Re: DoD Future Land Use

[Lenny Siegel <lsiegel@igc.org>]

James Connell's question about the applicability of the Defense 
Department's [DOD's] Future Land Use policy to active bases is a good 
one, and the answer is extremely complex. Here is my first attempt at a 
response, but I invite military and regulatory agencies to clarify how 
they think the policy applies.

1. The distinction is not between BRAC [Base Realignment and Closure] 
and DERP [Defense Environmental Restoration Program] sites. The are a 
number of recent base closures that have occurred independent of the 
BRAC process (we have several in California). They are being addressed 
under DERP, but the policy clearly covers them.

2. A RAB is formed if the community petitions for one, if local 
government requests it, or the military decides to do it anyhow. In 
practice, the Navy and Air Force have created RABs wherever they could 
drum up interest, but the Army hasn't been as aggressive at non-BRAC 
installations.

3. The military and regulatory agencies are trying to develop a federal 
counterpart to a deed restriction, since there is no deed for federal 
property. How can the armed services be held to the terms of an 
institutional control on their own property? Right now there is no 
enforceable vehicle.

4. Other than munitions ranges - which will probably be handled 
differently - and landfills, it's not clear how much acreage will 
suffer a land use-based remedy. In a majority of cases, I think that 
groundwater contamination, not future use, drives the soil remediation 
strategy.

5. There have not been many sites (individual areas within larger 
installations) cleaned up to restricted-use standards prior to the 
initiation of the transfer process, so we don't really know what DOD's 
practice or the regulatory response will be.

6. As I understand current policy, DOD would review property proposed 
for transfer. If any parcel has not been cleaned to standards required 
for unrestricted use, it would seek to get the prospective owner to 
agree to the institutional controls that restrict that use. The new 
owner could agree to the restrictions, the owner could refuse and DOD 
could refuse to make the transfer, or the owner could pay for 
additional remediation. DOD will not conduct additional cleanup simply 
to enable new uses.

7. However, where DOD's prospective departure would cause the remedy to 
fail, then DOD is obligated, under its policy, to carry out additional 
cleanup. That is, if the removal of security patrols allows children to 
wander into areas left with contamination, then DOD may be obligated to 
remove that contamination.

8. EPA and state regulators have the statutory authority and obligation 
to review transfers. They don't necessarily agree with DOD's policy or 
its implementation.

9. At a certain point, the process becomes political, with the local 
community/government demanding property for new uses and DOD facing the 
long-term costs of holding on to closed bases. I assume there will be 
situations where DOD voluntarily does more cleanup, but the "FLU" 
policy doesn't seem to authorize that. Before the FLU policy was 
written, some military cleanup officials suggested that they would 
review their remedies at transfer, but I don't see that in the policy

10. The situation is different where DOD transfers property to another 
federal agency, since the law does not compel cleanup before such transfers.

11. Communities (RABs) have every incentive to insist upon cleanup to 
unrestricted levels at active bases because they might never be given 
another shot at remedy selection.

Lenny