The Importance of Independent 环境 Due Diligence at DOD Properties

Department of Defense (DOD) properties including Formerly Used Defense Sites (FUDS) and portions of active installations are increasingly being transferred to the control of private entities for redevelopment and reuse. 在重新调整或转移之前, DOD typically commissions the preparation of a site wide environmental assessment report, commonly referred to as a Baseline of 环境 Conditions Assessment (BECA) or 环境 Baseline Survey (EBS).

BECA将总结如下:

  • 安装位置和物理描述
  • 公用事业公司
  • 安装历史
  • Summary of installation use(s) and processes performed at the installation
  • 环境 programs in terms of the Installation Restoration Program (IRP) sites with Hazardous Waste Management Units (HWMU), Solid Waste Management Units (SWMUs); active and inactive IRP sites; Areas of Concern (AOCs) that may not yet have been funded for investigation; Military Munitions Response Program Units (MMRPs); RCRA 环境 Sites, 包括杂项单位及地盘筛选区
  • 环境 permits (Air, Hazardous Waste, Solid Waste, NPDES, 水的供应, etc.)以及这些许可证的状况
  • Additional environmental concerns (petroleum—underground storage tanks, 地上储罐, 其他大容量存储和使用), 石棉, 引领, 多氯联苯

The BECA is prepared for the benefit of the Government and is not released until it has been subject to an exhaustive review. Although the BECA is a rigorous environmental assessment, 它不是为开发人员准备的, and may not constitute a demonstration that the developer has performed All Appropriate Inquiry (AAI) into a property, and therefore may not qualify a developer to utilize the defenses to Superfund liability that are available under the Comprehensive 环境 Response, 《新黄金城》. The subject of CERCLA liability protection should be discussed with legal counsel, 但对于类似的交易, 在法律顾问的建议下, developers have contracted with Apex to perform a Phase I ESA subsequent to the preparation of the BECA. Phase I ESA preparation is important to note because failure to perform independent due diligence has the potential to result in exposing a developer to substantial environmental liability. A Phase I ESA performed on the developer’s behalf accomplishes:

  • 环境 due diligence is performed in the interest of the developer, 从而构成他们已经执行了AAI.
  • The information in the BECA is evaluated for accuracy and applicability to the development project.
  • Although the developer may be indemnified from being the Responsible Party (RP) for contamination known to exist or documented in the BECA, environmental issues may still result in significant development costs for the developer if not identified and planned for before beginning a project. These could include increased demolition costs due to the presence of 石棉, 引领 or other hazardous material; construction cost increases or delays due to the presence of petroleum or other storage tanks; construction cost increases or delays due to contaminated soil or water management; or other environmental management and health & 安全问题.

Preparing an independent Phase I ESA subsequent to the BECA can assist in planning for these potential issues and give the developer time to plan for and resolve these issues prior to beginning a project, thus ensuring budget and timing consistency for delivery of the end product, 及时且不超支的方式.

Apex Associated Press (顶点美联社) represents contributions from various authors within the Apex professional community.

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