change includes the storage of a hazardous substance for a year

or more, a known release of such substance, or its disposal on the property. A copy of the

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environmental site assessment and/or any supplements or amendments will be provided to

the Lessee and attached to the lease. If there are no environmentally significant changes then

no new documentation is required as long as the Lessee has been in continuous possession of

the property.

(3) New Environmental Protection Provisions have been developed for all new leases

and lease renewals or modifications. These provisions are designed to ensure Lessees

comply with environmental laws and participate in the ERGO process. See the forthcoming

ER 405-1-80, Management and Outgrant Programs and its accompanying formats for these

provisions.

c. Lease Terminations. Upon termination of a lease, Real Estate, the Project or

District ECC and the Lessee should jointly conduct a final lease close-out using an ECP

Report funded by the Lessee to ascertain any changes in the environmental condition of the

subject property. If the Lessee refuses to participate, Real Estate and the Project or District

ECC or other qualified individual will conduct the final assessment at the Lessee’s expense

and provide a copy to the Lessee. If an environmentally significant change has occurred, it

will be documented as an amendment to the original environmental site assessment, if one

was done. The Lessee will be required to complete any environmental restoration in

accordance with lease terms and conditions.

14-9. Easements, Licenses and Use Agreements

a. The environmental section of the ROA is generally sufficient to document

environmental requirements for easements, licenses, use agreements or similar real estate

transactions where environmental concerns are very minor. However, some circumstances

may warrant an ECP Report for these transactions as determined by the District ECC or

District Engineer and coordinated with the Chief of Real Estate.

b. New Environmental Protection Provisions have been developed for all new

outgrants and outgrant renewals or modifications. These provisions are designed to ensure

Grantees comply with environmental laws and participate in the ERGO process. See the

forthcoming ER 405-1-80, Management and Outgrant Programs and its accompanying

formats for these provisions.

14-10. Outgrant Assessments and Procedures. The District Chief of Real Estate is the sole

responsible agent for all matters regarding real estate outgrants. Notification procedures,

compliance challenges and other matters with regard to outgranted lands will be closely

coordinated through the Operations Project Manager, the Project or District ECC, District

Chief of Operations, District Office of Counsel and other Federal, State and Local staff

agencies as circumstances require. Outgrant documents require Grantees to comply with all

Federal, State and local laws, ordinances and regulations. These include environmental

requirements. The outgrant documents also specifically spell out notification procedures and

requirements under and pursuant to the terms of the outgrant. Notifications regarding non-

compliance, penalties, etc. are only valid when reduced to writing and signed by the District

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Chief of Real Estate. Refer to Chapter 5 of this regulation for a comprehensive description

of requirements for environmental compliance assessments on outgranted lands. Also see

the forthcoming ER 405-1-80, Management and Outgrant Programs for information on

compliance inspections and other matters with regard to outgranted USACE property.

14-11. Consents. When third parties request the use of existing USACE easements, an ECP

Report may be required to document the baseline condition of the property prior to issuing

the Consent, especially where material is being deposited onto USACE interests. In addition,

it may be necessary to require the consenting party to provide test results with respect to any

deposited materials.

14-12. Disposals by Deed.

a. Under CERCLA federal agencies are required to give notice of the storage,

release or disposal of any hazardous substance in any contract for the sale or other transfer of

real property that is owned by the United States. In addition, CERCLA requires that deeds

contain certain additional notice, covenant and access provisions based on the environmental

condition of the property being conveyed.

b. An ECP Report will be required to document the environmental condition of the

property for all fee transfers to meet the CERCLA notice, covenant and access requirements.

Depending on the absence or extent of contamination on the property being conveyed, the

CERCLA notice, covenants and access provisions will vary. The person preparing the

disposal deed should see the forthcoming ER 405-1-90, Disposals, Chapter 5 and the

Counsel Handbook on Deeds and Deed preparation.

c. A Finding of Suitability to Transfer (FOST) is generally not required for any

disposal or transfer of USACE Civil Works property. However, the disposal of highly

contaminated property may require a FOST and District should coordinate with Division and

Headquarters to determine if a FOST is required.

