CCW-PO egulation No. 1165-2-132 Department of the rmy U.S. rmy Corps of ngineers Washington, DC 20314-1000 Water esoures Poliies and uthorities HZDOUS, TOXC ND DOCTV WST (HTW) GUDNC FO CVL WOKS POJCTS Distribution estrition Statement pproved for publi release; distribution is unlimited. 1165-2-132
CCW-PO DPTMNT OF TH MY 1165-2-132 U. S. rmy Corps of ngineers Washington, DC 20314-1000 egulation No. 1165-2-132 26 June 1992 Water esoure Poliies and uthorities HZDOUS, TOXC, ND DOCTV WST (HTW) GUDNC FO CVL WOKS POJCTS 1. Purpose. The purpose of this doument is to provide guidane for onsideration of issues and problems assoiated with hazardous, toxi, and radioative wastes (HTW) whih may be loated within projet boundaries or may affet or be affeted by Corps Civil Works projets. The guidane is intended to provide information on how these onsiderations are to be fatored into projet planning and implementation. 2. ppliability. This regulation applies to HQUSC/OC elements, major subordinate ommands, distrits, laboratories, and field operating ativities (FO) having Civil Works responsibilities. 3. eferenes. See ppendix. 4. Definitions. a. Hazardous, toxi and radioative wastes (HTW). (1) xept for dredged material and sediments beneath navigable waters proposed for dredging, for purposes of this guidane, HTW inludes any material listed as a "hazardous substane" under the Comprehensive nvironmental esponse, Compensation and Liability t, 42 U.S.C. 9601 et seq (CCL). (See 42 U.S.C. 9601(14).) Hazardous substanes regulated under CCL inlude "hazardous wastes" under Se. 3001 of the esoure Conservation and eovery t, 42 U.S.C. 6921 et seq; "hazardous substanes" identified under Setion 311 of the Clean ir t, 33 U.S.C. 1321, "toxi pollutants" designated under Setion 307 of the Clean Water t, 33 U.S.C. 1317, "hazardous air pollutants" designated under Setion 112 of the Clean ir t, 42 U.S.C. 7412; and "imminently hazardous hemial substanes or mixtures" on whih P has taken ation under Setion 7 of the Toxi Substane Control t, 15 U.S.C. 2606; these do not inlude petroleum or natural gas unless already inluded in the above ategories. (See 42 U.S.C. 9601(14).) (2) Dredged material and sediments beneath navigable waters proposed for dredging qualify as HTW only if they are within the boundaries of a site designated by the P or a state for a response ation (either a removal ation or a remedial ation) under CCL, or
1165-2-132 if they are a part of a National Priority List (NPL) site under CCL. Dredged material and sediments beneath the navigable waters proposed for dredging shall be tested and evaluated for their suitability for disposal in aordane with the appropriate guidelines and riteria adopted pursuant to Setion 404 of the Clean Water t and/or Setion 103 of the Marine Protetion esearh and Santuaries t (MPS) and supplemented by the Corps of ngineers Management Strategy for Disposal of Dredged Material: Containment Testing and Controls (or its appropriate updated version) as ited in Title 33 Code of Federal egulations, Setion 336.1. b. esponse ation. The term response or respond generally means both removal and remediation ativities.. Non-Federal ost. For purposes of this guidane non-federal ost means non-rmy Corps of ngineers Civil Works projet ost. d. HTW site. ny area ontaining HTW. e. Study area. The total area being onsidered in a Civil Works projet study. t inludes the problem areas as well as any potential projet sites and areas of projet impat. f. Projet site. The speifi area required for any potential Civil Works water resoure projet. 5. Objetive. a. The objetive of this guidane is to outline proedures to failitate early identifiation and appropriate onsideration of HTW problems in reonnaissane; feasibility; preonstrution engineering and design (PD); land aquisition; onstrution; and operations, maintenane, repair, replaement, and rehabilitation (OM) phases of a water resoures study or projet. nformation developed during eah phase should provide the rationale for proeeding with the next phase of reporting or projet implementation. Speifi goals of this guidane are to: (1) identify the level of detail for HTW investigations and reporting for eah phase of the projet from reonnaissane through onstrution and OM; (2) assure that appropriate safety and health onsiderations are inluded in field investigations; 2
1165-2-132 (3) assure that qualified and experiened personnel are utilized in all onsideration of HTW; (4) promote early detetion and response by the appropriate responsible parties; (5) determine viable options to avoid HTW problems; (6) establish a proedure for resolution of HTW onerns, issues or problems; (7) reord HTW ativity expenditures for eah projet stage to doument any reimbursable osts or expenditures to be reovered from any potentially responsible party (PP). eovery of osts from a PP would be aomplished by the projet sponsor, or by the Federal government for non-ost shared projets; (8) budget for HTW ativities as part of funding requested for the appropriate phase for eah study or projet. b. Due to the site speifi nature of most HTW problems, detailed information on waste types/sites, assessment proedures, or testing/treatment/disposal tehniques is not inluded herein. U. S. nvironmental Protetion geny (P) superfund sites or other HTW sites undergoing removal and/or remediation should be handled in aordane with appliable Federal and state requirements. 6. Poliy. a. Civil Works projet funds are not to be employed for HTWrelated ativities exept as provided herein, or otherwise speifially provided in law. b. Constrution of Civil Works projets in HTW-ontaminated areas should be avoided where pratiable. This an be aomplished by early identifiation of potential problems in reonnaissane, feasibility, and PD phases before any land aquisition begins. Costs of environmental investigations to identify any existene of HTW and studies required for formulation of the National onomi Development (ND) plan, reognizing the existene and extent of any HTW, and studies required to evaluate alternatives to avoid HTW will be ost shared the same as ost sharing for the phase the projet is in (i.e., feasibility, PD, or onstrution). Where HTW ontaminated areas or impats annot be avoided, response ations must be aeptable to P and appliable 3
