Military Base Closures: Cleanup of Contaminated Properties for Civilian Reuse

Congressional research reportNov 19, 2008

Ask Donna

What actually matters in this document.

Text

¢ȱȱǱȱȱȱ

ȱȱȱȱȱ

ȱǯȱȱ

ȱȱȱ¢ȱ

ȱŗşǰȱŘŖŖŞȱ

ȱȱȱ

ŝȬśŝŖŖȱ

ǯǯȱ

ŘŘŖŜśȱ

ȱȱȱ

Prepared for Members and Committees of Congress

¢ȱȱǱȱȱȱȱȱȱȱȱ

¢ȱ

In 2005, the 109th Congress approved a new Base Realignment and Closure (BRAC) round. As

the Department of Defense (DOD) implements the new round, issues for Congress include the

pace and costs of closing and realigning the selected installations and the impacts on surrounding

communities. The disposal of surplus property has stimulated interest among affected

communities in how the land can be redeveloped to replace jobs lost as a result of the planned

closures. Environmental contamination can limit the potential for economic redevelopment if the

availability of funding or technological capabilities constrains the degree of cleanup needed to

make the land suitable for its intended use. Although most of the properties on installations closed

under the four earlier rounds in 1988, 1991, 1993, and 1995 have been cleaned up and made

available for redevelopment, the most extensively contaminated properties remain in various

stages of cleanup to make them suitable for their desired use. Cleanup began many years ago at

2005 round installations when they were still operational. As a result, cleanup generally should be

at a more advanced stage upon closure, compared to installations closed under earlier rounds

when cleanup efforts were less mature. Still, installations closed under the 2005 round could face

delays in redevelopment if a community’s desired land use would require a lengthy and costly

cleanup.

ȱȱȱ

¢ȱȱǱȱȱȱȱȱȱȱȱ

Introduction ..................................................................................................................................... 1

Cleanup Requirements for Property Transfer and Reuse ................................................................ 1

The Role of Land Use in Cleanup Decisions .................................................................................. 2

Program Administration and Funding ............................................................................................. 3

Status of Cleanup............................................................................................................................. 3

Estimated Costs ............................................................................................................................... 4

Issues for Congress.......................................................................................................................... 5

Table 1. Site Cleanup Status by BRAC Round through FY2007 .................................................... 4

Table 2. Site Cleanup Costs by BRAC Round through FY2007..................................................... 5

Author Contact Information ............................................................................................................ 6

ȱȱȱ

¢ȱȱǱȱȱȱȱȱȱȱȱ

Following the collapse of the former Soviet Union, Congress authorized the closure of certain

military installations under four BRAC rounds in 1988, 1991, 1993, and 1995. These installations

have been closed for many years, and the majority of the properties have been made available for

civilian purposes. However, cleanup efforts continue at some of the most contaminated

properties, delaying their reuse. Public desire for their redevelopment has motivated ongoing

concern about the pace and costs of cleaning up these remaining properties. The completion of

cleanup is often a key factor in economic redevelopment, because a property cannot be used for

its intended purpose until it is cleaned up to a degree that would be suitable for that use. In 2005,

the 109th Congress approved a new BRAC round.1 Although the Department of Defense (DOD) is

required to close and realign selected installations by 2011, there is no statutory deadline for the

cleanup of contaminated property. The timing of cleanup will depend on response actions

negotiated with federal and state regulators, capabilities of cleanup technologies, and the amount

of funding appropriated by Congress to support cleanup efforts.

This report explains the federal statutory requirements that govern the transfer and reuse of

contaminated properties on closed military installations, discusses the status of cleanup to prepare

these properties for reuse, examines estimates of costs to address remaining cleanup challenges,

and identifies issues for Congress.

ȱȱȱ¢ȱȱȱ

As amended in 1986, the Comprehensive Environmental Response, Compensation, and Liability

Act (CERCLA, commonly referred to as Superfund) generally requires the United States to clean

up contaminated federal property prior to transfer out of federal ownership.2 This requirement

applies to all contaminated property declared surplus to the needs of the federal government,

including property on closed military installations. The agency with administrative jurisdiction

over a property usually administers and pays for the cleanup to satisfy the responsibility of the

United States. DOD typically assumes this responsibility for closed military installations.

