The contamination policy in a HUD environmental review

Two sections of Title 24 of the Code of Federal Regulations state how the Department of Housing and Urban Development (HUD) treats contaminated sites: 24 CFR 58.5(i)(2), for a review by a responsible entity, and 24 CFR 50.3(i), for a review by HUD itself. Each says property proposed for a HUD program is to be free of contamination and three other named hazards wherever a hazard could affect occupants or the intended use. Each has the environmental review of multifamily and non-residential property evaluate past uses and other evidence of contamination (part 58 says or). Neither names a Phase I Environmental Site Assessment (ESA).

Who the rule binds

The responsible entity, under part 58. The policy is one item in part 58's list of related laws, for which the responsible entity "must certify that it has complied with the requirements that would apply to HUD under these laws and authorities" (24 CFR 58.5). Its environmental review record must document that compliance (24 CFR 58.38(a)(3)). Part 50 or Part 58 says who that entity is.
HUD, under part 50. Part 50's policy section speaks of the "HUD environmental review" (24 CFR 50.3(i)(2)).
Which property. The policy reaches "all properties that are being proposed for use in HUD programs" (24 CFR 58.5(i)(2)(i)). The evaluation requirement is narrower. Part 58 names "multifamily housing with five or more dwelling units (including leasing), or non-residential property" (24 CFR 58.5(i)(2)(ii)). Part 50 names "multifamily and non-residential properties", with no unit count (24 CFR 50.3(i)(2)). The sentences on nearby waste sites and investigations carry no such limit.
Which activities. In part 58 the policy applies wherever 58.5 does: not to an exempt activity, and not to an exclusion of 58.35(b) unless extraordinary circumstances bring the whole part back (24 CFR 58.34(a), 58.35(b), (c)). See levels of HUD environmental review.

The reviewing party decides: the responsible entity under part 58, the HUD approving official under part 50 (24 CFR 58.5, 50.11(a)).

What it asks

In the order of 58.5(i):

The part 51 standards. First come the "Applicable criteria and standards specified in part 51 of this title" (noise, explosive and flammable hazards, airport clear zones), less the runway clear zone notice to buyers, which 58.6(d) states (24 CFR 58.5(i)(1)).
The policy. Property proposed for HUD programs is to be free of four named hazards wherever a hazard could affect occupants' health and safety or conflict with the intended use (24 CFR 58.5(i)(2)(i)). The sentence, quoted below, sets no concentration, screening level or distance.
The evaluation. For those property types the review "must include the evaluation of previous uses of the site or other evidence of contamination on or near the site", so that occupants are not harmed by those hazards (24 CFR 58.5(i)(2)(ii)).
Nearby waste sites. 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" (24 CFR 58.5(i)(2)(iii)). The text gives no distance for proximity or for near.
Investigations. "The responsible entity shall use current techniques by qualified professionals to undertake investigations determined necessary" (24 CFR 58.5(i)(2)(iv)). The paragraph does not say who determines one necessary, what it consists of, or what makes a professional qualified.

Part 50 differs at these points:

The policy sentence reads "all property proposed for use in HUD programs" (24 CFR 50.3(i)(1)).
The review "shall include evaluation of previous uses of the site and other evidence of contamination" (24 CFR 50.3(i)(2)). Part 58 says must and joins the two with or.
Attention goes to locations "that contain hazardous wastes", without part 58's "or may have contained" (24 CFR 50.3(i)(3), 58.5(i)(2)(iii)).
The last duty falls on HUD, which "shall require the use of current techniques by qualified professionals" (24 CFR 50.3(i)(4)).
Part 50's list of related laws names the part 51 standards and not this policy (24 CFR 50.4(k)).

What it means for the Phase I and the consultant

Four facts are decisive under the rule: the site's previous uses; other evidence of contamination on or near it; nearness to dumps, landfills, industrial sites and hazardous waste locations; and whether a hazard could affect occupants or the intended use. A Phase I ESA under ASTM E1527-21 gathers much of the first three and does not set out to answer the fourth.

What it gathers. The standard has the obvious uses of the subject property traced back to its first developed use or to 1940, whichever is earlier, and those of adjoining properties identified (E1527-21, 8.3.8, 8.3.9). Government records are searched for the property and set distances around it, landfill and hazardous waste facility lists among them (E1527-21, 8.2.2, Table 2; search distances).
A different question. The Phase I looks for recognized environmental conditions, which concern petroleum products and hazardous substances as the federal Superfund law (CERCLA) defines them (E1527-21, 1.1.1, 3.2.36). Neither part's definitions section defines the rule's hazard words; part 50's sends most key terms to 40 CFR part 1508 and the laws 50.4 cites, CERCLA included (24 CFR 50.2(a), 50.4(i)(2), 58.2).
What the standard leaves out. It includes no sampling (E1527-21, 7.4). Its non-scope list names asbestos in building materials and lead-based paint (each where unrelated to a release), health and safety, and naturally occurring radon; none is required, and each may be added by agreement with the user (E1527-21, 4.4, 13.1.2, 13.1.5). The regulation does not say whether any of them is one of its four hazards.
The opinion and the report. The standard's opinion on additional investigation is the professional's (E1527-21, 12.8); the regulation does not say it settles which investigations are necessary. Under part 58 the review's source documents go in, or are incorporated by reference into, a record that "shall be available for public review"; proprietary material or a special study prepared for the recipient, unless otherwise generally available, must go in (24 CFR 58.38). Under part 50 HUD staff may use an applicant's or contractor's studies "provided HUD independently evaluates the information" and answers for its accuracy (24 CFR 50.32).

What the rule says

Also, it is HUD policy that all properties that are being proposed for use in HUD programs be free of hazardous materials, contamination, toxic chemicals and gases, and radioactive substances, where a hazard could affect the health and safety of occupants or conflict with the intended utilization of the property.

24 CFR 58.5(i)(2)(i), edition revised as of April 1, 2025

This page is general reference for environmental professionals. It does not review any project. The regulation is the authority, and the determinations of HUD or of the entity responsible for the review govern.