Institutional Controls at BRAC Sites: The Next Battleground

Introduction

Communities across the nation are facing the looming economic impact of the largest round of base closures ever. The key to successful redevelopment and reuse of these bases is the local community’s ability to get the land transferred to the local government or a developer quickly. This can be done through either a Finding of Suitability to Transfer (FOST) or a Finding of Suitability for Early Transfer (FOSET). Current rumors in Washington suggest that there will also be more direct transfers to master developers in this next round of BRAC transfers. Whichever mechanism is used, one key question remains: who will be responsible for implementing, monitoring, maintaining, and enforcing the institutional controls (ICs) that are a critical part of the cleanups at many of these sites.

Institutional controls, also known as land use controls (LUCs) or Activity and Use Limitations (AULs) or Environmental Covenants, are necessary whenever a site is cleaned up to a level that is not safe for unrestricted use and unrestricted exposure (UU/UE). In order to transfer more sites more quickly in this next BRAC round, it is expected that local redevelopment authorities (LRAs) and developers will face increasing pressure by the Department of Defense (DoD) to use institutional controls as part of their cleanups. An often unasked question is who will bear the burden of implementing, monitoring, maintaining, and enforcing these controls as long as they may be needed.

At many previously closed BRAC sites, the Department of Defense (DoD) is already pressuring LRAs and their master developers to accept certain land use controls and “deed restrictions” prior to transfer of the property for ultimate reuse. Most of these formerly active military facilities have serious environmental contamination issues associated with them, including soil contamination, solvent-laden ground water plumes, radiation, and unexploded ordinance. In some cases, the contamination at these facilities has caused them to be listed on the National Priorities List (NPL) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as “Superfund” sites. So, who should be responsible for the contamination, who should manage the residual liability issues (frequently in perpetuity), and most importantly, who should pay?

An Overview of Institutional Controls

Institutional Controls (ICs) are designed to protect human health and the environment when risk-based clean ups are used that have allowed some amount of residual contamination to remain on a site. IC mechanisms limit human exposure by restricting the types of activities and uses that are permissible and by restricting access to areas where residual contamination may be located. ICs may also impose affirmative obligations, such as the obligation to inspect a landfill cap or to operate a ground water pump and treat system.

ICs can include a variety of legal and administrative mechanisms. ICs are considered to be part of the remedy and should be evaluated for their effectiveness and reliability in the same manner as other elements of the cleanup remedy. See ASTM E 2091-00, Standard Guide on the Use of Activity and Use Limitations, Including Institutional and Engineering Controls.

There are four basic types of ICs:

• Proprietary controls (i.e., property law devices)
• State and local government controls
• IC elements of orders and permits
• Information devices, such as notices and advisories

See generally ASTM E 2091-00, supra, and EPA’s Institutional Controls, A Site Manager’s Guide to Identifying, Evaluating, and Selecting Institutional Controls at Superfund and RCRA Corrective Action Cleanups (September 2000).

Proprietary controls include environmental restrictions, covenants or easements. These controls are created pursuant to the property laws of a state and are sometimes (inaccurately) referred to as “deed restrictions”. They “run with the land” and thereby bind future owners and tenants. However, they are subject to a number of antiquated common law doctrines (e.g., horizontal and vertical privity, appurtenant interests, etc.) that sometimes make their implementation and enforcement difficult.

State and local government controls are another type of IC. These controls include local zoning; building permits that specify building requirements such as the need to install vapor barriers, and whether one should build in a given area at all; and excavation or “dig” permits that can specify what types of worker safety precautions must be followed during sub-surface activities. EPA has concerns about the long-term reliability of local government controls. See Site Manager’s Guide, supra.

ICs can also be contained in government orders and permits, such as RCRA corrective action orders or Superfund consent decrees. These requirements are binding only on the parties to the order or permit and do not “run with the land”.

A fourth category of ICs is informational devices, such as water advisories and periodic notices to tenants and occupants. These can be a practical way of reminding site occupants and users about residual contamination, but they contain no enforcement “teeth”.

A related issue is engineering controls (ECs). ECs are frequently a critical part of the remedy and are specified in the final Record of Decision (ROD) or equivalent remedy decision document.  The need to implement and maintain ECs should be reflected in the IC instrument as well. ECs can include fencing, asphalt paving, surface landfill-type caps, and the need to install vapor barriers and/or special ventilation systems inside buildings that are located over contamination with a potential shallow soil gas/indoor air inhalation risk issue. Quite a quagmire of controls can be placed on a single property.

