Final CC Report for Castner Range, Fort Bliss, TX Appendixfronteralandalliance.org/castner/wp-content/uploads/Final-CC-Report... · FINAL 10/5/11 Conservation Conveyance Report Appendix

FINAL 10/5/11

Conservation Conveyance Report Appendix for Castner Range

Fort Bliss, Texas

Prepared for:

The Frontera Land Alliance Stephen Bonner, Project Manager

Attn: Castner Range 26 Cascade Caverns Rd.

Boerne, TX 78015

CALIBRE Systems, Inc. 6354 Walker Lane

Metro Park, Suite 300 Alexandria, Virginia 22310-3252

Telephone (703) 797-8500 • Facsimile (703) 797-8501 www.calibresys.com

DISCLAIMER: This study was prepared under contract with the Frontera Land Alliance, El Paso, Texas, with financial support from the Office of Economic Adjustment, Department of Defense. The content reflects the views of the Frontera Land Alliance and does not necessarily reflect the views of the Office of Economic Adjustment.

Conservation Conveyance Report for Castner Range Fort Bliss, Texas 5 October, 2011

Solicitation Number H98210-11-R-0047 Page – i

TABLE OF CONTENTS

SECTION PAGE TABLE OF CONTENTS .......................................................................................................I APPENDIX A - STATUS OF CASTNER RANGE - A SONRI INCORPORATED REPORT. ................1

INTRODUCTION ....................................................................................................................... 1 STATUS RESEARCH ................................................................................................................ 1 STATUS OF THE CASTNER RANGE ..................................................................................... 2 CONCLUSION ........................................................................................................................... 2

APPENDIX A1 - REPORT ON PERSONAL CONTACTS AND FOLLOW-UP CONCERNING STATUS OF

CASTNER RANGE. ...................................................................................................................3

APPENDIX A2 – CASTNER RANGE STATUS DOCUMENT ..........................................................8

APPENDIX B – CONSERVATION CONVEYANCE IN ACTION: A HISTORY OF THE HONEY LAKE AND

CAMP BONNEVILLE TRANSACTIONS. ......................................................................................9 A SONRI Incorporated Report. ................................................................................................... 9 INTRODUCTION ....................................................................................................................... 9 UXO REMEDIATION ................................................................................................................ 9 REMEDIATION INSURANCE ................................................................................................. 10 HONEY LAKE, CALIFORNIA ................................................................................................. 10 CAMP BONNEVILLE, WASHINGTON .................................................................................. 11 CONCLUSION ........................................................................................................................... 12

APPENDIX B1 – REPORT ON PERSONAL CONTACTS AND FOLLOW-UP CONCERNING PARTNER

EXPERIENCES AND SATISFACTION WITH THE HONEY LAKE AND CAMP BONNEVILLE CONSERVATION

CONVEYANCE TRANSACTIONS. ...............................................................................................13

APPENDIX C – MEETING NOTES ..............................................................................................16 1 Advisory Committee 4/27/2011 ............................................................................................ 16 2 Military Officials 4/27/2011 ................................................................................................. 16 3 Local, State, Regional Officials 4/26/2011 ........................................................................... 17

APPENDIX D – DATA SUMMARY MEMO WITH SECONDARY RESEARCH ..................................19 Data Collection and Requirements Memorandum July 7, 2011 .............................................. 19 Purpose: ....................................................................................................................................... 19 Brief History of Castner Range: .................................................................................................. 20 Brief description of Castner Range: ............................................................................................ 20

1 DEMOGRAPHICS ...............................................................................................20

2 LAND USE ...........................................................................................................22

3 TRANSPORTATION ...........................................................................................24

4 NATURAL RESOURCES ...................................................................................25 TOPOGRAPHY ........................................................................................................... 25 CASTNER RANGE SOILS ........................................................................................... 25 HYDROLOGY ............................................................................................................ 26 FLOODPLAIN DATA ................................................................................................... 26 BIOLOGICAL INFORMATION ..................................................................................... 27 GENERAL INFORMATION REGARDING WILDLIFE AND PLANT LIFE ......................... 27 VEGETATION ............................................................................................................ 28 TYPICAL SPECIES OF PLANT FOUND IN EL PASO ..................................................... 28 ECOSYSTEM MANAGEMENT UNITS (EMU) ............................................................. 29 CULTURAL RESOURCES ........................................................................................... 29

5. MEC/UXO/ INFORMATION ..............................................................................30


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APPENDIX E – CASTNER RANGE REPORT ON REAL ESTATE DISPOSAL ACTIONS ....................34 Purpose ........................................................................................................................................ 34 Background ................................................................................................................................. 34 Disposal Options Available for the Castner Range ..................................................................... 34 Army Disposal Authorities .......................................................................................................... 35 10 USC §2667- The “Enhanced Use Leasing” Authority ........................................................... 35 10 USC §2694a - Conveyance of Surplus Real Property for Natural Resource Conservation ... 36 10 USC §2869 - Conveyance of Property at Military Installations to Limit Encroachment ....... 36 Cooperative Research and Development Agreements (CRADA) ............................................... 36 Disposals to Public Agencies under Public Benefit Statutes ....................................................... 37 Conclusion and Recommendation ............................................................................................... 37

APPENDIX F – UXO LIABILITY REPORT / STATE LAWS ..........................................................38 Background ................................................................................................................................. 38 Conservation Conveyance ........................................................................................................... 39 Environmental Liability............................................................................................................... 39 Early Transfer .............................................................................................................................. 42 Environmental Services Cooperative Agreement ........................................................................ 43 Texas Law ................................................................................................................................... 43

APPENDIX G – CASTNER RANGE DISPOSAL DECISION TREE & FLOW PATH ...........................47

APPENDIX H– DRAFT CC COOPERATIVE AGREEMENT ...........................................................51 1 APPLICATION FOR FEDERAL ASSISTANCE ................................................................ 51 2 SCOPE AND PURPOSE ...................................................................................................... 51

2.1. Background ..............................................................................................51

2.2. Purpose .....................................................................................................52

2.3. Scope ........................................................................................................52 3. DEFINITIONS ...................................................................................................................... 53

3.1. Area Covered by Environmental Services ...............................................53

3.2. Army and Government ............................................................................53

3.3. Army Contingent Funding .......................................................................53

3.4. Army’s Representative.............................................................................53

3.5. Army-Retained Conditions ......................................................................54 3.5.1. RADIOLOGICAL MATERIAL ......................................................................... 54 3.5.2. CHEMICAL WARFARE MATERIAL OR BIOLOGICAL WARFARE MATERIEL . 54 3.5.3. NATURAL RESOURCE INJURIES .................................................................. 54 3.5.4. UNKNOWN CONDITIONS ................................................................................. 54

3.6. Castner Range ..........................................................................................54

3.7. CERCLA Terms.......................................................................................54

3.8. Chemical Warfare Material ......................................................................54 3.8.1. BIOLOGICAL WARFARE MATERIEL ............................................................ 55

3.9. Cooperative Agreement ...........................................................................55

3.10. Department of Defense Explosive Safety Board .....................................55

3.11. Environmental Covenants, Conditions, and Restrictions ........................55

3.12. Environmental Insurance Policies............................................................55

3.13. Environmental Services ...........................................................................55

3.14. Insured Unknown Conditions ..................................................................56

3.15. Known Conditions ...................................................................................56

3.16. Long-Term Obligations ...........................................................................56

3.17. Munitions and Explosives of Concern .....................................................56


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3.17.1. MUNITIONS CONSTITUENTS (MC) ............................................................ 56 3.17.2. MILITARY MUNITIONS .............................................................................. 56 3.17.3. MUNITIONS RESPONSE ............................................................................. 57 3.17.4. MUNITIONS RESPONSE AREA ................................................................... 57 3.17.5. MUNITIONS RESPONSE SITE ..................................................................... 57 3.17.6. UNEXPLODED ORDNANCE ........................................................................ 57

3.18. TCEQ Agreement ....................................................................................57

3.19. Radiological Materials .............................................................................57

3.20. Reasonably Expected Environmental Conditions ....................................58

3.21. Recipient ..................................................................................................58

3.22. Franklin Mountains State Park Plan ........................................................58

3.23. Site Closeout ............................................................................................58

3.24. Technical Specifications and Requirements Statement ...........................58

3.25. Unknown Conditions ...............................................................................58 4. OBLIGATIONS OF THE PARTIES .................................................................................... 59

4.1. Obligations of the Recipient ....................................................................59 4.1.1. GENERAL .................................................................................................... 59 4.1.2. NOTICE OF A COMPLAINT ........................................................................... 59 4.1.3. COVENANT NOT TO SUE ............................................................................. 60 4.1.4. DISCOVERY OF ARMY-RETAINED CONDITIONS OR UNKNOWN CONDITIONS

60 4.1.4.1. DISCOVERY OF INSURED UNKNOWN CONDITIONS .................................. 60 4.1.5. RECIPIENT’S ACTIONS WITH RESPECT TO ARMY OBLIGATIONS FOR ARMY

RETAINED CONDITIONS ..................................................................................... 60 4.1.5.1. INVESTIGATION ACTIVITIES .................................................................... 61 4.1.5.2. IMMINENT THREAT .................................................................................. 61 4.1.5.3. NOTICE AND DISPUTE .............................................................................. 61 4.1.6. IDENTIFICATION OF ARMY OBLIGATIONS .................................................. 61 4.1.7. INFORMATION OBTAINED BY THE RECIPIENT............................................. 62 4.1.8. INDEMNIFICATION / LIMITED WAIVER OF STATUTORY RIGHTS ................. 62 4.1.9. FINANCIAL & TECHNICAL ASSURANCES ....................................................... 63 4.1.10. REPORTS ....................................................................................................... 63 4.1.11. ACCESS ......................................................................................................... 63 4.1.12. PUBLIC PARTICIPATION ................................................................................ 63 4.1.13. RECIPIENT’S PERFORMANCE OBLIGATION................................................... 63

4.2. Obligations of the Army ..........................................................................65 4.2.1. ARMY OBLIGATIONS .................................................................................. 65 4.2.2. OVERSIGHT OF THE ESCA IMPLEMENTATION ............................................ 65 4.2.3. CERCLA COVENANT ................................................................................. 65 4.2.4. OBLIGATIONS UNDER CERCLA................................................................. 65 4.2.5. ACCESS ....................................................................................................... 66 4.2.6. LIABILITY ................................................................................................... 66 4.2.7. ARMY ACTIONS .......................................................................................... 66 4.2.8. MINIMIZE INTERFERENCE WITH RECIPIENT’S ACTIONS ............................. 67 4.2.9. ARMY RETAINED CONDITION ..................................................................... 67 4.2.10. MINIMIZE INTERFERENCE WITH RECIPIENT'S ACTIONS ............................ 67 4.2.11. ARMY OBLIGATIONS ................................................................................ 67 4.2.12. ARMY APPROVAL ..................................................................................... 68 4.2.13. DOCUMENTS PROVIDED TO RECIPIENT .................................................... 68


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4.3. Insurance and Related Liability ...............................................................68 4.3.1. GENERAL LIABILITY ................................................................................... 68 4.3.2. ENVIRONMENTAL INSURANCE AND ARMY CONTINGENT FUNDING .......... 68 4.3.2.1. ENVIRONMENTAL INSURANCE ................................................................. 68 4.3.2.2. ARMY CONTINGENT FUNDING ................................................................. 68 4.3.3. WORKER’S COMPENSATION ....................................................................... 69 4.3.4. GENERAL LIABILITY POLICY PROVISIONS.................................................. 69 4.3.5. DELIVERY OF POLICIES ............................................................................... 69

5. GENERAL PROVISIONS ................................................................................................... 69

5.1. Term of Agreement ..................................................................................69

5.2. Successors and Assigns............................................................................70

5.3. Severability ..............................................................................................70

5.4. Waiver of Breach .....................................................................................70

5.5. Notices .....................................................................................................70

5.6. Representations ........................................................................................71 5.6.1. THE ARMY REPRESENTS THAT: ................................................................... 71 5.6.2. THE RECIPIENT REPRESENTS THAT: ............................................................ 71

5.7. Conflict of Interest ...................................................................................71

5.8. Access to and Retention of Records ........................................................71

5.9. Change of Circumstances ........................................................................72

5.10. CERCLA Requirements...........................................................................72

5.11. Officials Not to Benefit ............................................................................72

5.12. Force Majeure ..........................................................................................72

APPENDIX I–CONSERVATION CONVEYANCE TIME LINE .........................................................73

APPENDIX J–MAPS ..................................................................................................................76

APPENDIX K–SAMPLE UXO FOUND IN 2003 AND 2004 ..........................................................86

APPENDIX L–RANGE MAP ......................................................................................................88

APPENDIX M–GLOSSARY OF ABBREVIATIONS AND ACRONYMS .............................................90


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APPENDIX A - STATUS OF CASTNER RANGE - A SONRI INCORPORATED REPORT.

INTRODUCTION

The Castner Range is a 7,081‐acre parcel of land situated on the eastern slopes of the Franklin Mountains in El Paso, Texas.1 The range is surrounded on the northern, southern, and eastern sides by the City of El Paso and on the west by the Franklin Mountains State Park (FMSP.) The range property is bisected by State Highway 375 (Transmountain Road). The approximately 1,244-acre property to the east of the U.S. Highway 54, is a former part of Castner Range and is now a Formerly Used Defense Site (FUDS) as are the properties to the south of Hondo Pass Drive and to the north of Loma del Sol Street in the Chuck Heinrich Park section of the North Hills subdivision. Castner Range is located on property to the west of U.S. Highway 54. Portions of that property are in reuse by the El Paso Museum of Archaeology, the U.S. Border Patrol Museum, a U.S. Border Patrol office and a small Texas Department of Transportation (TXDOT) center. Eighteen percent of the former Castner Range (specifically the part that is to the east of U.S. Highway 54) is now developed into Cohen Stadium, the Transmountain campus of El Paso Community College, Wal-Mart, Lowes, residential, etc.

For decades, Castner Range was an important asset in the training and readiness of Soldiers at Fort Bliss, Texas; however, encroachment from development of the City of El Paso, Texas and other factors reduced the capacity and capability of the range to the point that the Army ceased using Castner in the early 1970s, and reported the land excess in 1971. Due to presence of unexploded ordnance (UXO), most of the land was never disposed of, and the Report of Excess was returned to the Army by the General Services Administration (GSA) in 1983. Consequently, the balance of the land remains in the Army’s land inventory while characterization and remediation of the UXO contamination continues.2

STATUS RESEARCH

While a formal Freedom of Information Act request has never been filed with Fort Bliss, the Army has not provided specific real estate documents that demonstrate its ownership or stewardship of the range. Nonetheless, research conducted via the internet, and through contact with the GSA Fort Worth office, has produced enough information to definitively establish the status of the range. See Appendix A1 for details on the personal contacts between SONRI Incorporated and GSA Fort Worth, and Appendix A2 for a copy of the document that definitively establishes status as property under ownership of the U.S. Army.

1 Although there are many Castner Range acreage estimations CALIBRE selected the 7,081 acres number based

solely on the Fort Bliss Mission and Master Plan EIS as this will remain the basis for decision. Actual acreage will be determined by survey prior to transfer/disposal. 2 Fort Bliss Mission and Master Plan EIS



STATUS OF THE CASTNER RANGE

The 7,081‐acre parcel of land that is commonly referred to as Castner Range is owned in fee by the United States Army.3 It is a closed range enrolled in the Department of Defense (DOD) Military Munitions Response Program (MMRP) as Munitions Response Site (MRS) FTBLS-004-R-01. The range has a Munitions Response Site Prioritization Protocol (MRSPP) score of 3 out of 5, which means that the range is firmly in the middle of the 3,674 sites in the inventory in terms of likelihood of near-term investment by DOD in remediation and restoration actions.4 Actions since 1983 to dispose of or otherwise reuse portions of Castner Range have been accomplished under either special legislation or as a part of a given National Defense Authorization Act. This is how the land for the U.S. Border Patrol office was transferred. There is no current Report of Excess.

CONCLUSION

Firmly establishing the status of the Castner Range is an important step in studying how Conservation Conveyance might apply to a disposal and reuse action on the property. Until receiving definitive documentation from GSA, it was impossible to know exactly where in the conveyance process to begin. With the completion of this research, the Frontera Land Alliance now understands why the entire process stood in need of evaluation, and that no actions can take place until and unless a Report of Excess is initiated by the Fort Bliss Garrison.

3 Fort Bliss Mission and Master Plan EIS 4 Government Accountability Office. “Military Munitions Response Program”



APPENDIX A1 - REPORT ON PERSONAL CONTACTS AND FOLLOW-UP CONCERNING STATUS OF CASTNER RANGE.

GSA Contact Research

3/10/11 Telecon w/Melvin Freeman, Director, GSA Region 7 Office, Fort Worth, Texas

− Mr. Freeman informed me that his office is indeed the likely cognizant office, but that any GSA records are in the National Archives.

− He asked me to send him an email with as much information as I could provide.

− His office will research the case number and request any records from the Archives.

− I am to send the email today, and follow up in two weeks’ time.

− Contact information:

− Phone: 817-978-3856

− Email: [email protected]

− Website: https://extportal.pbs.gsa.gov:443/ResourceCenter/PRHomePage/loadContactMain.do?region=7

3/10/11 Sent the following email to Melvin Freeman:

“Mr. Freeman, Thank you very much for your time and guidance on the telephone today. As I said on our call, I have been retained to conduct research pertaining to Castner Range, a closed firing range owned by the U.S. Army at Fort Bliss, Texas. My client is the Frontera Land Alliance, a nonprofit land trust in the El Paso area, who are the recipients of a grant from the Department of Defense (DOD) Office of Economic Adjustment (OEA) to study the application of a Public Benefit Conveyance for Conservation Purposes of the Castner Range. Part of that study requires that we establish a records trail for the ownership of the property. Castner Range was closed for Army training in 1966, and shortly thereafter the Army initiated the process of disposing of the property. After moving through the normal Excess and Surplus processes, the range was transferred to GSA (according to the Army) sometime between 1970 and 1973. In 1974, according to historic records in El Paso County, GSA disposed of approximately 1,244 acres on the eastern portion of the range to a variety of receivers, including numerous local and state government entities (City of El Paso, El Paso Independent School District, etc.) and private land holders. U.S. Highway 54, now known as the Patriot Freeway, was built between these 1,244 acres and the remainder of the range. According to the Army, the remainder of the range, approximately 7,000 acres, was returned to their ownership, and this land is now carried on Fort Bliss’ real property inventory. According to the Army, GSA returned the land after repeated attempts to dispose of it failed due to contamination with Unexploded Ordnance. However they are unable to provide documents that reflect the transfer of the property from GSA to Army.



Per our conversation, we request that your office research your records and make available any that affirmatively establish the chain of ownership. I will follow up with you on or about the 24th of March. Thank you, Steve Bonner SONRI Corp. 210-387-8628

4/01/11 Left telephone message with and sent follow-up email to Melvin Freeman, Director, GSA Region 7 Office, Fort Worth, Texas.

04/05/11 Melvin Freeman returned my call. To date, he has not located specific records, but is following up with one of his staffers and promised to be back with me by Thursday, 7 April. He informed me that the normal way GSA would return property to the Army would be to simply return the Report of Excess Package, not through any formal deed transfer. I asked if it was normal for GSA to dispose of part of the property (as happened at Castner) and then return the Report of Excess. He stated that that would not be typical, but that it is possible there were two separate Reports of Excess.

04/06/11 Received a call from Will Morgan, GSA Property Specialist, who has been tasked by Melvin Freeman with research. He informed me that he had copies of records dating back to the mid-1950s on Castner Range, but was hoping to narrow his search by some parcel name, specific acreage, or date. After a long conversation we seemed to narrow the search into the mid-1970s. I promised to do some more historical research and provide him with some clues by mid-week next week (NLT 13 Apr 11).

