9.4.3 Remediation Response Planning

A. Remediation plans are required if the Phase II ESA concludes that hazardous waste or petroleum products are present at levels that exceed LSTF unrestricted (de minimis) criteria, and/or that it is likely that known or expected off-site contamination will migrate on to the site.

• B. The following requirements apply to all remediation plans:

1. A site characterization must be prepared.

   • Anytime a site has been identified from a Phase I or Phase II ESA as having contamination (or contamination exposure pathways), be it vapor (gas), liquid, solid, dissolved, or non-aqueous phase liquid (NAPL) above LSTF residential/unrestricted criteria, a site characterization (sometimes known as a special site assessment report, a remedial investigation report, a detailed Phase II ESA, or a Phase III ESA) must be prepared as the initial step of any remediation plan.

   • It must determine the total nature and distribution of such contamination, exposure pathways, and potential receptors (a.k.a., a conceptual site model). However, if the remediation plan preparer determines that the Phase II ESA preparer has already determined the nature and distribution of such contamination, exposure pathways and potential receptors, then such determination shall be so indicated, and the Phase II ESA shall be made a part of the remediation plan.

   • It must be based on LSTF requirements, or on the appropriate combination of ASTM Practices and Guides, as determined by the remediator’s environmental investigator.

2. Any remediation studies and plans must be in the form of a report which includes a detailed, common language summary.

3. The remediation plan preparer’s qualifications must be discussed in any remediation reports.

4. The remediation plan must cover all relevant contaminant phases: vapor (gas), liquid, solid, dissolved, and NAPL.

5. The remediation plan must require either the removal of contamination to LSTF unrestricted criteria pursuant to Section 9.4.4 or incomplete removal of contamination to restricted residential levels in the form of a Risk-Based Corrective Action or other accepted cleanup program pursuant to Section 9.4.5.

6. Any remediation studies and plans must be submitted to HUD with the pre-application or, if the preapplication stage is omitted, with the application for Firm Commitment. Evidence of approval of the

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remediation plan by the LSTF authority must be submitted with the Application for Firm Commitment. For Lenders using the pre-application process, HUD will review remediation plans before an invitation letter is issued.

7. HUD may require that the project implement the remediation plan, including completing clearance testing and obtaining No Further Action letters from the LSTF, prior to HUD issuing the Firm Commitment. In these cases, the remediation work cannot take place until HUD completes the HEROS review and approves an early start as per Chapter 12 or pre-endorsement improvements as per Chapter 5, Section 5.8.

8. If the extent and cost of removing the contamination can be definitively determined, and the cost of removing that contamination can be specified pursuant to a contract for remediation (see Section 9.5), HUD may allow a remediation plan that has been approved by the LSTF authority as long as:

   • It permits the remediation including site testing, any clearance and closure documents, and the approval by the LSTF, prior to Initial Endorsement (as long as HEROS is complete and HUD has approved an early start as per Chapter 12), or

   • If the Lender can show why it would be impractical to complete remediation prior to Initial Endorsement, it permits the remediation including site testing, any clearance and closure documents, and the approval by the LSTF, prior to Final Endorsement and initial occupancy.

9. All residents living regularly and construction workers working regularly on site while remediation is taking place shall be informed of the remediation activities and protected from any potential contamination. This requirement must be a part of the remediation plan.

10. Unless HUD determines otherwise, the remediation contract shall require cost cap and reopener insurance coverages, copies of which are to be included in the remediation plan.

11. If remediation is taking place or has been completed but has yet to receive approval by the LSTF at the time of submission of the Phase I ESA, the remediation plan and all remediation studies shall be submitted, along with a detailed common language summary, at the same time as the Phase I ESA.