9.4.5 Remediation Plans with Incomplete Removal of Contamination

A. If the LSTF authority determines that remediation to LSTF unrestricted criteria levels is infeasible, HUD may accept a Risk Based Corrective Action (RBCA) or other accepted remediation plan approved by the LSTF authority that allows for incomplete removal to LSTF restricted residential criteria levels.

B. Justification for incomplete removal of contamination must be submitted along with the remediation plan and must include documentation that shows that the cost of the incomplete removal of contamination, including any life cycle costs for Operation and Maintenance and any applicable enforcement requirements of LSTF authorities, are sufficiently below the costs of complete contamination removal, per Section 9.4.4 above.

• C. The RBCA or other accepted cleanup program report(s) must:

1. Meet all of the requirements of Section 9.4.3;

2. Discuss how the remediation plan complies with the regulatory procedures as discussed in Section 9.4.5.B, above;

3. Discuss how it meets or will meet all of the requirements of Section 9.4.5.D; and

4. Discuss how it meets or will meet all of the requirements of Section 9.4.6 through Section 9.4.10 (plus Section 9.4.11 through Section 9.4.13 if applicable).

• D. The RBCA or other accepted cleanup program must be supported by the applicable combination of:

1. Engineering and Institutional Controls (EC/IC) : An Engineering Control is a physical measure that reduces or eliminates exposure to contamination. An Institutional Control is a non-engineered instrument, such as administrative and legal control. ICs typically limit land and/or resource use or provide information that helps modify or guide human behavior at a site. An appropriate mix of ECs such as capping and slurry walls, and ICs such as protective covenants, access restrictions and tenant and employee notification, are usually required for all RBCAs or other accepted cleanup program as approved by the LSTF authority.[34] EC/IC may include:

   • Hard/Soft Cap Engineering Control : A hard cap EC, such as concrete, generally is required if any contamination will remain on the site after Final Endorsement. Unless the Lender can justify why a lesser depth to contamination would be protective of the health and safety of occupants, the depth of any remaining contamination should be greater than the deepest of the following:

• 1. the depth of the foundations of any existing or proposed structures including sumps;
• 2. the depth of any existing or proposed utilities on site; or
• 3. five feet below the surface.

HUD may allow for a soft cap (e.g. dirt) if other engineering controls such as an impenetrable geotextile fabric are included. If EC is not required for a soft cap, IC is still required.

34 Additional information about IC and ECs can be found on EPA’s website at https://www.epa.gov/superfund/superfund-institutional-controls-guidance-and-policy and https://www.epa.gov/sites/production/files/2015-09/documents/ec_information_guide.pdf.

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• Slurry Wall or Equivalent Engineering Control : A slurry wall or equivalent type EC may be required to prevent offsite contamination from migrating onsite or to prevent onsite contamination from migrating onsite or offsite. If the Phase I and/or Phase II ESA determines that the likely existence of off-site contamination presents a risk to the site, such a slurry wall or equivalent type EC will be required.

• Monitored Natural Attenuation and Enhanced Passive Remediation (MNA/EPR) : MNA/EPR such as by bio-augmentation where no additional active input is required and passive engineering controls such as a slurry wall may be allowed as part of the RBCA. In such cases, the LSTF authority must issue a conditional No Further Action Letter or similar approval. Monitoring wells pursuant to the above RBCAs and meeting the requirements of Section 9.4.6 will be required to monitor the progress of the remediation. When MNA/EPR is part of the RBCA or other accepted cleanup program, the remediation may continue beyond Final Endorsement provided that the LSTF authority has determined in writing that such undertakings would present no threat to health, safety or the environment.

• Vapor Encroachment/Vapor Intrusion Mitigation : If a VEC is present, as per an ASTM E260015 Tier 1 Vapor Encroachment Screen, then mitigation as discussed in ASTM E2600-15, Appendix X7 is required, unless a vapor intrusion assessment (VIA) has been, or will be, performed pursuant to LSTF policy and/or procedure. When remediation goes directly from a Tier 1 screen or a Tier 2 screen, such controls shall, where feasible, consist of a poured-on vapor barrier to be used in conjunction with active and passive venting systems.

• IC regarding groundwater contamination, if applicable, must be put in place.

  • HUD may require ICs beyond LSTF requirements in order to support the ECs and ensure protection of the residents throughout the term of the mortgage.

2. Operations and Maintenance (O&M) Plans : Any time there is an EC there must be an O&M plan. The O&M plan must be approved by the LSTF authority and must discuss any associated enforcement required by LSTF authorities. An O&M plan must be in place for management of all contamination remaining on the site and any controls thereof. If HUD determines that the mortgagor does not have sufficient capacity to manage the O&M plan, the mortgagor must contract an appropriate servicer to do so. The O&M Plan must ensure maintenance of any engineering controls and assign responsibility for that maintenance. (See Section 9.5 for guidance on cost determination.)

3. No Further Action Letter (NFA) : The LSTF authority must issue an NFA, or similar approval, except that a conditional NFA may be allowed pursuant to MNA/EPR (see Section 9.4.5.D.1.c).[ 35] The LSTF authority must indicate in the NFA that the remediation that has taken place or will take place protects the health and safety of occupants and does not conflict with the intended utilization of the property. Usually, this will be satisfied by a statement that the remediation meets LSTF residential use standards. The NFA must be submitted to HUD pursuant to the timeline required by Section 9.4.3.B.7 and Section 9.4.3.B.8.

4. Groundwater Requirement : A site is or will be otherwise acceptable if contamination exists in the groundwater after completion of remediation, if:

35 For a list of state approvals that meet MAP requirements, visit https://www.hudexchange.info/programs/environmental-review/housing/#faq.

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• IC regarding the groundwater is/will be put in place, along with approval by the LSTF authority, and any applicable enforcement requirements of LSTF authorities. The ICs must prohibit any and all uses of the groundwater. Municipal restrictions on groundwater may substitute for LSTF approval if the restrictions are included as an IC on the property deed and requirements of Section 9.4.5.D.2.b and Section 9.4.5.D.2.c are met;

• The highest anticipated levels of groundwater based on high groundwater and/or 100 year flooding events are below the levels of any construction or potentially anticipated utility work unless it can be shown how such high groundwater levels will not modify the horizontal and vertical extent of contamination to such a degree that it could affect the health and safety of residents and workers; and

• Any vapors from groundwater and/or soils are shown not to present a significant risk pursuant to Tier 1 vapor encroachment assessment, Tier 2 vapor encroachment assessment, vapor intrusion assessment, or mitigation.

5. Safety of and Disclosure to Residents and Workers : Any time contamination above LSTF unrestricted criteria is allowed to remain on site after initial occupancy and final closing, all maintenance workers who might perform activities that could compromise the EC/IC, construction workers, and building residents, etc. are to be informed of the general type and extent of contamination and the protective measures that have been taken. It would be up to residents to inform any of their visitors/guests of these conditions.

6. Hazardous Substance Quantification : If any RBCA or other accepted program remediation plan identifies hazardous substances (listed in 40 CFR 302.4) that will remain on the property after Final Endorsement, such plan shall determine the quantity of such hazardous substances and whether it equals or exceeds the levels indicated at 40 CFR 373.2(b). (This is information that HUD is required to report under CERCLA in the event that HUD will own the property or take over its management.)