Contact info: Will Morgan [email protected] 817-978-4239

04/11/11 Conducted extensive online research through Google searches, the U.S. Corps of Engineers Library website (www.nwd.usace.army.mil/im/library/home.asp), and the Fort Bliss Environmental Division website (www.bliss.army.mil/dpw/Environmental/EISDocuments.html) looking for historical references that would help narrow the GSA search. Also sent an email to Sylvia Waggoner of Fort Bliss seeking a specific document (“FINAL SITE INSPECTION REPORT FORT BLISS, TEXAS, January 2007 April 2007 Revised”) and to the “4-Cs” working group seeking a full version of the Parsons 1998 report (“OE Characterization and Cost Analysis Report for Fort Bliss: Castner Range”). NOTE: After multiple follow-up calls, Fort Bliss had not posted the requested document on their website as of 26 May 2011.

04/12/11 Conducted additional research including review of the “Parsons 1998” report which I received from sources other than Fort Bliss and following online leads generated from that document. Sent email to Will Morgan of GSA as follows: “Mr. Morgan, Per our telephone conversation last week I have conducted more research to help narrow the search for the documents I seek concerning the Report of Excess of Castner Range at Fort Bliss,



TX. Unfortunately that research has proven inconclusive for providing any kind of definitive dates or property descriptions as we had hoped. However I think I have been able to narrow the search. I believe that I am seeking one or more of the following documents:

• A 1971 Report of Excess for approximately 8,328 acres called Castner Range, OR

• A 1971 Report of Excess for approximately 1,230 to 1,247 ac (historical records vary on acreage — I believe the lower number).

• A document (letter, memo, or similar) from GSA to Army, dated in either 1975 or

1976, returning the Report of Excess for the 8,328 ac (or approximate) to the Army, disposed property.

Here is the background upon which I base this request:

As of 1971, Castner Range consisted of 8,328 ac of property. In 1971, the Army sent GSA a Report of Excess either on the entire 8,328 ac site or on approximately 1,230 ac which had been certified as cleared of Unexploded Ordnance (UXO). My research leads me to lean toward the 8,328 ac figure. Over the ensuing four to five years, GSA disposed of approximately 1,230 ac. If my research is correct, GSA would have returned the Report of Excess to the Army in either 1975 or 1976, noting the original receipt of 8,328 ac and disposal of 1,230 ac, leaving the Army with approximately 7,098 ac. Today, some of the 1,230 disposed acres are listed as Formerly Used Defense Sites (FUDS) and are monitored by the Corps of Engineers under various designation numbers. The approximate 7,098 ac remainder is still called Castner Range and is managed under DoD’s Military Munitions Response Program (MMRP) as FTBLS-004-R-01.

I deeply appreciate your support and service on this request. I hope that this information helps narrow the search sufficiently, and stand ready to provide further help as required.

Respectfully submitted, Steve Bonner SONRI Corp. 210-387-8628 [email protected]”

The same day I received the following reply, and sent the subsequent response:

“Mr. Bonner,

Thank you for this additional information and it is now more clear what you are looking for. We are going to pull some records from our archives which may have the document(s) that will help fill in the blanks. It may take a few days for those boxes to get to our office and I would expect a few days for our review. I will try and have something by next week if the records come in on time. In the meantime please let me know if you have any additional questions. Thank you.



William Morgan General Services Administration Office of Real Property Utilization & Disposal (7PZ) 819 Taylor St. Room 8A10 Fort Worth, TX 76102 817-978-4239”

RESPONSE:

“Mr. Morgan,

Thanks so much for your prompt reply. I'll put a reminder in my calendar to give you a call mid-week next week to follow up.

Very respectfully,

Steve Bonner SONRI Corp. 210-387-8628 [email protected]”

4/20/11 Called Will Morgan of GSA to inquire about status. He said that the boxes had not yet arrived from the archive, but that he expects them any day. He said that he should be able to give me some results quickly after the boxes arrive. I offered to call again on Friday, 29 April if I don’t hear from him sooner.

4/29/11 Per the 4/20/11 entry above, I sent Will Morgan an email this morning requesting an update on the status of our inquiry. Received the following reply: “I'm reviewing the files today and will get back with you when/if I find something. Thanks.

William Morgan General Services Administration Office of Real Property Utilization & Disposal (7PZ) 819 Taylor St. Room 8A10 Fort Worth, TX 76102 817-978-4239”

Later the same morning, I received the following email with a .pdf document attached. Upon review of the document, I sent the response below and forwarded the document to the 4-Cs and to CALIBRE Systems, Inc.

“As luck would have it the document was at the top of the stack. Let me know if there is anything else you need.

(See attached file: Castner Range.pdf) (APPENDIX A2)

William Morgan General Services Administration



Office of Real Property Utilization & Disposal (7PZ) 819 Taylor St. Room 8A10 Fort Worth, TX 76102 817-978-4239”

I responded with the following email:

“This is indeed precisely the document we sought. Thank you again for your patience and help.

Very respectfully, Steve Bonner SONRI Corp. 210-387-8628 [email protected]



APPENDIX A2 – CASTNER RANGE STATUS DOCUMENT



APPENDIX B – CONSERVATION CONVEYANCE IN ACTION: A HISTORY OF THE HONEY LAKE AND CAMP BONNEVILLE TRANSACTIONS.

A SONRI INCORPORATED REPORT.

INTRODUCTION

Conservation Conveyance is a form of Public Benefit Conveyance authorized under 10 USC § 2694(a) that permits the military to convey unused property to states, local governments, or non-profit conservators for natural resource conservation. The legislation was enacted by Congress in late 2002, helping to relieve the stress that comes with the challenging task of protecting natural resources while continuing to observe established military protocols.5

The legal authority, written by Rebecca Rubin, has been used twice to-date. The first ever Conservation Conveyance was completed in 2006, with the transfer of over 58,000 acres of land from the Sierra Army Depot in California to the Honey Lake Conservation Team. For the second time in history, a Conservation Conveyance was used to transfer the former U.S. Army Reservation, Camp Bonneville, to Clark County, WA, via the Bonneville Conservation, Restoration, and Renewal Team. The Camp Bonneville project began in 2006, and is still underway.6

UXO REMEDIATION

One of the most difficult aspects of a Conservation Conveyance is the cleanup, particularly the remediation of UXO, or unexploded ordnance. Unexploded ordnance are explosive weapons that did not explode when they were employed and still pose a risk of detonation, even decades after they were initially used.7

For U.S. Army lands needing remediation, the Army starts by developing a performance work statement and qualified contractors are given the opportunity to submit a proposal. The Army will then select a contractor with the best proposal to conduct the required work. Although the actual remediation may be contracted out, “The U.S. Military is legally obligated to clean up and monitor under CERCLA (Comprehensive Environmental Response Compensation and Liability Act).”8 Under original BRAC legislation, military departments had to complete all cleanup actions before DOD could enter into transfer agreements. In contrast to BRAC, “Congress has also recently authorized Conservation Conveyance legislation that allows the Army to transfer BRAC land to private, nonprofit land conservation groups without first clearing the UXO and dealing with other environmental contamination. Congress authorized this mechanism to conserve ecologically valuable lands more expeditiously, recognizing that a large-scale cleanup might not be necessary on lands where human access and activities would be restricted.”9 UXO remediation was an issue at the sites of both Conservation Conveyances, and is still an issue at Camp Bonneville.

5 Michael R. Bain "Conservation Conveyance” 6 Wikipedia “Conservation Conveyance” 7 Wikipedia "Unexploded Ordnance” 8 Army Corps of Engineers. "Honey Lake in California tests new method of returning military land to civilian use.” 9 RAND. ”Transferring Army BRAC Land Containing Unexploded Ordnance."



REMEDIATION INSURANCE

For the non-military/DOD organizations involved in the Conservation Conveyance, environmental insurance is available and recommended. In addition, “Section 330 of the National Defense Authorization Act for FY1993 provides some indemnification to transferees and lessees of BRAC land from legal action for releases or threatened releases of hazardous substances resulting from DOD activity…Potential transferees can further protect themselves against future liability and assist in attracting for redevelopment by buying environmental insurance. Environmental insurance can cover cleanup cost overruns, tort liabilities, discovery of new contamination, and any work stoppage that may result from such a discovery. The availability of insurance helps the LRA (local redevelopment authority) or developer manage the potential legal, financial, and environmental risks associated with a former military site.”10

Though environmental insurance is necessary, there are not as many options as one may think, for “roughly 80 percent of the insurance market is controlled by four major insurance providers: American International Group (AIG), Reliance National, Zurich America, and Kemper.”11

HONEY LAKE, CALIFORNIA

No single entity can complete a Conservation Conveyance; it takes many agencies working together, in the best interest of the land, to ensure that such a conveyance is successful.

In the case of Honey Lake, the U.S. Army, Department of Defense, State of California, Lassen County, and several nonprofit groups and consulting firms worked diligently to complete the land transfer two years ahead of schedule. According to a report by the Congressional Research Service, “The first step in the property transfer begins when the military service in possession of a…property notifies other DOD branches and federal agencies that property is in excess to its needs and has become available. If…property remains available after it has been considered for both a federal-to-federal transfer and a public benefit conveyance, DOD is authorized to transfer (the) property via a conservation conveyance.”12

After such an authorization was made, the U.S. Army Corps of Engineers selected the Honey Lake Conservation Team (HLCT) to implement the Conservation Conveyance process. The California State Lands Commission was the recipient of the final land transfer. The two non-profit groups directly involved with the project were The Trust for Public Land (TPL) and the Center for Urban Watershed Renewal (CUWR). TPL was responsible for all stakeholder relations, negotiations, and boundary issues. CUWR held the title.

In addition to federal and state government agencies and non-profit organizations, several consulting firms were contracted to assist with various aspects of the project. Michael Baker Jr., Inc. (Baker) was contracted to lead the Honey Lake Conservation Team. Marstel-Day, LLC was

10 RAND. “Transferring Army BRAC Lands Containing UXO.” 11 Brownfields Technology Support Center. “Assessment of Environmental Liability Insurance Options for Cleanup Activities.” 12 Congressional Research Service. Base Realignment and Closure (BRAC): Transfer and Disposal of Military Property



in charge of the regulatory and policy consulting, and Bioengineering Group was the subcontractor to Baker on environmental issues.13 The lead group in charge of cleanup at Honey Lake was the Honey Lake Conservation Team, led by Baker. The subcontractor team working on environmental issues was Bioengineering Group. According to Bioengineering Group’s website, “[T]he Bioengineering Group developed a concept for an ecologically integrated cap to prevent buried UXO from becoming exposed as a result of wave and wind erosion.”14

The Conservation Conveyance transaction at Honey Lake was funded by multiple sources. The U.S. Army put in a fixed sum of money, which “released them of all obligations, known and unknown.” In addition to military funds, the Honey Lake Conservation Team provided financial incentives to California to address boundary encroachment issues, as well as incentives for the state to take back the site earlier than anticipated.15

The end use of Honey Lake is to be a wildlife habitat, in addition to an open space and recreational facility, and the land will be open to the public. Before cleanup began, there were several plans in place to address the many issues that accompany the transfer of military land, as well as long-term land management plans, such as the Honey Lake Management Plan Habitat and Endangered Species Management Plan; invasive plant species plan and management; and an Implementation Plan for the preservation of historic and cultural resources on the lake-bed/rim.16

CAMP BONNEVILLE, WASHINGTON

The second time in history that the authority was used, the DOD completed a property transfer of Camp Bonneville via a Conservation Conveyance. The Washington State Department of Ecology played a vital role in ensuring that the Army performed an adequate cleanup of the land. In addition to the Federal and State Governments’ involvement in the project, the Army contracted with Clark County to perform the Conservation Conveyance.17

Several nonprofit groups were involved with the project. The Bonneville Conservation, Restoration, and Renewal Team was made up of the Trust for Public Land, Marsh & McLennan Inc. and was led Michael Baker Jr., Inc. In addition to the involvement of public agencies and nonprofit groups, several consulting firms contributed to the transfer. Marstel-Day, LLC was in charge of regulatory and policy consulting. PBS Engineering and Environmental took control of the groundwater, timber, and wetlands fieldwork. MKM Engineering Inc. performed anomaly avoidance prior to Army cleanup/MEC and lead removal. Together, these organizations and groups worked towards one goal: to perform a Conservation Conveyance in a timely and effective manner.18

The issue of UXO remediation at Camp Bonneville is not quite as cut and dried as it was with Honey Lake. In May 2010, Clark County began the process of terminating Mike Gage, president of the Bonneville Conservation, Restoration and Renewal Team, citing the need for a “fresh

13 Mike Gage. "Bonneville Conservation, Restoration, and Renewal Team: A Conservation Non Profit." 14 The Bioengineering Group. "Honey Lake/Sierra Army Depot Base Realignment and Closure.” 15 Mike Gage. "Bonneville Conservation, Restoration, and Renewal Team: A Conservation Non Profit." 16 Mike Gage. "Bonneville Conservation, Restoration, and Renewal Team: A Conservation Non Profit." 17 Clark County Public Works website 18 Baker. “Baker and Partners Negotiate Conservation Conveyance Agreement for Camp Bonneville."



perspective” as its reason.19 In addition, the county is asking the U.S. Army for additional funds to complete the remediation, and until such funds are granted, the remediation is on hold. Before the remediation complications arose, MKM was the organization in charge of anomaly avoidance prior to brush clearance and PBS Engineering and Environmental was in charge of groundwater, timber, and wetlands fieldwork. The subcontractor in charge of removing unexploded ordnance left the project after Army funds were depleted, further prolonging and complicating the remediation process. Ultimately, it is the U.S. Army’s responsibility to monitor UXO contamination long-term, even if the property is transferred to a separate entity.

The U.S. Army largely funded the Conservation Conveyance at Camp Bonneville. They initially put in over $27 million for cleanup work and related insurance. Currently, the Bonneville Conservation Restoration and Renewal Team are asking for $40 to $50 million in additional funds, citing misrepresentation of the extent of remediation by the U.S. Army.20

The end use of Camp Bonneville is to be a regional park and wildlife refuge. There will be public access, but only after the site is cleaned completely and subsequently cleared for public access. The question of how Camp Bonneville will be managed long-term is complicated, and in many ways without an answer. Because of the recent management change, long-term questions have been unresolved. It is again clear that when it comes to UXO remediation, the Army is not absolved. Barry Rogowski, the project manager overseeing site remediation for the Washington’s Department of Ecology, said of the Army’s responsibility for continued UXO remediation: “They can’t just transfer their responsibility for cleanup just because they want to transfer the land.”21

CONCLUSION

In conclusion, a Conservation Conveyance has many advantages, mainly that “these properties are a unique opportunity for natural resource conservation” and that ultimately a “Conservation Conveyance reduces the financial liability of the Armed Forces.”22 Such an advantageous endeavor is not without its challenges. These include the substantial cost of transferring military land to a non-military entity, as well as complications that arise when coordinating between military and non-military agencies. The most pressing question when considering a Conservation Conveyance should be: What is the legacy of such a conveyance on the land, the parties involved, and the community?

19 The Columbian. "Army Vows to Help Fund Cleanup at Bonneville 20 The Columbian. "Camp Bonneville Money Sought." 21 The Columbian. "Army Vows to Help Fund Cleanup at Bonneville 22 Army Corps of Engineers. "Honey Lake in California tests new method of returning military land to civilian use.”



APPENDIX B1 – REPORT ON PERSONAL CONTACTS AND FOLLOW-UP CONCERNING PARTNER EXPERIENCES AND SATISFACTION WITH THE HONEY

LAKE AND CAMP BONNEVILLE CONSERVATION CONVEYANCE TRANSACTIONS.

After SONRI, Inc. did extensive research on the two Conservation Conveyance transactions completed to date, it became clear that there were still several questions left to answer. It is the purpose of this Appendix to answer as many of those questions as possible, as well as to highlight those queries that remain unanswered.

SONRI, Inc. contacted the contributing parties behind the Honey Lake and Camp Bonneville transactions, to better understand their approach to successfully completing a Conservation Conveyance. This included understanding perceived successes, and failures, of each transaction. We also wanted to better understand the UXO clean-up process, again aiming to uncover perceived successes and failures of both teams.

To better understand the experiences of both teams we asked several questions. The first was if and how the project leads were able to please each contributing party to the best of their ability. We then asked how public involvement helped, and hindered, the progress of each transaction. We also wanted to know if the recipients of each transaction were happy with the project leadership, and what they saw as successes and failures. Finally, we asked what could be learned from the experiences of the Honey Lake and Camp Bonneville teams.

Both teams had similar responses to these questions, although there were a few substantial differences. On the whole, the teams involved with the Honey Lake transaction had a very positive experience. According to Dave Plummer with the California State Lands Commission, all of the teams involved were able to work together to negotiate with the Army and the Army, in turn, put up all of the necessary funds to complete the project. Mr. Plummer went on to explain that community involvement was critical. It was, at the time, controversial for the state to take ownership of the land. As a result, the state held several public workshops to better understand the perspective of the public, as well as to ensure that a successful management plan is put into place. Looking back, the team at Honey Lake has declared that they would not do anything differently. In addition, they stressed the importance of good public relations in any future Conservation Conveyance transactions.

While Honey Lake’s experience was a positive one, Camp Bonneville faced more challenges and encountered more complications. SONRI, Inc. spoke with Jeff Mize, Jerry Barnett, and Jeroen Kok from Clark County about their experiences. According to Mr. Kok, “Prior to the finalization of the early transfer (Conservation Conveyance) the parties negotiated a variety of agreements that spelled out the commitments and responsibilities of each party. For the most part, all parties were able to work well under this structure. The one main issue that has delayed the completion of the clean-up process is the fact that more Munitions and Explosives of Concern and Munitions Debris have been discovered than was originally anticipated. As a result, the fixed price contract that was negotiated to complete the cleanup actions proved insufficient to fund the full cleanup effort. We’re now reassessing options to get the clean-up back on track.”



Although the process started off with community involvement that proved to be very valuable, Clark County’s experience has been one of complication after complication. Mr. Kok went on to say, “Clark County initiated extensive public involvement from the outset of the Camp Bonneville transfer. This began with the development of a community vision for the reuse of the property, and included many community members serving on committees and advisory boards to help craft that vision. In addition, the Army established a citizen- and stakeholder-based Restoration Advisory Board, which met almost monthly over the course of several years leading up to the early transfer. At that point, the County established a Citizen Advisory Group to continue the effort to involve and inform the community. In addition, the Department of Ecology has continued to pursue strong public information and outreach efforts to keep citizens informed and engaged. For the most part, the involvement and outreach efforts have been successful and have helped the process.”

When asked if Clark County was satisfied with who was chosen to lead the project and cleanup, their answer was: “Yes and no.” While they were happy, on the whole, with who was chosen to lead the project, they did mention that the clean-up work was not completed under the negotiated terms, further complicating the progress. Kok says they would have done only one thing some other way: “Perhaps the County could have influenced the clean-up contract differently to provide more incentive for the contractors to complete the job on time and on budget.”

Despite the complications, Clark County has maintained a positive attitude. In their words, “The accomplishments since the early transfer have been very substantial, especially compared with the amount of progress that was accomplished by the Army led efforts over the previous 10 years. We now know much more about the various military training activities and where they took place. As a result, we know a lot more about what areas will need further attention for characterization and cleanup, which may also influence where the various elements of the reuse plan will be located”.

The self-described failures of the Camp Bonneville transaction had more to do with planning than staff. Mr. Kok mentions, “I also think that the fixed price contract method may not be ideal for sites where there is significant uncertainty regarding the clean-up actions that will meet the regulatory clean-up requirements.” The take-home message from Clark County: learn as much as possible about the site before predicting possible cleanup actions.

In the spring and summer 2011 various news outlets began reporting on difficulties with the cleanup of Camp Bonneville. These stories included reports of a rift between the Army and the stakeholders of the Camp Bonneville redevelopment, primarily concerning the cost of the UXO remediation. A year after cleanup at Camp Bonneville came to a halt, the United States Army and Clark County are still working towards an agreement to resume cleanup. The Army underestimated the extent of environmental pollution at Camp Bonneville, and despite the fact that much of the $28.6 million Firm Fixed Price contract is exhausted, a significant amount of work remains.