1165-2-132 state regulatory agenies. Table 1 provides the poliy on ost sharing of ativities for HTW. (1) For ost-shared projets, the loal sponsor shall be responsible for ensuring that the development and exeution of Federal, state, and/or loally required HTW response ations are aomplished at 100 perent non-projet ost. No ost sharing redit will be given for the ost of response ations. (2) For non-ost-shared projets where Federal funds are spent for HTW response ations, the ost of response ations will be a projet ost to be borne by the Department of the rmy exept when another Federal ageny is responsible for the HTW, in whih ase the response ation osts should be borne by the responsible ageny. distrit should not proeed with any response ation for whih another Federal ageny is responsible until appropriate agreements have been reahed with that ageny regarding funding for the response. (3) Funding arrangements and responsibilities for HTW response ations involving Federally owned lands, inluding those administered by the Department of the rmy, will be approved on an individual basis. (4) Only where the ost of the response ation is a projet ost will it be a part of the eonomi evaluation.. Costs for neessary speial handling or remediation of wastes, pollutants and other ontaminants whih are not regulated under CCL will be treated as projet osts if the requirement is the result of a validly promulgated Federal, state or loal regulation. n suh ases, land value inluded in the eonomi analysis will be the fair market value of the land onsidering the ontamination, and the ost of the required treatment will be a onstrution ost. The land value to be redited to the sponsor will be the fair market value of the land in the ondition aquired. Credit will not be allowed for both osts of the treatment or remediation and for the value of the land as if lean. d. The plan for and exeution of eah Civil Works projet will routinely inlude a phased and doumented review to provide for early identifiation of HTW potential at Civil Works projet sites. 4
1165-2-132 TBL 1 COST SHNG OF HTW CTVTS WTH CVL WOKS POJCTS ND STUDS ON NON-FDL LNDS HTW CTVTY POJCT PHS COST SHNG 1. nvironmental eonnaissane eonnaissane investigation to identify any existene Feasibility Feasibility of HTW. PD Constrution OM Constrution Constrution OM 2. Studies required for eonnaissane eonnaissane reognizing existene and extent of any HTW, Feasibility Feasibility and studies required to evaluate alternative PD Constrution projet plans. Constrution Constrution OM OM 3. Development of a ny 100% Non-Federal response plan for deal- (inluding ing with the HTW. responsible nludes studies and parties) determine the appropriate response. 4. esponse measures ny 100% Non-Federal to reloate HTW or (inluding to treat the HTW in responsible plae. parties) NOT: The osts for studing and remediating HTW on Federally-owned lands will be assigned on a ase-by-ase basis. 5
1165-2-132 e. On projets in "transition," where no HTW investigation was onduted and where a Loal Cooperation greement (LC) for onstrution has not been exeuted, the distrit may ondut studies to determine the existene and extent of HTW as part of PD. fter a LC is exeuted HTW investigations must be performed by the sponsor or the sponsor must provide funds up front to pay for the distrit's performane of the studies. Costs of studies will be shared based on the projet purpose and the projet stage. f. esponse ations, involving HTW disovered on lands where the Government has been an owner and/or the Corps of ngineers has been an operator, will be handled on an individual basis. 7. eonnaissane Phase. Due to the many potential adverse impats of HTW, an initial assessment will be onduted as early as pratial during the reonnaissane phase and inluded in the reonnaissane report. The assessment will address the existene of, or potential for, HTW ontamination on lands, inluding strutures and submerged lands in the study area, or external HTW ontamination whih ould impat, or be impated by, a projet. HTW ontamination should be onsidered in determining whether to proeed to the feasibility phase. The assessment will help identify and develop the level of effort to be undertaken in the feasibility phase. a. Level of effort. Consideration of HTW in the reonnaissane phase should involve the same level of detail given to other engineering, eonomi, real estate, and environmental aspets of the projet. The initial HTW assessment should rely primarily on existing douments, interviews, and observations gathered during the ondut of a site visit. b. Proedures. xisting and past land uses should be evaluated to determine the potential presene of HTW. The potential impat of known HTW sites from adjaent or nearby lands should also be onsidered. Current and historial aerial photographs should be studied and ompared to assist in identifying potentially ontaminated sites/strutures. Land use histories of potential projet sites should be researhed. Other appropriate reords, suh as ommunity-right-to-know reords, should be reviewed. The extent to whih reords should be searhed depends on the historial/industrial ativities of the area and should extend as far as reords are available. To obtain additional 6
1165-2-132 information long-time loal residents, workers, and urrent property owners should be interviewed about past land uses, potential ontamination, and any history of HTW problems. (1) P, state, and loal regulatory or response agenies should be onsulted for liense/permit ations, for any violation, enforement, and/or litigation against property owners, and for general information about loal HTW problems suh as illegal dumping and past ontamination. (2) visual survey of potential projet sites should be made to determine the potential for HTW. videne of ontamination ould inlude surfae or partially buried ontainers, disolored soil, seeping liquids, films on water, abnormal or dead vegetation or animals, suspet odors, dead-end pipes, abnormal grading, fills, or depressions. (3) n experiened and qualified person should be part of the team doing field visits and should make reord searhes, interviews, and on-site visual evaluation for possible HTW ontamination.. esults. The HTW initial assessment for the reonnaissane report should inlude a statement explaining what was done. f the assessment onludes there is no potential for HTW problems, it should be so stated. f it onludes there is a potential for HTW problems whih ould impat or be impated by potential projet features, the assessment should inlude the following information, as appliable. (1) dentifiation and loation of known, reported, or suspeted HTW sites. (2) Charaterization of eah HTW site to inlude potential ontaminants of onern (within limits of available information). (3) Desription of assessment tehniques utilized. (4) nformation soures. Details may be listed in an appendix to the assessment. (5) Proposed omposition and estimated ost of potential or known HTW site investigations and an assessment effort during the feasibility phase. stimated ost for this effort should inlude appropriate 7