14-13. Transfers and Other Non-Deed Disposals.

a. Excess USACE Civil Works property.

(1) For excess USACE Civil Works property where the General Services

Administration (GSA) is the disposal agent, an ECP Report will be prepared. However,

disposal by GSA is not considered a transfer of jurisdiction to GSA. The appropriate level of

detail for the ECP Report should be coordinated with GSA.

(2) For excess USACE Civil Works property where USACE is the disposal agent,

an ECP Report is required for deeds divesting fee title. For disposal of a lesser interest in

excess property, an ECP Report is not required unless the District ECC or District

Commander determine otherwise and coordinate with the Chief of Real Estate.

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b. Transfers of jurisdiction between Federal Agencies. An ECP Report will be

prepared using readily available information to document the environmental condition of the

property to be transferred.

c. Reassignments within Army or DoD. An ECP Report is optional for

reassignments within the Army and between the Army and another DoD component.

14-14. Summary. The following table summarizes the documentation requirements by

transaction type as discussed in the paragraphs above. However, as determined by the

District ECC or District Engineer and coordinated with the Chief of Real Estate, an ECP

Report or additional environmental assessment may be performed for any real estate

transaction.

Action

Interest/ Party

Documentation

Acquisition

Fee

ECP Report

Easement

No ECP Report unless

warranted

Lease, License/ROE

No ECP Report unless

warranted

Outgrant

Lease

ECP Report and ROA

Easement

License

ROA

License to NGB/SGB

ECP Report and ROA

Lease Renewal

ECP Report unless prior site

assessment and no change in

environmental conditions

Lease Termination

ECP Report

Deed divesting title from

the US

Fee

ECP Report

No FOST

Release or termination

with no deed

Easement or other less

than fee

NO ECP Report unless

warranted

Excess property – GSA as

disposal agent

GSA

ECP Report (level of detail

coordinated with GSA)

Excess property - USACE

as disposal agent

Fee (usually by deed)

ECP Report

No FOST

Easement or other less

than fee (usually release or

termination with no deed)

NO ECP Report unless

warranted

Transfer

Federal Agency other than

GSA

ECP Report

Reassignment

Within Army or DoD

ECP Report is optional

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CHAPTER 15

Environmental Training for Civil Works Operations

15-1. Policy. USACE shall train its employees to execute their duties in a manner that

complies fully with Federal, state and local environmental laws, regulations, Executive

Orders, and USACE policy.

15-2. Responsibilities.

a. ECCs at all levels of USACE shall consult with supervisors, OPMs and Operations

Chiefs with regard to environmental training requirements for Civil Works Operations

employees.

b. Supervisors at all levels of USACE are required to work with ECCs, OPMs and

Operations Chiefs to ensure their employees receive required environmental training.

c. The District ECCs shall make training recommendations to Project level

supervisors. Project level supervisors and OPMs shall ensure that Project ECCs are

adequately trained.

15-3. Training Resources.

a. Guidance on typical training requirements for USACE Civil Works Operations

employees is available on the Environmental Compliance page of the NRM Gateway at

http://corpslakes.usace.army.mil/employees/training.cfm?Id=env-comp.

b. The most recent copy of the ERGO manual provides a table of environmental

training requirements for Civil Works Operations activities. (See 15-6, below.)

15-4. Training Requirements.

a. General Requirements for USACE Civil Works Operations Employees. All

USACE Civil Works Operations employees whose duties may significantly impact the

environment shall receive training as follows:

(1) ER 200-2-3, Environmental Compliance Policies, for Civil Works Operations.