Complications Caused by the “How Clean is Clean Enough” Dilemma

There frequently are disagreements between some State and Federal regulatory agencies as to what clean up standard satisfies an unrestricted use/unrestricted exposure (UU/UE) level (sometimes referred to as “residential” level) and whether DoD should be responsible for cleaning up some naturally occurring substances. Some states have opted for more stringent clean up levels than the federal standards. There have been incidents where State and Federal disputes took years to resolve, and still there was distrust and frustration amongst the agencies. For example, the federal carcinogenic cumulative risk for unrestricted use is 1x10^-6. However, the State of California’s carcinogenic cumulative risk for unrestricted use is 1x10^-4. You can quickly see where problems are bound to arise. In other cases, it has been difficult to remediate a property that has elevated levels of naturally-occurring contaminants (heavy metals, asbestos, etc.). In essence, DoD is being asked to clean up soil and/or groundwater to less than normal background levels.

Lastly, the issue of clean up needs to include the evaluation of what is economically or technically feasible.  At former military bases that were primarily used for heavy industrial operations, it doesn’t make economic sense to attempt a large-scale clean up to a residential land use standard. Instead, these properties can be cleaned to, or are already at, an industrial level which is still protective to human health and the environment, and allows the land to be put back into productive reuse as a business/industrial park or airfield. Consider the alternative: a closed military base that is simply fenced and locked up. Not only is it an eye sore and potentially an “attractive” nuisance, but it’s a waste of often valuable land located within an urban infill area. The cost to clean up the site must be reasonable and appropriate.

So, how long do ICs/LUCs need to exist on a property with residual contamination? These restrictions will generally need to be in place in perpetuity or until the site has been remediated to an unrestricted use/unrestricted exposure level. The IC can be drafted to expire after a given period of time (e.g., if the contamination is expected to naturally attenuate after a given period of time), or it can be modified via a variance or termination request. In states that have adopted the Uniform Environmental Covenants Act (UECA), the process for modifying or terminating a control is spelled out very clearly via statute.

The Times Have Changed

In the past, DoD (for the most part) was agreeable to assuming the cost and burden of cleaning up these former military bases, including the cost of funding ICs/LUCs. Both State and Federal regulatory agencies accepted this as the norm since DoD was the responsible party and had entered into agreements for site remediation and restoration. But the cost of clean up is sky high and it’s getting higher. DoD is now looking at getting properties conveyed more quickly and completing site cleanups faster and cheaper. So what does this mean to LRAs, developers, and local communities? Trouble. DoD has made a policy move toward firm-fixed price and performance based contracting, privatized remediation, and of course applying more ICs/LUCs instead of unrestricted use remediation. DoD is expecting local communities to absorb much of the cost and burden of implementing, monitoring, maintaining and enforcing these ICs/LUCs at closed bases. It is the way that DoD will likely do business in future rounds of base closures.

Many former military facilities were transferred/conveyed via a “No Cost” Economic Development Agreement (EDC).  But as we all know, there is no such thing as free. At the former McClellan Air Force Base (McClellan) in Sacramento, CA, the “no cost” EDC that was entered into in August of 1998, will end up costing the County of Sacramento and the master developer, McClellan Business Park, LLC., close to $185 million dollars in infrastructure improvements and replacement costs. That’s a pretty big investment for a “no cost” EDC. However, in light of the next round of base closures, DoD now sees “no cost” EDCs as a thing of the past and is currently promoting the idea of selling these properties for fair market value. In DoD’s opinion, the way property values are skyrocketing across the nation, they may be able to actually make money on the sale of surplus military base real estate, depending on their environmental condition of course. Local communities and developers will need to know how to factor in the complete cost of cleanup (including funding for the full life-cycle cost of ICs) as part of their bids.

The Case Study: Former McClellan Air Force Base, California

The 2,952-acre former McClellan Air Force Base (McClellan) located in California was operated for more than 60 years as an industrial military facility that served as an Air Force Logistics Command Base with a primary mission of management, maintenance, and repair of aircraft, electronics, and communication equipment. These operations involved the use, storage, and disposal of hazardous materials including industrial solvents, caustic cleansers, paints, metal plating wastes, low-level radioactive wastes, and a variety of fuel oils and lubricants. While McClellan was announced for closure in the 1995 Base Realignment and Closure (BRAC) round, it wasn’t officially closed until July, 2001. Closure of McClellan resulted in loss of 23,000 jobs throughout the Sacramento region (11,600 jobs were located at McClellan).

The Base Reuse Plan that was adopted by the LRA in 2000 serves as the bible for the redevelopment process at McClellan.  This extremely important document details how planned mixed-use redevelopment will be compatible with past uses of the former base and contains: an industrial business park, active airfield with aviation support services, educational campus, commercial office/retail hub, recreational park, nature preserve, and low income housing. McClellan is one of the largest economic development projects in northern California, ultimately creating up to 34,000 new jobs on-site. However, due to the complex environmental contamination issues, much of the land at McClellan remains on the Air Force’s books.

