Turning Lemons Into Lemonade: How to
Remediate and Redevelop Underfunded
Contaminated Sites, Including Formerly
Used Defen...
SPEAKERS
   • Mr. Timothy Rogers, A.A.E.,
     Executive Director, Salina Airport
                        ,          p
   ...
Presentation Organization


• Presentations and Panel Discussion
• Questions / Answers
• Discussion of Add
              f...
Presentation Objectives
  Knowledge –Identify remediation and fi
• K      l d    Id tif      di ti      d financing
      ...
Redevelopment of Former
   Federal Facilities
The Reason We Are Here
      The Reason We Are Here




Spraying TCE On Tarmac as
Degreaser
Redevelopment of Former
Federal Facilities
  d l       l
• BRAC SITES
  – Status
  – Funding
  – Redevelopment momentum / ...
Redevelopment of Former
Federal Facilities
  d l       l
• Mi d BRAC / FUDS
  Mixed
  – Effective coordination among Feder...
Case Studies: BRAC and
      FUDS Sites
Local Community
            Considerations
                  d

Timothy F. Rogers, A.A.E.
Timothy F Rogers A A E
Executive...
FORMER SCHILLING AIR FORCE BASE, 
        SALINA, KANSAS
        SALINA KANSAS
Schilling Air Force Base: Site 
                Background
•   SAC Base
•   Operated from 1942 to 1965
•   Conventional an...
Schilling Air Force Base: Site 
               Background
• FUDS Site
• Significant Environmental Contamination, including...
Former Richards‐Gebaur 
Air Force Base: Circa 1990
Richards Gebaur: Site Background
Richards‐Gebaur: Site Background
•   Former Air Force Base that has been conveyed to the ...
Richards Gebaur: Site Background
Richards‐Gebaur: Site Background
•   Intermodal development – above ground and belowgroun...
Former Richards‐Gebaur 
Air Force Base: Anticipated 
How to Move Forward?
 “Once we come to grips with the fact that the contaminants
                     g p
 were moving tow...
How to Move Forward?
 “Knowing that we had to take ownership of the Site and the
           g                             ...
Tim Rogers’ Critical Thoughts
      g                  g

• Key points that Tim wanted to convey:
  – There are no shortcu...
Engineering Approach
  g       g pp
What Do You Know…
Where Do You Go…??
 h
Technical Understanding


          Clarify
         Quantify
         Defend
Clarify…
      y
•Historical Documents

•Previous Investigations

•Previous Work Plans

•Analytical Data

•Conclusions

•C...
Clarify…

Conceptual Model
 •Chemical Distribution
  Chemical
 •Geology
 •Hydrogeology
 •Source Areas
Quantify…
Cross Sections
     Soil Boring Logs, Monitoring Wells
Quantify…
Chemical Database
  Soil Data, Groundwater Data, Exposure Pathway Analysis
Quantify…
Quantify
Quantify…
How Much $$$$$ or “Cost to Complete”
                   Cost Complete
•   Data Gaps
•   Additional Investigation...
Defend…
 Defend

Document…
Check and Recheck

Document…
Check and Recheck

Document…
Check and Recheck
Defend…
  Defend

Meet with
Stakeholders
   k h ld

Meet with Regulators
•USEPA

•State Cleanup Programs
Incentivizing the “Deal”
                   Deal
Incentives to Remediate and
Redevelop FUDS Sites
   d l

• Financing Approaches or
           g pp
  Incentives

• Oth Inc...
Financing Approaches or
Incentives

• Traditional/Known

• Emerging/Novel
Traditional/Known Financing
Approaches
A       h
• BRAC/IRP A
           Appropriations
                  i i
  – Traditio...
Emerging/Novel Financing
Approaches
A      h
• E i
  Environmental S i
            t l Services C
                        ...
Emerging/Novel Financing
Approaches
A      h
• Stimulus Funds
   – The Emergency Economic Stabilization Act of 2008 (“2008...
Emerging/Novel Financing
Approaches
A      h
• FUDS Negotiated Settlement
   – In FY 2007, the estimated “cradle to grave”...
Emerging/Novel Financing
Approaches
A      h
• FUDS Negotiated Settlement Process (Cont’d)
                               ...
Emerging/Novel Financing
Approaches
A      h
• FUDS Negotiated Settlement Process (Continued)
   – Development of a Stakeh...
Emerging/Novel Financing
Approaches
A      h
• FUDS Negotiated Settlement Process (
           g                          ...
Emerging/Novel Financing
Approachese
A      h
• FUDS Cost Recovery Liti ti
       C tR          Litigation
  – CERCLA 107(...
Emerging/Novel Financing
Approaches
A      h
• FUDS C t R
         Cost Recovery Liti ti (C t’d)
                        L...
Emerging/Novel Financing
Approaches
A      h
• FUDS C t R
       Cost Recovery Liti ti (C t’d)
                     Litiga...
Emerging/Novel Financing
Approaches
A      h
• FUDS Cost Recovery Litigation (Cont’d)
       C tR          Liti ti (C t’d)...
Emerging/Novel Financing
Approaches
A      h
• Monetary Damages for Future Response Costs???
  – Court Interpretations
   ...
Other Incentives