1165-2-132 ontingenies based on preliminary investigations and findings. (6) Other information relevant in determining whether to proeed to feasibility phase. d. Doumentation. ll information and data gathered from the above steps, as well as the methods used, should be doumented in the reonnaissane report. f it is determined that there is no suspeted HTW problem, the investigations and findings to support this determination should be learly indiated. f further HTW study is warranted and the projet site is still under onsideration, any reommendation to ondut additional HTW investigations during the feasibility phase and their osts should be inluded in the reonnaissane report, feasibility ost sharing agreement (FCS), and initial projet management plan. e. esolution of HTW issues. HTW issues will be addressed with other issues at the eonnaissane eview Conferene. f. Sponsor's ommitment. The FCS will state that the development of a response plan for dealing with any HTW disovered is a 100 perent non-federal ost (See Table 1). 8. Feasibility Phase. a. HTW assessments during the feasibility phase will determine the type and extent of HTW ontamination, if any, and how HTW onsiderations will impat on the alternative projet plans. preliminary ost estimate of required HTW response ations will be needed for eah projet alternative in order to be able to make a reasoned hoie among alternative projet plans. lternative projet plans may onsider avoidane of HTW as well as possible responses. t least one alternative plan should be formulated to avoid HTW sites to the maximum extent possible, onsistent with projet objetives. These assessments, onduted during the feasibility stage, are shared with the loal sponsor for ost-shared studies. For non-ost-shared studies, HTW assessments are 100 perent Federal ost. b. Cost sharing. (See Table 1 for ost sharing poliy.) 8
1165-2-132 (1) Projets with non-federal sponsors. The sponsor (not the Government) will bear the responsibility for response of HTW. The ost of the response will be a non-federal expense for whih the sponsor will reeive no redit. However, the presene of HTW may be a signifiant fator in developing overall projet deisions. HTW information developed in the feasibility study will be given to the sponsor for use in preparing land aquisition or potential response plans. The sponsor may pursue detailed planning for response, or may initiate proedures to require the responsible parties to respond. ny delay in projet implementation due to an HTW response ation will be onsidered in alternative plan seletion. (2) Projets without a non-federal sponsor. For fully Federallyfunded projets involving land that is not Federally owned, the study may reommend pursuit of response by the PP before any projet is initiated. n that ase, ost of response would be at non-federal expense. The ost of delay in implementation and the risk of non-olletion will be onsidered when deiding whether to ollet up front payment or seek reimbursement. f, however, it is reommended to go ahead with the projet without waiting for the PP to respond, or if the land is already Federally owned, the ost of response ation will be 100 perent Federal expense although the Federal Government may seek a ontribution through appropriate legal proeedings at a later date. reommendation for Federal response followed by olletion is not a preferred ourse of ation beause it ommits to the response ation Civil Works appropriations whih are not replaed by the olletion. evenues reovered through litigation return to the U.S. Treasury, not to the Corps Civil Works aounts.. Projet alternatives, response options, and projet plan formulation. (1) nvestigation. s needed, the HTW portion of the feasibility phase will inlude 1) a determination of the nature and extent of ontamination and 2) a qualitative analysis of the impats of any ontamination in the absene of response ation. This phase should inlude a preliminary identifiation of potential soure areas, ontaminant release mehanisms, exposure routes, potentially exposed populations, as well as a determination of the non-numerial risk or potential adverse health effets for the identified potential reeptors. nvestigation ativities may inlude topographi setting, underlying geology, surfae and groundwater flow, building and utility layouts, 9
1165-2-132 the ondition of all strutures above and below ground, and haraterization of hemial onstituents of HTW ontaminants. The level of detail should be suffiient to determine the extent of HTW ontaminants in relation to alternative Civil Works projet features and adjaent lands potentially impated by these features. (2) Projet plan alternative and HTW response alternatives analysis. This analysis shall identify and evaluate alternatives to respond toverified HTW problems whih annot be avoided by projet design. tivities onduted may inlude additional sampling and analysis if needed, identifiation of alternative response measures, alternative sreening, ost analysis of alternatives and adherene to environmental standards and riteria. The analysis of proposed response alternatives should inlude a omparative evaluation of 1) the effetiveness of the alternative or to what degree baseline risks are redued or minimized by the response, and if residuals/ation omply with regulatory standards; 2) implementability, or tehnial feasibility of the response ation alternative; and, finally, 3) osts assoiated with eah response alternative. Level of detail for HTW response