In July 2011, SONRI Incorporated contacted Clark County for additional information, and spoke with Mr. Jeff Mize, Clark County Public Involvement and Outreach. According to Mr. Mize, Clark County is taking the lead on the Camp Bonneville negotiations with the Army. When asked what specific issues are at hand, Mr. Mize had no comment except to say that the issues center around who takes financial responsibility and to what extent. Mr. Mize also had no comment when asked if legal action would be taken against the Army, or if the Army is negotiating to stay out of court. He could only say that Clark County is attempting to reach an agreement with the Army and is possibly only weeks away from such an agreement.

While many questions were answered, there are still some left for future research. It will be important to learn if it would benefit the military more to take the plunge and complete the cleanup with speed, or to approach the clean up more slowly. In addition, we must learn what precedents, if any, were set by the Honey Lake and Camp Bonneville transactions.



APPENDIX C – MEETING NOTES

1 ADVISORY COMMITTEE 4/27/2011

POC: Michael Gaglio (Frontera), Richard Teschner (Frontera), John Moses (Texas Parks & Wildlife), Pat White (Franklin Mountain Wilderness Coalition), Judy Ackerman (Franklin Mountains Wilderness Coalition), Mike Erickson (CALIBRE), Patrick Hardy (CALIBRE)

Conversation:

• Outline Customer Organization(s) and mission of project.

• Outline of Honey Lake Process including what made the process effective (the right support from the right people) and what challenges were overcome.

• The Frontera Land Alliance would own the land in a Conservation Conveyance only as long as was needed for the ownership of the land to be transferred to the Texas Parks and Wildlife Department, which would then own it and manage it.

• Discussed the NEPA requirements related to disposal processes.

• Identified the challenge to the conservation of Castner Range as it is an urban setting.

• Discussed the stakeholders in the disposal process and the team makeup, which would be the best combination to complete the conveyance effectively. It was believed that the composition of the team members is appropriate at this time.

• TCEQ is having a large budget cut.

Questions that still need to be answered:

How did the U.S. Border Patrol Museum and the rest of the development on the Castner Range get authorized, i.e., what were the NEPA and disposal processes followed and who made the decisions that the development was appropriate? (Border Patrol HQ, etc.)

Notes:

Steve Bonner has the 1998 Parsons report on data related to MECs on Castner Range.

2 MILITARY OFFICIALS 4/27/2011

POC: Sylvia Waggoner (Department of Public Works [DPW], Ron Baca (DPW), Chad Henry (CALIBRE), Mike Erickson (CALIBRE), Patrick Hardy (CALIBRE)

Conversation:

− CALIBRE will present the Army with various Courses of Action.

− CALIBRE will staff two parts for Army review:

1. Draft Course of Action; and

2. Draft Final Paper.



Comment from Army: GSA no longer has any role in the real estate process. The Army Corps of Engineers, Fort Worth District provides this function. The St. Louis District has the historical real estate records.

The Army Secretariat needs an Environmental Assessment (EA) or other supporting document to follow the National Environmental Policy Act (NEPA) process before a decision can be made on the disposal of Castner Range. This process has not begun.

The Army (Fort Bliss) will need two to three weeks to do a review of the draft papers.

The status of the following documents is:

INRMP – is being updated now and should be available online soon.

EIS – The “Grow the Army” EIS is not online but was final in April 2010.

Maps - Sylvia will provide CALIBRE the GIS layers that are relevant.

Wide Area Assessment (WAA) - will get to CALIBRE once it is available.

Current Access:

Fort Bliss fights the fires on the property; however it is usually too dangerous and they let them burn. The last fire was in the mid-1990s.

The city wants to build Sun Valley Dam as a flood diversion structure at U.S. Highway 54.

The Army could keep the range for training, such as small arms training, maneuvers, etc., but could not use large munitions on it.

The Remedial Investigation/Feasibility Study is scheduled for the 2012 – 2013 timeframe.

The Army performs periodic security patrols.

The Army recently put up signs surrounding the range in order to provide access control.

The Army DPW thinks the process and report that CALIBRE is developing will be beneficial as long as the Army’s process for decision making is followed.

3 LOCAL, STATE, REGIONAL OFFICIALS 4/26/2011

City Official Meeting (Mathew McElroy, Deputy Director, Planning and Economic Development)

POC: Carlos Gallinar, (915) 541-4662 as Mr. McElroy was occupied with other pressing matters. Also attending were Judy Ackerman (Franklin Mountains Wilderness Coalition), Chad Henry (CALIBRE), Mike Erickson (CALIBRE), Patrick Hardy (CALIBRE)

Conversation:

Background on the contract with Frontera and the approach CALIBRE is taking to evaluate the disposal options, specifically the Conservation Conveyance.



While not providing a City position, the following recommendations were made:

Follow the newly drafted, and soon to be public, Comprehensive Plan. (Carlos will provide this to CALIBRE as soon as possible.) The Draft will be out for review this summer (August 2011), with the Final Version ready for the Mayor’s and City Council’s approval fall 2011.

The GIS maps related to this area will be updated as the Comprehensive Plan is finalized (CALIBRE GIS should correlate info with the City mapping and www.planelpaso.org).

CALIBRE will send the draft final report to Matt McElroy. Carlos recommended that the draft also be sent to the Open Space Advisory Board, and a presentation be given to the City Planning Board. (Contact: Maria Acosta; [email protected]; 915 541-4056)

Bottom Line: The Comprehensive Plan will govern any future reuse.

A new type of zoning (Urban Reserve District zoning) may be useful to the process; Urban Reserve District zoning is a hold designation that gives the stakeholders time to consider options and identify the preferred zoning.

Take-Away Tasks:

Coordinate the report on disposal options and the Conservation Conveyance with the city for feedback, considering similar plans, zoning and further needs.



APPENDIX D – DATA SUMMARY MEMO WITH SECONDARY RESEARCH

DATA COLLECTION AND REQUIREMENTS MEMORANDUM, JULY 7, 2011

In accordance with the Castner Range Conservation Conveyance (CC) Study contract and the Office of Economic Adjustment (OEA) requirements, meetings were held in El Paso, TX with the Castner Conservation Conveyance Committee (Frontera), military officials from Fort Bliss Directorate of Public Works (DPW), and local government officials including the City Planner’s staff from 26 April 2011 to 28 April 2011. The details of those meetings are a separate deliverable for this contract.

This memorandum will summarize the data gathered to date, including data collected prior to the meetings, and data collected during and as a result of the meetings. The information presented is grouped into the following categories for effectiveness:

1. Demographics

2. Land Use

3. Transportation

4. Natural Resources

5. Munitions and Explosives of Concern (MEC)/Unexploded Ordnance (UXO)

PURPOSE:

The purpose of this data gathering effort is to determine if there is enough information currently available to identify a viable path forward for the conveyance of Castner Range. In order to assist in this effort the following questions were identified:

1. Would the conveyance and future land use of Castner Range be compatible with the surrounding areas?

2. Would the conveyance and future land use of Castner Range be compatible with future demographics?

3. How would the conveyance and future land use of Castner Range impact the natural environment?

4. What is the current real estate status of Castner Range?

5. How does MEC/UXO impact the conveyance and future land use of Castner Range?

6. How does future military need impact the conveyance and future land use of Castner Range?

This memorandum also lists any outstanding data needs deemed important to the CC Study.



BRIEF HISTORY OF CASTNER RANGE:

The Army acquired Castner Range beginning in 1926 and expanded the property in the years prior to WWII. The site was used for maneuvers and both small and large munitions firing ranges over the years. In 1971, the Army reported 1,247 acres of the 8,329 acre range excess to General Services Administration (GSA). The GSA conveyed the excessed property to the city of El Paso. Commercial and residential areas, as well as a community college, a stadium and public parks have been developed on and surrounding the former range.23

BRIEF DESCRIPTION OF CASTNER RANGE:

Castner Range is an old training range that is located within the northern limits of the City of El Paso, El Paso County, Texas. The range is bordered on three sides by residential and commercial development and on the west side by Franklin Mountains State Park. Castner Range has a combination of unique plant and animal habitats, and complex geology. There are many springs on Castner Range which support pockets of vegetation and provide wildlife habitat. The largest alluvial fans in the Franklin Mountains are within the Castner Range. Another characteristic of Castner Range is the Mexican Gold Poppy; this species is found in this section of Texas exclusively on the lower slopes of Castner Range. The Mexican Gold Poppy is an iconic flower that provides color and beauty to the region. Castner Range is dotted with archaeological sites, including the Fusselman Canyon Petroglyph Site and the White Rock Shelter. At the present time, access to Castner Range is limited by signage.

1 DEMOGRAPHICS

CALIBRE gathered population data from the area surrounding Castner Range.

Current24

Population January 1, 2005

City of El Paso 604,156 Remainder of El Paso County 125,635 Ciudad Juarez, Mexico 1,368,175 Total Metro 2,097,966

Projected25

Population by 2012:

Anglo 78,750 Black 21,763 Hispanic 674,098 Other 16,706 El Paso County Total 791,317

23 Global Security Castner Range, Fort Bliss, TX 24 City of El Paso Texas website 25 City of El Paso Texas website



Population by 2020:

City of El Paso 767,750 Remainder of El Paso County 169,497 Ciudad Juarez, Mexico 2,458,789 Total Metro 3,396,036

Projected Population Growth between 2005 and 2020 1,298,070

Factors Impacting Fort Bliss and Regional Demographics

The Fort Bliss vicinity has substantial growth spurred by BRAC 2005. Fort Bliss in Northeast El Paso has been reported as the fastest-growing U.S. Army installation in the United States.

• Department of Defense has invested almost $5 billion at Fort Bliss.

• Army Campaign Plan, Grow the Army, and Army Modularity Force have all impacted the region.

• 40,500 Soldiers, 61,600 family members, 17,400 support personnel have been added to Fort Bliss. This increased growth impacts all of the environmental factors (groundwater, air, light, and sprawl) around Castner Range in El Paso.26

Top Employers

The region’s top employers are listed in the table below. There was no single source of information; several sources were used in order to compile this list.

El Paso Top Employers (2010) Employer Category Employees Source

Fort Bliss (includes military/civilian) Government 32,371 City of El Paso

El Paso Independent School District Education 8,633 Wikipedia

Ysleta Independent School District Education 6,500 Wikipedia

City of El Paso Government 6,264 Wikipedia

T&T Staff Management LP Employment Services 5,587 City of El Paso

University of Texas at El Paso Education 4,871 Wikipedia

Socorro Independent School District Education 3,995 Wikipedia

Sierra Providence Health Network Health Care 3,761 Wikipedia

El Paso Community College Education 3,728 Wikipedia

Wal-Mart Retail 3,706 Wikipedia

Tenet Healthcare Ltd. Health Care 3,053 City of El Paso

El Paso County Government 2,700 Wikipedia

Dish Network Technical Support Center

2,610 City of El Paso

University Medical Center Health Care 2,100 City of El Paso

GC Services Inbound Customer 2,019 City of El Paso

26 Fort Bliss Army Growth and Force Structure Realignment EIS



Service Center

Echostar Satellite 2,012 Wikipedia

Del Sol Medical Center Health Care 1,450 City of El Paso

Texas Tech University Science Center Education/ Health Care 1,235 City of El Paso

Automatic Data Processing Inc. Business Solutions 1,086 City of El Paso

Redcats USA Inbound Customer Service Center

1,085 City of El Paso

Las Palmas Medical Center Health Care 950 City of El Paso

El Paso Electric Company Utilities 920 Manta

Visiting Nurse Association of El Paso Health Care 900 City of El Paso

West Customer Management Group Inbound Customer Service Center

840 City of El Paso

Major Commercial Areas

Major commercial development issues will affect the remediation of the Castner Range. Following are the major commercial developments within the area of interest for the CC study:

• Kohl’s, Sam’s Club, Wal-Mart, Best Buy, Target, Marshalls, Office Depot, Sports Authority, Barnes and Noble, Pet Smart, Ross, Room Store, Burlington, Dillard’s, Sears, Old Navy, Macy’s, Pier One Imports, Costco, JC Penney, Walgreens, DSW, Michaels, Babies R Us, Starbucks, Bed Bath and Beyond, and World Market.27

El Paso Planning Districts have a significant impact on these commercial developments as they will affect the areas’ growth and may environmentally affect the land. Castner Range is within the Northeast Planning district of El Paso.

Data Needs

No data needs have been identified as of this time.

2 LAND USE

Castner Range is not an active range; as such it is not considered a part of the Fort Bliss Training Complex. The Fort Bliss environmental documents contain some information on Castner Range; but it is not discussed in detail.

Note: Fort Bliss DPW will be providing the most up to date environmental documents to the project team, when they are available.

Land Use for Castner Range

It is thanks to the existing MEC threat that Castner Range has been “conserved” by default. Public access to the range is not allowed as there is still potential for exposure to this threat. Small portions of Castner Range have been previously transferred to other land holders. There are several developed areas within the current Castner Range Footprint.

27 City of El Paso Texas website



• U.S. Customs and Border Protection Patrol El Paso Station/Texas Department of Transportation (TXDOT) El Paso District Office

− On the southeast corner of Castner Range is the U.S. Border Patrol’s El Paso Station.

− The TXDOT El Paso District Office is also located on the southeast corner of Castner Range, surrounded on the north and the west by the Border Patrol Station property.

• National Border Patrol Museum28

− February 1994, construction on the building was finished.

− In April 1994, the Museum, located on Transmountain Road just west of U.S. Highway 54, opened its doors to the public.

− This property is leased from the City of El Paso

• The El Paso Museum of Archeology29

− Located at the base of the Franklin Mountains, on the Transmountain Road just west of U.S. Highway 54.

− This property is leased from the City of El Paso

Current Land Use for Area Surrounding Castner Range

North

North of Castner Range is divided approximately in quarters respectively; ¾ of the northern east-west boundary is Franklin Mountains State Park (FMSP) which extends north to the state border. The remaining ¼ of the east-west border is residential development.

South Development and developable land exists on approximately ¾ of the boundary, including residential development and open parcels of land that are not directly associated with the range.

East

East of the range is where the most development exists on the opposite side of the Patriot Freeway (HWY 54) from the range. Residential and small commercial domiciles are the majority of development. Development includes many parks, a stadium, and El Paso Community College Transmountain Campus.

West West of Castner Range is entirely part of the FMSP.

Future Land Use for Area Surrounding Castner Range

North ¾ of the northern boundary of Castner Range belongs to FMSP and the remaining ¼ has been developed. This may be an area for further commercial development

South

¼ of the southern boundary of Castner Range belongs to FMSP and the remaining ¾ have been heavily developed and will remain intermittent commercial and residential development with an increase due to the population growth in the City of El Paso.

East The eastern boundary is the most likely to be developed, although little information about development plans is available from the city or developers

West The western boundary is entirely part of the FMSP and will not be developed

28 National Border Patrol Museum. A Brief History of the National Border Patrol Museum. 29 El Paso Museum of Archaeology. About us.



The zoning of the area surrounding Castner Range is as represented above with the majority of the range being surrounded by the Franklin Mountains State Park.

Data Needs. (This information is not critical to beginning management decisions; however, it will provide a greater level of understanding.)

• Detailed information on inholdings; land ownership confirmation, transfer timeframe and mechanism.

• Information on potential planned state park headquarters and City retention pond.

3 TRANSPORTATION

Current Transportation

• One public road runs through the Castner Range and dissects the range, ending in downtown El Paso at U.S. 62-85. This road—designated by TXDOT as “Loop 375”—is identified by multiple names: Woodrow Bean Transmountain Drive in the northern section, Purple Heart Memorial Freeway in the northeastern section, the Cesar E. Chavez Border Highway in the southern section, and Joe Battle Boulevard in the eastern section.

• U.S. Highway 54 borders the range to the east with some commercial and light industrial use along the highway’s eastern frontage roadway.

• West of U.S. Highway 54, Loop 375 becomes Woodrow Bean Transmountain Drive, which connects to I-10 northwest of El Paso, TX and has the advantage of few cross streets. Transmountain Drive passes through Castner Range just west of U.S. Highway 54.30

• The U.S. Highway 54 corridor and other major roadways have attracted commercial and light industrial development. The land lying immediately to the south of the Main Cantonment Area is primarily residential. Between this residential area and the Mexican border to the south, land use undergoes a transition from residential to a mixture of residential and commercial, and then becomes heavily commercial and industrial near the river that forms the international boundary.31

• The $367 million Inner Loop (Spur 601) used unique bond financing initiatives. The city and elected officials worked with TXDOT on a unique (pass-through toll) funding approach in constructing Spur 601. (Pass-through tolling motorists pay nothing. Vehicles are counted and the state reimburses the private firm over several years according to that number.)32

Transportation Plans

• TXDOT has announced plans to add toll lanes to the Border Highway portion of Loop 375 between Downtown El Paso and the Zaragoza International Bridge. The city is moving forward with plans to allow a freeway to be built along Transmountain Road on the West Side.

30 Texas Freeway "Loop 375 Northeast - Americas Avenue." 31 Fort Bliss Mission and Master Plan EIS 32 Federal Funding of Transportation Improvements in BRAC Cases



• A 3-mile, $80 million freeway will be part of Loop 375 and will connect traffic coming off Transmountain Road to I-10.33

The City of El Paso’s pending comprehensive plan will govern roads and zoning development in the area surrounding Castner Range. The City of El Paso’s Planning and Economic Development departments will provide the comprehensive plan to CALIBRE when finalized.


• Waiting for final City of El Paso Comprehensive Plan (already drafted and awaiting City approval in Summer/Fall 2011)

4 NATURAL RESOURCES

CALIBRE reviewed the following Fort Bliss Environmental documents:34

• Environmental Impact Statement(s) (EIS)

• Environmental Assessments (EAs)

• Integrated Natural Resources Management Plan (INRMP)

• Integrated Cultural Resources Management Plan (ICRMP)

• Water Quality Reports

• Salinity Reports

• Project/Activity Maps

• Flood Control Projects

Topography

Castner Range contains a significant portion of the Franklin Mountains, a north/south trending mountain range in El Paso County in the state of Texas. Within Castner Range the peak elevation is approximately 6,900 feet (2,103 meters) 35 above sea level, and it is located near latitude-longitude coordinates of N 31.901216 and W 106.467766.

Castner Range Soils

Castner Range is primarily igneous rock land—Brewster, with an almost equal portion of Delnorte-Canutio soils. A small amount of the range is Delnorte-Canutio undulating section. The rest of the soils within the range are Augustin.

33 El Paso Times. Trans Mountain freeway vote delayed for more study 34 Fort Bliss. Directorate of Public Works Website 35 U.S.G.S. 7½ minute topographic quadrangle, North Franklin Mountain, TX, 1995.l



Series Composition of Soil Associations within the Castner Range Area36

Association Series IN – Igneous rock land-Brewster 50 to 75 percent Igneous rock land, 15 to 50 percent Brewster

DCD – Delnorte-Canutio, hilly 55 percent Delnorte, 18 percent Canutio, 27 percent Bluepoint, Agustin, Pajarito

DCB – Delnorte-Canutio, undulating

75 percent Delnorte, 25 percent Canutio, and small amounts of Bluepoint and Badlands

AGB – Agustin, undulating 65 percent Agustin, 35 percent Simona, Pajarito, Delnorte, Wink

Hydrology

El Paso Water Utilities owns the land that straddles the Capitan Reef Complex aquifer. The El Paso Water Utilities may produce as much as 25,000 acre-feet per year from the Capitan Reef Complex aquifer by 2060. Below is a list of recent water related projects in the area.37

Border Environment Cooperation Commission (BECC) and the North American

Development Bank (NADB) Certified Water Projects in El Paso and surrounding areas38

Project Cost (Millions) Date Northwest Reclaimed Water System Phases I and II, El Paso, TX

$11.68 11/15/1995

EPISO, On-Site WWT System, Colonias of El Paso County, TX

$0.16 07/18/1996

Jonathan Rogers Water Treatment Plant Expansion El Paso, TX

$37.82 12/05/1997

Improvements to the Water and Wastewater Systems for El Paso County Water and Control Improvements District #4 (Fabens, TX)

$12.00 03/20/2002

Construction of the Wastewater System for El Paso County Tornillo Water Improvement District Tornillo, TX

$21.77 09/25/2002

El Paso - Stormwater Project $67.50 09/04/2009

Total $150.94

Floodplain data

Castner Range has large alluvial fans that have been created over years of water and flood action. There is little information on the frequency and intensity of these events. The majority of the floodplains in the surrounding areas are managed by the El Paso Water Utilities. The Rio Grande Rectification Project was a large scale river/floodplain project built to address water issues in the area.

