Beveridge & Diamond
 

Oakland

Army Base Makes BRAC History with Early Transfer Under Brownfields Cleanup Program

Army and California Gridlock Over Base Cleanup

Commissioned in 1941, the Oakland Army Base — a 425-acre property at the foot of the San Francisco-Oakland Bay Bridge — served as the Army's largest embarkation facility for sending soldiers and materials to Asia, beginning in World War II and continuing until the facility was declared surplus in 1995 in the second round of base closures under the Base Realignment and Closure Act. Although the Army reported it had spent more than $16 million on its sampling and underground tank removal programs, the Army and the California environmental oversight agencies had reached gridlock over a series of disputes over how regulatory requirements in the National Contingency Plan must be accomplished to achieve either pre-cleanup or post-cleanup transfer of the site to the Oakland Base Reuse Authority. At the heart of the dispute: how much site characterization was required before a remedy could be selected and implemented.

Brownfields Paradigm Applied to Successfully Complete Early Transfer Under CERCLA

One of the primary principles of Brownfields cleanups is that, inevitably, even NCP-compliant site characterization work that is completed before the demolition of buildings and other structures will fail to find all locations where soil has become contaminated by historic releases of hazardous substances. Extremely costly sampling programs, and extended regulatory debates about laboratory methodologies and detection levels, can stop a Brownfield reuse project in its tracks, for years.

With the Oakland Army Base, that debate had resulted in over 200,000 soil samples, and acknowledgment by all parties that the boundaries of known contaminated areas remained uncertain and that undiscovered contamination existed in numerous locations that had yet to be sampled.

Beveridge & Diamond, P.C. served as the City of Oakland's base transfer and environmental counsel, and worked closely with a technical consulting firm to persuade the Army, two California state agencies, the California Governor, the US Environmental Protection Agency, and two competitive insurance carriers to accept a "Brownfields approach" to the pre-cleanup transfer of the Army Base to Oakland, based on a Finding of Suitability for Early Transfer (FOSET).

Under this approach, the state environmental oversight agency approved a Remedial Action Plan and Risk Management Plan ("RAP/RMP") that prescribed cleanup standards, a list of preapproved remedies, and an approved protocol for completing the characterization and cleanup of Army Base property. Seven base locations, mostly involving known sources of groundwater contamination, were placed on an accelerated cleanup schedule, and the remainder of the base will be characterized and cleaned up concurrent with redevelopment. The RAP/RMP also included deed restrictions. All regulators and two insurance carriers accepted cost estimates for completing this site investigation and cleanup program, based on the approved RAP. Costly debates about characterization requirements ended costly regulatory delays in the piecemealed evaluation of portions of the base with feasibility studies and remedy selection disputes. Longer-term cleanups (groundwater, dense soil contamination areas) began first, and scores of minor cleanups (releases not affecting groundwater, releases associated with failed sewer systems and other equipment) were safely postponed for integration into the construction schedule for the redevelopment program.

This Brownfields solution broke through more than a decade of regulatory gridlock, and allowed our client to obtain a no-cost transfer of this base — with the Army paying cleanup costs - well after the military had begun selling its surplus lands under BRAC legislative amendments ushered in by the George H.W. Bush Administration.

Related Work on Surplus Military and Government Properties

Beveridge & Diamond has served as the lead land use and environmental counsel for numerous redevelopment projects involving surplus military or government properties, including for, example, the creation of a major mixed-use (residential, commercial, and retail) project on a former Navy base in Northern California for The Martin Group. Beveridge & Diamond served as environmental counsel for the investigation, subdivision, and purchase of a portion of a heavily contaminated former Air Force base on Long Island, New York to allow the construction of a multiplex cinema by our client, putting a significant portion of this large, environmentally impaired tract back to productive use. In addition, the Firm served as environmental and real estate counsel for the County of Nassau in acquiring a parcel of U.S. Navy property for development by the County Industrial Development Agency.