ations not inluded in projet ost should only be to the extent needed to determine an appropriate response plan and an order of magnitude ost estimate. (3) Design ost estimates and response ost estimates for resolving HTW and other regulated ontaminant problems whih are a part of projet ost will be developed to the same level of detail as other projet features. The reommended response ation will be seleted based on a balane of evaluation riteria, developed in full oordination with the appropriate Federal and state regulatory agenies. The evaluation will be inluded as an appendix to the feasibility report. The plan will doument riteria used in seleting the reommended response ation, inluding degree of redution or mitigation of potential risks to human health and the environment, ompliane with regulatory requirements, long and short term effetiveness, implementability, and ost of the reommended response ation. d. mpats on plan formulation and plan seletion. (1) voidane of HTW sites. Civil Works plan formulation and plan seletion may be substantially influened by the presene of HTW in the projet area. HTW sites will be avoided whenever pratiable. They 10
1165-2-132 may be a signifiant fator in projet alternative design even though ost may be greater than a plan whih provides for HTW response ation. Consideration may be given to designating an HTW avoidane alternative as the ND plan when osts and risks of response ations are unertain. (2) Projets osts. The ost of HTW remediation will not be onsidered as a projet ost nor in determining eonomi feasibility of the Civil Works projet unless the projet is without a loal sponsor and immediate HTW remediation without the projet is not required. The ost of remediation ation may, however, be an important fator for a sponsor making deisions onerning the projet, and thus should be estimated during the feasibility phase. e. esolution of HTW issues. f an HTW issue whih may impat on the orderly progress of the study or preparation of the report arises prior to the Feasibility eview Conferene, an ssue esolution Conferene should be onvened. Otherwise, HTW issues will be addressed with other issues at the Feasibility eview Conferene and methods to resolve them will be made a part of the Projet Management Plan. f. Sponsor ommitment. Should there be a known HTW problem, the letter of intent to ost share in the projet shall state either that the loal sponsor has aepted responsibility for required response, or that the sponsor has initiated proedures requiring the responsible parties to respond. The projet authorization doument and the Projet Management Plan should inlude language desribing how response ations will be oordinated with projet onstrution. Constrution shall not be undertaken until response ations have been ompleted on impated lands. g. Doumentation. The feasibility report will fully doument the HTW impat or potential. The report will either onlude that there is no known HTW, or that HTW has been identified. f HTW is identified, the report will also desribe what ations are being taken toward avoidane or response, and what non-federal interest is responsible for the response, if appliable. Douments for innoent landowner defense will be retained. 9. Preonstrution, ngineering and Design (PD) Phase. a. Projets with no prior HTW onsideration. For projets at whih the potential for HTW problems has not been onsidered, an HTW initial assessment as appropriate for a reonnaissane study should 11
1165-2-132 be onduted as a first priority. f the initial assessment indiates the potential for HTW, testing, as warranted and analysis similar to a feasibility study should be onduted prior to proeeding with the projet design. b. For projets with known HTW sites where avoidane is not pratial. (1) The HTW objetive during PD is development of detailed engineering and design of response work in onsultation with P, state, and loal authorities. Detailed engineering and design of response ation are the responsibility of the loal sponsor for ost shared projets. HTW issues shall ontinue to be addressed during PD. ny deisions will be reorded in the appropriate design memoranda. (2) The design memorandum (DM) will inlude, but not be limited to, information regarding the HTW impats on the projet to inlude the loation, type, sope, osts to leanup versus osts to design the projet around the HTW; and the results of detailed design of response work neessary to proeed to a safe and an eonomially feasible projet. On a ost shared projet, the design of response ation will be provided by the projet sponsor. t is, therefore, important that the sponsor and Corps work together to ensure a oordinated shedule for projet implementation. (3) Feasibility reports for ontinuing authority projets that are deemed suffiient to proeed to plans and speifiations must inlude the same data normally required in a DM.. Disovery of HTW during design. (1) By using proedures desribed earlier, disovery of HTW sites during PD phase of the projet should be minimized. When an HTW problem is disovered during the PD phase, all work on that portion of the projet shall be appropriately delayed until the loal sponsor, P, state and loal authorities, as appropriate, are onsulted and the extent of the problem is defined. Measures to avoid the HTW site an then be onsidered, if neessary, or possible required design hanges an be aomplished after the problem and response have been determined. Disovery of HTW and required ations should be reported through the Programs and Projet Management system for onsideration and 12
