Environmental Professional,
Environmental Site Assessment support: Indian Affairs (IA) is responsible for overseeing the acquisition of real property by IA offices and making decisions on all recommendations to acquire real property that could result in IA incurring associated liabilities or potential remediation costs. The role of the Environmental Professional is to make recommendations to the BIA on these acquisition matters.
The Environmental Professional must have specific education, training, and experience as set forth in 40 CFR 312.10(b) and 33 CFR 137.25. The AAI regulations require that AAI investigations, of which Phase I ESA is a critical component, must be conducted or supervised by an Environmental Professional that meets the specific requirements established in the CFR sections noted. For a complete list of standards, requirements, and procedures related to Environmental Site Assessments, please refer to 59 IAM 5, Section 1. The Environmental Professional is responsible for the following activities:
• Conduct Phase I ESAs and complete associated Phase I ESA documentation, review Phase I ESA documents, and provide the appropriate BIA Regional Director recommendations in situations where landowner liability protections are not sought under the AAI regulations, such that the BIA may use the conclusions of a Phase I ESA;
• Ensure that statutory and regulatory timetables are met, and that guidance is available to BIA regional and agency staff who are tasked with real estate and environmental activities; • Ensure that the Phase I ESA or Limited Environmental Due Diligence: Transaction Screen Process (LEDD/TSP) is completed in terms of technical accuracy and comprehensiveness; • Use the most current version of the American Society for Testing and Materials (ASTM) standards accepted by the Environmental Protection Agency (EPA) to meet the substantive requirements of 40 CFR Part 312, including (i.e., ASTM E1527 (for commercial real estate) and ASTM E2247 (for forestland or rural property));
• Collaborate with the BIA Branch of Environmental Services staff, BIA Regional Environmental Scientists and staff, and other DOI programs, as appropriate, such as the Office of Environmental Policy and Compliance (OEPC) for: a. Assistance in interpreting and implementing the requirements of this policy; b. Seeking additional guidance on land acquisitions (e.g., environmental compliance memoranda), as appropriate; c. Receiving updates to ASTM standards consistent with the EPA’s AAI requirements.
• In coordination with the COR, on occasion, consult with the Office of the Solicitor (SOL) for: a. Obtaining legal review and guidance for proposed real property acquisition(s) including, but not limited to, advice with respect to potential legal enforcement by third parties and evaluating whether the Department’s defenses for liability under CERCLA or OPA should be or have been adequately preserved; b. Obtaining legal review and guidance to structure the instrument for land acquisition, whether it is a deed, statute, or interagency agreement, to minimize, whenever possible and appropriate, the Department’s and IA’s exposure to associated liabilities and potential costs of remediation; c. Obtaining legal review concerning the applicability of this policy and its requirements to site-specific acquisitions and language in specific agreements (e.g., easements, environmental covenants, deed restrictions, indemnity agreements, and other interests), as well as language of specific withdrawal agreements in which liability could arise; and d. Obtaining legal review of acquisitions that require AS-IA approval.
