[CPEO-MEF] Interior Department position on Army transfers

[Lenny Siegel <lsiegel@cpeo.org>]

[The following letter not only describes the Department of Interior
position on transfers from Defense Department components, but it
describes the status of a number of both high-profile and lesser- known
transfers and proposed transfers from the Army to Interior and other
park-managing agencies. - LS]

***

United States Department of the Interior
Office of the Secretary
Washington, D.C. 20240

May 9, 2003


Mr. Joseph W. Whitaker
Deputy Assistant Secretary -Installations and Housing
Department of the Army
110 Army Pentagon, Room 3E475
Washington, D.C. 20310-0110

Dear Mr. Whitaker:

This letter is in response to your concerns regarding the status of the
estimated 41,000 acres of Department of the Army (DA) properties you
referenced as of interest to DOI for possible transfer by October
1,2003, and early transfer of various DA properties under Base
Realignment and Closure (BRAC) to the U.S. Department of the Interior
(DOI). We appreciate the opportunity to provide you with our perspective
as well as lend possible solutions to jointly meet both of our agencies' needs.

Prior to discussing the status of the individual BRAC sites, we believe
that it is important for the DA to understand DOI's position regarding
transfers of property to DOI in general.

A. Early transfer of contaminated sites is NOT standard procedure for
DOI; it is the exception. This policy, we believe, best ensures that DOI
is able to fulfill its complex mission, which includes resource
protection and, consistent with resource protection, public access opportunities.

In general, only when the acceptance of property is unambiguously in the
best interests of DOI in its role of protecting natural resources and
ensuring public enjoyment of more resources, will DOI entertain early
transfer (e.g., expand a refuge for critical habitat). Furthermore, for
DOI, any early transfer of sites from DA must be accompanied by
assurances that funding for the cleanup of these sites will receive top
priority, rather than the normal Formerly Used Defense Sites (FUDS)
appropriations that has a long response process. This lengthy process
means that under early transfer, DOI faces increased operating costs,
while it is, at the same time, unable to use the transferred lands to
fulfill its various Congressionally directed missions.

B. The transferring agency must accept full and exclusive responsibility
to fund and conduct all response activities necessary to address
environmental contamination on the property as of the date of transfer.
To ensure that DOI can manage lands consistent with its many organic
statutes (which typically require public use of DOI lands), DOI must
have concurrence rights in significant cleanup decisions, including any
decision that establishes restrictions on the use or accessibility of
the property (i.e., land use controls).

C. As part of its cleanup responsibility, the transferring agency must
commit to conduct long-term operation and maintenance (O&M), including
the construction and maintenance of land use controls. Where long-term
security is required to manage contamination left in place, such as
unexploded ordnance, the transferring agency must bear personnel costs
necessary to provide such security.

D. Because of DOI's natural resource trustee responsibilities, and its
overall obligations to provide sound environmental stewardship on DOI
lands, transferring agencies must integrate natural resource restoration
into its cleanup.

E. Transferring agencies must agree to remain responsible for all
environmental liabilities associated with contamination on the property
as of the date of the transfer. Thus, transferring agencies would be
responsible for defending any administrative or legal actions that might
be asserted under state or federal environmental laws arising from the
presence of contamination. DOI understands the DA's interest in
expeditious land transfers. We believe, however, that it is in the best
interests of the American public that we work collaboratively, where
transfers to or through DOI are concerned, to achieve agreed upon
schedules and milestones toward completing transfers as key clean up and
transfer "readiness" goals are achieved.

The following is a status of sites to date representing: (a) no interest
by DOI, (b) transfer of whole site or parcels of acreage to DOI, and (c)
Public Benefit Conveyance Sites.

                        No Interest by DOI

HONEY LAKE, CA

Comments: Part of Sierra Army Depot.

Status: No interest by the U.S. Fish and Wildlife Service in obtaining
these lands.

                        Transfers to DOI

FT. WINGATE, NM

Comments: Although closure was directed by BRAC, the transfer does not
use the BRAC process. Ft. Wingate occupies DOI lands, which were
withdrawn from the operation of public land laws and reserved for
military use. The DA does not have statutory authority to dispose of
these lands; DA may only relinquish the withdrawal and reservation to
DOI. However, DOI will not accept DA's relinquishment until the lands
are in a condition that would allow the lands to be transferred into
trust for the Navajo Nation and Pueblo of Zuni. Some parcels could be
transferred within a few months after the New Mexico Environmental
Department (NMED) issues a RCRA Post Closure Care Permit and the DA
complies with the permit. For other parcels, it will take years before
all environmental restoration issues are resolved and they are cleaned
up satisfactorily. DOI has no jurisdiction over issuance of this RCRA
permit and awaits New Mexico's decision.