1165-2-132 review by major subordinate ommand and HQUSC Projet eview Boards (PBs). The stage of PD does not relieve the obligation to assess HTW and other regulated ontaminant impats and possible projet alternatives to avoid the ontaminated area as outlined in previous phases. (2) During evaluation, speial are and attention must be given to hanges that must be refleted in the projet shedule, ost estimate and NP doumentation. The use of n-progress eviews and ssue esolution Conferenes are highly reommended. Should the disovered HTW site result in signifiant impats for the reommended projet, preparation of a reformulation doument and/or a post-authorization hange report may be required. (3) The loal sponsor will be responsible for planning and aomplishing any HTW response measures, and will not reeive redit for the osts inurred. 10. Loal Cooperation greement (LC) Phase. a. f an HTW problem is enountered prior to exeution of a LC, the non-federal sponsor shall be advised during LC negotiations that, (1) where pratial, the projet has or will be designed to avoid HTW; (2) as between the Government and the sponsor, the sponsor will be solely responsible for ensuring that required HTW response ations are aomplished in aordane with appliable requirements of Federal, state and loal regulations, inluding site safety and health requirements of 29 CF 1910.120 prior to exeution of the LC; (3) all HTW response osts shall be a responsibility of the sponsor; and (4) any HTW osts shall not be redited toward the sponsor's share of total projet ost. NOT: This does not limit any rights the sponsor may have to reover suh osts from PP or responsible third parties or to work through state agenies to ompel leanup by PP or responsible third parties prior to sponsor's aquisition of land. 13
1165-2-132 b. LC lauses. ven though extreme are is exerised throughout the planning and design proess to ensure HTW problems are deteted and resolved, there is still a possibility that HTW will be disovered after exeution of the LC, during the real estate aquisition proess, during onstrution, or during operation and maintenane of the projet. Therefore, it is imperative that the responsibilities of the parties regarding HTW be learly identified in all LCs. (1) ll LCs, exept for deviations approved for speifi model LCs, must ontain the following provisions a through e, below: "rtile XX - Hazardous Substanes "a. fter exeution of this greement and upon diretion by the Contrating Offier, the Loal Sponsor shall perform, or ause to be performed, suh environmental investigations as are determined neessary by the Government or the Loal Sponsor to identify the existene and extent of any hazardous substanes regulated under the Comprehensive nvironmental esponse, Compensation and Liability t (CCL), 42 USC 9601-9675, on lands neessary for projet onstrution, operation, and maintenane. ll atual osts inurred by the Loal Sponsor whih are properly allowable and alloable to performane of any suh environmental investigations shall be inluded in total projet osts and ost shared as a onstrution ost in aordane with (appliable setion) of Publi Law 99-662. "b. n the event it is disovered through an environmental investigation or other means that any lands, easements, rights-of-way, or disposal areas to be aquired or provided for the projet ontain any hazardous substanes regulated under CCL, the Loal Sponsor and the Government shall provide prompt notie to eah other, and the Loal Sponsor shall not proeed with the aquisition of lands, easements, rights-of-way, or disposal areas until mutually agreed. ". The Government and the Loal Sponsor shall determine whether to initiate onstrution of the Projet, or if already in onstrution, to ontinue with onstrution of the Projet, or to terminate onstrution of the Projet for the onveniene of the Government in any ase where hazardous substanes regulated under CCL are found to exist on any lands neessary for the Projet. Should the Government and the Loal Sponsor determine to proeed or ontinue with onstrution after 14
1165-2-132 onsidering any liability that may arise under CCL, as between the Government and the Loal Sponsor, the Loal Sponsor shall be responsible for any and all neessary leanup and response osts, to inlude the osts of any studies and investigations neessary to determine an appropriate response to the ontamination. Suh osts shall not be onsidered a part of total projet osts as defined in this greement. n the event the Loal Sponsor fails to provide any funds neessary to pay for leanup and response osts or to otherwise disharge its responsibilities under this paragraph upon diretion by the Government, the Government may either terminate or suspend work on the Projet or proeed with further work as provided in rtile (ite to Termination or Suspension rtile of Loal Cooperation greement). "d. The Loal Sponsor and the Government shall onsult with eah other under the Constrution Phasing and Management rtile of this agreement to assure that responsible parties bear any neessary leanup and response osts as defined in CCL. ny deision made pursuant to paragraph of this rtile shall not relieve any party from any liability that may arise under CCL. "e. The loal sponsor shall operate, maintain, repair, replae, and rehabilitate the projet in a manner so that liability will not arise under CCL." (2) The following provision will be substituted for e above in LCs for navigation projets: "e. The loal sponsor shall perform its responsibilities under this agreement, inluding the dredging of berthing areas or aess hannels, and operation and maintenane of any required disposal failities, in a manner so that liability will not arise under CCL." 11. eal state quisition. a. General. One of the keys to suess in dealing with HTW problems is early identifiation and assessment of all projet lands whih ould be ontaminated prior to sponsor aquisition for projet purposes. ssessment of all projet lands inludes adjaent properties from whih ontamination ould migrate, strutures and submerged land. s disussed in the preeding paragraphs, proedures exist in the planning phases to determine whether there are potential HTWs on any land needed for projet purposes. However, if HTW is suspeted or 15