36 Fort Bliss Integrated Natural Resources Management Plan (INRMP) 37 Border Environment Cooperation Commission website 38 Border Environment Cooperation Commission website



• The Rio Grande Rectification Project was constructed between 1934 and 1938 and extends 86 river miles from El Paso to Fort Quitman, Texas.

• The Rectification Project stabilized the international river boundary and provides flood protection for urban, suburban, and agricultural areas.

• The nearby Rio Grande Canalization Project provides flood protection against a 100-year flood and assures releases of waters to Mexico from the upstream reservoirs in accordance with the 1906 Convention between the United States and Mexico.39

Biological Information

There are seven species of wood warblers, 10 species of sparrows and towhees, nine species of swans, geese, and ducks, five species of tyrant flycatchers, and 50 other bird species can be found. Eleven species of bats, rats, mice and squirrels can be found in the counties, plus 10 other mammal species including deer, gophers, black-tailed jackrabbit (Lepus californicus), and desert cottontail (Sylvilagus auduboni). Six species of toads, spade-foots, and frogs occur in the counties. In addition, 17 species of reptiles, mostly snakes with some lizards (e.g., several species of whiptails) can be found. Most of the birds occur in riparian environments, while most of the other animals occur mainly in desert and grassland areas.40

General Information Regarding Wildlife and Plant Life

Periods of complete dryness are a challenge for aquatic and other water-dependent wildlife and some plants. Salinity can reach high levels when there is water. Flows are released from the Elephant Butte Reservoir during irrigation season with little of the variation that would be typical of a natural steam hydrograph. The primary abiotic and biotic processes needed for a functioning riparian habitat take place in the area of interest and include scouring floods, sediment transport, overbank spring floods that flush salts and enhance seed dispersion, and native plant seed sources. Castner Range provides habitat that is more consistently used than adjacent non-arroyo habitat by nesting birds and neotropical migrants moving through the Chihuahuan Desert on Fort Bliss.

Federally Listed Species Name Status Habitat

Birds Arctic peregrine falcon Falco peregrinus tundrius T 2 El Paso

Common black hawk Buteogallus anthracinus T 4 El Paso

Mexican spotted owl Strix occidentalis lucida T 5 El Paso

Northern aplomado falcon Falco femoralis septentrionalis

E 5 Doña Ana; El Paso

Southwestern willow flycatcher Empidonax traillii extimus E 1 Doña Ana; Sierra; El Paso

Zone-tailed hawk Buteo albonotatus T El Paso

Fishes Bluntnose shiner Notropis simus pecosensis T 3 El Paso

39 International Boundary and Water Commission. Biological Resources Survey. 40 International Boundary and Water Commission. Biological Resources Survey.



Rio Grande silvery minnow Hybognathus amarus E 3 Doña Ana; El Paso

Mammals Black bear Ursus americanus T 5 El Paso

Black-footed ferret Mustela nigripes E 5 El Paso

Gray wolf Canis lupus E 5 El Paso

Reptiles Chihuahuan desert lyre snake Trimorphodon vilkinsonii T 4 El Paso

Chihuahuan mud turtle Kinosternon hirtipes T 4 El Paso

Texas horned lizard Phrynosoma cornutum T 1 El Paso

Trans-Pecos black-headed snake Tantilla cucullata T 4 El Paso

Plants Sneed’s pincushion cactus Coryphantha sneedii var.

sneedii E 5 Doña Ana; El Paso

E-endangered, T-threatened, 1-habitat exists in project; 2-migratory species, seasonal habitat exists in project; 3-

species believed to be extirpated from project area; 4- project area lies within geographic species range and is likely

to include habitat; 5-suitable habitat does not exist in project41

.

Vegetation

Riparian vegetation communities in the watershed are mainly herbaceous with less than 20 percent cover of trees and shrubs, containing grasses, sedges, and forbs. Nonnative species such as Russian thistle, red bladderpod (Sphaerophysa salsola), and jimson-weed (Datura stramonium) are common. Other riparian vegetation communities that can be found in the project floodplains are woodlands, shrub lands, exposed ground, cropland, and wetland. Bare exposed ground is a very common land cover type in the floodplains. Within the levees between Las Cruces and outlying El Paso, the riparian habitat is extremely fragmented and low quality. There is little to no regeneration due to lack of flooding and frequent mowing. In the upland areas, common plants are snakeweed (Stachytarpheta spp), saltbush (Suaeda torreyana), and salt cedar. Land cover in upland areas can be classified into exposed ground, herbaceous, or woodland/shrub land, with exposed ground being abundant.42

Typical Species of Plant found in El Paso

The following species of plants are found in the El Paso area; Black grama (Bouteloua eriopoda), Blue grama (Bouteloua gracilis), Broom snakeweed (Gutierrezia sarothrae), Chino grama (Bouteloua ramose), Devil's claw (Harpagophytum procumbens), Fourwing saltbush (Atriplex canescens), Mormon tea (Ephedra funereal), Sand dropseed (Sporobolus cryptandrus), Spike dropseed (Sporobolus contractus), Sotol (Dasylirion wheeleri), Gypsum grama (Bouteloua breviseta), Mexican Tea (Ephedra trifurca).

41 International Boundary and Water Commission. Biological Resources Survey. 42 International Boundary and Water Commission. Biological Resources Survey.



Description of Plant Community at Castner Range43

Plant Community Description Foothill desert shrubland– ocotillo - mariola

Ocotillo and mariola (Parthenium incanum) are common plant species. Occurs on the rocky foothills of the Franklin Mountains.

Foothills piedmont desert grassland

Black and sideoats grama dominant with soaptree yucca and creosotebush. Occurs on gravely footslopes and piedmont of the Franklin Mountains.

Ecosystem Management Units (EMU)44

There are two EMUs that are used in the management of the ecosystem at Castner Range: the Franklin Mountains EMU and the Foothill-Bajada complex EMU. There are eight total EMUs within Fort Bliss.

EMU Description

Franklin Mountains

The Franklin Mountains EMU is a relatively small; 1365 acres, EMU overlapping parts of Castner Range. The EMU elevation ranges from 4,300 to 5,500 feet. Vegetation is a mix of desert scrub with some riparian vegetation and gently sloping piedmont dissected by drainages originating from the Franklin Mountains.

Foothill-Bajada complex

The foothill-bajada complex EMU is located also within Castner Range running north to south along the western edge of the Franklin Mountains. Elevation is between 4,000 and 5,500 feet. This area comprises a gently sloping piedmont dissected by drainages originating from the Franklin Mountains. This unit grades into alluvial and aeolian basins. Soils are derived from granite, rhyolite, limestone, and sandstone alluvium that support a mix of desert scrub and grassland. Sandier soils near the basin support increasing numbers of mesquite in transitional communities mixed with creosotebush and grama grasses.

Cultural Resources

Castner Range contains numerous prehistoric and historic resources, including pictographs and petroglyphs, mining sites, and military training sites.

43 International Boundary and Water Commission. Biological Resources Survey. 44 Fort Bliss Integrated Natural Resources Management Plan (INRMP)



Castner Range Prehistoric and Historic Site Inventory by National Register of Historic Places (NRHP) Eligibility and Location45

Location Listed in NRHP Eligible Not Eligible Undetermined

Prehistoric 1 4 3 9

Historic 0 0 5 12


• Waiting for updates from the Army regarding the ICRMP and INRMP

5. MEC/UXO INFORMATION

The term MEC (Munitions and Explosives of Concern) refers to military munitions and explosive constituents that may pose unique explosive safety risks, including: (A) unexploded ordnance (UXO), as defined in 10 U.S.C. §101(e)(5); (B) discarded military munitions (DMM), as defined in 10 U.S.C. §2710(e)(2); or (C) munitions constituents (e.g., TNT, RDX), as defined in 10 U.S.C. §2710(e)(3), present in high enough concentrations to pose an explosive hazard. Any historical reference to MEC will also include DMM and munitions constituents as these may also be present.

Exploded ordnance debris is less hazardous than unexploded ordnance, but there is a potential that incomplete detonation may result in exposed explosive compounds or initiating mechanisms. A further safety hazard is created by fragmented, jagged metal pieces. The environmental hazard resulting from exploded ordnance is low, as the explosives are normally consumed during detonation and are not widely available to environmental media.46

Although Castner Range is closed to public access, incidents involving ordnance remaining on the range have occurred. MEC hazards are present on the ground surface and possibly in the subsurface of Castner Range. While the potential for these items is greatest on the desert floor and low foothills, these items have also been found in the steeper canyons. People trespassing on Castner Range are at an increased risk because of the potential for stepping on or unknowingly handling an explosive ordnance item. Some ordnance and explosive hazards may be detonated without direct physical contact. Appendix K shows samples of MEC found during a 2003/2004 survey of Castner Range.

The Fort Bliss, TX, NM, Mission and Master Plan: Programmatic Environment Impact Statement. The first ordnance surface removal was conducted in 1994 on the 480 acres of land that appeared to pose the greatest risk to the public, as determined by the Archive Search Report and site reconnaissance work. These areas were known impact areas and ordnance disposal sites. Hazards included a variety of live and inert ordnance and ordnance fragments. An additional parcel of land (58 acres), known as the Castner Recreation Area, was also surveyed because local interest for acquisition of the parcel and use by the public was high. The Castner Recreation Area was found

45 Integrated Cultural Resources Management Plan (ICRMP), 2008-2012 46 Fort Bliss Mission and Master Plan EIS



not to contain ordnance and the area is now being leased to the Girl Scouts. This first phase of Castner Range cleanup cost $1.15 million.47

The Final 1998 OE Characterization and Cost Analysis Report by Parsons includes previous ordnance and explosive studies which have confirmed that MEC exists on the site. This report summarizes several courses of action and estimates a cost of $14 to $15 million to have the entire site remediated and transferred to the TPWD.48

The Final Site Inspection Report, Fort Bliss, TX, January 2007 was revised in April 2007. It identified the following munitions were fired or detonated on Castner Range: large caliber high explosives, mortars, pyrotechnics, illumination flares, grenades, and small arms. Castner Range was also used for firing demonstrations. These demonstrations involved extensive firing of conventional weapons in addition to white phosphorus and smoke munitions. Additionally, a large area was used for open burning/open detonation.49

The WAA Final Report EST 2011 by the United States Army Environmental Command, and several other Army offices to include Fort Bliss, are conducting a technology demonstration of the Wide Area Assessment (WAA). The final report is estimated to be complete in late 2011. This effort costing approximately $3M will provide a greater fidelity of information on the location and extent of MEC on Castner Range.

The following is a summary of the ranges on Castner Range:

• Four rifle ranges were constructed in the south central area of the range.

• Additional land was purchased in 1939 and more ranges were added. The range area was probably also used for firepower demonstrations during this time.

• Range maps from 1943 identify 17 ranges (see Appendix L). Most ranges were small arms ranges with the exception of a 37mm sub-caliber range, a mortar range, moving target and field firing courses.

• Army Military Service maps from the 1950s show a firing range and a demolition area in the northeast portion in addition to the firing ranges located in the southeast area.

• Range firing fans from 1953 show firing points located along the eastern edge of the range using the Franklin Mountains as a backstop.

• By 1955, 27 ranges existed on Castner Range. The ranges included a 3.5-inch rocket range, a live hand grenade range, and a demolition range. The other 24 ranges were small arms ranges.

• Documents from 1961 indicate a complex of firing ranges identified as Trainfire I was located along the eastern edge of the Castner Range which was used for rifle and other small arms firing.

• The Vietnam Village was constructed for close combat training in the same area as the demolition range in the northern portion of Castner Range and occupied 20 acres.

47 Fort Bliss Mission and Master Plan EIS 48 OE Characterization and Cost Analysis Report for Fort Bliss Castner Range 49 Final Site Inspection Report



The following is a summary of the MEC contaminated areas and any related investigations and cleanups:

• Open Burning/Open Detonation (OB/OD) Pit B-1(Appendix L) is a former OB/OD pit located near the northernmost boundary that was used exclusively for the destruction of small arms ammunition.

o In December 1996, surface soil sampling was conducted at the OB/OD Pit B-1 Site. Metals and explosives were found above regulatory limits.

o In November 1999, sampling was performed at the OB/OD Pit B-1 Site, metals and explosives were detected above regulatory limits.

o In June 2001, the OB/OD Pit B-1 was cleared to a depth of one-foot. No ordnance was encountered during the clearance.

o In September 2003, surface soils were tested in Pit B-1, and all tests were negative for explosives and propellants.

• OB/OD Area A-1 is a second OB/OD area located near the northwest corner. The site is spread over an approximately four-acre area along the valley floor. Site Investigation field work was completed in the fall of 2002, soil remediation activities to address the contamination were initiated in March 2006 and additional remedial work was planned for the site in October 2006. During the remedial activities, no munitions related issues were identified.50

• The Transmountain Buried Drum Site covers approximately six acres of Castner Range adjacent to the east side of the Franklin Mountains. In 1994, an ordnance removal contractor discovered 55-gallon drums and a large surface flow of tar material on the site. Fort Bliss completed a removal action at the site in 2001. The concrete slabs erected by the USACE were left as historical evidence of the site usage.

• During December 1979, a surface sweep was conducted 200 meters on either side of the Transmountain Road and along a two-mile portion of the U.S. Highway 54 right-of-way.

• In 1981, the Army conducted an ordnance surface sweep along a 30-foot wide power line easement running perpendicular from U.S. Highway 54 to the Wilderness Museum. It was recommended the area be restricted to surface use only.

• In 1986, a surface sweep was conducted on 7.459 acres at the Northgate Dam Site on Castner Range; however, the exact location of the sweep is unknown.

• In 1994, a MEC Site Investigation was performed.

o Archival search, sampling, and MEC sweeps were done in order to characterize 6,700 acres.

o Site A-1 and B-1 were both described as demolition areas for disposal of munitions. Site A-1 corresponds with OB/OD Area A-1, and Site B-1 corresponds with OB/OD Pit B-1.

o It was recommended that two levels of clearance activities be completed at Castner Range based on the results of the 1994 investigation. Light cased ordnance impact areas require

50 Response Action Completion Report OB/OD Area A-1



only a surface clearance and subsurface clearance to a depth of six inches. Heavier cased artillery round impact areas requires surface and subsurface clearance to a depth of three feet. It was noted that due to the weather conditions and elevations there is a possibility that the heaving effect of freezing weather could force previously undetected items to the surface.

o It should be noted there is no documentation that specific removal actions were taken based on the recommendations. However, subsequent studies and removal actions most likely used prior information for planning purposes.

• A surface removal action was performed on areas that were determined to pose an immediate risk to the public in 1995 where the potential for encountering Ordnance and Explosive Waste was suspected at Castner Range.

o Area 1 is located in the transferred portion of Castner Range; a 100 percent surface clearance action was performed at this site along with 10 percent subsurface selective sampling to a depth of one foot.

o Area A, Area B, Area C, Area D, and Area D South are all described as former OB/OD areas and a 100 percent surface clearance action was performed at these sites. Area A is 26.25 acres, Area B is 40 acres, Area C is 206.25 acres, Area D is 51 acres, and Area D South is 189.94 acres.

• In 1998, an Ordnance and Explosive (OE) removal action at the following readily accessible areas: White Sands Bus Parking Lot, a former Hand Grenade Range, and the canyon mouth area below Fusselman Dam.

• An OE removal was performed from 2003 to 2004. The subsurface was cleared on 167 acres to depth (up to 3 ft. bgs), excavating approximately 41,000 subsurface anomalies, and 975 acres were surface cleared for a total of 1,142 acres cleared.51


• Wide Area Assessment once finalized. (Army [Fort Bliss])

51 OE Characterization and Cost Analysis Report for Fort Bliss Castner Range



APPENDIX E – CASTNER RANGE REPORT ON REAL ESTATE DISPOSAL ACTIONS

PURPOSE

This paper identifies and describes the various options available to the Army for management and/or disposal of the surplus property at Castner Range that will protect the property from development while UXO/Munitions and Explosives of Concern (MEC) remediation of the range continues.

BACKGROUND

Castner Range is a 7,081‐acre parcel of land situated on the eastern slopes of the Franklin Mountains in the El Paso, Texas area.52 The range is surrounded on the north, south, and eastern sides by the City of El Paso and on the west by the Franklin Mountains State Park (FMSP), The legislation that created the FMSP allows for inclusion of any portions of Castner Range once they are cleaned of UXO. Indeed, inclusion of Castner Range is part of the long‐term vision of FMSP.

For decades, Castner Range was an important asset in the training and readiness of Soldiers at Fort Bliss, Texas; however the proximity of the growing city of El Paso, Texas and other factors reduced the utility of the range to the point that the United States Army (Army) ceased using Castner altogether in the early 1970s, and reported the land excess to their needs 53. Due to presence of MEC, most of the land was never disposed of, and remains today on the Army’s land inventory while characterization and remediation of the MEC contamination continues. Other factors may also have prevented property disposal.

DISPOSAL OPTIONS AVAILABLE FOR THE CASTNER RANGE

The authority to manage and dispose of real property owned by the United States is vested in Congress by the U.S. Constitution (Article IV, Section 3, Paragraph 2, “The Property Clause”).54 Congress enacted the Federal Property and Administrative Services Act of 1949 (40 U.S.C. §101 et seq.), to authorize the management and disposal of federal real property by federal agencies. This Act, commonly known as “the Property Act,” grants to the General Services Administration (GSA) the general authority for government-wide real property acquisition, management, and disposal. Through its various sections the Property Act establishes the general framework for property management including procurement, use, and disposal of real and personal property. GSA, in turn, promulgated regulations that implement its management and disposal authority. These regulations are contained in Title 41 of the Code of Federal Regulations (CFR), in Chapter 102.

52 Fort Bliss Mission and Master Plan EIS 53 Final Site Inspection Report 54 U.S. Constitution, Article IV, Section 3



GSA has delegated some of its real property management and disposal authority to federal landholding agencies. In addition, Congress has statutorily granted some federal agencies limited authority to acquire and dispose of the land under their administrative control. This is especially true with respect to GSA’s property management and disposal delegations to the military departments, including the Army. For example, by statute (10 USC §2687 note), GSA was directed to delegate to the Department of Defense its property management and disposal authority with respect to property declared surplus as a result of Base Realignment and Closure (BRAC) decisions.

Irrespective of whether the authority to dispose of real property resides with GSA or has been delegated to the Army, the current use status of the property is critical to how and to whom the property may be conveyed. That is, whether the property is currently unutilized but not excess; whether the property has been declared excess to the agency’s needs; or whether the property has been declared surplus to the needs of the federal government as a whole determines what options are available for disposal.55 Thus, options for disposal of the Castner Range will depend on this “unutilized but not excess,” “excess,” or “surplus” property determination.

ARMY DISPOSAL AUTHORITIES

The property comprising the Castner Range was not included in any of the five BRAC rounds that have occurred since 1988. Many disposal options delegated by GSA to the Army for disposal of BRAC properties are not available; however, the statutes below provide the Army with the authority to manage and dispose of unutilized, excess and surplus Army property (to include the Castner Range).

10 USC §2667- THE “ENHANCED USE LEASING” AUTHORITY

Known as the “Enhanced Use Leasing” (EUL) authority, EUL gives the Army a real estate tool that allows it to lease under-utilized or unutilized real property to the private sector in return for cash or in-kind consideration. With EUL, an agency can put under-utilized land and buildings to productive use and generate cash and in-kind consideration, which can be used to support other infrastructure and capital needs of the agency, such as maintenance and repair of critical facilities. An EUL can be used to allow for the co-location of industrial and academic partners on an agency's real property. These co-locations benefit the agency, by promoting the exchange of ideas and personal interaction among industrial and academic partners and government personnel. An example of this is the Army’s 2001 33-year lease with the University of Missouri, to develop and sublease 62 acres on Fort Leonard Wood, Mo., for a technology park. Other examples include the research parks that the National Aeronautics and Space Administration is developing using its EUL authority at the Kennedy Space Center in Florida and the Ames Research Center in California. One important restriction on the use of the EUL statute is that the property must not be excess to the agency’s needs.

