Revitalizing Base Closure CommunitiesBase Closure Community Assistance

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 91

RIN 0790-AF64

Revitalizing Base Closure Communities--Base Closure Community

Assistance

AGENCY: Department of Defense, DoD.

ACTION: Proposed rule.

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SUMMARY: The proposed rule publishes for comment the guidance required

by section 2908 of the National Defense Authorization Act for Fiscal

Year 1994. Section 2908 of the Act provides authority for the Secretary

of Defense to transfer real property or facilities available as a

result of a base closure, to persons paying the cost of environmental

restoration activities on the property.

DATES: Comments must be received by July 5, 1994.

ADDRESSES: Comments must be forwarded to the Office of the Assistant

Secretary of Defense for Economic Security, room 3D854, The Pentagon,

Washington, DC 20301.

FOR FURTHER INFORMATION CONTACT:

Steven Kleiman or Frank Savat, telephone (703) 614-5356.

SUPPLEMENTARY INFORMATION: In many cases the most difficult obstacle to

getting property into productive reuse after a base closes is

environmental restoration, because the Department of Defense cannot

convey title to property until this is accomplished. The potential

exists that persons who are interested in developing the property could

clean it more quickly and efficiently than the government. This section

provides a proposed rule which in its final form would allow the

Department to transfer a property for the cost of cleanup to persons

who agree to perform the environmental restoration. If the estimated

value of the base exceeds the cost of cleanup, the buyer shall make up

the difference. The Department of Defense and the Environmental

Protection Agency will continue to consult regarding the implementation

of Public Law 103-160, section 2908.

List of Subjects in 32 CFR Part 91

Community development, Environmental protection, Government

employees, Homeless Military personnel, Surplus Government property.

Accordingly, 32 CFR part 91 is proposed to be amended to read as

follows:

PART 91--[AMENDED]

1. The authority citation for part 91 continues to read as follows:

Authority: 10 U.S.C. 2687 note.

2. Section 91.7 is proposed to be amended by adding a new paragraph

(j) to read as follows:

Sec. 91.7 Procedures.

* * * * *

(j) Transfer of real property or facilities to persons paying the

cost of environmental restoration activities on the property.

(1) In many cases the most difficult obstacle to getting property

into productive reuse is environmental restoration, because the

Department of Defense cannot convey title to property until this is

accomplished. The potential exists that persons who are interested in

developing the property could clean it more quickly and efficiently

than the government. This section proposes instructions to implement a

new authority which allows the Department of Defense to transfer a

property for the cost of cleanup to persons who agree to perform the

environmental restoration. If the estimated value of the base exceeds

the cost of cleanup, the buyer shall make up the difference.

(2) Section 2908 of Title XXIX of Public Law 103-160 authorizes the

Secretary of Defense, at any time before December 1, 1998, to enter

into agreements to transfer by deed, real property or facilities at

closing installations to a person who agrees to perform all required

environmental cleanup, waste management, and environmental compliance

activities.

(3) The authority may be exercised in the following manner:

(i) An agreement to transfer may be executed with any person,

provided that person can demonstrate to the satisfaction of the

Secretary concerned the ability to adequately perform all required

environmental clean-up, waste management and environmental compliance

activities.

(ii) The property and facilities subject to the agreement must be

located in an installation closed or to be closed under a base closure

law, as defined in paragraph (c)(1) of this section and at the time the

agreement is executed must be available exclusively for the use, or

expression of an interest in use, of a local redevelopment authority

under Public Law 103-160, section 2905. The reuse contemplated in the

agreement must be consistent with the applicable local redevelopment

plan.

(iii) The Agreement may be in any form and transfer any interest

allowable under the law of the State in which the property or facility

is located provided, however:

(A) The Agreement may not serve to transfer title by deed in

violation of Section 120(h) of the Comprehensive Environmental Response

Compensation and Liability Act (CERCLA) (42 U.S.C. 9620(h)).

(B) The Agreement must contain a stipulation that all environmental

restoration, waste management and environmental compliance activities

required under Federal and State laws, administrative decisions,

agreements (including schedules and milestones), and regulatory agency

concurrences, including those that become effective at any time during

the existence of the Agreement, shall be met by the person with whom

the Agreement is to be executed. The environmental restoration for the

Agreement must include activities associated with cleanup of petroleum

and its derivatives.

(C) The Agreement shall contain any item or condition that the

Secretary of the Military Department concerned considers appropriate to

protect the interests of the United States. Such terms or conditions

may include, but are not limited to, providing continued access to the

property and facilities by the U.S. and State and local regulatory

agencies; limitations upon the use to which the property may be put;

and, provisions requiring a bond or other form of financial assurance.

(D) The Agreement must contain a description of the information

disclosed to the person to whom the property or facilities will be

transferred on the environmental restoration, waste management and

environmental compliance requirements and activities relevant to the

property or facilities. This description shall include any specific

information required by the notice requirements of Section 120(h)(1) of

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

(E) The Agreement should disclose to the person to whom the

property or facilities will be transferred that the U.S. will not

indemnify, hold harmless or defend that person pursuant to Public Law

102-484, section 330, as amended by Public Law 103-160, section 1002.

(F) The Agreement may provide for a transfer to occur at any point

after all remedial action necessary to protect human health and the

environment has been constructed and installed by the person and the

remedy has been demonstrated to the Military Department concerned and

EPA to be operating properly and successfully.

(iv) The consideration for the Agreement must equal the estimated

fair market value of the property or facilities to be transferred, as

determined by the Secretary of the Military Department concerned. The

consideration may be in the form of the expected costs of all

environmental restoration, waste management, and environmental

compliance activities to be paid by the recipient of the property or

facilities. If such expected costs are lower than the estimated fair

market value of the property or facilities, the Secretary concerned

shall obtain the difference in other consideration satisfactory to the

Secretary concerned.

(v) Before executing any Agreement authorized by Public Law 103-

160, section 2908 the Secretary concerned must:

(A) Disclose to the person to whom the property or facilities shall

be transferred any information under the control of the Secretary

regarding the environmental restoration, waste management and

environmental compliance activities that relate to the property.

(B) Conduct an Environmental Baseline Survey to determine whether

there are impediments to the ultimate transfer of the property.

(C) Make the certification to Congress required by Public Law 103-

60, section 2908.

(D) Ensure the consultation with the affected governor and local

communities required by a base closure law, as defined in paragraph

(e)(1) of this section, has been conducted.

Dated: March 31, 1994.

P.H. Means,

OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 94-8115 Filed 4-5-94; 8:45 am]

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