Status: NMED must issue the permit followed by DA compliance.

FT ORD [CA]

Comments: This is a BRAC site. Approximately 7,300 acres at Ft. Ord were
transferred to the Bureau of Land Management (ELM) under a Letter of
Transfer dated October 18, 1996. These former maneuver area lands were
transferred as part of a base wide strategy to mitigate habitat impacts
to Federally protected plants and animals as part of the DA's
Installation-Wide Multispecies Habitat Management Plan (HMP). The BLM is
scheduled to receive an additional 7,640 acres, including the former
multi-range area once the lands have undergone an adequate unexploded
ordnance (UXO) cleanup in order to implement the HMP. Estimates range,
from 2- 10 years for actual cleanup. The DA has scheduled a Remedial
Investigation/Feasibility Study work plan for completion in 2005.

Status: DA must cleanup the remaining lands.

LONGHORN ARMY AMMUNITION PLANT, TX

Comments: This is excess property and not a BRAC site. The U.S. Fish and
Wildlife Service (FWS) presently has an overlay refuge (DA maintains
primary administrative jurisdiction) at this site. Lands at Longhorn
that are certified clean to FWS standards (approximately 709 acres) will
be transferred to FWS as soon as DA and FWS can reach agreement on the
MOA describing the post-transfer responsibilities of each agency.
Sampling of the remainder of Longhorn (outside the known contaminated
areas) is ongoing and we anticipate that primary jurisdiction on
additional clean lands could be transferred to Caddo Lake National
Wildlife Refuge by March 2004. The known contaminated areas will not be
transferred to Caddo Lake NWR until they are cleaned up to meet EPA and
FWS requirements, as most are designated Superfund sites. It may require
30+ years to address the surface and groundwater on these sites.

Status: There is a good working relationship between DA and DOI and the
transfer is
progressing as planned.

FT. MEADE (Refuge Entrance and Landfill # 2) [MD]

Comments: This is a BRAC site. There are two parcels of land in this
proposed transfer: (1) the Patuxent River Entrance that is slightly
under two acres, and (2) the Inactive Landfill # 2. The FWS is
interested in both parcels, but does not want the portion of the
Patuxent River Entrance property containing the pump house, which FWS
does not use nor is interested in maintaining. If the Patuxent River
Entrance property were to be transferred, it would become part of an
existing refuge parking lot/road right-of way, giving the FWS added
operational control along a fairly busy highway adjacent to the refuge.
The FWS is still interested in obtaining the 12.61-acre site known as
Inactive Landfill # 2. However, the FWS expects provisions of the
original Transfer Assembly from 1991, to be fully implemented before
such transfer would occur. This includes resolution of issues at a
closed lead-contaminated trap and skeet range on the refuge, and
cleaning up the unrestricted dumping site adjacent to Inactive Landfill
#2, which was specifically mentioned in Section 23 of the existing
Transfer Assembly.

Status: The DA would perform a survey to accurately portray the property
boundary, and language in the transfer document would make the DA solely
responsible for any future hazardous substance or other contaminant
cleanups that may be found that were created by DA activities. This
could be accomplished within a 6-month timeframe. This is awaiting DA
and EPA action.

ROCKY MOUNTAIN ARSENAL, CO

Comments: This is not a BRAC site, transfer to the FWS, as a National
Wildlife Refuge, was required by special legislation (Pub L. 102-402).
Responsibilities for cleanup, operations and maintenance, and land
transfer were articulated in the 1992 Refuge Act, the 1996 CERCLA Record
of Decision (ROD), and the 1999 MOU between DOI/FWS and DA.

Status: Rocky Mountain Arsenal is approximately halfway through the 1996
ROD, and the DA will retain core disposal areas. Approximately 5,000
acres will be transferred to FWS by the end of this calendar year
following deletion of this acreage from the National Priority List.
Transfer is progressing as planned.

SAVANNA ARMY DEPOT, IL

Comments: This is a BRAC site. The Upper Mississippi River National
Wildlife and Fish Refuge surround this site on three sides. Savanna Army
Depot is listed on the National Priority List. At this time, there are
no parcels that have been certified as clean under an approved
Environmental Condition of Property (ECOP). There are about 3,400 acres
with a draft ECOP; however, both EPA and the State of Illinois EPA
advised FWS that there are environmental contamination concerns on these
parcels. DOI and DA cannot agree to the terms of an MOA for transfer on
issues such as cleanup standards or responsibility for land use controls
(in unexploded ordnance and environmental contaminated areas).

