THE BRAC PROCESS –

Not Your UsualBrownfields Redevelopment

Mary K. Ryan

• BRAC sites are very complex Brownfields sites, with unique requirements

• 2 simultaneous efforts:– Redevelopment/Reuse – Restoration/Cleanup

• Goal for closed bases: return property to community for beneficial reuse as quickly as possible

• Goal for realigned bases: maintain or enhance installation’s contribution to community vitality

Key Sources

• Defense Base Closure and Realignment Act of 1990

• BRIM – Base Reuse Implementation Manual

• DDO web sites – e.g., www.oea.gov

Who is the Developer?

• Local Redevelopment Authority or LRA must be designated

• LRA may bring in Master Developer (S. Weymouth example)

• Must be recognized by DoD’s Office of Economic Adjustment

What is the Development Plan

• Reuse Plan is the principal planning document

• Usual federal, state and local laws and regulations apply: NEPA, MEPA, more

What is the Development Plan (cont.)

• Given the scale of redevelopment – 9400 acres at Devens, 1400 acres at South Weymouth – redevelopment can be like building a new town, with all usual issues

• Smart growth, affordable housing (40R) – housing can be essential to economic development

How Does LRA Acquire Property?

• What property? – Federal-to-federal transfer– Homeless assistance

• Methods of property disposal for sale or lease– EDC, PBC, Conservation Conveyance, sale

(negotiated or auction)

– LIFOC

• NEPA applies to property transfer – will be based on Reuse Plan as preferred alternative

Deed Requirements

• CERCLA Covenant § 9620 (h)(3)(A)(ii)• Notice and access requirements• Deed must contain two covenants:

– That all remedial action necessary to protect human health and the environment with respect to any such hazardous substance remaining on the property has been taken before the date of transfer, and

– That any addition remedial action found necessary after the date of transfer shall be conducted by the United States

• But first covenant can be deferred in case of early transfer – Jill will talk about that

• Will purchaser or transferee enjoy the same protections as any other innocent party?– EPA Prospective Purchaser Agreements– Mass. 21E Eligible Person Protection– Mass. 21E Brownfields Covenant Not To Sue

§ 330 Indemnity

• DoD indemnifies transferees for:– “any suit, claim, demand or action, liability,

judgment, cost or other fee arising out of any claim for personal injury or property damage (including death, illness, or loss of or damage to property or economic loss)” with respect to hazardous substances, pollutants, or contaminants and petroleum to states, political subdivisions of states, any other person or entity, or any successor, assignee, transferee, lender or lessee of such identified parties

Cleanup

• Defense Environmental Restoration ProgramSee www.dtic.mil/envirodod/

• At time base is on BRAC list, cleanup may or may not be underway; more likely today than in earlier rounds.

• Environmental Baseline Survey

• For hazardous waste sites regulated under CERCLA, there may be a Federal Facilities Agreement

• Common issues– UXO, radioactive waste– State regulated substances: oil, solid waste

• BRAC cleanup team

• Restoration Advisory Board

• DoD role in remedy selection

• Land use controls

Early Transfer

• The South Weymouth team hopes it will be the first NPL site at which there is an early transfer

• Early transfer means a transfer prior to completion of all environmental cleanup; first covenant must be deferred.

• Approval and/or concurrence of Governor and/or EPA Administrator necessary, after required findings made

• EPA and DoD policy/guidance available• LRA or other party assumes cleanup

responsibility• Role of cash grant, contractor and

environmental insurance to pay for and/or address risk factors

• Jill will explain practical operation and benefits

• True Brownfields project will combine cleanup and development