55 The term “excess property” is defined as property under the control of a federal agency that the head of the agency determines is not required to meet the agency’s needs or responsibilities. “Surplus property” is federally owned property that is not needed by any federal agency. 40 USC § 102.



10 USC §2694A - CONVEYANCE OF SURPLUS REAL PROPERTY FOR NATURAL RESOURCE CONSERVATION

This statute provides authority to the Secretary of the Army to convey surplus real property to a state or local government or a conservation organization. The authority may not be used unless conveyance of the property has first been offered under a Public Benefit Conveyance (PBC), as discussed below (“Disposals to Public Agencies under Public Benefit Statutes”). Consideration payment for conveyance of property under this statute may be reduced to take into account the value of the natural resource conservation benefit that has accrued to the United States. This process has already been used successfully at Honey Lake in California and Camp Bonneville in Washington State.

This statute may provide the best option for conveying the Castner Range to the FMSP. As noted above, use of this authority is contingent on having the property being declared surplus and then screening the property for conveyance as a Public Benefit Conveyance.

10 USC §2869 - CONVEYANCE OF PROPERTY AT MILITARY INSTALLATIONS TO LIMIT ENCROACHMENT

Under 10 U.S.C. §2869, the Army is authorized to enter into an agreement to convey surplus or excess real property to any person or entity that agrees, in exchange for the real property, to carry out a land acquisition to limit encroachment around another DOD installation or range. That is, the transferee acquires either a restrictive easement around the installation that prevents encroachment, or acquires fee simple ownership of property that accomplishes the same purpose and transfers the property interest to the Army. Competition in the process is not required and the Army obtains value from the acquired land acquisition. This process has already been used successfully through the exchange of surplus property at the former Kansas Army Ammunition Plant to the State of Kansas in return for restrictive easements on property around Fort Riley, Kansas.

COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENTS (CRADA)

The Cooperative Research and Development Agreement (CRADA) was created under the Federal Technology Transfer Act of 1986, 15 U.S.C. §3710a. It is a written agreement between a private company and a government agency to work together on a project. It is also a written agreement between one or more federal laboratories and one or more non-federal parties under which the government, through its laboratories, can provide personnel, facilities, equipment, or other resources with or without reimbursement (but not funds to non-federal parties). The non-federal parties provide personnel, funds, services, facilities, equipment, or other resources to conduct specific research or development efforts that are consistent with the agency's mission.

CRADAs can optimize research resources by sharing the costs. The non-federal partner agrees to provide funds, personnel, services, facilities, equipment, or other resources needed to conduct a specific research or development effort while the Federal Government agrees to provide similar resources (but not funds) directly to the partner. If the resource(s) being provided by the federal agency consist(s) of real property, then that property must not be excess to the agency’s needs.



CRADAs offer the following benefits:

• Enable both partners to stretch their research budgets and optimize resources

• Provide a means for sharing technical expertise, ideas, and information in a protected environment. The Federal Government can protect from disclosure any proprietary information brought to the CRADA effort by the partner(s)

• Permit federal and non-federal scientists to work closely and offer non-federal partners access to a wide range of expertise in many disciplines within the Federal Government

DISPOSALS TO PUBLIC AGENCIES UNDER PUBLIC BENEFIT STATUTES

GSA regulations (41 C.F.R. Chapter 102.75) authorize GSA to make surplus real property available to state and local governments and certain non-profit institutions or organizations at up to 100 percent public benefit discount for public benefit purposes. Examples of such purposes include education, health, park and recreation, the homeless, historic monuments, public airports, highways, correctional facilities, ports, and wildlife conservation.

The benefits that may accrue to the United States from the use of the property being conveyed to any state, political subdivision, instrumentality, or municipality under a public benefit conveyance are to be considered in fixing the consideration for conveyance of the property.

CONCLUSION AND RECOMMENDATION

The best possible path to pursue is to utilize the natural resource conservation authority provided by 10 USC § 2694a to transfer the property to the FMSP. This requires that the Army once again report Castner Range to be excess to its needs, and GSA to offer the property to any other federal agency. If there is no interest in the property, then it should be declared as surplus property, and 10 USC § 2694a may be invoked.

One final option is always available for the disposal of federal property and that is to have Congress enact special legislation directing the Army to convey the property to the Franklin Mountains State Park.



APPENDIX F – UXO LIABILITY REPORT / STATE LAWS

BACKGROUND

Castner Range is a 7,081-acre tract of land located northwest of the Fort Bliss cantonment area in El Paso, Texas.56 The property borders the U.S. Highway 54/Patriot Freeway, is approximately 11 square miles and extends almost to the Franklin Mountain ridgeline. The Department of Defense (DOD) originally acquired the property between 1926 and 1939. Following the DOD’s acquisition of the property it was used for military training to include use as a firing and gunnery range area for munitions and artillery training. The military had fired 4.2 inch and 81mm mortars, large caliber artillery, 3.5 inch rockets, and rifle grenades over the site. In 1966, due to City of El Paso encroachment and other concerns, the Department of the Army ceased military activity on Castner Range. In 1971, the Army reported Castner Range to the General Services Administration (GSA) as excess to its needs. The Army then conducted certain ordnance surface clearance activities and issued a statement of clearance for 1,230 acres of the Range. In August 1983, due to the limited ordnance clearance and decontamination activities conducted by the Army, the GSA returned Castner Range to the Army until such time as further clearance activities were conducted and the property was determined as suitable for transfer. Castner Range has never been designated a Base Realignment and Closure (BRAC) site and thus is not subject to the BRAC real property disposal authorities.

Since regaining Castner Range, the Army has been engaged in characterizing and completing certain ordnance and explosives remedial activities. Given the nature of Castner Range and the variation of contamination throughout Castner Range, site-wide alternatives have varied from no further action to the removal of unexploded ordnance items to a depth of four feet. From the Army’s 1971 excess determination report until now, significant transit, recreational, commercial, and residential development has sprung up on three sides surrounding the site, making it a potential hazard due to unauthorized entry from individuals located in close proximity to Castner Range. Community sentiment has been that Castner Range be made suitable for transfer to a conservation organization so that it can be included as part of the Franklin Mountains State Park (FMSP). This would allow for significant cost savings to the Army for the environmental remediation of the property and help to preserve the very sensitive ecological resources located on Castner Range.

The Texas State Legislature has acknowledged the importance of this property to the Texas Wildlife and Parks Department and the Franklin Mountains State Park. In 1981, the legislature provided for the adjustment of the Park’s boundary in anticipation of the future addition of Castner Range lands without any additional statutory authorization. Since that time, the state has been working to develop a plan and understand the process for acquiring Castner Range from the Army. The state would prefer obtaining Castner Range through a Conservation Conveyance (CC) under 10 USC § 2694a. In 2011, both houses of the Texas State Legislature passed new resolutions calling for the permanent conservation use of Castner Range.

56 Fort Bliss Mission and Master Plan EIS



The Frontera Land Alliance (TFLA) has expressed an interest in holding a Conservation Conveyance on Castner Range; however, there is a legitimate concern about the potential environmental liability associated with Castner Range and ensuring that such liability remains with the Federal Government and is not transferred to TFLA under any type of conveyance. This memo will explain the CC process and explore potential environmental liabilities that may arise from the CC of Castner Range from the Army through TFLA and then to the Texas Parks and Wildlife Department.

CONSERVATION CONVEYANCE

Military Departments are authorized to convey surplus real property for conservation purposes under 10 USC § 2694a. Military Service Secretaries may convey surplus military property to a state or political subdivision of a state or a non-profit organization that exists for the primary purpose of the conservation of natural resources on real property. Property that may be conveyed under this authority must be suitable for conservation purposes and must have been properly screened for other federal and public benefit uses in accordance with the requirements of the Federal Property and Administrative Services Act. Property conveyed under the Conservation Conveyance authority must be subject to a reversionary interest held by the Military Department. If at any time after the property is conveyed, the Military Service Secretary determines that the property is no longer being used for conservation purposes, then all or a portion of the property, as determined by the Service Secretary, shall revert back to the Military Department.

The CC authority does not explicitly require that fair market value consideration be paid for the property. The statute does envision a discounted conveyance and gives the Service Secretary wide latitude in determining the consideration that should be paid by the transferee. When determining the appropriate amount of consideration that should be paid for the property, the Service Secretary is explicitly required to consider any benefit that may accrue to the United States from the use of such property for the conservation of natural resources.

ENVIRONMENTAL LIABILITY

Congress established the Defense Environmental Restoration Program (DERP) 10 USC § 2701 to ensure that the Military Departments meet their environmental remediation obligations under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA, also known as Superfund), 42 USC § 9620(h) and other environmental statutes. The program specifically requires the Secretary of the Military Department to carry out response actions at facilities owned by, leased to, or otherwise possessed by the United States. Under the statute, Congress established an account for each Military Department to fund their environmental remediation obligations. Each service account has a specific designation to fund environmental cleanup at Munitions and Explosives of Concern (MEC) and munitions impacted sites. DERP funds are appropriated annually by Congress and only available for non-base realignment and closure properties. The funds are available until they are expended and the allocation of funds for individual properties is normally based on a priority ranking established by the individual military departments. For MEC and munitions impacted properties, the statute specifically requires the Secretary of Defense to maintain an inventory of MEC and munitions impacted sites and assign a relative priority for response actions based on safety and environmental hazard potential. The statute goes on to state factors that the military should consider when assigning a priority to the



sites. Examples include: the potential for direct human contact with MEC, discarded military munitions or munitions constituents at the site and evidence of people entering the site, and whether public access to the defense site is controlled and the effectiveness of the controls. Essentially, the greater a risk a site poses to the general public in terms of possible injury and access, the higher it should be ranked in the priority listing. This is important in determining the funding priority for the cleanup of Castner Range.

Although the DERP program is the DOD’s specific cleanup authorization and funding authority for non-BRAC properties, any cleanup obligations and long term liability when transferring property would be addressed under CERCLA and any applicable state law. Under CERCLA, the DOD is legally obligated to assume responsibility for closed military installations. Even after property is transferred out of federal ownership, the United States would remain liable for any original contamination or contamination found to be attributable to historic DOD activities on the site and found not to have been sufficiently remediated. CERCLA addresses environmental cleanup liability when property is transferred from a federal agency to a third-party outside of the Federal Government. 42 USC § 9620(h) in pertinent part states:

(h) (3) Contents of certain deeds. (A) In general…each deed entered into for the transfer of such property by the United States to any other person or entity shall contain— (i) To the extent such information is available on the basis of a complete search of agency files— (I) A notice of the type and quantity of such hazardous substances, (II) Notice of the time at which such storage, release, or disposal took place, and (III) A description of the remedial action taken, if any; (ii) A covenant warranting that-- (I) All remedial action necessary to protect human health and the environment with

respect to any such substance remaining on the property has been taken before the date of

such transfer; and (II) Any additional remedial action found to be necessary after the date of such

transfer shall be conducted by the United States; and (iii) A clause granting the United States access to the property in any case in which

remedial action or corrective action is found to be necessary after the date of such transfer. (B) …The requirements of subparagraph (A) (ii) shall not apply in any case in which the person or entity to whom the real property is transferred is a potentially responsible party with respect to such property. The requirements of subparagraph (A)(ii) shall not apply in any case in which the transfer of the property occurs or has occurred by means of a lease, without regard to whether the lessee has agreed to purchase the property or whether the duration of the lease is longer than 55 years. (C) Deferral. (i) In general. The Administrator, with the concurrence of the Governor of the State in

which the facility is located (in the case of real property at a federal facility that is listed on

the National Priorities List), or the Governor of the State in which the facility is located (in

the case of real property at a federal facility not listed on the National Priorities List) may

defer the requirement of subparagraph (A)(ii)(I) with respect to the property if the

Administrator or the Governor, as the case may be, determines that the property is suitable

for transfer, based on a finding that—



(I) The property is suitable for transfer for the use intended by the transferee, and the intended use is consistent with protection of human health and the environment; (II) The deed or other agreement proposed to govern the transfer between the United States and the transferee of the property contains the assurances set forth in clause (ii); (III) The federal agency requesting deferral has provided notice, by publication in a newspaper of general circulation in the vicinity of the property, of the proposed transfer and of the opportunity for the public to submit, within a period of not less than 30 days after the date of the notice, written comments on the suitability of the property for transfer; and (IV) The deferral and the transfer of the property will not substantially delay any necessary response action at the property.

In other words, CERCLA generally requires the United States to clean up any contaminated federal property prior to transfer out of federal ownership unless the transfer takes place through a CERCLA early transfer process. It also requires the government to continue to assume liability for additional government contamination discovered after the property transfers. This requirement applies to all contaminated property declared surplus to the needs of the Federal Government, including property on closed military installations and training ranges.

Further, on June 13, 1997, the Environmental Protection Agency (EPA) issued a memorandum entitled “Transmittal of the Policy towards Landowners and Transferees of Federal Facilities” (pertaining mainly to CERCLA section 120[h], “Property transferred by federal agencies”). The policy addresses potential liability concerns of landowners and transferees (e.g., lessees) who acquire federal property. Id. The policy was developed in cooperation with a number of federal agencies, including DOD. In this policy memo, EPA explicitly takes the position that it will not take enforcement action against landowners and transferees who acquire contaminated property from a federal agency unless they (1) contributed to or exacerbated the contamination existing at the time of the acquisition or (2) caused new contamination. Id. It is necessary to make this policy statement because the Superfund statute generally assigns liability to parties who acquire property with knowledge of contamination, unless other provisions are made. Id. Furthermore, because the Superfund statute imposes the responsibility on federal agencies to take all remedial action concerning the contamination (including that found necessary after the property transfer), EPA has determined that a prospective purchase agreement for property transferred from federal agencies

to private landowners and transferees is not necessary. Id. (Emphasis added). As the result of these specific dispensations, this policy promotes the expeditious transfer of property, facilitates reuse and redevelopment, and reduces transaction costs. Id. The policy applies only to the transfer of property at federally owned facilities. Id.

Cleanup levels are often an issue of concern for the transferee. Army documents transferring ownership would typically guarantee cleanup only to a level suitable for a specific use, and in many cases would 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 necessary in order to clean the property to a standard that will support the originally agreed upon use. If the transferee of the property or a subsequent owner of the site later decides to use the property for another purpose that would require further cleanup, any additional cleanup costs would typically be borne by the transferee.



When transferring surplus property and determining the most appropriate cleanup level, the Department of the Army has been consistent in utilizing a “like and similar use” criterion to determine the clean-up level. In other words, the Department would typically consider the Department’s prior use of the property and develop cleanup plans that achieve regulatory approval for a cleanup level that is supportive of the recipient’s use consistent with the Government’s past uses of the property. For range properties this evaluation is complicated by the fact that but for law enforcement or other similar purposes, there is normally no equivalent civilian use. In most circumstances range areas are typically held in long-term caretaker status because the Military Departments cannot afford to clean the sites to a commercial or residential civilian re-use standard without being forced to spend significant funding. Because conservation uses do not typically require breaching the land surface, Military Departments achieve a significant cost-savings benefit from conveying property for conservation uses because they avoid the significant costs normally associated with bringing range properties to a commercial or residential cleanup level.

EARLY TRANSFER

While a federal agency transferring contaminated property must generally complete the cleanup prior to transfer out of federal ownership, CERCLA authorizes the use of an Early Transfer process to allow the transfer of property prior to the completion of any required environmental remediation. Contaminated property can be transferred by the Federal Government through the Early Transfer process to a private entity before the environmental cleanup is completed. Early Transfers may only be carried out with the concurrence of the Governor of the State in which the facility is located, (and approval by the EPA for Superfund sites). The process defers the CERCLA 120[h] covenant requirement prior to the transfer if the Governor finds that the property is suitable for transfer. One of the primary considerations that a state governor would consider in making a determination on the suitability of an Early Transfer is assurances that the cleanup will actually be completed and the federal agency transferring the property provides sufficient financial assurance and budgetary priority that the funding will be available for the cleanup. For MEC and munitions impacted DERP properties, the required DERP priority ranking should be a good indicator of a Military’s budgetary priority for a particular site. Early Transfer can provide some significant benefits to a property transferee. For property that can accommodate some types of commercial use, Early Transfer allows a transferee to plan for future redevelopment opportunities with certainty that the transferee has ownership of the property if/when a development opportunity arises. Early Transfers can significantly speed the redevelopment process if the cleanup can 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. Although Early Transfers are typically combined with an agreement such as an Environmental Services Cooperative Agreement (ESCA), whereby the transferee performs environmental remediation at the property, there is no requirement under CERCLA or in DOD policy that a transferee assume any cleanup responsibility. In fact, any Early Transfer action should be at the request of the transferee and not a transfer agreement condition imposed by a Military Department. A transferee as part of negotiations has the opportunity to state the scope of any cleanup obligation that they would be willing to assume.



ENVIRONMENTAL SERVICES COOPERATIVE AGREEMENT

If TFLA wanted to assume responsibility for all or a portion of the Castner Range cleanup, the responsibility and mechanism to fund the cleanup would be through an ESCA. Military Departments are authorized to enter ESCAs under section 2701(d) of the DERP statute. Through an ESCA and the associated environmental documentation, the Army and TFLA would outline the respective parties’ cleanup obligations for the property and the amount of funding that is allocated for each cleanup task. The scope of an ESCA can widely vary from mere monitoring and enforcement of land use controls to completing the full scope of cleanup from investigation to site closeout. Additionally the scope of liability for a particular cleanup action under an ESCA can vary greatly as well. The ESCA would generally describe any environmental remediation exclusions and any proposed assumption of liability or indemnification for the cleanup obligation between the Army and TFLA. The remediation liability that a party assumes under an ESCA normally correlates closely to the assumption of cleanup responsibility. A party that agrees to complete site investigations, develop a cleanup plan, accomplish Department of Defense Explosive Safety Board (DDESB) approval, perform the cleanup activity at the site and then achieve site closeout and complete long term monitoring and enforcement activities at a UXO impacted property would normally be required to assume full liability for the cleanup at the site. This would include in many instances agreeing to indemnify the Army for any claims filed against the Army by third parties for any of the actions required of the transferee under the ESCA and assuming costs for any environmental cost overruns or remedy failures. To help mitigate the risk associated with assuming this responsibility the Army would fund the cost associated with environmental insurance policies. Such policies are common in BRAC transactions and are available from a number of underwriters. Any indemnification or cleanup responsibility assumed by a transferee under an ESCA would normally be limited by the amount of insurance obtained by the transferee. This is due to the fact that the Army would continue to be the final guarantor of the cleanup pursuant to its obligations under CERCLA 120. If the Army is subject to an environmental cleanup Order for Castner Range and the Order is not transferred to the transferee, the Army would also continue to have contingent liability under the Order in the event the cleanup is not completed by the transferee. If TFLA assumed a more limited scope of responsibility under ESCA such as the assumption of monitoring and enforcement of land use controls over all or a portion of the property, there would be a significantly reduced assumption of liability. The draft ESCA in Appendix H outlines responsibilities normally assumed by a transferee under an ESCA.

TEXAS LAW

With regard to Texas state law and environmental liability for contaminated property, Tex. Health and Safety Code § 361.271 states in pertinent part:

“Unless otherwise defined in applicable statutes and rules, a person is responsible for solid waste if the person:

1. Is any owner or operator of a solid waste facility;

2. Owned or operated a solid waste facility at the time of processing, storage, or disposal of any solid waste;



3. By contract, agreement, or otherwise, arranged to process, store, or dispose of, or arranged with a transporter for transport to process, store, or dispose of, solid waste owned or possessed by the person, by any other person or entity at:

a. The solid waste facility owned or operated by another person or entity that contains the

solid waste; or

b. The site to which the solid waste was transported that contains the solid waste; or

4. Accepts or accepted any solid waste for transport to a solid waste facility or site selected by the person.”

If the Army, as in the instant case, is the owner or operator of the property containing the solid waste, it is the person responsible for the prompt cleanup of the waste. See Bonnie Blue, Inc. v.