1165-2-132 first enountered during the land aquisition proess, the following proedures apply. b. Cost-shared projets. Sine the loal sponsor does not aquire any land until after the signing of a LC, the disovery of HTW during land aquisition is ontrolled by the provisions of the LC. Briefly summarized, these ations inlude: (1) Prompt notie by the loal sponsor to the Government and essation of all lands, easements, rights-of-way, reloations, and dredgedmaterial disposal areas (LD) aquisitions and/or ations until mutual agreement is reahed by the Government and the loal sponsor. (2) Prompt reporting by the Government of the HTW disovery and subsequent required ations through the Program and Projet Management System to HQUSC. (3) Performane by the loal sponsor of suh environmental investigations as are determined neessary by the Government or the loal sponsor to identify the existene and extent of HTW. easonable, alloable osts of these investigations will be inluded in total projet osts and shared as projet osts. (4) Consultation between the Government and loal sponsor to determine whether to initiate onstrution of the projet or, if already in onstrution, to ontinue with the onstrution of the projet, or to terminate onstrution of the projet at the onveniene of the Government. (5) Performane of response ations by the loal sponsor for any HTW found on land needed for projet purposes. These osts will not be a part of projet osts and will not be ost-shared. f the loal sponsor aquires land before the signing of the LC, and, where appliable, the formal notifiation to the sponsor to aquire LD, it does so at its own risk. This risk inludes the aquisition of potentially or atually HTW ontaminated lands. f the land aquired in advane of the LC and/or notifiation to aquire LD ultimately beomes part of the projet, the sponsor would be eligible for ost-sharing and redit for the osts of any environmental investigations, to the extent that the investigations are appropriate to determine the loation and extent of HTW. 16
1165-2-132. Non-ost shared projets. Land aquisition for non-ost shared projets annot begin until a eal state Design Memorandum (DM) or other real estate planning doument has been approved by the major subordinate ommand or HQUSC. The DM or other real estate planning doument should address HTW potential of the lands to be aquired. The doument should referene the appropriate HTW reonnaissane, feasibility or PD studies and summarize the results. f there is or has been a known HTW problem, it should be remediated by the PP prior to aquisition of the land. f the PP annot remediate before aquisition or in a timely manner, the deision to proeed should be approved by S(CW) prior to aquisition of any land by the Federal Government. f remediation has been performed by the PP or other entity, the DM or other real estate planning doument should referene doumentation whih states that measures satisfatory to the Government have been taken to verify that the site is free from HTW before aquisition. Measures may inlude review of the remediation plan, results of verifiation testing and, in some ases, limited testing, to verify the absene of HTW. Despite the ations above, or even at sites with no known HTW problems, HTW or the potential for HTW may be disovered at any time during the land aquisition proess (title work, appraisals, negotiations, losings, et.). f HTW is found during the land aquisition proess, the following ations should our: (1) essation of all land aquisition and/or aquisition ativities; (2) prompt reporting of the HTW disovery and subsequent required ations through the Programs and Projet Management System to HQUSC; (3) performane of suh environmental investigations as are determined neessary; (4) reanalysis of plan formulation if the response osts are deemed a projet ost; and (5) performane of response ations for any HTW found on land needed for projet purposes. d. nnoent landowner defense. CCL provides for an innoent landowner defense to liability if ertain steps are taken by an owner prior to aquisition of land. Briefly stated, if an owner, prior to aquisition, makes all appropriate inquiry into the previous ownership 17
1165-2-132 and uses of the property onsistent with good ommerial and ustomary pratie in an effort to determine if an HTW problem exists on the property, then that owner may be able to avail itself of the innoent landowner defense. This defense may apply to the Government on full Federally funded projets and to the loal sponsor on ost-shared projets. Sine remediation is a non-federal responsibility, the loal sponsor should be advised to seek his/her Counsel's opinion on the advisability of taking suh ation and the appliability of this defense. e. Demolition ativities. HTW onerns shall be addressed prior to demolition ativities. f an HTW problem exists on a ost-shared projet, the loal sponsor must remove and dispose of any materials. The ost of removing any HTW materials will not be inluded in total projet osts nor redited towards the loal sponsors share of projet osts. For projets with no ost sharing, demolition would be a responsibility of the Government and would be a part of the projet ost. 12. Constrution Phase. a. Projets with no prior HTW onsideration. Projets should be examined appropriately to determine whether there is an HTW problem. This should be done prior to proeeding with onstrution. b. Projets with known HTW. Delays or problems as a result of HTW should be minimized through early identifiation, avoidane, and management of HTW issues during planning and design phases of the projets. Where sponsors have undertaken response ations, the sponsor must provide a letter prior to onstrution on impated lands from the appropriate regulatory ageny(s) onfirming that response ations omplied with regulatory guidelines and statutes.. Projets where HTW are enountered during onstrution. This an ause signifiant inreases in projet osts or delays in ompletion of onstrution. For this reason it is very important that the potential for HTW be assessed in advane of onstrution. efer to paragraph 10b for proedures when there is a disovery of HTW during onstrution where the LC overs HTW issues. For projets whih do not have the HTW lause in the LC, the issue should be addressed on a ase-by-ase basis. Legal and poliy assistane should be sought from 18