To date, 372-acres (less than 14 percent) of McClellan property has been conveyed to the LRA. The legal mechanisms used to transfer property found to be only impacted by the groundwater contaminant plume were Finding of Suitability to Transfer (FOST) or Public Benefit Conveyance (PBC) documents. Reuse success at McClellan has been realized by long-term and interim leasing of a total of 2,333-acres. Currently, the first “dirty parcel” transfer totaling 95-acres under a Finding of Suitability for Early Transfer (FOSET) is awaiting approval by Governor Arnold Schwarzenegger. However, the issue of who will be responsible for implementing, monitoring, enforcing and funding ICs/LUCs has not been resolved and the FOSET is unlikely to be signed by the Governor until this issue has been resolved.

Another issue is the fact that state and local regulatory agency resources are insufficient to keep up with the amount of work associated with evaluating and approving Air Force documents and reuse priorities. When a concern arises, it generally takes a long time to bring the appropriate, high-level people together from the various stake holder parties which have decision making authority.

In addition, the post-ROD role of the different regulatory agencies is currently being debated between EPA and the Air Force in Washington. At issue is whether EPA or the State could raise a formal dispute over an issue that arises after the ROD has been signed. A formal agreement as to regulatory agency oversight cost recovery has not been agreed upon, either. While EPA is pressing for the increased use of Land Use Control Implementation Plans (LUCIPs) to be contained in enforceable documents, the Air Force has insisted that it does not want to embody any language about ICs/LUCs in “enforceable” documents. These disagreements will directly impact how ICs will be effectively implemented and managed in the future.

Lastly, at McClellan there are differences between State and Federal clean up standards for unrestricted land use. Some of the remedial goals involve CERCLA Applicable or Relevant and Appropriate Requirements (ARARs), while others involve risk characterization methods and risk management. For example, risk-based cleanup and reuse standards for the vapor intrusion (shallow soil gas) issues are currently very controversial at McClellan and nationally. A number of issues involving the installation of vapor barriers as an engineering IC have been raised and there is ongoing debate as to post-ROD enforcement roles and long-term IC management including reliable funding.

Where Do We Go From Here?

At McClellan, the current Air Force regime does not want to retain responsibility for ICs/LUCs following property transfer. The Air Force has made it clear that, once fee title conveyance has occurred, the responsibility for implementing, managing, enforcing, and paying for ICs/LUCs should be passed to the new property owner. On one hand, the McClellan conveyance via an “early transfer” under a FOSET is pre-decisional and pre-ROD. However, a component of the ROD is the remedy selection in which the Air Force will detail how they plan to clean up the contamination while continuing to protect human health and the environment. In many cases, the Air Force is looking to ICs/LUCs as the only remedy.

In addition, under CERCLA, the Air Force is required to review every five years the remedies that have been selected at Superfund sites to ensure that all remedies are functioning properly and reasonably (i.e., “operating successfully”). EPA has recently announced in the EPA Strategy to Ensure Institutional Control Implementation at Superfund Sites (October 2004) that it intends to use the five year review mechanism aggressively to be sure that ICs have been properly implemented, monitored and maintained at sites where they have been selected as an integral part of the remedy. It is unclear how EPA’s Strategy will be reconciled with the Air Force’s position that it has no continuing obligation to ensure that ICs have been implemented and are operating successfully.

Show Me the Money

No one yet has a good handle on the true long-term cost of implementing, monitoring, maintaining and enforcing ICs. EPA is developing guidance on the life cycle costs of ICs but has not yet announced the anticipated date by which this guidance may be available. It will be difficult to pre-fund these long term obligations, even if the Air Force is willing to do so, if communities don’t have a good sense of the true long term cost of monitoring and maintaining these controls. Without further guidance, the burden of implementing and maintaining ICs is likely to fall on local communities.

It is expected that approximately 22% of existing DoD resources will be closed or realigned during the 2005 BRAC round, and a number of these facilities will have serious environmental contamination. At a cost of millions, can DoD afford to clean up all these properties to their pre-inhabited condition without going bankrupt? One could easily speculate no; on the other hand, could the savings from closing former military installations be utilized to finance cleanup? At any rate, it is unreasonable for DoD to look to local governments and communities to bear the IC/LUC cost burden, especially when these entities did not cause the contamination in the first place. Maybe the answer lies in DoD looking at establishing perpetual-care trust funds and cooperative agreements to address their future IC/LUC responsibilities.

The Prospects for Future BRAC Rounds

So what is in store for future base closures? One thing is for sure: DoD will be counting its pennies and wanting to save money wherever it can. There will be an increased emphasis on privatized cleanups and public auctions. There will be huge interest in transferring parcels early -- prior to cleanup. Such transfers should be done knowingly with an objective evaluation of the magnitude of the environmental issues and a fair allocation of the true long-term costs of implementing, monitoring, maintaining and enforcing ICs.

For local communities that will be adversely impacted by these closures, it will be important to get involved early, become as knowledgeable about the process as possible, and above all else, speak with a united voice. From an economic perspective, local governments and LRAs will need to be a bit more savvy and cautious when it comes to drafting and signing property transfer and conveyance documents, IC/LUC documents, retained conditions, and investment strategy agreements. This will be an area where you should actively seek the counsel and guidance of those who have tread these troubled waters before you.