• Obt i i Mi
  Obtaining Mineral Rights
                  l Ri ht
  – Allowed under Section 209 of the F...
Questions / Discussions
Questions Down the Road?
               Chris Wendelbo
               The Session Law Firm
               Telephone: 816.8...
Questions Down the Road?
               Mr. Jeffrey A. Bolin
               The Dragun Corporation
               Telephon...
Questions Down the Road?
               Mr. Timothy Rogers
               Salina Airport Authority
               Telephon...
Questions Down the Road?
               Ms. Shawna Bligh
               The Session Law Firm
               Telephone: 816...
Remediation and Redevelopment of Formerly Used Defense Sites
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Remediation and Redevelopment of Formerly Used Defense Sites

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Turning Lemons Into Lemonade: How to Remediate and Redevelop Underfunded Contaminated Sites, Including Formerly Used Defense Sites and Other Contaminated
Former Military and Federal Facilities

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Remediation and Redevelopment of Formerly Used Defense Sites

  1. 1. Turning Lemons Into Lemonade: How to Remediate and Redevelop Underfunded Contaminated Sites, Including Formerly Used Defense Sites and Other Contaminated Former Military and Federal Facilities
  2. 2. SPEAKERS • Mr. Timothy Rogers, A.A.E., Executive Director, Salina Airport , p Authority • Mr. Jeffrey A. Bolin, M.S., CHMM, Bolin M.S. CHMM Vice President - Technical Operations, Operations The Dragun Corporation • Ms. Shawna Bligh, J.D., LL.M., The Session Law Firm • Mr. Chris Wendelbo, J.D. , LL.M., The S i Law Fi Th Session L Firm
  3. 3. Presentation Organization • Presentations and Panel Discussion • Questions / Answers • Discussion of Add f Additional Successful l f l Tactics
  4. 4. Presentation Objectives Knowledge –Identify remediation and fi • K l d Id tif di ti d financing i techniques that work. • Control – Discuss techniques to Assume gr gr. • Quality – Achieve genuine environmental protection. Efficiency – F • Effi i Focus resources on relevant issues and l ti d avoid missteps. • Collaboration– Session participants share other successful techniques.
  5. 5. Redevelopment of Former Federal Facilities
  6. 6. The Reason We Are Here The Reason We Are Here Spraying TCE On Tarmac as Degreaser
  7. 7. Redevelopment of Former Federal Facilities d l l • BRAC SITES – Status – Funding – Redevelopment momentum / Remediation • FUDS SITES – Lack of funding g – Site control issues – Inability to address residual contamination y
  8. 8. Redevelopment of Former Federal Facilities d l l • Mi d BRAC / FUDS Mixed – Effective coordination among Federal Entities – Continuity of redevelopment with lack of ability to address FUDS environmental issues. • Military Munitions
  9. 9. Case Studies: BRAC and FUDS Sites
  10. 10. Local Community Considerations d Timothy F. Rogers, A.A.E. Timothy F Rogers A A E Executive Director Salina Airport Authority Salina Airport Authority
  11. 11. FORMER SCHILLING AIR FORCE BASE,  SALINA, KANSAS SALINA KANSAS
  12. 12. Schilling Air Force Base: Site  Background • SAC Base • Operated from 1942 to 1965 • Conventional and Nuclear Weapons Systems • Twelve (12) Nuclear Missile Silos • Transferred to Salina Entities in 1965 • Current Uses Include: l d – Municipal Airport – University and Vo Tech Facilities Vo-Tech – Active Military Operations – Private Business/Light Industrial
  13. 13. Schilling Air Force Base: Site  Background • FUDS Site • Significant Environmental Contamination, including VOCs, SVOCs, Metals, POL, Military Munitions/Lead, Landfills with Unknown Contents U k C t t • Groundwater Plumes On Base and Off-Site, Moving towards City’s Water Supply y pp y • Currently negotiating with COE and DOJ for a compromised settlement with the United States • Salina Entities would assume remedial tasks/obligations
  14. 14. Former Richards‐Gebaur  Air Force Base: Circa 1990
  15. 15. Richards Gebaur: Site Background Richards‐Gebaur: Site Background • Former Air Force Base that has been conveyed to the City of Kansas City, MO and the Port Authority of Kansas City, MO over the last twenty years. • Contains BRAC, FUDS and IRP • Contamination includes: VOCs, SVOCs, landfills with unknown industrial , , contaminants, pesticides, POL and lead from skeet range operations. • BRAC Sites are well characterized and remedies are in place and on-going. • FUDS Sites have been characterized, but no funding for remediation now characterized or in the foreseeable future. • Strong team of property redevelopers, including: – The Port Authority of Kansas City MO City, – Kansas City Southern Railway – CenterPoint Properties – Martin Marietta / Hunt Midwest Materials
