Community Options to Resolve Disputes

["Bill Smith" <WJASmith@aol.com>]

The text below is a report referred to as CORD, or "Community Options to
Resolve Disputes at the Former Naval Air Station Alameda." Although the
report addresses disputes at a closed DOD base, many of the issues addressed
are common to active Federal Installations as well.

The report was motivated by a very public dispute between the DTSC
(Department of Toxic Substances Control) within the California EPA and the
Navy. After 4 years of fruitless arguing about a Federal Facilities Site
Restoration Agreement, the dispute broke out into the open at the July 1997
meeting of the Alameda Naval Air Station Restoration Advisory Board. At the
meeting, in a well rehearsed presentation, the Navy accused DTSC of being
indecisve and of ignoring its own precedents. The DTSC (with assistance from
sharp real estate professionals on the RAB) countered by accusing the Navy of
failure to supply all relevant information in a timely manner and of citing
nonexistent precedents at Naval facilities that were not comparable as they
would not be closing.

The immediate object of the dispute is a two tiered screening methodology for
declaring parcels suitable for transfer. The methodology was developed by
the Navy with no external review. The Navy has yet to respond to repeated
requests by the RAB at several monthly meetings to compare the technology to
ASTM standards for screening property. Both the DTSC and the US EPA have
disapproved the methodology because it is likely to yield inconclusive
results on several parcels. The Navy has announced that it will exercise its
perogative as the Lead agency and use the disputed methodology anyway. 

The community, including the Alameda Reuse Redevelopment Authority, which
includes Rep. Ron Dellums, the ranking Democratic Member of the House Armed
Services Committee, has written a letter to senior Navy officials asking the
Navy to comply with DTSC methods. The dispute was the lead story in the July
5 1997 Oakland Tribune. The Secretary of Defense will be visiting the former
Alameda Naval Air Station on Monday, July 21st.

What's a community to do? 

The attached CORD report has some suggestions, many of which have been pulled
gleaned from those of you on the Pacific Study Center's newslist and cc'd
above. The report notes that the root problem is really that the Navy now
has final authority to interpret regulations at the former Air Station and
that the State agency will have that authority after the Navy transfers the
property. Further, the Navy is required to take current and projected
funding levels into account when setting cleanup standards while the State
Agency and the community are not. 

I encourage those of you that are concerned about relationships between the
members of Base Closure Teams to read the report. Some of the suggested
actions may benefit you. And some of the actions will require us all working
together on new legislation, such as Colorado Rep. Schroeder's bill to exempt
federal agencies from sovereign immunity under CERCLA.

The text of the report follows. 

REVIEW DRAFT

Community Options for Resolving Disputes (CORD)
at the
Former Naval Air Station at Alameda

July 14, 1997

Prepared by Members
of the
Restoration Advisory Board
at the
Former Naval Air Station Alameda

Acknowledgements

Members of the Restoration Advisory Board for the former Naval Air Station at
Alameda express our deepest appreciation to the dedicated men and women in
the United States Navy, the California Department of Toxic Substance Control,
and the United States Environmental Protection Agency whose insightful and
candid comments have contributed to this document. Their attendance at
innumerable evening meetings, prompt return of our phone calls, and their
patience with our occasionally naive questions are much appreciated.
 Regardless of how or whether the issues discussed in this report are 
resolved at the State or national level, we are convinced that, with 
such dedicated professionals, we can improvise a local solution to the 
dispute.

Table of Contents

CONFUSED AUTHORITY AND FUNDING CONSTRAINTS 1
COMMUNITY OPTIONS 2
1. Restoration of the Original Consensus Partnership 3
2. Neutral Facilitation 3
3. Independent Action 4
4. Continuation of Navy as Interim Final Authority 5
5. Increased Role for US EPA 5
6. Immediate Transfer of Final Authority to DTSC 5
RECOMMENDATIONS 6

Confused Authority and Funding Constraints

Historically, the Navy, as part of DOD (Department of Defense), has been the
lead agency at closing military bases and responsible for final
administrative interpretation of any applicable federal laws. By virtue of
the unitary theory of government, the DOD has, until recently, been exempt
from enforcement actions by other branches of the Federal government, such as
the US EPA (Environmental Protection Agency) and OSHA (Occupational Safety
and Health Administration). Likewise the DOD has, by virtue of the doctrine
of sovereign immunity, been exempt from all state laws at military bases.

The situation has started to change within the last ten years. With respect
to RCRA, the Resource Conservation and Recovery Act, Congress has waived the
DOD's right to sovereign immunity and the US EPA, or authorized states such
as California, have enforcement powers over the DOD for RCRA regulations.

Much of the cleanup at the former Naval Air Station at Alameda is currently
governed under CERCLA, the Comprehensive Environmental Response and Cleanup
Liability Act. Although congressional legislation to waive the Federal
government's right to sovereign immunity under this act is pending, at the
current time DOD is immune to both federal and state enforcement actions
under this act. At sites where a federal facilities agreement has been signed
for CERCLA activities, the DOD has granted States limited enforcement powers
over its activities.

To resolve disputes about the applicability and interpretation of
regulations, many other bases have set up dispute resolution processes in
FFSRAs (Federal Facility Site Restoration Agreements). After more than four
years, the Navy and the State have been unable to reach such an agreement for
Alameda. The inability to agree on who has the final authority to interpret
environmental laws and regulations is at the heart of the dispute at Alameda.
 The disagreement over methods to use in determining whether a site is
suitable for transfer without further investigation is only one very public
symptom of the fundamental dispute.

Resolution of the dispute by consensus will be difficult. Current laws and
regulations force the Navy to tie cleanup standards to current and near-term
projected funding levels. The only straightforward solution to the dispute
under current laws and regulations is for the Navy and the community to work
together to increase the cleanup funding levels for Alameda. Whether or not
funding levels for Alameda can be increased without decreasing the funding
available to other sites is both a Navy policy, and a political, question.

Local Navy officials tend to view and portray funding as a zero sum game. If
more funding is granted to Alameda to make property suitable for industrial
use suitable for residential use, the additional funding may have to be taken
from Mare Island or some other base in the Bay Area where contamination
leaking into the Bay presents a more immediate and significant risk to health
and the environment. 

Local Navy officials apparently receive minimal support from the Pentagon
when they ask for increased funding to meet California's cleanup standards,
which are among the toughest in the country. Pentagon officials balk at the
prospect of cleaning up a site in California for two to three times as much
as a comparable site elsewhere in the country. Such large disparities in
cleanup funding are likely to lead to either requests for more cleanup
funding everywhere in the country or to charges in inequities in
administration of the Navy cleanup program. 

The community, on the other hand, views Navy and federal cleanup budgets as
elastic. At Alameda the community has compared the Navy's projected cost for
cleanup of the entire base over a multi-year period to the annual operating
budget of NAS Alameda when it was at full strength. The multi-year cleanup
budget and the single year operating budget are about the same and the
community reasons the Navy could make additional resources available for
cleanup. 

Unless the political will is found to substantially increase Navy cleanup
funding, or to extend the time allowed for cleanup to many decades rather
than one or two, the Navy will likely be driven to set less ambitious cleanup
standards than the community will find acceptable. The Navy, the State, and
the community can more effectively increase funding or extend cleanup
schedules if they work cooperatively, than if they continue to squabble over
their respective portions of a shrinking pie.

Community Options

For both the State's DTSC (Department of Toxic Substance Control) and DOD,
the fundamental dispute about who has the final authority to interpret
environmental laws and regulations at the former Naval Air Station has
implications far beyond Alameda. Therefore the dispute may carry on
indefinitely until settled by either congressional or court action. The US
EPA has expressed its intent to remain a bystander until actually asked to
approve a property transfer. In state-wide agreements between the US EPA and
DTSC, the US EPA has agreed to defer to DTSC for all non-Superfund sites,
including the former Naval Air Station at Alameda.

Since the dispute does have implications beyond Alameda, the community's best
course of action may be to elevate the dispute to higher levels within the
Navy and DOD and request that the agencies' local staffs focus on speedily
implementing activities in such a way as to minimize the impact of the
dispute on human health, the environment, and reuse of the base. 

The community has other options, including 

1. restoration of the original consensus partnership,
2. neutral facilitation,
3. independent action,
4. continuation of the Navy as the interim final authority,
5. increased role for US EPA, and 
6. immediate transfer of final authority to DTSC.

Final authority refers to the ultimate authority to interpret Federal
environmental laws and regulations for sites within the CERCLA program at the
former Naval Air Station Alameda. Currently, in the interim before property
is transferred, the Navy has final authority to interpret the laws and
regulations. If the property is transferred outside of the Federal
government, state laws then apply in addition to federal laws and the final
authority for interpreting laws and regulations passes to DTSC. DTSC may
never have final authority over property transferred to the US Fish and
Wildlife Service, a federal entity.

Various members of the community are likely to support different options for
resolving the dispute. The task of the community leadership is to either
jointly agree on an option or to facilitate coordination of the activities of
those who choose different options. To keep reuse on track, the community
may have to select and implement one or more options no later than early
November, 1997, after the results of the early screening of various parcels
are available. 

The strength of community support and implementation strategy for each option
is discussed below.

1. Restoration of the Original Consensus Partnership

Until this spring, the community had repeatedly been assured by both DTSC and
the Navy that they were each working together with the other as part of a
consensus partnership. The community was shocked at the July RAB meeting
when, in a well rehearsed statement, the Navy publicly accused DTSC of
indecisiveness and failure to adhere to precedents to which DTSC had already
agreed. DTSC responded by stating that the Navy failed to supply all
relevant information in a timely manner and that the precedents, of which
they could find no evidence in DTSC files, were at sites that would remain in
Navy control indefinitely. The community is grateful that both parties
finally went public with the dispute. Otherwise, the community may have
failed to realize that DTSC and the Navy will need outside assistance to
restore their original consensus relationship. 

Of the remaining options, neutral facilitation is directed toward restoring
the original consensual relationship. Independent action by the community
could also be directed toward restoration of that relationship.

The remaining options encourage one of the parties to clearly take charge. A
single party in charge, the classic military and project management model,
works well when goals, authority and resources are clearly defined, a
situation that rarely happens on environmental projects. If the community
can clearly define and accept cleanup goals that are compatible with Navy
funding constraints and schedules, the single party in charge model will work
well. Otherwise, the Navy's command of the resources and DTSC's ultimate
command of the goals suggest that the parties may be better off working
together on a consensus basis to relieve funding constraints 
and to extend schedules. 

2. Neutral Facilitation

Neutral facilitation by local community members is unlikely to be effective.
DOD views the question of who has the final authority to interpret CERCLA
regulations as an issue of national importance and DTSC as an issue of
state-wide importance. The community's best hope for this option is to work
with the local congressional delegation and state legislators to prod the DOD
and DTSC into agreeing on a dispute resolution process for Alameda. As
Representative Ron Dellums is a ranking member of the House Armed Services
Committee, State Senator Barbara Lee has been a legislative leader on base
conversion, and State Representative Don Perata is well-respected in 
the State Assembly, they may very well be able to prod DOD and DTSC 
into agreeing on a dispute resolution process. Further, since this
is an issue with regional implications, independent staff support to develop
a dispute resolution process may be available from the East Bay Military
Conversion Commission.

3. Independent Action

Since DTSC, US EPA, and the Navy all believe that the dispute at Alameda has
major implications for their entire organizations, none of these 
organizations is likely to put the community's interest first. Therefore the
community will occasionally find actions that are independent of those taken
by any of the three agencies necessary. Schedule tracking and frequent
consultation to encourage the agencies to hold to agreed upon schedules is an
example of independent action. Even in more technical areas, such as cleanup
standards, the community has sufficient expertise available within it to
forge a path that is independent of any of the government agencies. 

The RAB has already begun to develop its own cleanup standards and the
community could use those standards to accept transfer of property from the
Navy. If there was substantial agreement within the community on the cleanup
standards, DTSC and the Navy may be receptive to the locally developed
standards. By judicious trades between reduced costs and extended schedules,
the community standards could be crafted to appeal to both DTSC and the Navy.

The ARRA has been successful in recruiting users, such as CALSTART and the
Nelson Marina, that would be comfortable with long term leases. Long term
leases are likely to be required whether or not the dispute between DTSC and
the Navy is settled soon. The BRAG contains considerable real estate and
land planning expertise that could be used to facilitate long
term-development of the base through leasing rather than primarily through
property transfers.

Local community members with connections to national environmental groups are
developing a cleanup program that would transfer funding and responsibility
for cleanup of closed military bases out of the DOD to another federal
agency. The cleanup program incorporates many of the recommendations in
recent reports by the RAND Corporation on the environmental restoration of
military bases. The new cleanup program would include local representation
at the highest levels in the cleanup decision making process. The Naval
Air Station at Alameda, is well positioned to become a pilot for the 
new program. The East Bay Conversion and Reinvestment Commission has 
been charged by the Federal government with the responsibility for 
piloting new approaches to base conversion.

For the community to "go it alone" may appear riskier than relying on actions
by DTSC and the Navy. Past experience, however, at other closed bases, such
as the Hamilton Army Air Field in Novato, has demonstrated that waiting for
the agencies to act when contentious issues have surfaced, is almost certain
to indefinitely delay cleanup and reuse. 

4. Continuation of Navy as Interim Final Authority

For the majority of the community to support the Navy as the interim final
authority, some accommodation with DTSC will be required. After the Navy
transfers land to the City, DTSC may be forced by environmental groups to
enforce cleanup orders on the City that it was unable to enforce on the Navy.
 This would force the City to pay for cleanup of the disputed property,
possibly delaying development for many years. 

This obstacle would be removed if the Navy and DTSC agreed on a dispute
resolution process. The community could facilitate Navy agreement to dispute
resolution by providing the Navy with assurance that the ARRA and the City of
Alameda would accept limited cleanups. Limited cleanups could mean accepting
industrial zoning for parcels that were extremely expensive to cleanup and
allowing sediments that contain toxics at levels prevalent throughout
industrial areas around the Bay to remain in near-shore waters. In return
for a limited cleanup, the ARRA would be able to accept title to the 
property sooner.

Some environmental groups within the community are likely to strongly object
to limited cleanups and are in a position make their views heard in court.
Their agreement to limited cleanups may be essential for the community to
speed development in exchange for limited cleanups. The Navy and the
community may be able to gain the support of these groups by agreeing to long
term leases of up to 99 years rather than property transfers at sites where
cleanup is limited. Legislation may be required for such long term leases to
work on CERCLA sites.

5. Increased Role for US EPA

Some in the community support US EPA as the final authority, rather than
either the Navy or DTSC. The US EPA has considerably more administrative
and technical resources than does DTSC. Further, the US EPA has frequently
been seen by the RAB as trying to mediate the dispute between the Navy and
DTSC. The US EPA is in a good position to be accepted by the Navy and DTSC
to play a leading role in a dispute resolution process. 

The US EPA could also formally replace DTSC as the interim final authority.
For this to occur, Governor Wilson would have to reverse his decision that
blocked US EPA from declaring the Naval Air Station at Alameda a Superfund
site. The US EPA, not DTSC, is the lead agency at Superfund sites. Like the
State, though, the US EPA's enforcement powers would be limited.

 Both the US EPA and the military, however, are usually able to bring more
resources to bear on Superfund sites than on other CERCLA sites.

6. Immediate Transfer of Final Authority to DTSC

For a variety of reasons, many in the community are likely to support
immediate transfer of final authority to DTSC. Most importantly, DTSC will
ultimately be the final authority once property transfers from the Navy to
non-Federal entities, including the Alameda Reuse and Redevelopment
Authority. Second, DTSC is perceived by many as more responsive to local
concerns than the US EPA, and especially the Navy. Third, designation of the
former Naval Air Station as a Superfund site to enable the US EPA to become
the interim final regulatory authority, may inhibit the development of
Alameda Point. 

DTSC could become the final authority this year, even before any property
transfers. There is currently a bill pending before Congress that would
waive the Federal government's sovereign immunity and allow the US EPA and
states to enforce the CERCLA statute at Navy and other DOD sites. There is a
precedent for this bill. In the early 90's the democratically controlled
Congress passed a bill waiving the federal government's right to immunity
under the RCRA statute. The currently pending bill for the CERCLA statute is
sponsored by a Republican congressman from Colorado and appears to have
substantial bipartisan support. 

DTSC could unilaterally and immediately declare itself as the final authority
by exercising its enforcement authority under RCRA, which does apply to the
Navy. DTSC would declare that disputed parcels require investigation under
the former Base's RCRA program. 

Recommendations

1. The community should immediately seek assistance from Congressman Ron
Dellums, State Senator Barbara Lee, and State Assemblyman Don Perata to
encourage the Navy and DTSC to agree on a dispute resolution process and to
sign the Federal Facilities Site Restoration Agreement.

2. Community leaders should meet and select by early fall one or more of the
options described above. If DTSC and the Navy are unable to agree on a
dispute resolution process by October, implementation of the selected options
should begin no later than late fall.

CORD - First Review Draft 
Forward comments to: Ardella Dailey, Chair, NAS Alameda RAB
7/13/97 Voice: (510)337-7062 Fax: (510)522-6926
 E-Mail: adailey@alameda.k12.ca.us