Site Contamination

Introduction

It is HUD policy, as described in 24 CFR Part 50.3(i) and 24 CFR 58.5(i)(2), that:

  1. All property proposed for use in HUD programs be free of hazardous materials, contamination, toxic chemicals and gasses, and radioactive substances, where a hazard could affect the health and safety of occupants or conflict with the intended utilization of the property.
  2. Environmental review of multifamily and non-residential properties shall include evaluation of previous uses of the site and other evidence of contamination on or near the site, to assure that occupants of proposed sites are not adversely affected by the hazards.
  3. Particular attention should be given to any proposed site on or in the general proximity of such areas as dumps, landfills, industrial sites, or other locations that contain, or may have contained, hazardous wastes.
  4. The responsible entity shall use current techniques by qualified professionals to undertake investigations determined necessary

It is therefore essential that responsible entities, potential grant applicants, and other HUD program participants become familiar with the potential environmental issues involving property before leasing, optioning, and/or acquiring the property. Unknowing individuals or parties that acquire contaminated property with good intentions could face liability for clean-up costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), third party lawsuits, and costly delays in implementing the project.

HUD Guidance

Were any on-site or nearby toxic, hazardous, or radioactive substances found that could affect the health and safety of project occupants or conflict with the intended use of the property?

Sites known or suspected to be contaminated by toxic chemicals or radioactive materials include but are not limited to sites: (i) listed on an EPA Superfund National Priorities or CERCLA List, or equivalent State list; (ii) located within 3,000 feet of a toxic or solid waste landfill site; or (iii) with an underground storage tank. For any of these conditions, the grantee must provide an ASTM Phase I report.

FHA-insured projects should refer to program guidance and to Chapter 9 of the MAP (Multifamily Accelerated Processing) Guide to comply with toxics and site contamination. Non-FHA projects should identify the potential for hazardous substances or materials that may affect the health and safety of the users of the property as follows:

  • Review databases maintained by U.S. EPA and  state, local, and tribal environmental quality departments or agencies to screen for potential on-site and off-site facilities that could pose health and safety problems and toxic clean-up sites that are presently under analysis or remediation.
  • Investigate previous uses of the site. Site inspections and building and use permit records as well as Sanborn Co. maps show previous land uses which could have left toxic residues. Other methods of evaluation include performing a site walk, interviewing property owners or managers and local officials, and analyzing local land use records, permits, and violations.
  • When site conditions indicate that the subject property is contaminated or likely contaminated by toxic substances, hazardous materials or petroleum products, one shall provide an ASTM certified Phase I ESA report, or other studies where applicable. Any hazards that are identified should be evaluated for the potential to affect the health and safety of the occupants and end-users. Contact your local HUD field environmental officer for further technical assistance in this regard.

Can adverse environmental impacts be mitigated?

Use mitigation to prevent the hazard from affecting the health and safety or project occupants, or remediate the contaminated property and work with the appropriate state agency.

Compliance and Documentation

For non-FHA-insured programs, the environmental review record should contain one of the following:

  • Evidence the site is not contaminated (for multifamily housing projects this includes on site and off site contamination and previous uses of the site); a Phase I Environmental Site Assessment is strongly encouraged for multifamily and non-residential projects
  • Evidence supporting a determination the hazard will not affect health and safety of the occupants or conflict with the intended use of the site, including any mitigation measures used
  • Documentation the site has been cleaned up according to EPA or state standards for residential properties, which requires a letter of “No Further Action” (NFA) required from the appropriate state department/agency, or a RAO letter from the LSRP

View Site Contamination (Single Family) - Worksheet.

View Site Contamination (Multi-Family) - Worksheet.

View Site Contamination (Single Family) - Partner Worksheet.

View Site Contamination (Multi-Family) - Partner Worksheet.