(2) Environmental Management System Awareness Training.

b. General Training Requirements for ECCs. General ECC training shall consist of

four tiers of courses as follows (course order may vary according to mission need):

(1) Environmental Regulations Practical Applications (ECC#1)

(2) ERGO Assessment and EC-OMBIL Data Entry (ECC#2)

(3) Hazardous Waste Manifest Training (ECC#3) (as required to support the local

mission)

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15-2

(4) Environmental Management and Sustainability (ECC#4). The requirements of

this tier may be fulfilled by a completing a variety of courses on environmental management

and sustainability addressing topics relevant to USACE Civil Works Operations and Federal

facilities. Course information is available on the NRM Gateway (see 15-3, above) and at

http://www.fedcenter.gov/

c. Mission Specific Training Requirements. The following training shall be

accomplished in order to meet local mission requirement.

(1) Environmental Liabilities. USACE Districts are responsible for ensuring staff

competence for environmental liabilities recognition, valuation and reporting. The staff to be

trained includes, but is not limited to, those fulfilling roles of program and project managers,

cost estimators, reviewers, and approvers.

(2) Hazardous Material Transportation. Supervisors shall ensure that personnel

engaged in preparing, transporting, or offering hazardous materials for offsite transportation

shall be trained on hazardous materials transportation regulations. This includes employees

making DOT packaging decisions and signing shipping papers. In accordance with DoD

policy, initial training shall be completed within 6 months of assuming duties and refresher

training within 24 months thereafter by persons executing hazardous material (including

hazardous waste) shipping documents.

(3) Resource Conservation and Recovery Act (RCRA) Training. Supervisors shall

ensure that appropriate personnel are trained in hazardous waste, universal waste, used oil,

and recyclable materials management. This includes recognition of hazardous waste,

determination of generator status, compliance with generator standards, completion of

hazardous waste manifest shipping documents and land disposal restriction (LDR)

notifications. In accordance with RCRA requirements, initial training and annual refresher

training is required on function specific duties and emergency response.

(4) Hazard Communication. Supervisors shall ensure that appropriate personnel are

trained in hazard communication.

(5) Spill Response Training. Supervisors shall ensure that appropriate personnel are

trained on requirements of spill plans, and contingency plans. Training shall include

instruction on how to determine if a spill is reportable and may include training as "First

Responder, Operations Level" designated in 29 CFR Part 1910.120(q). Any employee with

spill plan, contingency plan, or hazardous materials security plan responsibilities shall be

trained on emergency procedures and function-specific duties.

(6) Incident Command Training. Supervisors shall ensure that personnel who shall

perform as a Designated Incident Commander (IC) during hazardous materials or POL spill

response shall be trained in Incident Command to the appropriate level for the potential worst

case spill at their facility. ICS 100, 200, and 700 are the minimum training requirements for

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15-3

all Designated ICs. ICS 300 and 400 are required for Incident Commanders who may

respond under unified command. (Refer to Homeland Security Policy Directive #5.)

(7) Hazardous Waste Operations and Emergency Response Standard (HAZWOPER)

Training. Supervisors shall ensure that personnel who enter or work in hazardous waste

operations areas or emergency responders who may respond to hazardous material incidents

are trained in accordance with EM 385-1-1 and 29 CFR 1910.120.

15-5. Training Record Documentation. Formal training, as well as completion of field

experience requirements that are specified in applicable regulations, shall be documented in

personnel records; informal or on-the-job training shall be maintained by individuals and

their supervisors, as appropriate.

15-6. Training Table. The Table in the ERGO manual refers to Federal environmental

training requirements. The table is intended as a tool for identifying training needs, but is not

all inclusive. For details of training requirements, refer to referenced sections of the

regulations. At a minimum, training records shall be maintained in accordance with

requirements specified within regulation.

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16-1

CHAPTER 16

Budgeting For Environmental Compliance

16-1. Purpose. The purpose of this section is to promote awareness of budget guidance to

facilitate funding for environmental compliance.