After a property is transferred out of federal ownership, the United States remains liable for any

original contamination found not to have been sufficiently remediated. However, the document

transferring ownership typically guarantees cleanup only to a level suitable for a specific use, and

in some cases may include a deed restriction prohibiting certain uses that would be considered

unsafe relative to the level of cleanup performed. Considering this condition, the United States is

usually held responsible for further cleanup to the extent that more work is found to be needed to

make the originally agreed-upon use safe. If a new owner later decides to use the property for

another purpose that would require further cleanup, the new owner ordinarily is held responsible

for additional cleanup costs to make the property suitable for that purpose.

See the BRAC Commission Report to the President for a list of military installations selected for closure under the

2005 round at: http://www.brac.gov/finalreport.html.

42 U.S.C. 9620(h).

ȱȱȱ

ŗȱ

¢ȱȱǱȱȱȱȱȱȱȱȱ

Property declared surplus to the needs of the federal government is typically transferred to a

Local Redevelopment Authority (LRA) responsible for implementing a plan for civilian reuse.

While the administering agency generally must complete the cleanup prior to transfer out of

federal ownership, CERCLA authorizes early transfer under certain conditions, including

assurances that the cleanup will be carried out.3 Early transfer can speed the redevelopment

process, if it may be feasible for cleanup to occur in conjunction with redevelopment planning

and construction, or if a short-term use would be suitable for the existing level of contamination

while cleanup proceeds to prepare the property for its eventual use.

Early transfer also may offer the potential to speed the redevelopment process in situations in

which the recipient voluntarily agrees to administer and pay for the cleanup. In such cases, the

property is usually sold at a discounted price to offset the cleanup costs borne by the purchaser. A

discounted price may lower a purchaser’s initial costs to buy the property, but the purchaser does

assume some financial risk if the cleanup costs are greater than expected. The cost of

environmental insurance to limit this financial risk may offset some of the initial savings gained

from a discounted price.

If a property on a closed installation still could be of use to the federal government, DOD may

transfer it to another federal agency rather than make it available to non-federal entities. If a

contaminated property remains in federal ownership, CERCLA does not specify which agency

has responsibility for the cleanup. The determination of which agency performs the cleanup is

subject to negotiation among the agencies involved, and as such is an Executive Branch decision.

Although the agency that caused the contamination most often administers and pays for the

cleanup, disagreements over this responsibility sometimes arise in negotiating the transfer of

jurisdiction. Congress has sometimes addressed such disagreements in legislation, specifying

agency responsibilities.

Regardless of who administers the cleanup of a closed military installation, the Environmental

Protection Agency (EPA) and state regulatory agencies oversee cleanup decisions to ensure that

applicable requirements are met. CERCLA specifically requires EPA to take the lead in

overseeing cleanup of federal facilities on the National Priorities List (NPL).4 States usually

oversee cleanup of federal facilities not on the NPL.

ȱȱȱȱȱȱȱȱ

CERCLA generally requires cleanup actions to achieve levels of exposure to contamination that

would be protective of human health and the environment. Land use is critical in determining the

potential exposure risks and the cleanup actions needed to address those risks. Cleanup generally

is more extensive and more costly for land uses that would result in greater exposure risks.

Cleanup typically is the most stringent and the most costly for residential use because of the

greater likelihood of exposure among sensitive populations, including children and the elderly.

Cleanup is usually the least costly and the least stringent for industrial use, as the exposure risks

are not as great.

42 U.S.C. 9620(h)(3)(C).

42 U.S.C. 9620(e)(2).

ȱȱȱ

Řȱ

¢ȱȱǱȱȱȱȱȱȱȱȱ

As amended, the Defense Base Closure and Realignment Act requires DOD to give “substantial

deference” to an LRA’s redevelopment plan in determining the use of surplus property on closed

military installations.5 Still, the locally preferred use can be constrained, if costs or technical

challenges would make it infeasible to clean up a property to a certain degree. EPA guidance

acknowledges that some uses may not be practical because of such challenges, and indicates that

cleanup goals may need to be revised, which could result in “different, more reasonable land

use(s).”6

ȱȱȱȱ

DOD administers a Defense Environmental Restoration Program to carry out cleanup actions

under CERCLA on military installations in the United States.7 Multiple defense appropriations

accounts fund this program. Two Defense Base Closure accounts fund the cleanup of installations

closed under the BRAC rounds. The “1990” account consolidates funding for the cleanup of

installations closed prior to the 2005 round. This account is now entirely devoted to cleanup, as

these installations were closed many years ago. The “2005” account funds the cleanup of

installations being closed under the 2005 round. Most of this account currently funds the actions

necessary to close and realign the missions of the installations. As these actions are completed, a

greater portion of the 2005 account will be devoted to cleanup to prepare surplus properties for

reuse. The cleanup of realigned installations that remain in active use will be funded out of the