HQUSC through the Programs and Projet Management System for onsideration and review at HQUSC. 1165-2-132 d. Contrat onsideration. Proedures for dealing with HTW issues enountered during onstrution may involve ativities and onstraints not found during normal onstrution and may require speialized assistane from knowledgeable soures or speialty ontrators. Where standard ontrat administration and inspetion proedures do not have the flexibility to effetively inorporate and address unexpeted HTW requirements, new, separate ontrats may be required. Legal and ontratual issues should be arefully onsidered. P, state and loal agenies should be onsulted as appropriate. e. Oversight of ontratual obligation. When plans and speifiations inlude ompliane requirements (i.e., Federal, state and loal safety, health and environmental riteria suh as 29 CF 1910.120 and 385-1-92) for handling, treatment, storage disposal or transportation of hazardous waste, oversight should be the same as any other ontrat requirement. nspetions of onstrution projets should inlude overage as determined appropriate in aordane with the onstrution monitoring program. The monitoring plan should assure that regulatory requirements are being met. f omplex and unique materials are involved, speialized assistane may be needed to assure ompliane with safety and health, and quality assurane of response requirements. f. Doumentation. ny disovery of HTW or response ation taken during onstrution should be doumented in the projet's HTW Doumentation eport for future referene. This report is a new requirement to be established in an upoming ngineering egulation. ( 1110-1-264, HTW Doumentation eport). These reports will preserve the HTW related onstrution information (projet history, site onditions, and ativities) in a summarized and aessible form. ah report will provide historial doumentation of materials handling (quantities, proedures, and disposition); wells, borings, and instrumentation installed: sample loations and analytial results; materials and equipment used; leanup levels and riteria; dewatering operations; atual geotehnial onditions enountered; projet modifiations; and hanged onditions. nformation may identify possible future onerns, maintenane needs, and provide baseline information for the design of future repairs and modifiations. The report will also serve as an aount of lessons learned, providing 19
1165-2-132 valuable insight for future projets. 13. Projet Operation, Maintenane, epair, eplaement and ehabilitation (OM) Phase. a. Projets operated and maintained by sponsors. The Government will bear no responsibility for any osts assoiated with HTW leanup after the projet has been turned over to the loal sponsor for OM. b. Projets operated and maintained by the Corps of ngineers. (1) HTW onsiderations of appropriate post-response monitoring will be inluded in the projet O&M manual for projets operated and maintained by the Corps of ngineers. (2) HTW materials enountered during OM ativities on projet lands are generally antiipated to be of a loalized nature. xamples of HTW problems expeted would inlude, but are not limited to, unantiipated disovery of HTW sites, ontaminated disharges, and illegal disposal of HTW materials on projet lands. (3) When HTW sites are disovered during OM, the affeted area should be seured and proteted until the ontaminants are identified and site safety and health programs and plans in aordane with 29 CF 1910.120 and 385-1-92 are put into effet. thorough reord should be kept of all irumstanes and ations taken to deal with the problem. (4) Proedures for dealing with HTW enountered during OM may involve ativities whih may require speialized assistane from knowledgeable soures or speialty ontrators. xisting operational proedures have the flexibility to effetively inorporate and address HTW requirements. Legal and ontratual issues should be arefully onsidered. P, State and loal agenies should be onsulted as appropriate. (5) 1130-2-434 provides guidane for developing ontingeny and ation plans to respond to hazardous substane inidents on Corps operated projets. (6) Conduting assessments in aordane with the nvironmental eview Guide for Operations (GO) is a proative approah to hazardous materials management. The GO is a omprehensive evaluation tool 20
1165-2-132 for ahieving, maintaining and monitoring ompliane with environmental laws and regulations at Corps-operated failities. Setion of GO is a Hazardous Materials Management protool. The setion deals with the generi requirements and good management praties assoiated with the proper storage and handling of hemials and with the spill ontingeny and response requirements related to hazardous materials. Oil, pestiides and asbestos are hazardous materials whih require speial management praties at Corps failities, and are overed in separate setions. GO assessments provide feedbak to supervisors for organizing, direting, and ontrolling environmental ompliane and protetion ativities.. Outgrants on projets operated and maintained by the Corps of ngineers. Those parts of Corps projets where the right to use the real property has been granted to another Federal ageny, state or loal government, or private person (outgrants) will have as a ondition of their outgrant that the grantee shall omply with all relevant Federal, state, and loal laws and regulations. The inspetions to assure ompliane with the terms of the outgrant shall take ognizane of the grantee's adherene to the environmental laws inluding those onerning the release, disposal, and storage of hazardous substanes. The grantee, or other responsible party, will be responsible for ompliane with HTW laws and regulations. (1) The outgranted areas will also be onsidered in the ontingeny and ation plans disussed in 1130-2-434. Suh plans will be developed and implemented taking into onsideration the views and any speial needs of the grantees. (2) The grantee, projet manager, distrit element issuing the grant, and ognizant regulatory ageny shall be notified of any release or threatened release of HTWs. 14. esponsibilities a. The distrit responsible for onstrution of the projet retains projet management responsibilities regardless of the study or projet phase. Suh distrit will utilize HTW expertise, assistane and ontrating apability from an HTW design distrit. The major subordinate ommander shall assure the appropriate expertise from an HQUSC approved HTW design distrit is used, or the HTW distrit will aid the managing Civil Works projet distrit in ontrating with firms 21