Status: DOI will only accept transfer of this site on a parcel-by-parcel
basis, as each is cleaned up. Also, an MOA between DOI and DA is needed.

FT MCCLELLAN, AL

Comments: This is a BRAC site as well as a congressionally mandated
transfer to FWS (Pub. L. 107-314). The DA and FWS have been working
closely to meet the time mandate from Congress. There is one remaining
significant issue relating to an MOA on this transfer requiring
resolution: FWS needs the DA to be responsible for final Land Use
Controls on the property.

Status: Congress directed the transfer to be completed by June 1, 2003,
as the establishment of the Mountain Longleaf National Wildlife Refuge.
The legislation places cleanup responsibility on the DA. The draft MOA
is currently being negotiated by DA and DOI.

FT. HUNTER LIGGETT, CA

Comments: This is a partial BRAC realignment site. Environmental cleanup
is not an issue. NPS supports either a direct transfer of excess
properties to the California Department of Parks and Recreation (CDPR)
or designation of excess properties as an NPS affiliated area, assigning
the property to NPS for potential lease to CDPR. Either approach would
require special legislation but would avoid the BRAC reuse, planning,
and disposal process.

Status: A draft Special Resource Study and Environmental Assessment (EA)
is being revised in response to NPS and DOI comments. A draft EA is
expected to be available for DA, DOI, and CDPR review in 30-60 days.

                        Public Benefit Conveyance Sites

Since many of the estimated 41,000 acres of DA properties referenced are
actually properties under Public Benefit Conveyance, we believe that it
is important to briefly describe Public Benefit Conveyance (PBC).

A PBC occurs under the authority of the Federal Property and
Administrative Services Act of 1949, allowing transfer of surplus
federal property to state and local governments for public purposes
(e.g., parks, historic preservation). It allows the transfer of surplus
federal property to a public agency at no cost if it is used for public
parks and recreation and historic preservation in perpetuity. Under this
authority, the National Park Service administers two PBC programs: the
Federal Lands to Parks Program and the Historic Surplus Property
Program. The Federal Lands to Parks Program assists communities to
create and expand existing parks and recreation areas and the Historic
Surplus Property Program helps communities protect and reuse properties
listed or eligible for listing in the National Register of Historic Places.

Any issues, however, regarding environmental cleanup, unexploded
ordnance, etc., with PBC properties rest directly between the federal
disposing agency and the local public agency. It does not rest with the
National Park Service.

FT. MONMOUTH, N.J. -Parcel A/E

Comments: The Federal Lands to Parks Program portion of this site will
be transferred in three parcels. As of 4/22/03, the discussions between
the Township of Wall and State regulators on environmental restrictions
have been resolved.

Status: The three parcels should be transferred by October 1,2003, if
not sooner.

OGDEN DDD, UT -Parcels 14B & 14C

Comments.: The NPS reviewed the Draft Finding of Suitability to Transfer
and provided comments to the Army Corps of Engineers in Sacramento, CA
for consideration in the pending assignment of Parcels 14B and 14C for
PBC to the City of Ogden, Utah. The parcels have achieved environmental
clearance, and there are no known encumbrances on transfer. 

Status: The Corps of Engineers is working the assignment package with DA
and expects to complete the property assignment in May 2003. Title
transfer could be expected shortly after that (30-60 days).

OAKLAND ARMY BASE, CA -Parcel 1
l
Comments: The DA agreed to retain environmental remediation
responsibility and enter into a Lease in Furtherance of Conveyance
(LIFOC) with the East Bay Regional Park District (EBRPD). DA is
currently bidding a joint investigation/remediation contract for a fixed
cost environmental clean up of several areas of concerns on the parcel.
FY 03 funds are available for funding the contracts. The completion of
environmental remediation and regulatory closeout is expected in 2005.
NPS supports the interim LIFOC with EBRPD. Following this action, DA
will assign the property to NPS for deed transfer to EBRPD. 

Status: NPS provided comments on the LIFOC in early March 2003. DA is
finalizing the LIFOC and expects to execute it with EBRPD in April 2003.
Title to the property is expected to transfer to the EBRPD in
approximately two years.

CAMP KILMER, N.J.- Phase 1

Comments: This PBC has been split into two parcels

Status: On the first parcel, the Township of Edison prepared an
application for the majority of the land and NPS accepted the
application and requested assignment from the DA on December 11, 2002.
The Township will make separate application for the second parcel,
"Building 1072 and associated property," once environmental issues are
identified and remedial action is decided by the DA.