Reichenstein, 127 S.W.3d 366, 369 (2004). The Solid Waste Disposal Act (SWDA) was intended to facilitate and encourage the prompt cleanup of solid waste and to “force those responsible for creating hazardous waste problems to bear the cost of their action.” To prevail on a cost recovery claim under the SWDA, appellants must simply show: (1) the defendant is a “person responsible” for solid waste as defined in section 361.271; (2) the Texas Commission on Environmental Quality (TCEQ) approved appellant’s remedial or removal action; (3) the remedial or removal action is necessary to address a release or threatened release of a solid waste into the environment; (4) the costs of the action are reasonable and necessary, and (5) they made reasonable attempts to notify the defendant of the release and their intended cleanup. The first requirement may be satisfied by merely proving appellees “owned or operated a solid waste facility at the time of processing, storage, or disposal of any solid waste”; R.R. St. & Co. v. Pilgrim Enterprises., 81 S.W.3d 276, 291 (2001), reversed on other grounds, 166 S.W.3d at 255 (reading SWDA as a whole, its plain language indicates a legislative intent to facilitate and encourage the prompt cleanup of solid waste). And, like CERCLA, SWDA’s cost recovery provisions are clearly intended to force those responsible for creating hazardous waste problems to bear the cost of their actions. When reviewing Code § 361.271 and Texas case law it is apparent that the State’s law is closely modeled after CERCLA. Therefore, also under State law, the Army, in the instant case, would be liable for the cleanup of Castner Range.

The Texas Commission on Environmental Quality (TCEQ) established the Texas Voluntary Cleanup Program (VCP) for those entities willing to acquire contaminated properties and assume responsibility for their environmental remediation. The Texas VCP provides administrative, technical, and legal incentives to encourage the cleanup of contaminated sites in Texas. (See Texas Commission on Environmental Quality: Voluntary Cleanup Program, http://www.tceq.texas.gov/remediation/vcp/vcp.html#Authority [last visited July 5, 2011].) Since all non-responsible parties, including future lenders and landowners, receive protection from liability to the state of Texas for cleanup of sites under the VCP, most of the constraints for completing real estate transactions at those sites are eliminated. Id. As a result, many unused or under used properties may be restored to economically productive or community beneficial use. Id.

Also under the VCP, site cleanups follow a streamlined approach to reduce future human and environmental risk to safe levels. Id. Any site not subject to response actions under Railroad Commission of Texas authority or an order or permit from the TCEQ or where TCEQ enforcement action is pending, is eligible to enter the voluntary cleanup program. Id. Parties entering the VCP



must submit an application, an Affected Property Assessment Report describing the contaminated area of concern, and a $1,000 application fee. Id. Upon acceptance of the application, the applicant must sign an agreement that describes a schedule of events necessary to achieve cleanup and confirms that the applicant has agreed to pay all VCP oversight costs. Id. After completion of the cleanup, the parties will receive a certificate of completion from the TCEQ, which states that all non-responsible parties are released from all liability to the state for cleanup of areas covered by the certificate. Id. Parties may terminate their participation in the VCP at any time by written notice. Id.

Tex. Health and Safety Code provides in pertinent part:

Code § 361.603

“(a) Any site is eligible for participation in the voluntary cleanup program except the portion of a site that is subject to a commission permit or order. (b) A person electing to participate in the voluntary cleanup program must: (1) Enter into a voluntary cleanup agreement as provided by Section 361.606; and (2) Pay all costs of commission oversight of the voluntary cleanup. [Text of subsec. (c) Effective upon agreement with EPA. (c) Notwithstanding Subsection (a), a site or portion of a site that is subject to a commission permit or order is eligible for participation in the voluntary cleanup program on dismissal of the permit or order. An administrative penalty paid to the general revenue fund under the permit or order is nonrefundable.”

Code § 361.610

“(a) A person who is not a responsible party under Section 361.271 or 361.275(g) at the time the person applies to perform a voluntary cleanup: (1) Does not become a responsible party solely because the person signs the application; and (2) Is released, on certification under Section 361.609, from all liability to the state for cleanup of areas of the site covered by the certificate, except for releases and consequences that the person causes. (b) A person who is not a responsible party under Section 361.271 or 361.275(g) at the time the commission issues a certificate of completion under Section 361.609 is released, on issuance of the certificate, from all liability to the state for cleanup of areas of the site covered by the certificate, except for releases and consequences that the person causes. (c) The release from liability provided by this section does not apply to a person who:

(1) Acquires a certificate of completion by fraud, misrepresentation, or knowing failure to disclose material information;

(2) Knows at the time the person acquires an interest in the site for which the certificate of completion was issued that the certificate was acquired in a manner provided by Subdivision (1); or

(3) Changes land use from the use specified in the certificate of completion if the new use may result in increased risks to human health or the environment.”



Under the VCP, eligible persons can apply to clean up contaminated property, and, if they clean the property in a manner that satisfies the requirements of the TCEQ, a “Certificate of Completion” for the property will be issued by the TCEQ. Jeffrey M. Gaba, Tulk v. Moxhay and

Texas Environmental Law: Land Use Restrictions under the Texas Risk Reduction Program, 55 SMU L. Rev. 179, 182 (2002). At that point, future owners of the property will not, in most cases, be subject to liability to the state for further cleanup of the property. Id. (Emphasis added). Thus, according to the VCP, Code § 361.610(b), entities that successfully complete the cleanup and receive a TCEQ certificate of completion will be released from all liability to the state for cleanup

of areas of the site covered by the certificate, except for releases and consequences that the organization causes.

There are a number of limitations on the scope of this protection. Id. First, it does not exempt currently liable parties from future action by the state. Id. The program is prospective only and is designed to ensure that future owners of the property (who might be liable to the state without the VCP protections) can buy the property without fear of this liability. Id. Second, the VCP

protections only extend to liability to the state. Id. (Emphasis added). Future landowners may, for example, still have cleanup liability to the federal government under several federal environmental statutes, and they may be liable to private parties in tort. Id. Third, the VCP is intended to promote voluntary cleanups, and property may not be eligible for the program if it is already the subject of a state cleanup order. Id. Finally, the extent of the liability protection may be limited if the landowner changes the land use specified in the Certificate of Completion and “the new use may result in increased risk to human health or the environment.” Id.



APPENDIX G – CASTNER RANGE DISPOSAL DECISION TREE & FLOW PATH





NEPA Process

(EA)

Economic Benefit

Conveyance

Enhanced Use Lease

Evaluate Types of

Conveyances

Public Benefit Conveyance

Conservation Conveyance

F D

CRADA

NEPA

FONSI or

NOI

ACUB G

NEPA

FONSI or

NOI





APPENDIX H– DRAFT CC COOPERATIVE AGREEMENT

The following text is an example of the sort of contract or agreement that TFLA would enter into with the Department of Defense (DOD)/Department of the Army to bring about the Conservation Conveyance (CC) of Castner Range. A Cooperative Agreement of this sort would be completed at the time of the awarding of the federal assistance in question. Some of the references in this Draft CC Cooperative Agreement are not included in this draft and will be drafted during negotiations.

1 APPLICATION FOR FEDERAL ASSISTANCE

Recipient’s “Application for Federal Assistance (and Supporting Documentation)” (dated TO BE COMPLETED AT TIME OF AWARD) is incorporated herein at (Reference to be provided in

actual document).

2 SCOPE AND PURPOSE

2.1. Background

The Federal Government, for and on behalf of the citizens of the United States of America, acts as the steward of certain real property on which it operates and maintains military facilities necessary for the defense of the United States of America. The Department of the Army has determined that it no longer needs Castner Range (as hereinafter defined) and has reported Castner Range to the General Services Administration (GSA) as being in excess to the needs of the Army. The Army, in consultation with GSA, has determined that Castner Range is available for disposal as surplus to the needs of the United States and has agreed to convey Castner Range as a Conservation Conveyance to The Frontera Land Alliance (TFLA) for good and valuable consideration under the authority of 10 USC §2694a pursuant to this Agreement. The Department of Defense is authorized to dispose of real and personal property on Castner Range (as defined in Section 3.6 below) to the Recipient, as defined in Section 3.21.

Under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. Section 9620(h)(3)(C), federal property may be transferred prior to the completion of all remedial action necessary to protect human health and the environment. Under this early transfer authority, DOD may transfer Castner Range to the Recipient (as said term is defined in Section 3.21), which may assume responsibility for certain environmental response activities (hereinafter the “Environmental Services,” as defined in Section 3.13). The geographic area in which work will be performed under this Agreement is set forth in the Technical Specifications and Requirements Statement (hereinafter the TSRS, as defined in Section 3.24), incorporated herein in (Reference to be provided in actual document), and is identified as the Areas Covered by Environmental Services, (hereinafter the ACES, as defined in Section 3.1). This Agreement provides the funding, specifications and requirements for the Recipient’s performance and completion of the Environmental Services in the ACES.

Cleanup of Castner Range is governed by CERCLA, the National Contingency Plan (NCP), the Texas Administrative Code and other applicable laws and regulations. The Army has conducted limited investigations and site characterization under its own authorities under CERCLA and the Defense Environmental Restoration Program (DERP).



Following the early transfer of the property, the Recipient will be obligated to the cleanup of Castner Range under oversight by the Army and the Texas Commission on Environmental Quality (TCEQ) to meet the above requirements of CERCLA, the NCP, other applicable laws and regulations, and the State requirements under the Texas Administrative Code Title 30(1)(335)(H)(6) Rule §335.271(hereinafter the “Code”). If inconsistencies are found between this Agreement and the Code after this Agreement has been signed, then the Parties will work toward a resolution, in accordance with (Reference to be provided in actual document) of the ESCA.

This Agreement is of mutual benefit to the Army and the Recipient because it will facilitate early transfer and the immediate integration of Castner Range into the Franklin Mountain State Park by allowing the Recipient to perform the Environmental Services in conjunction with the Recipient’s reuse of Castner Range. This Agreement, executed in anticipation of an early transfer, will allow the Recipient full access to the ACES in order to implement the Environmental Services and the immediate inclusion of Castner Range into the Franklin Mountain State Park for conservation purposes.

2.2. Purpose

The provisions of this Section of this Agreement establish the terms and conditions necessary for the completion of the Environmental Services required to obtain Site Closeout and the execution of Long-Term Obligations associated with such Site Closeout. The TCEQ Agreement and TSRS establish the process for obtaining Site Closeout within the ACES. By execution of this Agreement, the Army and the Recipient concur with the TSRS, incorporated herein at (Reference

to be provided in actual document), and all documents and approvals referenced therein. This Agreement in no way restricts the Parties from modifying the Environmental Covenants, Conditions, and Restrictions (hereinafter ECCR, as defined in Section 3.11) and documents referenced therein, before or after the Environmental Services at the ACES have begun. Any such modifications shall not eliminate or change the Recipient’s or Army's obligations under this Agreement unless a concurrent modification is made to this Agreement in accordance with (Reference to be provided in actual document).

2.3. Scope

The Recipient shall cause to be performed the Environmental Services, in consideration of the payment of a fixed sum by the Army in accordance with and subject to the provisions of this Agreement. The Environmental Services, to the extent required to be performed under this Agreement, shall satisfy the requirements of CERCLA and the NCP by satisfying the requirements provided in the TCEQ Agreement. The Environmental Services will be completed in furtherance of the Recipient’s conveyance of the Property for Natural Resource Conservation purposes, as defined in (Reference to be provided in actual document) and as more particularly described in the TSRS.

By the execution of this Agreement, the Army concurs with the process set forth in the TCEQ Agreement and all documents and approvals referenced therein; however, this concurrence in no way limits the Recipient’s responsibility to cause CERCLA, Resource Conservation and Recovery Act (RCRA) and Clean Water Act compliance for the ACES by satisfaction of the TCEQ Agreement requirements. Furthermore, this Agreement in no way restricts the parties to the TCEQ



Agreement from modifying the TCEQ Agreement and documents referenced therein, pursuant to the terms thereof, before or after the Environmental Services at the ACES have begun. Any such modifications will be coordinated with the Army in accordance with Section 4.2.2 and shall not eliminate or change the Recipient’s or Army’s obligations under this Agreement.

In addition to providing the specified funding, the Army will retain the responsibilities and liabilities specified within this Agreement and its attachments. The Army’s program oversight shall ensure that the remedies implemented by the Recipient pursuant to the TCEQ Agreement and TSRS are consistent with CERCLA and the NCP, with the Department of Defense Explosives Safety Board (hereinafter the DDESB, as defined in Section 3.10) requirements, and with other applicable laws and/or regulations. The Parties agree that the implementation of the TCEQ Agreement must be consistent with remedy requirements of CERCLA, the NCP, and other applicable laws and regulations, and that future modifications to the TCEQ Agreement will likewise be consistent with such remedy requirements. The Recipient agrees to achieve Site Closeout and perform the required remedial actions in accordance with and subject to the provisions of this Agreement. In accordance with 42 U.S.C. 9620(h)(3)(C)(iii), the Army will grant to the Recipient the CERCLA warranty that all necessary response actions have been taken as provided in Section 4.2.3.

3. DEFINITIONS

3.1. Area Covered by Environmental Services

The term “Area Covered by Environmental Services” (ACES) refers to ‘that entire area identified as the ACES on the map attached to the TSRS, incorporated herein (Reference to be provided in

actual document) within the boundary of Castner Range, and groundwater contamination that originated from these areas.

3.2. Army and Government

The terms “Army” and “Government” are used interchangeably herein.

3.3. Army Contingent Funding

The term “Army Contingent Funding” means additional funding that may be required by the Army for MEC cleanup in accordance with Section 4.3.2.2.

3.4. Army’s Representative

The Army’s representative, for performance oversight, is the Army Corps of Engineers District, its designee, or successor agency, which is responsible to the office of the Secretary of the Army for environmental remediation of the ACES.



3.5. Army-Retained Conditions

The term “Army-Retained Conditions” means any of the following conditions within the ACES for which the Army remains fully responsible hereunder:

3.5.1. Radiological Material

3.5.2. Chemical Warfare Material or Biological Warfare Materiel

3.5.3. Natural Resource Injuries

As defined in 43 C.F.R. 11.14(v), occurring as a result of historic releases of hazardous substances prior to conveyance of the property from the Army to the Recipient and natural resource injuries incurred that are incidental to the implementation of a selected remedy provided that the Recipient has complied with the NCP related to natural resources and has exercised reasonable and due care in the implementation of the remedy.

3.5.4. Unknown Conditions

Unknown Conditions except for the obligations of the Recipient regarding Insured Unknown Conditions as set forth in Sections 4.1.4 and 4.1.13.

The term “Army-Retained Conditions” shall not include any other environmental conditions, including any naturally occurring substance or derivatives of products used in accordance with the state and federal regulations, on, at, under, or emanating from the ACES, in its unaltered form, or altered solely through natural occurring processes or phenomena.

3.6. Castner Range

“Castner Range” refers to the 7,081 acres of real property owned by the Army located in El Paso, Texas and shown on the map as an appendix to the TSRS, incorporated herein at (Reference to be

provided in actual document).

3.7. CERCLA Terms

The terms “release,” “threatened release,” “hazardous substance,” “pollutant,” “contaminant,” “removal,” “remedial action,” and “response” have the meanings given such terms under CERCLA and United States Environmental Protection Agency (EPA) regulations implementing CERCLA.

3.8. Chemical Warfare Material

“Chemical Warfare Material” (CWM) means items generally configured as a munition containing a chemical compound that is intended to kill, seriously injure, or incapacitate a person through its physiological effects. CWM includes V- and G-series nerve agents or H-series (mustard) and L-series (lewisite) blister agents in other-than-munition configurations; and certain industrial chemicals, (e.g., hydrogen cyanide (AC), cyanogen chloride (CK), or carbonyl dichloride (called phosgene or CG)) configured as a military munition. Due to their hazards, prevalence, and military-unique application, chemical agent identification sets are also considered CWM. CWM does not include: riot control devices; chemical defoliants and herbicides; industrial chemicals



(e.g., AC, CK, or CG) not configured as a munition; smoke and other obscuration producing items; flame and incendiary producing items; or soil, water, debris or other media contaminated with low concentrations of chemical agents (CA) where no CA hazards exist.

3.8.1. Biological Warfare Materiel

“Biological Warfare Materiel” refers to systems and system components designed to deliver any organism (bacteria, virus, or other disease-causing organism) or toxin found in nature, as a weapon of war against personnel, animals, or plants.

3.9. Cooperative Agreement

The terms “Agreement” and “ESCA” mean this Environmental Services Cooperative Agreement.

3.10. Department of Defense Explosive Safety Board

“Department of Defense Explosives Safety Board” (DDESB) is an independent division of the Department of Defense that reviews and ensures safety during munitions responses by adhering to the DOD Ammunitions and Explosives Safety Standards presented in Department of Defense Directive (DoDD) 6055.9; and DoDD 6055.9-STD.

3.11. Environmental Covenants, Conditions, and Restrictions

The term “Environmental Covenants, Conditions, and Restrictions” (ECCR) incorporated herein at (Reference to be provided in actual document) refers to the document that identifies the interim environmental covenants, conditions, and restrictions that shall be included in the deed. These environmental covenants, conditions, and restrictions are necessary for the protection of human health and the environment prior to obtaining Site Closeout and the implementation of final remedies for the ACES. Following Site Closeout, the deed will be modified or supplemented to include permanent land use controls that apply to the property.

3.12. Environmental Insurance Policies

The term “Environmental Insurance Policies” means the Cleanup Cost Cap Policy (“Cost Cap Policy”) and Pollution Legal Liability Insurance Policy (“PLL Policy”), or similar policies, after review and approval by the Army, issued subsequent to the execution of this Agreement by an insurance carrier that is rated A.M. Best’s A- FSC IX or better.

3.13. Environmental Services

The term “Environmental Services” means investigation, remediation and related document preparation activities by the Recipient, necessary to fulfill the requirements of the TSRS and to achieve Site Closeout of the ACES, with respect to any Known and Insured Unknown Conditions, or Reasonably Expected Environmental Conditions, as well as any associated Long-Term Obligations, e.g., the long term monitoring of the wells and maintenance of institutional controls. This term does not include any Army Retained Conditions.



3.14. Insured Unknown Conditions

The term “Insured Unknown Conditions” means Unknown Conditions for which the Recipient or other named insured is insured pursuant to the Environmental Insurance Policies and/or Army Contingent Funding.

3.15. Known Conditions

The term “Known Conditions” means those environmental conditions on or under the ACES identified in the “applicable documents” subsection of the TSRS, incorporated herein at (Reference to be provided in actual document) and includes Reasonably Expected Environmental Conditions as defined in Section 3.20. The term “Known Conditions” does not include Army Retained Conditions as defined above.

3.16. Long-Term Obligations

The term “Long-Term Obligations” means the performance of any long-term review, monitoring, and operation and maintenance activities and reporting, to include land use control obligations that are required following Site Closeout under the TCEQ Agreement and TSRS.

3.17. Munitions and Explosives of Concern

“Munitions and Explosives of Concern” (MEC) is a term distinguishing specific categories of military munitions that may pose unique explosives safety risks including (A) Unexploded ordnance (UXO), as defined in 10 U.S.C. 101(e)(5); (B) Discarded military munitions (DMM), as defined in 10 U.S.C. 2710(e)(2); and/or (C) Munitions constituents (e.g., TNT, RDX), as defined in 10 U.S.C. 2710(e)(3), present in high enough concentrations to pose an explosive hazard.

