ACTIVE BASE INSTITUTIONAL CONTROLS

[Lenny Siegel <lsiegel@cpeo.org>]

INSTITUTIONAL CONTROLS AT ACTIVE MILITARY BASES

Permanent institutional controls - "non-engineering mechanisms,
particularly legal measures, design to limited activities or
access at a particular site" - are increasingly being relied
upon where remediation by itself is not sufficient to protect
human health and the environment. Risk is controlled by denying
receptors - people or sensitive species - access to the site or
interrupting contamination pathways.

At non-federal properties, including closing military bases,
there are a number of standard, but weak legal tools, such as
deed restrictions, that are designed to ensure that the controls
remain in place. At federal properties there is no deed,
however. And the top managers of military bases - the base
commanders - rotate in and our every two or three years, so one
can't rely upon continuous, responsible management.

To create of system of institutional controls that will work at
active military bases, the California Military Environmental
Coordination Committee (CMECC) established a Performance Action
Team, made up of representatives of CMECC's member agencies: the
Army, Navy, and Air Force, plus Cal-EPA and U.S. EPA's Region 9
office. They have just produced a document, the "Institutional
Control Protocol at Active Bases."

The Protocol is a good effort. The agencies have attempted to
structure a mechanism that is flexible enough to work in a wide
variety of situations. However, even more than private legal
restrictions at private sites, the instruments it recommends are
not airtight. I consider remedies that rely upon institutional
controls acceptable only when 1) there is no viable alternative
or 2) the geography or other permanent site conditions reinforce
the restrictions.

Furthermore, since many of today's active bases are likely to
close or downsize in the future, communities may be faced with
the opportunity to receive properties only if they accept
institutional controls that were adopted when the military had
unchallenged planning authority over the land. We don't really
have much experience with bases being remediated with
institutional controls before the decision is made to close. I
have heard high-ranking military representatives say that it's
their duty to come back and reconsider their cleanup based upon
new uses, but I know of no policy requiring additional cleanup
based upon future transfer and reuse. Moreover, I'm concerned
that by the time such transfers are proposed, the military
cleanup programs will have ramped down. There might not be the
capacity to re-open cleanups, particularly where use limitation
have reduced public exposure to contaminants.

The CMECC protocol calls for recording institutional controls in
the Base Master Plan (BMP) of a military installation, if it is
verified that the BMP is used by the facility owner for land use
planning and project approval. If the BMP is not suitable or
sufficient, regulators can sign a Memorandum Agreement with the
installation.

In addition, CMECC says that the controls should be included in
the Record of Decision (ROD) or Response Action Plan (RAP)
governing site cleanup. If cleanup is carried out as a "removal"
or interim remedial action, a final ROD or RAP should be written
to incorporate the controls. These cleanup documents should
"identify specific conduct that is prohibited as well as
activities that are prohibited in order to preserve the
effectiveness of the remedy."

The parties to the RAP or ROD should also consider the
construction of permanent markers, such as landmark-style
plaques, that describe the prohibited conduct .

If the Defense installation wants to change a use in
contradiction with the legal restrictions, it should notify the
regulatory agencies at least 60 days prior to implementation. If
the regulators determine that the anticipated land use change
"necessitates a modification to the selected remedy," they
should notify the base in writing within 30 days, explaining
what type of document that the installation should submit. The
regulators should request concurrence, "taking into account the
need to minimize any adverse impact upon military operations."

Such major changes in land use, according to the protocol, may
include scenarios such as full-time worker presence at a site
previously only visited by caretakers, the construction of
housing, schools, hospitals, or day care centers on industrial
or recreational land, or excavation at a landfill. (This is not
a complete list.)

The protocol also states, "The ROD or RAP should provide that
the DOD installation will verify maintenance of the
institutional controls through the CERCLA 5-year review
process..." Where transfer is anticipated, "the institutional
controls should be reviewed and incorporated as part of the FOSL
[Finding of Suitability of Lease] and FOST [Finding of
Suitability of Transfer] procedures ...Any institutional
controls in place at the time the property is transferred or
leased should be set forth as restrictions on the property."

That last statement seems to imply that the cleanup approved in
consideration of the military use of the property may be all
that the Defense Department will do, even if the base closes
later. If that's the case, community members, such as RABs, have
no choice but to press now for full cleanup - that is, to
unrestricted or residential standards - if there's any chance
that the use will eventually change.

Lenny Siegel
Director, SFSU CAREER/PRO (and Pacific Studies Center)
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126
lsiegel@cpeo.org