16-2. Budget Engineer Circular.

a. Guidance regarding preparation and submission of the budget is provided annually

via the Budget Engineer Circular. This guidance is generally issued annually between March

and May. The budget EC guidance is posted at:

https://corpsinfo.usace.army.mil/cw/ec/ec.htm.

b. The budget guidance specifies business lines. Each business line is addressed

within its own appendix, and environmental compliance is integrated into each business line

as appropriate.

c. Work Category Codes pertaining to environmental compliance are specified and

shall be used for tracking of budgets and expenditures as follows:

(1) 60160 - Environmental Compliance Management for Navigation.

(2) 60260 - Environmental Compliance Management for Flood Damage Reduction.

(3) 60360 - Environmental Compliance Management for Hydropower.

(4) 60460 - Environmental Compliance Management for Environmental Stewardship.

(5) 60560 - Environmental Compliance Management for Recreation.

(6) 61160 - Environmental Compliance (Remedial Actions) for Navigation.

(7) 61260 - Environmental Compliance (Remedial Actions) for Flood Damage

Reduction.

(8) 61360 - Environmental Compliance (Remedial Actions) for Hydropower.

(9) 61460 - Environmental Compliance (Remedial Actions) for Environmental

Stewardship Features

(10) 61560 - Environmental Compliance (Remedial Actions) for Recreation.

d. Funding for environmental compliance will be included within Operations

business line budgets. For extraordinary circumstances where implementation of corrective

action is contingent upon receipt of additional funding, it is the policy of USACE to clearly

and formally document the funding need through the budget process, and to continue to

identify the need until full compliance is achieved. It is acknowledged that the Federal

ER200-2-3

29 Oct

budget process prioritizes funding

projects; however, it is not acceptable to presume that

funding for environmental compliance related projects will be unavailable or will be

lower

priority

as to remain unfunded. Rather, funds shall be formally identified and requested

through the budget process until compliance is attained. ECCs at all levels will support

preparation

budget package descriptions pertaining to environmental compliance.

Descriptions shall be articulated such that persons unfamiliar with environmental

requirements will be able to appreciate the significance

the request

order to evaluate

relative priorities.

"Special interest items" are periodically identified to highlight specific activities.

These will be budgeted for accordingly.

FOR

THE

COJ'viMANDER:

olonel, Corps ofEngineers

Chief

Staff

16-2

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Glossary-1

GLOSSARY

Section I – Abbreviations and Acronyms

BMP Best Management Practice

CAA Clean Air Act

CAP Corrective Action Plan

CERCLA Comprehensive Environmental Response, Compensation and Liability

Act

CERCLIS Comprehensive Environmental Response, Compensation and Liability

Information System

CFR Code of Federal Regulations

CW Civil Works

CWA Clean Water Act

DoD Department of Defense

DOJ Department of Justice

EC Environmental Compliance

EC OMBIL Environmental Compliance Module of OMBIL

ECC Environmental Compliance Coordinator

ECP Environmental Conditions of Property

ECQ Environmental Conditions Questionnaire

EM Engineering Manual

EMCX Environmental and Munitions Center of Expertise

EMS Environmental Management System

EO Executive Order

EP Engineering Pamphlet

EPCRA Emergency Planning and Community Right-to-Know Act

ER Engineering Regulation

ERGO Environmental Review Guide for Operations

EPA Environmental Protection Agency

FIFRA Federal Insecticide, Fungicide, and Rodenticide Act

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Glossary-2

FOST Finding of Suitability for Transfer

FOTW Federally Owned Treatment Works

FOUO For Official Use Only

FUSRAP Formerly Used Sites Remedial Action Program

HAP Hazardous Air Pollutant

HMR Hazardous Material Regulation

HTRW Hazardous, Toxic, and Radioactive Waste

IATA International Air Transport Association

ICAO International Civil Aviation Organization

IMDG-C International Maritime Dangerous Goods Code

ISO 14001 International Organization for Standardization (ISO) 14001

LDR Land Disposal Restriction

LQG Large Quantity Generator

MACT Maximum Achievable Control Technology

MOA Memorandum of Agreement

MSDS Material Safety Data Sheet

MS4 Municipal Separate Storm Sewer System

NEPA National Environmental Policy Act

NESHAP National Emission Standards for Hazardous Air Pollutants

NON Notice of Non-Compliance

NOV Notice of Violation

NPDES National Pollutant Discharge Elimination System

NPL National Priorities List

NRC National Response Center

NRM Natural Resources Management

NSF National Sanitation Foundation

OC Office of Counsel

ODS Ozone-Depleting Substance

O&M Operations and Maintenance

OMBIL Operations and Maintenance Business Information Link

OPM Operations Project Manager

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Glossary-3

OSHA Occupational Safety and Health Administration

PA Preliminary Assessment

PCB Polychlorinated Biphenyl

POL Petroleum, Oils, and Lubricants

POTW Publicly-Owned Treatment Works

PRP Potentially Responsible Party

PSD Prevention of Significant Deterioration

PVQ Pre-visit Questionnaire

RATS Regional Assessment Team System

RCRA Resource Conservation and Recovery Act

ROA Report of Availability

RPM Remedial Project Manager

RM Resource Management

SDWA Safe Drinking Water Act

SI Site Inspection

SPCC Spill Prevention, Control, and Countermeasures

SPCCP Spill Prevention, Control, and Countermeasures Plan

SPRP Spill Prevention and Response Plan

SWDA Solid Waste Disposal Act

SWPPP Storm Water Pollution Prevention Plan

TCLP Toxicity Characteristic Leaching Procedure

TEAM The Environmental Assessment Manual

TMDL Total Maximum Daily Load

TRI Toxic Release Inventory

TSD Treatment, Storage, or Disposal

TSDF Treatment, Storage, or Disposal Facility

UFGS Unified Facilities Guide Specification

USACE U. S. Army Corps of Engineers

USCG U. S. Coast Guard

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Glossary-4

Section II − Terms

Environmental Liability

DoD Financial Management Regulation, DoD 7000.14-R, Volume 4, Chapter 13, as revised

April 2008, states, "For financial reporting purposes, a DoD environmental liability is a

future outflow or expenditure of resources that exists as of the financial reporting date for

environmental cleanup, closure, and/or disposal costs resulting from past transactions or

events. A DoD environmental liability exists when: (1) contamination is present or likely to

be present; (2) environmental cleanup, closure, and/or disposal is required by lease contracts,

federal, state, and/or local statute, regulation, or other legal agreement; and (3) the operations

that created the liability are DoD related. An environmental liability may also exist if

environmental contamination is not DoD related, but DoD enters into a binding agreement

that formally accepts financial responsibility for cleanup, closure, and/or disposal."

Environmental Aspect

An element of an organization’s activities that can interact with the environment. An

environmental aspect has or can have an environmental impact.

Environmentally Significant Activity

For purposes of this ER, those activities that are regulated by federal, state, or local

environmental laws, regulations, Executive Orders, or as determined by USACE policy or

the responsible Operations Project Manager (OPM). For example, if a project has a NPDES

regulated outfall, then it is “regulated” and considered an environmentally significant activity

for purposes of this ER.

Environmental Management System

A set of processes and practices that enable an organization to increase its operating

efficiency, continually improve overall environmental performance and better manage and

reduce its environmental impacts, including those environmental aspects related to energy

and transportation functions. EMS implementation reflects accepted quality management

principles based on the “Plan, Do, Check, Act” model found in the ISO 14001:2004(E)

International Standard and using a standard process to identify and prioritize current

activities, establish goals, implement plans to meet the goals, evaluate progress, and make

improvements to ensure continual improvement.

Federal Agency Hazardous Waste Compliance Docket

Required by the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) 120(c) to be established and maintained by the Environmental Protection Agency

(EPA) and commonly referred to as the Federal Facilities Docket or the Docket. The Docket

contains information submitted by Federal facilities under CERCLA 103, Resource

Conservation and Recovery Act (RCRA) 3005, RCRA 3010, and RCRA 3016 and identifies

Federal facilities in need of evaluation to determine whether they pose a threat to human

health or the environment. The Docket is available through the Federal Register or

http://www.epa.gov/fedfac/documents/docket.htm.