FT. TOTTEN, N.Y. -Monuments to NYC; Park to NYC

Comments: NPS requested assignment of approximately 40 acres on December
21, 2001, for transfer to the New York City (NYC) Parks and Recreation
Department. NYC Parks and Recreation also requested 6-7 buildings
(approximately 7 acres) through the NPS Historic Surplus Property
Program (HSP). Subsequently, there were various security and occupancy
issues at the site between the NYC fire and police departments. The DA
waited for the City to resolve these issues. A revised application for
the park request was submitted on January 24, 2003, and was found
acceptable to NPS. Once the assignment is received by NPS, and the
Finding of Suitability to Transfer is reviewed, NPS will deed the
property to New York City. The NPS HSP expects to receive a completed
application and complete its action on this property.

Two buildings that were to be transferred through the Federal Lands to
Parks PBC will be transferred through the Historic Surplus Property
(HSP) Program as historic monument PBC. The HSP program allows more
flexibility for concession use. The application previously submitted to
the HSP needs to be revised to incorporate these buildings. NPS HSP
staff and the City held a conference call March 12,2003, on what's
needed to complete the application. NPS Historic Surplus Property
Program expects to receive a completed application and to be able wrap
this property up in about one month. (Note: Different NPS offices handle
the FLP and HSP Programs -FLP is handled in Boston, MA; Historic Surplus
Property is handled out of Philadelphia, P A. NPS deeds Federal Lands to
Parks transfer property. The disposal agency (DA, in this case) deeds
property approved by NPS as Historic Surplus Property PBC transfers.)

Status: The DA was looking for the assignment package for the park
transfer; however, the package was received by NPS the week of April 28,
2003. The deed is now in process.

HINGHAM COHASSET, MA

Comments: Assignment was requested on January 27, 2002. Environmental
cleanup is ongoing but in final stages.

Status: At a public meeting last fall, the DA suggested that a transfer
might happen in the summer of 2003. The DA needs to complete the Finding
of Suitability for Transfer.

JEFFERSON PROVING GROUND, IN

Comments: Jefferson County originally submitted an application for two
parcels about 5 years ago. For reasons not entirely clear to NPS, the DA
encouraged the County to withdraw its application for one parcel. NPS
transferred 220-acres to the County in October 1999. In mid-January,
2003, after checking with NPS on whether we could allow selective
timbering of a site (with proceeds to benefit park development), the DA
encouraged Jefferson County to submit an amended application for a PBC
transfer of 400 +/- acres (the parcel which was previously withdrawn).

Status.: NPS assisted the County to prepare a revised application,
accepted it, and requested. assignment of the parcel March 6, 2003. ~:
Although the DA specifically solicited this amended application, they
are still considering selling the property to a private individual.) If
the DA approves the PBC request, the property will meet a recreational
need but also will serve as a natural buffer between industrial
development and the community.

CAMP BONNEVILLE, WA

Comments: The DA has been promoting the conversion of the method of
transfer from a PBC through NPS, to an economic development conveyance
(EDC). The 1997 Department of Defense Base Reuse Implementation Manual
specifically states when an EDC may be used. Furthermore, the 1990 Law:
Section 2905(b)(4) of the Defense Base Closure and Realignment Act of
1990, states that EDC's are not to be used to supplant PBC's. The
Department of Defense has asserted that the DA should not proceed with
an EDC unless DOI decides not to go along with an early transfer through
a PBC. In mid 2002, Clark County informed NPS they were not interested
in a transfer using the new "conservation" conveyance authority
contained in the FY 03 Defense Appropriations Act and wanted to pursue a
PBC through NPS. Clark County had previously indicated that it was
interested in substantial completion of the Engineering Estimate/Cost
Analysis (EE/CA) estimating remediation requirements before committing
to an early transfer, including filing of a formal application.

Status: The DA needs to demonstrate availability of funds for cleanup,
complete the site characterization and get approval from the regulators
before it can proceed with either a PBC or an EDC.

SAVANNA ARMY DEPOT, IL -Multiple Parcels

Comments: The Illinois Dept of Natural Resources (DNR) submitted a draft
application for a 270-acre parcel on February 7, 2003. NPS provided
comments on February 24, 2002, and has had many subsequent phone
conversations with DNR. NPS reviewed a final draft to assure requested
changes had been made, provided two minor corrections in April 2003, and
has asked the State to formally submit the application through its
sign-off process.

Status: Upon receipt of the signed final application, NPS will request
assignment. The State is actively working on completing the application.

Again, we appreciate the opportunity in working with the DA to jointly
meet the needs of our respective agencies. Please feel free to contact
me if you have further questions at ....

Sincerely,

P. Lynn Scarlett
Assistant Secretary -Policy, Management
and Budget

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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