1165-2-132 apable of providing suh assistane. The HTW design distrit has available indefinite delivery arhitet-engineer ontrats speifially soped to address HTW work. Where loal sponsors are responsible for the design and response, the sponsors are free to obtain help where they deem appropriate. b. ppendix provides a tabular display of general tasks for HTW input for eah phase of a Civil Works projet, and shows the element responsible for the work, as well as for review. Work undertaken by a HTW design distrit will be funded from projet funds transferred from the geographi distrit. The review by the Mandatory Center of xpertise (MCX) will be funded as part of exeutive diretion and management from the General xpenses appropriation. n preparing a sope of work or a work plan for any phase of a projet, the effort needed for the HTW input should be oordinated with the HTW design distrit, and must be inluded in the ost of the appropriate phase and budgeted aordingly. t is the responsibility of the geographi distrit to initiate oordination with the HTW design distrit as early as possible, in order to allow for timely input from that distrit. t is the responsibility of the HTW design distrit to seek appropriate review from the MCX. 15. Site Speifi Safety and Health Plans (SSHP). Safety and health onditions an vary from little or no hazards present to multiple safety hazards with the presene of toxi hemials, explosive ordnane, and/or physial hazards. Speifi site safety and health proedures to be employed during all phases of planning and implementation of Civil Works projets are developed by the Safety and Oupational Health Offie in the responsible distrit. During the reonnaissane phase field ativities, a limited SSHP will be developed as needed based on known or suspeted hazards and the need to provide for the safety and health of persons onduting the field reonnaissane. Based on information gathered during initial study area visits by loal sponsors and Corps study team members, deisions will be made whether further HTW assessment is needed and, if so, a SSHP will be developed. The development and implementation of appropriate SSHP for HTW site operations are mandated by the Oupational Safety and Health dministration (OSH), 29 CF 1910.120. This regulation, as well as the implementing 385-1-92, are appliable to all USC and ontrator personnel engaged in on-site ativities assoiated with all aspets of 22
1165-2-132 HTW ativities, a thorough reord shall be kept of all irumstanes and ations taken, inluding oordination with authorities, worker/ publi safety and health ations, and development of step-by-step response measures to deal with the problem. FO TH COMMND: 3 ppendies PP - eferenes PP B - ssignment of esponsibilities PP C - Table of ronyms MLTON HUNT Colonel, Corps of ngineers Chief of Staff 23
1165-2-132 PPNDX FNCS 1. Publi Law 88-206, as amended, (33 U.S.C.. 1321 et seq.) Clean ir t. 2. Publi Law 92-500, as amended, (33 U.S.C.. 1317 et seq) Clean Water t. 3. Publi Law 92-532, as amended, (33 U.S.C.. 1401 et seq.) Marine Protetion, esearh and Santuaries t of 1972. 4. Publi Law 94-469, as amended, (15 U.S.C. 2606 et seq.) Toxi Substanes Control t. 5. Publi Law 94-580, as amended, (42 U.S.C. 6921 et seq.) esoure Conservation and eovery t. 6. Publi Law 96-510, as amended, (42 U.S.C.. 9601 et seq.) Comprehensive nvironmental esponse, Compensation, and Liability t of 1980. 7. Publi Law 99-662, (33 U.S.C.. 2211) Water esoures Development t of 1986. 8. 29 CF 1910.120. 9. 33 CF 336.1, Management Strategy for Disposal of Dredged Material: Containment Testing and Controls. 10. 385-1-92, Safety and Oupational Health Doument equirements for Hazardous, Toxi, and adioative Waste (HTW) tivities. 11. 1110-1-263, Chemial Data Quality Management for Hazardous Waste emedial tivities. 12. 1130-2-434, esponse to Oil and Hazardous Substane nidents. -1
1165-2-132 PPNDX B SSGNMNT OF SPONSBLTS 1. PUPOS. The purpose of this appendix is to illustrate the general tasks in the HTW analysis during eah phase of a Civil Works projet, and to assign general responsibility for these tasks. 2. SPONSBLTS: a. The distrit responsible for onstrution of the Civil Works projet retains projet management responsibilities regardless of the study or projet phase. eview of the overall Civil Works projet will be provided by the geographi major subordinate ommand, and at the Washington level in aordane with established review proedures. eview of the HTW effort will be provided by the Mandatory Center of xpertise (MCX) at MD and the HTW design distrit, as appropriate. Work by the HTW design distrit will be funded out of projet funds transferred by the geographi distrit. eview by the MCX will be funded as part of exeutive diretion and management from the General xpense appropriation. Where loal sponsors are responsible for the design and response, the sponsors are free to obtain help where they deem appropriate. The tabulation whih follows shows the general assognment of responsibilities for HTW ativities in Civil Works projets. b. esponse ativities must be aeptable to U.S. nvironmental Protetion geny (P) and appliable state regulatory agenies as appropriate. Projet sponsors will be responsible for assuring ompliane. Depending upon the nature of the projet and the distrit's knowledge of the sponsor's leanup, the distrit may wish to independently verify the ompleteness of the remediation prior to proeeding with the Civil Works projet. The verifiation proess would onsist of limited field work and laboratory analysis. 3. POCDUS: a. When environmental requirements are appliable, they must be onsidered and oordinated with the appropriate Federal and state regulators throughout the investigation, evaluation, and remedial proesses. Speifi sopes of work for eah phase must be arefully oordinated among the managing distrit, the sponsor, and the HTW design distrit to ensure that the minimum amount of work is aomplished to meet the needs of the Civil Works projet, B-1
1165-2-132 26 June 1992 while still omplying with proedures onerning health and safety and data quality riteria. b. For all projets, whether onduted within the requirements of a speifi environmental regulatory program or not, appliable setions of USC regulations and guidane shall be applied in order to assure that human and environmental health and safety is proteted and that appropriate data quality is obtained. The proedures, doumentation and tehnial requirements of 385-1-92 onerning safety and oupational health requirements for (HTW) ativities, 1110-1-263 Chemistry Data Quality Management for Hazardous Waste emedial tivities, and Draft M 1110-7-XX(F) Monitor Well nstallation at Hazardous and Toxi Waste Sites (C 1110-7-1(F)), are speifially appliable for the appropriate level of investigation. B-2