Defense Environmental Restoration Accounts that support cleanup of active installations. See the

“Estimated Costs” section of this report for the amount of funding spent on the cleanup of closed

installations over time out of the Base Closure accounts.

ȱȱȱ

To manage cleanup efforts, DOD divides each installation into discrete sites (i.e., parcels of land),

based on the nature and boundary of contamination. One installation may contain numerous sites

with differing types of contamination. As of the end of FY2007, DOD had identified a total of

5,356 sites on hundreds of installations closed under all five BRAC rounds where contamination

was known or suspected to be present.8 These sites include those on installations that are in the

process of closing under the 2005 round. The vast majority of sites on BRAC installations were

contaminated with hazardous substances (i.e., chemical contaminants), but some sites contained

abandoned or discarded munitions on former training ranges and munitions disposal facilities.9

Congress enacted specific authorities for the cleanup of munitions sites in the National Defense

Authorization Act for FY2002 (P.L. 107-107). See CRS Report RS22862, Cleanup of U.S.

Military Munitions: Authorities, Status, and Costs, by (name redacted).

10 U.S.C. 2687 note.

EPA. Office of Solid Waste and Emergency Response. Land Use in the CERCLA Remedy Selection Process. OSWER

Directive No. 9355.7-04. May 25, 1995.

10 U.S.C. 2701 et seq.

Department of Defense. Defense Environmental Programs Fiscal Year 2007 Annual Report to Congress. March 2007.

Appendix K, pp. K-8—K-12.

Ibid. DOD identified 5,019 sites contaminated with hazardous substances, and 337 sites on former training ranges and

munitions disposal facilities where munitions were present.

ȱȱȱ

řȱ

¢ȱȱǱȱȱȱȱȱȱȱȱ

DOD reported that planned response actions were complete at 70% of the 5,356 sites it had

identified through FY2007. No response was required or expected at 14% of the sites because

investigations revealed that the potential for exposure to contamination was within an acceptable

range, based on applicable standards. Response actions were pending at 10% of the site inventory,

with varying stages of progress among individual sites ranging from the assessment phase to the

construction of cleanup remedies. Evaluations were pending at 6% of the sites, leaving much

uncertainty as to the extent of contamination at those locations and the cleanup actions that will

be required. Sites requiring no further response actions generally have been made available for

their intended use. Some sites where response actions were not complete also have been made

available using early transfer authority, or by leasing the property with ownership retained by the

federal government. However, remaining contamination and ongoing cleanup could limit the use

of these properties. Table 1 presents the status of cleanup through FY2007 at sites on closed

military installations by individual BRAC round.

Table 1. Site Cleanup Status by BRAC Round through FY2007

Response

Complete

BRAC

Round

No Response

Required/

Expected

Evaluation

Pending

Response

Planned/

Under Way

Total

Sites

1988

1,058

1,270

1991

1,157

101

1,335

1993

466

417

992

1995

1,009

126

174

279

1,588

171

3,752

737

351

516

5,356

2005

All Rounds

Department of Defense, Defense Environmental Programs Fiscal Year 2007 Annual Report to

Congress, March 2007, Appendix K, pp. K-8—K-12.

a. The sum of BRAC cleanup sites that DOD reported differed from the sum of sites it reported by individual

round, resulting in 5,415 total sites instead of 5,356. This difference appeared to result from the inclusion of

59 sites that DOD did not attribute to individual BRAC rounds. Of these 59 sites, 24 did not require

response actions, 32 were not yet evaluated, and 3 had response actions planned or under way.

Source:

Considering that the cleanup of 2005 round installations began many years ago when these

installations were still operational, cleanup generally should be at a more advanced stage upon

closure than experienced under earlier rounds when cleanup efforts were less mature. As of the

end of FY2007, planned response actions were complete, or not required, at half of the sites on

2005 round installations, leaving much of the property inventory suitable for reuse. However,

sites where response actions were complete would have been cleaned up to a level compatible

with military use at that time. If other uses are desired after closure, additional cleanup may be

needed.