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Finding

The term "finding" is used to refer to all findings other than "significant findings". A

"finding" pertains to a situation or circumstance where there is a perceived or actual non-

compliance with an applicable, promulgated, environmental standard.

Finding, Significant

A "significant finding" refers to a situation or circumstance where there is a perceived or

actual non-compliance with an applicable, promulgated, environmental standard which poses

a direct, significant threat to human health and safety, the environment, or the facility's

missions so that it rises to a level of urgency as to require immediate action.

Headquarters Environmental Compliance Coordinator (HQ ECC)

The Headquarters USACE (HQ USACE) Senior Policy Advisor for Environmental

Compliance.

Integrated Pest Management (IPM)

IPM is a planned program to prevent pests and disease vectors from causing unacceptable

damage to operations, people, property, or the environment. IPM uses targeted, sustainable

(effective, economical, environmentally sound) methods, including habitat modification,

biological control, genetic control, cultural control, mechanical control, physical control,

regulatory control and, when necessary, the judicious use of least-hazardous pesticides.

Properly implemented IPM minimizes harm to human health and the environment; reduces

the need for pesticides; reduces pest resistance; and minimizes pesticide waste.

Legacy Contamination

Legacy contamination means known or suspected hazardous substances, pollutants, or

contaminants as defined under CERCLA, or petroleum releases remaining on USACE

property from historic operations for which an evaluation or response action is indicated

under law or regulation. See Chapter 13. It does not include releases previously investigated

or cleaned up; de minimis losses of hazardous substances during use; areas where hazardous

materials have been used but not disposed; or permitted releases. [Note: The term "legacy

contamination" is not intended to capture the universe of USACE CW environmental

liability.]

Management Practice

In the context of environmental compliance assessments, a "management practice" is a

recommendation made to enhance environmental performance or which is required by

USACE policy, but which is not required by law or regulation. "Management practices" are

not "findings", but may be included as written recommendations in environmental

compliance assessments reports.

Potentially Responsible Party (PRP)

The term PRP, is the term commonly used for covered persons under CERCLA 107, refers to

all current owners and operators; all past owners and operators at the time of disposal; all

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Glossary-6

persons who arranged for the treatment or disposal at a facility of hazardous substances or

pollutants or contaminants they owned or possessed; and all persons who transported

hazardous substances or pollutants or contaminants to the facility for treatment or disposal, if

they helped select the receiving facility. Though technically not a PRP under the CERCLA

definition, parties that are responsible for contamination cleanup due to a contractual

instrument are referred to as PRPs by USACE and treated similarly to CERCLA PRPs.

Preliminary Assessment (PA)

A PA is a term established under CERCLA, to refer to a review of existing information and

site reconnaissance, if appropriate, to determine if a release may require additional

investigation or action. The PA phase does not involve site sampling.

Regional Assessment Team System (RATS)

RATS is a term used to refer to exchange of teams between Districts or Divisions for

purposes of completing external environmental compliance assessments.

Site Inspection (SI)

SI is a term established under CERCLA, to refer to an on-site investigation to determine

whether there is a release or potential release and the nature of the associated threats. The

purpose is to augment the data collected during the PA and to generate, if necessary,

sampling and other field data to determine if further action or investigation is appropriate.

The SI phase typically involves limited sampling to confirm or deny the presence of

contamination, not to fully identify the nature and extent of contamination.

The Environmental Assessment Manual/Environmental Review Guide for Operations

(TEAM/ERGO) TEAM/ERGO is the term used for reference manuals used for conducting

environmental compliance assessments. They are updated regularly and made available via

FedCenter.

See 40 CFR 300.5 and 300.420(b).

See 40 CFR 300.5 and 300.420(c).

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