3.17.1. Munitions Constituents (MC)

“Munitions Constituents” means any materials originating from unexploded ordnance, discarded military munitions, or other military munitions, including explosive and materials, and emission, degradation, or breakdown elements of such ordnance or munitions. (10 U.S.C. 2710 (e)(3))

3.17.2. Military Munitions

“Military Munitions” refers to all ammunition products and components produced for or used by the armed forces for national defense and security, including ammunition products or components under the control of the Department of Defense (DOD), the Coast Guard, the Department of Energy, and the National Guard or any other munitions resulting from the DOD use of Castner Range. The term includes confined gaseous, liquid, and solid propellants, explosives, pyrotechnics, chemical and riot control agents, smokes, and incendiaries, including bulk explosives and rockets, guided and ballistic missiles, bombs, warheads, mortar rounds, artillery ammunition, small arms ammunition, grenades, mines, torpedoes, depth charges, cluster munitions and dispensers, demolition charges, and devices and components thereof.

The term does not include chemical warfare agents and chemical munitions, radiological materials, wholly inert items, improvised explosive devices, and nuclear weapons, nuclear devices, and nuclear components, except that the term does include non-nuclear components of nuclear devices that are managed under the nuclear weapons program of the Department of Energy



after all required sanitization operations under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) have been completed. (See 10 U.S.C. 101(e)(5)(A) and (B.).)

3.17.3. Munitions Response

The term “Munitions Response” refers to a response action, including investigation, removal, and remedial actions to address the safety, human health, or environmental risks presented by unexploded ordnance (UXO) or discarded military munitions (DMM), or by munitions constituents (MC).

3.17.4. Munitions Response Area

The term “Munitions Response Area” (MRA) is any area on a defense site that is known or suspected to contain UXO, DMM, or MC. Examples include former ranges and munitions burial areas. A munitions response area is comprised of one or more munitions response sites.

3.17.5. Munitions Response Site

The term “Munitions Response Site” (MRS) is a discrete location within a MRA that is known to require a munitions response.

3.17.6. Unexploded Ordnance

The term “Unexploded Ordnance” (UXO) includes military munitions that: (1) have been primed, fuzed, armed, or otherwise prepared for action; (2) have been fired, dropped, launched, projected, or placed in such a manner as to constitute a hazard to operations, installations, personnel, or material; and (3) remain unexploded either by malfunction, design, or any other cause. (10 U.S.C. 2710(e)(9))

3.18. TCEQ Agreement

A TCEQ Agreement is an enforceable agreement between the Recipient and the TCEQ, acceptable to the Army, that controls cleanup of the ACES by the Recipient and requires the Recipient to remediate the ACES to achieve Site Closeout and thereby satisfy the Army’s CERCLA obligations. This TCEQ Agreement follows the legal and regulatory requirements of the Texas Administrative Code. The TCEQ Agreement will require the Recipient to enter into necessary land use restrictions on the ACES to ensure the temporary and long-term protection of human health and the environment.

3.19. Radiological Materials

The term “Radiological Materials” for purposes of this Agreement refers to solid, liquid, or gaseous material, derived from Army activities, that contains radio nuclides regulated under the Atomic Energy Act of 1954, as amended, and licensed by the Nuclear Regulatory Commission. It includes radioactive material, nuclear devices and nuclear components thereof, and radiographic and instrument calibration sources and various instrumentation and radio luminescent products manufactured for military applications. The term “Radiological Materials” does not include background radiation, radio luminescent dials, or products manufactured for non-military applications, such as radio luminescent signs, tungsten welding electrodes and household smoke detector components.



3.20. Reasonably Expected Environmental Conditions

“Reasonably Expected Environmental Conditions” refers to known contamination identified in each Remedial Investigation/Feasibility Study (RI/FS), investigation report, or Interim Action Work Plan for environmental sites included in the TSRS, for which the Recipient has the responsibility to bring to Site Closeout, even if there is a significant deviation in the quantity, volume, migration, disbursement, location, and/or concentration of any such contamination discovered at a particular site within the ACES.

3.21. Recipient

The term “Recipient” refers to the Frontera Land Alliance (TFLA), located in El Paso, Texas. (TFLA’s permanent mailing address is: The Frontera Land Alliance, 3800 N. Mesa, Suite A2-258, El Paso, TX 79902.) The FLA is an entity that is within the meaning of the term “nonprofit conservation organization” as such term is used in 10 U.S.C. Section 2701(d)(1), with which the Army is entitled to enter into “agreements on a reimbursable or other basis.”

3.22. Franklin Mountains State Park Plan

“Franklin Mountains State Park Plan” refers to the area created by an Act of the Texas State Legislature in 1979 which also authorized inclusion of Castner Range upon its conveyance from the Army.

3.23. Site Closeout

For purposes of this Agreement, the term “Site Closeout” is the point in time when the Recipient has performed all Environmental Services, other than the continuation of Long-Term Obligations, as defined in Section 3.16, and has obtained the following:

1. Notice of Completion from TCEQ pursuant to the TCEQ agreement on or under the ACES, and

2. Recipient’s submission and approval by the DDESB of a Statement of Removal of MEC for property known or suspected to contain MEC, in addition to TCEQ approvals.

3.24. Technical Specifications and Requirements Statement

The term “Technical Specifications and Requirements Statement” (TSRS) means the mutually agreed upon document attached hereto that describes the known environmental site conditions and identifies the general scope of cleanup alternatives that will be performed by the Recipient. This term includes the services to be provided in order to achieve Site Closeout as defined at Section 3.23.

3.25. Unknown Conditions

The term “Unknown Conditions” means those environmental conditions in the ACES that are not Known Conditions, but excluding Sections 3.5.1, 3.5.2, and 3.5.3 of the Army Retained Conditions.



4. OBLIGATIONS OF THE PARTIES

4.1. Obligations of the Recipient

4.1.1. General

In consideration of the Army’s agreement to provide funds in accordance with the terms of this Agreement, the Recipient assumes the responsibility for the performance of Environmental Services in accordance with and subject to the terms of this Agreement. The Recipient agrees that, subject to the provisions of Sections 4.1.13 and 4.2, it shall complete, or cause to be completed the Environmental Services even if the costs associated therewith exceed the funds provided by the Army hereunder.

The Recipient shall perform the Environmental Services in accordance with and pursuant to the TCEQ agreement. The performance of the Environmental Services under the TCEQ agreement shall satisfy the Army’s responsibilities with regard to the Environmental Services under CERCLA and the NCP. By executing this Agreement, Army concurs with the process set forth in the TCEQ Agreement and the documents and approvals therein. This concurrence in no way limits the Recipient’s responsibility to perform Environmental Services and fulfill its obligation to satisfy CERCLA remedy requirements for the ACES by implementing the TCEQ agreement to Site Closeout.

The Recipient shall perform the Environmental Services and shall provide quarterly progress reports to the Army, in accordance with the TSRS, incorporated herein at (Reference to be


The Recipient’s obligation to perform Environmental Services is expressly conditioned upon the Army providing a sum not to exceed _______________dollars for performing the Environmental Services and purchasing Environmental Insurance Policies, and, if necessary, Army Contingent Funding in accordance with the terms of this Agreement. Provided that to the extent the Army pays a portion of the funding set forth in (Reference to be provided in actual document), but fails to pay the full amount set forth in that Section, or in the event the Agreement terminates pursuant to (Reference to be provided in actual document), Recipient’s obligations shall be limited to the portion of Environmental Services funded by the Army. These conditions shall be subject to dispute resolution pursuant to (Reference to be provided in actual document).

4.1.2. Notice of a Complaint

The Recipient shall provide the Army notice as soon as possible, but no later than seven (7) days after receiving notice of a claim by federal, state, or local regulators, or other third parties, of the existence of any environmental condition at the ACES that suggests an action is necessary for which the Army is responsible under this Agreement. If the Recipient is served with a complaint or written notice of a claim by the federal, state, or local regulators, or other third parties, the Recipient shall provide the Army with a copy of such document no later than seven (7) days following service of such document.



4.1.3. Covenant Not to Sue

The Recipient agrees not to sue the Army and hereby waives any potential claims against the Army for those matters subject to Recipient’s obligations to indemnify the Army under Section 4.1.8.1 through 4.1.8.7 and claims to the extent covered by Environmental Insurance Policies under Section 4.3 except for Army Contingent Funding for MEC.

4.1.4. Discovery of Army-Retained Conditions or Unknown Conditions

In the event the Recipient discovers an Army-Retained Condition or Unknown Condition at, on, deriving from or affecting the ACES, the Recipient shall notify the Army of such conditions within thirty (30) days of receiving actual notice of such conditions, except that the Recipient shall notify the Army of the discovery of Radiological Materials, Chemical Warfare Material or Biological Warfare Materiel within twenty-four (24) hours of such discovery. The Parties agree, pursuant to the terms of this Agreement, to confer within thirty (30) days of such notification regarding the scope of any initial investigation that may be necessary to ascertain whether such newly discovered Unknown Condition is properly categorized as a Known Condition, Insured Unknown Condition, or Army-Retained Condition. If a mutually agreeable solution is not reached within fifteen (15) working days of the commencement of discussions between the Recipient and the Army, the Parties reserve the right to recommend to the Army Grants Officer that the dispute or alternative dispute resolution process, as described in (Reference to be provided in actual

document), be initiated. The Army will retain full responsibility for Army-Retained Conditions. The Parties may agree to terms on which the Recipient agrees to perform the necessary Environmental Services for the Army-Retained Conditions, subject to (Reference to be provided in

actual document).

4.1.4.1. Discovery of Insured Unknown Conditions

In the event that the Recipient discovers any Insured Unknown Condition(s), the Recipient shall perform all the necessary Environmental Services in accordance with the TCEQ agreement and the TSRS, and as required by applicable law for the Recipient to achieve Site Closeout, subject to the limitations of Section 4.1.13. If the condition involves MEC, the Environmental Services rendered will be subject to DDESB approval, in addition to TCEQ approval needed for Site Closeout.

Failure of Recipient to provide timely notice as provided in Sections 4.1.2 and 4.1.4 shall not limit in any way the responsibility of the Army for Army-Retained Conditions under this Agreement, or under applicable law, except to the extent the Army’s interests are materially or adversely affected by such late notice.

4.1.5. Recipient’s Actions with Respect to Army Obligations for Army Retained Conditions

Notwithstanding the provisions of the preceding Section 4.1.4, the Recipient shall have the right but not the duty to take or cause to be taken the following actions within the ACES with respect to Army-Retained Conditions:



4.1.5.1. Investigation Activities

If the Recipient discovers a condition it reasonably believes is an Army-Retained Condition other than a condition subject to Section 4.1.5.2, it shall use its reasonable efforts to avoid incurring costs or obligations with respect to the condition by seeking to ascertain whether such condition is in fact an Army-Retained Condition before incurring such costs or obligations.

Nothing in this Agreement shall be construed to authorize the Recipient to seek reimbursement from the Army for costs solely associated with the initial investigation needed to ascertain whether a condition is properly categorized as an Army-Retained Condition to the extent that the initial investigation demonstrates that the conditions at issue are not Army-Retained Conditions.

4.1.5.2. Imminent Threat

Recipient may take any immediate action in accordance with this Section to address an imminent threat to human health or the environment if required by a regulatory agency, or if in Recipient’s reasonable judgment, such action is necessary to address an imminent threat to human health or the environment.

The Recipient shall have a right, but not the duty, to take action and may seek reimbursement from the Army for response costs related to Army Retained Conditions where; (a) notification cannot practicably be provided to the Army in accordance with the terms of Section 4.1.4 above before such action needs to be taken for the protection from the imminent threat, or (b) notification is provided to the Army before such action needs to be taken and the Army agrees to permit the Recipient to take such action under terms agreed to by the Parties. In the event that Recipient provides notification to the Army before such action needs to be taken but the Army cannot or will not provide a timely response to such threat, the Parties reserve their rights to seek and expedite dispute resolution as provided in (Reference to be provided in actual document).

4.1.5.3. Notice and Dispute

To the extent the Recipient takes or causes to be taken actions in accordance with Section 4.1.5.1 or Section 4.1.5.2, the Recipient shall provide notice of such action to the Army as soon as practicable. If the Army disputes an action taken by the Recipient under Section 4.1.5.2, the Army may engage in dispute resolution in accordance with (Reference to be provided in actual

document).

4.1.6. Identification of Army Obligations

If the Recipient discovers a condition it reasonably believes is an Army Obligation, other than a condition subject to Section 4.1.5.2, it shall use its reasonable best efforts to avoid incurring costs or obligations with respect to the condition by seeking to ascertain whether such condition is in fact an Army Obligation before incurring such costs or obligations. To the extent the Recipient incurs costs or obligations with respect to an Army Obligation despite the Recipient’s use of reasonable best efforts to avoid incurring such costs, the Recipient may seek reimbursement from the Army, subject to the dispute resolution provisions of (Reference to be provided in actual

document). If that condition is an Army Obligation hereunder, Recipient’s reasonable investigation costs will be reimbursable hereunder.



4.1.7. Information Obtained by the Recipient

In the event Army-Retained Conditions are discovered, the Recipient shall provide to the Army all information obtained or developed by the Recipient with respect to such Conditions.

4.1.8. Indemnification / Limited Waiver of Statutory Rights

In consideration of the funds available under this Agreement, including Army Contingent Funding, the transfer of Castner Range and other terms of this Agreement, the Recipient agrees that it shall, upon the execution of this Agreement and irrespective of enforcement or termination pursuant to (Reference to be provided in actual document) and except for Army-Retained Conditions as defined in Section 3.5, indemnify the Army for:

4.1.8.1. Any response cost claims for activities required to be performed or actions taken by the Recipient as all or part of the Environmental Services;

4.1.8.2. All personal injury or property damage claims to the extent caused by the Recipient or its contractors in the course of performing the Environmental Services;

4.1.8.3.All natural resource injuries pertaining to releases of hazardous substances, pollutants or contaminants but only to the extent that such damages were caused or contributed to by the actions of the Recipient or its successor in interest;

4.1.8.4.All costs associated with additional remediation required on or within the ACES as a result of a change in land use from that contained in the Reuse Plan, as defined in Section 3.23, at the time of the execution of this Agreement;

4.1.8.5. All costs associated with correction of a failure of a remedy after Site Closeout has been achieved, except as otherwise provided in Section 4.1.13.4(vi)(b);

4.1.8.6. All costs associated with or arising from any negligent acts or omissions or willful misconduct of the Recipient in the course of performing or in the performance of the Environmental Services or implementing remedial actions in accordance with the “TCEQ Agreement”;

4.1.8.7. All costs associated with remediation of new pollution conditions caused by the Recipient, Recipient’s successors, or contractors engaged by the preceding entities; and

4.1.8.8.All costs associated with a determination by TCEQ under the TCEQ Agreement that the Recipient or its contractors failed to implement the remedial actions or a failure to perform the Environmental Services, in whole or in part, to achieve Site Closeout; provided, that this indemnification obligation shall only arise if the Army has provided the required funding under this Agreement and, provided further, that any disputes related to this Section shall not be subject to the Dispute Resolution under(Reference to be provided in actual document).

The Army shall, with respect to the above indemnities, cooperate with and assist in the defense provided by the Recipient, including, but not limited to, providing prompt notice of any claims, lawsuits, or notices from any claimant or agencies.



4.1.9. Financial & Technical Assurances

The Parties agree that the Recipient has provided financial and technical assurances reasonably acceptable to the Army to enable the Army to meet the Army’s requirements of 42 U.S.C. Section 9620(h)(3)(C).

4.1.10. Reports

In order to assure appropriate documentation for the Army to execute the CERCLA covenant, the Army may request that the Recipient provide additional information concerning the environmental condition of the ACES. The Recipient shall provide access to any documents in its possession containing such requested information to the Army as soon as possible after such request is made.

4.1.11. Access

The Recipient shall promptly provide the Army and any officially concerned Federal Government agency with all rights to access onto the ACES pursuant to environmental response access rights reserved by the Army in the transfer documents.

The Recipient may condition the provision of such rights on restrictions on the time and manner of access and conduct of activities, provided that such restrictions do not unreasonably delay or interfere with the Army’s performance of environmental responsibilities. The Recipient recognizes and agrees to continue to accommodate the Army’s need for mutually-agreed-to office space for on-site personnel needed to oversee the Recipient’s performance of Environmental Services at no cost to the Army.

4.1.12. Public Participation

The Recipient shall be responsible for meeting the public participation requirements as set forth in the TSRS.

4.1.13. Recipient’s Performance Obligation

4.1.13.1

Recipient shall be responsible for all actions necessary to accomplish the performance of all Environmental Services, as defined in Section 3.13.

4.1.13.2

The Recipient is also responsible for remediating all Known Conditions within the ACES, to include any costs incurred that exceed coverage under the Environmental Insurance Policy and Army Contingent Funding.

4.1.13.3

With respect to the discovery of Insured Unknown Conditions, the Recipient is responsible for remediation up to the amount of proceeds received by the Recipient and Recipient's successors under the terms of the Environmental Insurance Policies acquired by the Recipient for such Insured Unknown Conditions.



4.1.13.4

After Site Closeout and after the Army grants the CERCLA Warranty, the Recipient’s continuing obligations that extend beyond the term of the ESCA will include the following:

(i) The performance of Long-Term Obligations, as defined in 3.16; (ii) Further remedial actions required as a result of a proposed change in land

use (different land use than anticipated in the Franklin Mountain State Park Plan, as defined in Section 3.22);

(iii) Enforcement of applicable provisions of any Environmental Insurance Policy available to cover costs for remedial actions within the scope of coverage;

(iv) Corrective action required due to failure of a final remedy; (v) Continuing indemnification obligations under Section 4.1.8; and (vi) With regard to munitions response actions for MEC within the ACES by the

Recipient, as more particularly described in the TSRS: (a) The Recipient shall be responsible for the removal or remediation of

MEC within the areas and to the depths that were necessary to achieve Site Closeout under the TCEQ Agreement and consistent with DDESB requirements. The Recipient shall also be responsible for the implementation and administration of the land use controls and any other Long-Term Obligations as may be required under the TCEQ Agreement and consistent with DDESB Requirements to achieve Site Closeout. Such implementation and administration of land use controls may be evidenced by the filing by the Recipient with TCEQ and the Army of an annual compliance report. This report shall certify, after inspection, that all components of land use controls are in place, and reporting any apparent violations of the land use controls, and describing actions, if any, taken in response to such violations. The annual reports shall be filed as required under the TCEQ Agreement and the Long-Term Operation and Maintenance Plan.

(b) Except as otherwise provided in Section 4.1.8, the Recipient shall not be

liable for any required remediation or response actions for MEC discovered beyond the depths identified in Section 4.1.13.4(vi)(a) and in areas covered by Land Use Controls, provided the Recipient: has appropriately implemented and administered the land use controls as provided above and implemented any Long-Term Obligations required under the TCEQ Agreement. The failure to remove such MEC shall not be considered a failure of a remedy for the purposes of Section 4.1.8.5. For purposes of this Section 4.1.13.4(vi), the Parties agree that if the above referenced land use controls have been appropriately implemented and administered and there is a violation of such land use controls, the mere occurrence of the violation will not be considered remedy failure under this Agreement. Any dispute as to whether said



land use controls or other Long-Term Obligations have been appropriately implemented and administered will be subject to the Dispute Resolution Process set forth in (Reference to be provided in

actual document).

4.2. Obligations of the Army

4.2.1. Army Obligations

The obligations of the Army under this Section may be collectively referred to as “Army Obligations.” Army Obligations include, without limitation, responsibility for Army-Retained Conditions, as defined in Section 3.5.

4.2.2. Oversight of the ESCA Implementation

In addition to the Army’s agreement to fund the Recipient’s performance of the Environmental Services, subject to Section 4.1.13, in accordance with the TSRS, the Army shall be given an opportunity to review for concurrence all decision documents as listed in the TSRS, and all proposed amendments to the final decision document and TCEQ Agreement. The Recipient will provide copies of the deliverables as listed in the TSRS. The scope of the Army’s review shall be to ensure that the remedies implemented by the Recipient are consistent with CERCLA, the NCP, and other applicable laws and/or regulations such that the CERCLA Warranty may be provided upon Site Closeout. The Army shall provide comments within fifteen (15) days of receipt of such documents. In its review of final decision documents, if the Army requires a remedy that is beyond the scope of the proposed activities described in the TSRS Remedial Activities Table, the Parties reserve the right to invoke Dispute Resolution as provided in (Reference to be provided in

actual document) to ensure such consistency as provided above and to resolve any increase in costs from the Army imposing changes to the remedy as provided in (Reference to be provided in actual

document).

