FUTURE LAND USE COMMENTS

[Lenny Siegel <lsiegel@igc.org>]

From: Lenny Siegel <lsiegel@igc.org>

The following are my draft comments on the Department of Defense's 
(DoD's) draft policy on "Responsibility for Environmental Cleanup due 
to Changes in Land Use after Transfer," which I summarized in a posting 
on Wednesday, October 2. I am looking for feedback before I formally 
submit my comments to the Cleanup office later his month.
Lenny Siegel
 
I believe that the Department of Defense draft policy, "Responsibility 
for Environmental Cleanup due to Changes in Land Use after Transfer," 
has fundamental shortcomings that will in many cases seriously limit 
the use and reduce the value of former military properties.
When a community with land use planning jurisdiction and a transferee 
(which may be the same entity) accept institutional controls, in lieu 
of cleanup, they are letting the military "off the hook." Should the 
land use needs of the community and transferee change, I believe that 
the military has the responsibility to remediate the property to a 
level which is fully protective under the new land use or at least to 
the condition of the property when the military first gained ownership 
or control. I am willing to make an exception, however, when the terms 
of transfer - such as a discount in purchase price or a conveyance of 
infrastructure or buildings - compensate the transferee up front for 
the putative cost of cleanup, assuming that the planning jurisdiction 
approves of those terms.
This approach is both fair and practical. It is FAIR because it holds 
the polluter accountable for its mistakes. It is PRACTICAL in two ways: 
First, it allows the military to hold down costs by allowing natural 
attenuation to take place during the period of institutional controls. 
By the time the community seeks further cleanup, cleanup may have 
happened on its own. Second, communities are much more likely to accept 
institutional controls in lieu of full remediation when they know that 
the Defense Department is prepared to complete the job if and when that 
is necessary.
I am not so naive, however, to expect the Defense Department to agree 
voluntarily to this position. Therefore, I offer the following specific 
suggestions for modifying the draft policy.
1. Institutional controls should be accepted in lieu of cleanup only if 
those controls reinforce land use decisions made by the community and 
accepted by the transferee. Those decisions should be made through 
normal local channels, with full public participation. That is, only 
the local community, not the Defense Department, should make the 
decisions to restrict future land use. In fact, the Defense Department 
and its components should be prohibited from arguing for land use 
restrictions simply for the purpose of saving money on cleanup, with 
the exception of projects where cleanup is prohibitively expensive. 
Full disclosure is not enough. There is a big difference between 
cleaning up reuse and letting inadequate cleanup determine reuse, 
particularly since uses compatible with residual contamination tend to 
use and release hazardous substances themselves.
2. When contaminated property remains in federal ownership and is thus 
subject to institutional controls based upon land use decisions beyond 
the control of the local community, the Department of Defense should 
commit to return to complete additional cleanup (of its own 
contamination) should the property subsequently be transferred to the 
local community for a use beyond the federal institutional controls. 
This is clearly a concern in my community, at the former Moffett Naval 
Air Station, where institutional controls are being established 
consistent with NASA's continuing operation of the airfield. Should 
NASA abandon the airfield, additional study and different remedies may 
be necessary. We need an assurance that such activity will be funded 
and that the community will not be forced to accept the current use 
indefinitely or pay for cleanup that is rightly the responsibility of 
the federal government. At some sites, however, the community is likely 
to support institutional controls that are consistent with our future 
use objectives.
3. Where institutional controls on land use have been applied because 
remediation is technically impractical, prohibitively expensive, or 
environmentally hazardous, the Department of Defense should be 
prepared, upon request from the community or transferee, to return to 
carry out additional cleanup should new technologies be developed to 
overcome those obstacles. For example, on most properties contaminated 
with unexploded ordnance, institutional controls make sense. However, 
as new methods of investigation, clearance, and disposal are perfected, 
it will be possible to remediate (or simply determine safe) vast areas 
for less restricted or even unrestricted use. Under DoD's draft policy, 
there is no mechanism to trigger such activity.
4. The draft policy should specifically list Indian tribes along with 
state and federal regulatory agencies. I hope this is just an 
oversight. Not only should tribes' interests always be acknowledged in 
such documents, but their close connection to their remaining lands 
requires special attention. While people whose families have arrived on 
the continent within the last few hundred years usually can move away 
from contamination, native people's identity and culture is tied to 
both land ownership and customary subsistence rights.
 
I don't propose holding the military accountable for all of its 
contamination simply because the Pentagon has deep pockets. Most 
military bases were given to, sold cheaply to, or taken by the armed 
services in good condition. In fairness, their condition should be 
returned to their initial level of safety.
Community people, however, are willing to accept less than complete 
remediation should institutional controls provide safe use of the 
property, or portions thereof, based upon the community's own use plan.
However, there is serious reason to be concerned that some military 
officials will continue to argue against cleaning up to meet the 
standards based upon community-developed reuse plans, simply as a way 
to save money on cleanup. This will condemn a number of communities to 
uses which do not meet their economic needs - such as sham wildlife 
preserves - or which perpetuate various forms of pollution - such as 
heavy industry or civilian airports. In fact, the military may find 
local allies that are willing to use the military's preference for 
institutional controls to force undesirable land use choices on the 
rest of community. That is not the same as community-based reuse planning.
Communities are more than willing to propose or support institutional 
controls that save DoD time and money, but where those controls 
undermine local control of long-term land use, their level of 
cooperation drops dramatically.