  16. 16. Richards Gebaur: Site Background Richards‐Gebaur: Site Background • Intermodal development – above ground and belowground development – Kansas City Southern Railway tracks in place on former runway – CenterPoint Surface Phase I complete, infrastructure in place and ready for buildings – Martin Marietta / Hunt Midwest – Leased underground and preparing to proceed. • FUDS Portion is interfering with the velocity of the redevelopment of the f h h f h d f h Site. • The Port Authority has placed the entire Site (BRAC and FUDS) into the Missouri Brownfields / Voluntary Cleanup Program f ld l l – Goal of using risk-based remedial standards – Allows for “phasing” remediation efforts to threats to health/environment and address those areas where the development will proceed before later phases of the project project. • The Port Authority has proposed a compromise settlement with the United States to assume remedial role using funds from United States.
  17. 17. Former Richards‐Gebaur  Air Force Base: Anticipated 
  18. 18. How to Move Forward? “Once we come to grips with the fact that the contaminants g p were moving toward our water supply, that cleaning the former Schilling Air Force Base was going to take at least 20 to 30 years, and realizing that we were going to have to compete years with every other FUDS Site for funding each year, we knew that we had to take control of this process and be the ones who took responsibility for cleaning the Site.” h k bl f l h “We realized what an undertaking it was, but felt like there We was was no other way and when the Corps offered to settle the United States’ liability in exchange for our undertaking the remedial work, we b d l k began pursuing it.” Tim Rogers, SAA
  19. 19. How to Move Forward? “Knowing that we had to take ownership of the Site and the g p remediation process to ensure the safety of the citizens of Salina and continue the redevelopment of the former Schilling Air Force Base, we decided that we had to assemble sufficient Base environmental technical and legal expertise and add that expertise to our existing team to ascertain: (1) the full scope of the environmental contamination and an appropriate remedy; (2) whether a negotiated settlement could be achieved with the United States; and ( ) (3) what steps were necessary to implement the remedy.” p y p y Tim Rogers, SAA
  20. 20. Tim Rogers’ Critical Thoughts g g • Key points that Tim wanted to convey: – There are no shortcuts – Use original source documents to learn the true nature of the past historic uses at the Site – Engage in a more collaborative process with the United States, EPA and state regulators earlier in the process – Essential to have a locally unified team – Verification of environmental technical and legal g requirements
  21. 21. Engineering Approach g g pp
  22. 22. What Do You Know… Where Do You Go…?? h
  23. 23. Technical Understanding Clarify Quantify Defend
  24. 24. Clarify… y •Historical Documents •Previous Investigations •Previous Work Plans •Analytical Data •Conclusions •Calculations •Basis for Conclusions •Site Inspection
  25. 25. Clarify… Conceptual Model •Chemical Distribution Chemical •Geology •Hydrogeology •Source Areas
  26. 26. Quantify… Cross Sections Soil Boring Logs, Monitoring Wells
  27. 27. Quantify… Chemical Database Soil Data, Groundwater Data, Exposure Pathway Analysis
  28. 28. Quantify… Quantify
  29. 29. Quantify… How Much $$$$$ or “Cost to Complete” Cost Complete • Data Gaps • Additional Investigation • Remedial Selection and Design • Short and Long Term Monitoring • Uncertainties and Unknowns • Regulatory Interaction • Implementation Schedule p
  30. 30. Defend… Defend Document… Check and Recheck Document… Check and Recheck Document… Check and Recheck
  31. 31. Defend… Defend Meet with Stakeholders k h ld Meet with Regulators •USEPA •State Cleanup Programs
  32. 32. Incentivizing the “Deal” Deal
  33. 33. Incentives to Remediate and Redevelop FUDS Sites d l • Financing Approaches or g pp Incentives • Oth Incentives Other I ti
  34. 34. Financing Approaches or Incentives • Traditional/Known • