Since the first major closure (of the four closure rounds implemented in the 1990s) at Pease Air Force Base, New Hampshire, environmental cleanup has shown itself to be the inevitable "tail" that wagged the redevelopment and reuse "dog," with its very expensive and time-consuming (and redevelopment-slowing) liability.
   As a result, environmental liability issues have become the subject of significant negotiation at virtually every installation. Representative examples of major cleanup (and thus reuse) issues and disputes include:

• Insufficient DoD Cleanup Funding on a Time Schedule Allowing Expeditious Cleanup and Reuse. As a standard negotiation practice, government representatives correctly assert that the U.S. Government is forever liable for its own contamination by virtue of the federal Super-fund law. However, base redevelopment and reuse has often been frustrated since the 1990s in part due to insufficient DoD cleanup funding, a point raised many times in various Congressional and BRAC forums. Most recently, U.S. Senator Jeff Sessions (R-Ala.) pointedly raised this issue with DoD officials at a March 2006 subcommittee hearing of the Senate Armed Services Committee, due to his concerns about lack of cleanup funds for Ft. McClellan in his home state. More recently, at a June 1, 2006, trade association breakfast, Army officials discussed the challenges of sufficiency of funding issues.
• DoD Litigation Over Statutory DoD Indemnification of Base Transferees. Though a provision in the 1993 Defense Authorization Act indemnifies entities suffering from personal injury and property damage at a closed BRAC base, DoD is now legally testing this law in 2006 federal court lawsuits brought by communities, homebuilders and insurance companies regarding environmental property damage at redeveloping Denver, Colo., and Alameda, Calif., military sites.
• DoD Resistance to Higher Standard Cleanups. DoD has many times resisted agreement to fund cleanup to higher reuse standards, for a variety of reasons. (Some included unrealistic local and state government reuse plans). The net effect of cleanup to lower environmental and human health standards is to restrict the reuses of closed property, many times in conflict with community reuse desires.

Office of the Deputy Under Secretary of Defense (Installations and Environment) DoD BRAC site Federal Office of Economic Adjustment

   The comprehensive base reuse plan and the surgical strategy are the key vehicles by which to avoid show-stopping conflict with DoD. In particular, successful base reuses document that up-front investment in serious, independent due diligence reaps great dividends by which to negotiate with the Department and the Military Services from a position of strength on a broad range of issues. It also alerted government representatives to documentation that, they did not have, thus facilitating negotiations by reducing conflicts.
   These steps, together with private sector-based tools (e.g., privatized cleanup, environmental insurance, land use controls, etc.) can dramatically enhance the redevelopment and reuse possibilities of military sites.

   Harry H. Kelso, an attorney, is chairman and CEO of Richmond, Virginia-based Base Closure Partners, LLC, a company which identifies closed, downsizing and expanding military bases and other governmental properties, and crafts comprehensive solutions to their reuse. Kelso has served in the executive, legislative and judicial branches of both federal and state government, including posts as Director of Enforcement at the Virginia Department of Environmental Quality and Counsel to the Assistant U.S. Attorney General for the Justice Department's Environment and Natural Environment and Natural Resources Division. He can be reached via Base Closure Partners' website, found at www.baseclosures.com.