ȱȱ

Through FY2007, DOD had spent nearly $7.3 billion out of the Base Closure accounts over time

to clean up contaminated sites on installations closed under all five BRAC rounds to prepare

these properties for reuse. In March 2007, DOD estimated that another $3.9 billion would be

needed to complete all planned cleanup actions. DOD estimated the future cleanup costs based on

ȱȱȱ

Śȱ

¢ȱȱǱȱȱȱȱȱȱȱȱ

its most recent knowledge of conditions at the sites presented in Table 1. DOD periodically

revises its estimates as more is learned about the type and level of contamination at each site, and

the actions that federal and state regulators will seek to address potential risks. In effect, these

estimates are “moving targets” that change as more information becomes available to project the

costs of future actions. Uncertainties about the degree of cleanup that ultimately will be required

at some sites make it challenging to accurately estimate the total costs to complete cleanup. Table

2 presents the past and estimated future costs to clean up contaminated sites at closed military

installations by individual BRAC round.

. Site Cleanup Costs by BRAC Round through FY2007

Table 2

BRAC

Round

Costs Incurred

Through FY2007a

Estimated Costs

FY2008 to Completion

Total Costs

1988

$1,442,335,000

$488,607,000

$1,930,942,000

1991

$2,219,968,000

$1,322,851,000

$3,542,819,000

1993

$1,763,241,000

$474,159,000

$2,237,400,000

1995

$1,803,356,000

$1,208,167,000

$3,011,523,000

2005

$34,385,000

$386,244,000

$420,629,000

$7,263,285,000

$3,880,028,000

$11,143,313,000

All Roundsb

Source: DOD, Defense Environmental Programs Fiscal Year 2007 Annual Report to Congress, March 2007, Appendix

K, pp. K-8—K-12. Amounts reflect project funding allocated to individual sites and do not include program

management and other support costs.

a. Costs incurred only reflect funds spent on cleanup out of the Base Closure accounts. The Defense

Environmental Restoration accounts funded cleanup when the installations were in active military use. A

breakout of this funding is not readily available.

b. The sum of all BRAC cleanup costs that DOD reported differed from the sum of costs it reported by

individual round, resulting in a higher past cost of $7,307,310,000 through FY2007, and a higher estimated

future cost of $3,881,533,000. This difference appeared to result from the inclusion of costs associated with

59 BRAC sites that were not attributed to individual rounds.

Some attention has been drawn to the impact that potentially higher cleanup costs could have on

the savings expected from a BRAC round. The closure of a military installation results in annual

“savings” in operational expenses, but cleanup costs to prepare decommissioned properties for

reuse can reduce these savings. However, some of the cleanup costs would have been incurred

regardless, as DOD still is required to clean up its active installations to a degree that would be

suitable for military purposes.

ȱȱȱ

The amount of time and resources needed to complete the cleanup of closed military installations

generally depends on the level of contamination on those properties, and the actions selected to

make them suitable for civilian reuse. Cleanup can take many years in some instances, as the

continuing cleanup of certain installations closed between 1988 and 1995 demonstrates. However,

the generally more advanced stage of cleanup at 2005 round installations anticipated upon closure

may allow contaminated properties to become available for reuse more quickly. Still, the

availability of funding and capabilities of cleanup technologies could limit the feasibility of

ȱȱȱ

śȱ

¢ȱȱǱȱȱȱȱȱȱȱȱ

cleanup at some installations, making certain land uses impractical and posing challenges to

economic redevelopment.

It is difficult to ascertain whether DOD’s cleanup cost estimates are a reasonable approximation

of the funding that will be needed to prepare closed installations for reuse. Because the civilian

uses of installations to be closed in the 2005 round have yet to be decided, DOD’s cost estimates

are based on a degree of cleanup that would be compatible with recent military use. If a property

were to be used for other purposes that would result in a higher risk of exposure to contamination,

more stringent cleanup likely would be required to make the property suitable for that use. In

these circumstances, more time and resources could be needed to complete cleanup than DOD

has estimated.

ȱȱ ȱ

(name redacted)

Specialist in Environmental Policy

/redacted/@crs.loc.gov, 7-....

ȱȱȱ

Ŝȱ

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.