4.2.3. CERCLA Covenant

The Army shall, upon the request of the Recipient or its successors, issue the warranty required by CERCLA Section 120(h) (“CERCLA Warranty”) within 60 days of the Recipient providing a written request to the Army for the issuance of the CERCLA Warranty, provided that such written request includes documentation required for Site Closeout and necessary approvals by TCEQ, Army, and/or DOD for the applicable portion of the ACES. The Army agrees to provide the CERCLA Warranty for particular portions of the ACES as Site Closeout is achieved. To the extent new legal descriptions must be prepared in order for the CERCLA Warranty to be recorded, the Recipient shall bear the costs of preparing such legal descriptions.

4.2.4. Obligations Under CERCLA

The Army is responsible for its obligations and responsibilities under CERCLA Section 120, except for those actions that constitute the performance of Environmental Services by the Recipient hereunder and as otherwise provided in Section 4.1.13 in this Agreement. For purposes of CERCLA Section 120, Recipient’s or any successor, assignee, transferee, lender, lessee or contractor of the Recipient (collectively “Transferee”), potential or actual future status as operator or owner of Castner Range will not relieve the Army of its obligations hereunder and under



CERCLA Section 120 except to the extent the activities of the Recipient or Recipient's successors cause a release or a threatened release, which was not related to the reasonable performance of the Environmental Services, of a hazardous substance, pollutant or contaminant.

4.2.5. Access

The Army shall, upon request, promptly provide the Recipient and any party performing Environmental Services with all rights to access onto or into any real property, buildings or equipment for which the Army has legal authority to provide such rights, and with all rights to conduct any activities necessary to perform the Environmental Services upon such real property, buildings or equipment for which the Army has legal authority to provide such rights. The Army may condition the provision of such rights on restrictions on the time and manner of access and conduct of activities, provided that such restrictions do not unreasonably delay or interfere with the performance of the Environmental Services.

4.2.6. Liability

If the death or injury of any person, or the loss of or damage to any property is caused by the Army in the course of its use of the ACES, or in the performance by the Army of Army Obligations hereunder, the liability, if any, of the Army therefore shall be determined in accordance with the applicable provisions of the Federal Tort Claims Act (28 U.S.C. Section 2671, et seq., as amended) or otherwise provided by law.

4.2.7. Army Actions

The Army shall take all necessary actions required hereunder and under applicable law with respect to Army-Retained Conditions and Army Obligations, and shall take all actions required hereunder to fulfill its responsibilities under 42 U.S.C. 9620(h). For Army Retained Conditions under the TSRS, the Army will timely:

1. Assess, inspect, investigate, study, and remove or remediate, as appropriate, the release of a hazardous substance, pollutant, or contaminant, from or on the ACES; and

2. Settle or defend any claim, demand, or order made by federal, state, or local regulators or third parties in connection with any release of a hazardous substance, pollutant, or contaminant from or on the ACES; and

3. The Army will make diligent efforts to identify and initiate

actions within thirty (30) days after receiving the above-referenced notice from the Recipient, pursuant to Sections 4.1.4 and 4.1.5. In the alternative, the Parties may amend this Agreement or enter into an additional agreement by which the Army will provide funds to the Recipient to enable the Recipient to take such actions, subject to (Reference to be provided in

actual document).



4.2.8. Minimize Interference with Recipient’s Actions

In performing environmental cleanup activities hereunder, the government shall minimize interference with the use of the ACES by the Recipient and its successors, assigns, transferees and tenants to the extent practicable. Except as provided in Section (Reference to be provided in actual

document), the government assumes no liability for any interference with the use of the ACES that may be caused by environmental cleanup activities. To the extent permissible under federal rules and regulations, the government shall require that its contractors have general liability insurance for their negligent acts and errors and omissions insurance.

4.2.9. Army Retained Condition

To the extent the Parties disagree as to whether an environmental condition constitutes an Army Retained Condition or as to the action required in response to such Army Retained Condition (including the timing of such action in consideration of the Recipient’s development plans), the matter may be submitted to dispute resolution in accordance with (Reference to be provided in

actual document) and the Recipient may take any action necessary in accordance with Sections 4.1.4 and/or 4.1.5, as part of dispute resolution, and seek reimbursement for the costs associated with such actions, subject to the provisions of Section 4.1.4 and/or 4.1.5.

4.2.10. Minimize Interference with Recipient’s Actions

The Army has provided and shall provide project-related data and documentation contained in the administrative record to the Recipient upon conveyance of title to the Recipient. This data includes, but is not limited to the following: soil boring logs; test pit logs; monitoring well construction details/logs; test results; chemical analytical data for all media; data validation reports; land survey reports, documents of soil boring, monitoring well, removal action and other pertinent physical locations; field logbooks; meeting notes; relevant regulatory agency correspondence;, documents required to compile full and administrative record for all reasonably requested investigation, cleanup, and reporting commenced prior to the effective date of this Agreement. The date for providing such data will be agreed upon by the Parties. The Recipient may also request that the Army provide additional information concerning site conditions for the ACES and if such information is reasonably obtainable without significant cost and releasable by the Army in accordance with applicable law, the Army shall provide reasonable access to such requested information to the Recipient within thirty (30) days of the Recipient’s written request for such information, or as soon as is reasonably possible thereafter. Allocation of extraordinary reproduction and search costs shall be governed by the Freedom of Information Act and its implementing regulations and policies. The Recipient and the Army agree that if any of the documents identified above are missing and those documents are required to achieve Site Closeout, the Army will use diligent efforts to locate such documents and provide access to them promptly to the Recipient.

4.2.11. Army Obligations

The Army will perform the Army Obligations in a manner that will not unreasonably delay the Recipient’s performance of Environmental Services.



4.2.12. Army Approval

Wherever the terms of this Agreement provide for approval by the Army, such approval shall not be unreasonably withheld or delayed, and, at minimum, shall be provided within approval timelines under the TCEQ Agreement, as applicable.

4.2.13. Documents Provided to Recipient

With regard to Army Obligations hereunder, the Army will provide to the Recipient copies of any and all documents submitted to the TCEQ at the same time said documents are submitted to TCEQ. The Recipient shall have the right, hereunder, to review and comment on these documents. The Parties will work together to avoid adverse impacts to the Recipient for proposed actions for the Army Retained Conditions.

4.3. Insurance and Related Liability

4.3.1. General Liability

The Recipient shall either self-insure or shall carry and maintain general liability insurance, to afford protection with limits of liability in amounts not less than $XXXXX dollars, or other amount as agreed to by the Parties, in the event of bodily injury and death to any number of persons in any one accident.

4.3.2. Environmental Insurance and Army Contingent Funding

4.3.2.1. Environmental Insurance

The Recipient shall obtain, carry and maintain Environmental Insurance Policies acceptable to the Army and afford protection with limits of liability in the amounts set forth in (Reference to be

provided in actual document) of the TSRS. The Army shall review and concur with these policies prior to such acceptance. The Environmental Insurance Policies shall be written in accordance with the requirements outlined in (Reference to be provided in actual document) of the TSRS, unless otherwise agreed to by the Parties after due consideration of policy options. Such policies shall be consistent with the requirements outlined in the TSRS, subject to (Reference to be


The Recipient will provide to the Army a certificate of insurance evidencing the insurance required and will also deliver if necessary, no later than thirty (30) days prior to the expiration of any such policy, a certificate of insurance evidencing each renewal policy covering the same risks.

4.3.2.2. Army Contingent Funding

The Army will, as specified below, provide Army Contingent Funding to the Recipient in the event the Recipient exceeds costs allocated for Munitions Response associated with ACES. Such funding will only be available upon the occurrence of the following: (1) the Recipient has expended ESCA funding in excess of $__________ allocated for Munitions Response; and (2) the Recipient has, in addition to (1), expended an amount in excess of 20% of $_________which equals $_________. Once these expenditures have occurred, the Army and Recipient will, as costs are incurred, proportionately share the actual incurred costs (without additional profits to the Recipient or its successors) of Munitions Response on a 90% and 10% basis by the Army and



Recipient, respectively, to achieve Site Closeout for Munitions Response. Army Contingent Funding shall not exceed $__________. The Army Contingent Funding is only available until the Recipient achieves Site Closeout for Munitions Response.

4.3.3. Worker’s Compensation

If and to the extent required by applicable law, the Recipient will either self-insure or carry and maintain worker’s compensation or similar insurance in form and amounts required by law. Any such insurance policy will provide a waiver of subrogation by the Recipient of any claims the Recipient may have against the Army, its officers, agents, or employees except for those asserted by third parties in their own right. In no circumstances will the Recipient be entitled to assign to any third-party rights of action that the Recipient may have against the Army.

4.3.4. General Liability Policy Provisions

All general liability insurance which the Recipient carries or maintains, or causes to be carried or maintained pursuant to this Section 4.3, will be in such form, for such amount as specified above, for such periods of time and with such insurers as the Army may approve and approval shall not be unreasonably withheld or delayed. All policies issued by the respective insurers for general liability insurance required by this Agreement will provide that no cancellation will be effective until at least thirty (30) days after receipt by the Army of written notice thereof, and will provide a waiver of subrogation by the Recipient of any claims the Recipient may have against the Army, its officers, agents, or employees. In no circumstances will the Recipient be entitled to assign, to any third party, rights of action which the Recipient may have against the Army.

4.3.5. Delivery of Policies

The Recipient will provide to the Army a certificate of insurance as evidence of the insurance required by the Recipient and will also deliver, no later than thirty (30) days prior to the expiration of any such policy, a certificate of insurance evidencing each renewal policy covering the same risks.

5. GENERAL PROVISIONS

5.1. Term of Agreement

5.1.1.

This Agreement shall be deemed null and void if Castner Range is not conveyed by Deed to the Recipient by_______________. The effective date of this Agreement will be no earlier than the Covenant Deferral Request, and the subsequent delivery of the executed Early Transfer Deed. This Agreement will not become effective until the Recipient acquires the Environmental Insurance Policy as outlined in Section 4.3 of this Agreement and (Reference to be provided in

actual document) of the TSRS or as may be otherwise agreed upon by the Parties.

5.1.2.

This Agreement shall remain in effect in accordance with (Reference to be provided in actual

document) subject to earlier termination pursuant to (Reference to be provided in actual

document), or extension pursuant to (Reference to be provided in actual document).



5.1.3.

The obligations of the Parties that shall survive the term of this Agreement, identified in (Reference to be provided in actual document), shall include but is not limited to the following:

1. The obligations of the Recipient to maintain compliance with the Early Transfer deed provisions, all environmental decision documents, Site Closeout requirements, and the land use covenants as required under the TCEQ Agreement, and compliance with any applicable Long-Term Obligations;

2. The Recipient’s obligations to perform the Environmental Services associated with Insured Unknown Conditions; and

3. The Recipient and Army Obligations under Sections 4.1.1, 4.1.8, 4.1.13, 4.2.1, 4.2.2, 4.2.4, 4.2.7, 4.2.10, 4.3, and (Reference to be provided in actual document).

5.2. Successors and Assigns

The Recipient shall remain liable for performing its obligations under this Agreement, without regard to the potential for portions of the Castner Range to be transferred to future owners or tenants, in furtherance of the Site redevelopment objectives and without regard to the possible transfer of portions of the Recipient’s liability under the TCEQ Agreement. Nothing in this Agreement shall be construed to authorize the Recipient to assign any of its responsibilities or obligations under this Agreement or all or substantially all of the Recipient’s obligations under the TCEQ Agreement to a third party without the prior approval of the Army or make any subsequent owners or occupants of Castner Range a successor or assign under this Agreement. All obligations and covenants made by the Parties under this Agreement will bind and inure of any successors and assigns of the respective parties, including but not limited to The Frontera Land Alliance, or any other entity designated as successor or assign pursuant to any applicable law, whether or not expressly assumed by such successors or assigns, and may not be assigned in whole or in part without the written consent of the other party.

5.3. Severability

If any provision of this Agreement is held invalid, the remainder of the Agreement will continue in force and effect to the extent not inconsistent with such holding.

5.4. Waiver of Breach

No Party shall be deemed to have waived any material provision of this Agreement upon any event of breach by the other party and no “course of conduct” shall be considered to be such a waiver, absent a writing expressly waiving such a provision.

5.5. Notices

Any notice, transmittal, approval, or other official communication made under this Agreement will be in writing and will be delivered by hand, facsimile transmission, electronic mail, or by mail to the other party at the address or facsimile transmission telephone number set forth below, or at such other address as may be later designated:

• To the Army: (Address will be provided in final document)



• To the Recipient: (Address will be provided in final document)

5.6. Representations

5.6.1. The Army represents that:

1. It is fully authorized to enter into this Agreement;

2. The Recipient can fully rely on the data provided to the Recipient or its contractors by the Army or the Army’s contractors for purposes of performing the Environmental Services and making disclosures required under applicable law; and

3. The information contained in the documents identified in the applicable documents Section of the TSRS, fairly and accurately represents the Army’s actual knowledge of the nature and extent of contamination within the ACES.

5.6.2. The Recipient represents that:

1. It is fully authorized to enter into this Agreement; and

2. It enters this Agreement cognizant of the requirements and prohibitions set forth in the federal Anti-Deficiency Act and that any provision of this Agreement that states or implies that the Army will reimburse the Recipient for specific costs incurred is wholly subject to the Anti-Deficiency Act and that the Army’s obligations are subject to that law.

5.7. Conflict of Interest

The Recipient shall ensure that its employees are prohibited from using their positions for a purpose that is or gives the appearance of being motivated by a desire for private gain for themselves or others.

5.8. Access to and Retention of Records

The Recipient shall afford any authorized representative of the Army, the Department of Defense, or the Comptroller General, or other officially concerned Federal Government agency access to and the right to examine all records, books, papers, and documents, including records in automated forms (“Records”) that are within the Recipient’s custody or control and that relate to its performance under this Agreement. This right of access to records shall not include attorney client communications, attorney work product, or other legally privileged documents. The Recipient shall retain all such records intact in such form, if not original documents, as may be approved by the Army or other officially concerned government agency, which approval shall not be unreasonably withheld, for either at least thirty (30) years following completion or termination of this Agreement or transfer all such records into Army custody, whichever occurs first. Access to the Recipient’s records will be during normal business hours, and the Army or other officially concerned federal government agency will give the Recipient seventy-two (72) hours prior notice of its intention to examine the Recipient’s records, unless the Army or other officially concerned federal government agency determines that more immediate entry is required by special circumstances. The Recipient will have no claim due to such entries against the Army or other officially concerned government agency, or any officer, agent, employee, or contractor thereof.



5.9. Change of Circumstances

Each party will promptly notify the other party of any legal impediment, change of circumstances, pending litigation, or any other event or condition that may adversely affect such party’s ability to carry out any of its obligations under this Agreement.

5.10. CERCLA Requirements

For purposes of 42 U.S.C. Section 9620(h)(3), this Agreement shall not increase, diminish, or effect in any manner any rights or obligations of the Recipient or the Army with respect to the ACES.

5.11. Officials Not to Benefit

The Recipient acknowledges that no member or delegate to the United States Congress, or resident Commissioner, shall be permitted to share in any part of this Agreement or receive any benefit that may arise there from.

5.12. Force Majeure

The Parties shall perform the requirements of this Agreement within the schedules and time limits set forth herein unless the performance is prevented and delayed by events that constitute force majeure. A force majeure is defined as any event arising from causes which are not reasonably foreseeable, which are beyond the control of a party and which cannot be overcome with due diligence. If either Party disputes whether an event constituting force majeure has occurred hereunder, the dispute resolution set forth in (Reference to be provided in actual document) may be invoked.


Use or disclosure of data contained on this sheet is subject to the restriction for CALIBRE Proprietary Data.


APPENDIX I–CONSERVATION CONVEYANCE TIME LINE


Use or disclosure of data contained on this sheet is subject to the restriction for CALIBRE Proprietary Data.






APPENDIX J–MAPS





















APPENDIX K–SAMPLE UXO FOUND IN 2003 AND 2004

Photograph 1: Live 105mm Projectile, M314 Series with Fuze Found During USA's Investigation January 2004.

Photograph 2: Live 2.36-Inch Rocket, M6 HEAT Found During USA's Investigation February 2004.



Photograph 3: Live 37mm Projectile, MK1 Found During USA's Investigation December 2003.

Photograph 4: Live Grenade, Smoke, M22 Found During USA's Investigation October 2003.



APPENDIX L–RANGE MAP





APPENDIX M–GLOSSARY OF ABBREVIATIONS AND ACRONYMS

Acronyms Definition AC Hydrogen Cyanide ACES Areas Covered by Environmental Services ACUB Army Compatible Use Buffer AIG American International Group [insurance] AKA/aka Also Known as BDSP BRAC Disposal Support Plan bgs Below Ground Surface BRAC Base Realignment and Closure Commission CA Chemical Agent CALIBRE CALIBRE (an Alexandria, Virginia corporation) CERCLA Comprehensive Environmental Response, Compensation, and Liability Act CC Conservation Conveyance CCCC (4-Cs) Castner Conservation Conveyance Committee CG Carbonyl Dichloride (Aka Phosgene) CK Cyanogen Chloride CRADA Cooperative Research and Development Agreement CFR Code of Federal Regulations CUWR Center for Urban Watershed Renewal CWA Clean Water Act CWM Chemical Warfare Material DDESB Department of Defense Explosive Safety Board DERP Defense Environmental Restoration Program DMM Discarded Military Munitions DOD/DOD Department of Defense DPW Directorate of Public Works EA Environmental Assessment ECCR Environmental Covenants, Conditions, and Restrictions EIS Environmental Impact Statement EMU Ecosystem Management Unit EPA Environmental Protection Agency ESCA Environmental Services Cooperative Agreement EUL Enhanced Use Leasing FMSP Franklin Mountain State Park FOSET Finding of Suitability for Early Transfer FOSL Finding of Suitability for Leasing FOST Finding of Suitability to Transfer FUDS Formerly Used Defense Sites GIS Geographic Information System GSA General Services Administration HLCT Honey Lake Conservation Trust HQ Headquarters Id. ibidem (Latin ‘in the same publication’; ‘on the same page’) ICRMP Integrated Cultural Resources Management Plan



INRMP Integrated Natural Resources Management Plan LLC Limited Liability Company MC Munitions Constituents MEC Munitions and Explosives of Concern MM Military Munitions MMRP Military Munitions Response Program MOA Memorandum of Agreement MRA Munitions Response Area MRS Munitions Response Site MRSPP Munitions Response Site Prioritization Protocol MSR Monthly Status Report NCP National Contingency Plan NEPA National Environmental Policy Act NHPA National Historic Preservation Act NLT not later than NRHP National Register of Historic Places OB/OD Open Burning/Open Detonation OE Ordnance and Explosives OEA Office of Economic Adjustment PBC Public Benefit Conveyance, or POC Point of Contact RCRA Resource Conservation and Recovery Act RDX research department explosive (nitroamine) RI/FS Remedial Investigation/Feasibility Study PLL Pollution Legal Liability (insurance policy) ROD Record of Decision SHPO State Historical Preservation Office(r) SONRI SONRI [Sustainable Organizations Natural Resources Infrastructure], Inc. SOW Statement of Work SWDA Solid Waste Disposal Act TCEQ Texas Commission on Environmental Quality TFLA The Frontera Land Alliance T&E Threatened and Endangered T&M Time and Materials [type of contract] TNT Trinitrotoluene (chemical compound) TPL The Trust for Public Land TPWD Texas Parks and Wildlife Department TSRS Technical Specifications and Requirements Statement TXDOT Texas Department of Transportation USACE United States Army Corps of Engineers U.S.C./USC United States Code [‘Code of the Laws of the United States of America’] USFWS United States Fish and Wildlife Service UXO Unexploded Ordnance VCP [Texas] Voluntary Cleanup Program [of the TCEQ] WAA Wide Area Assessment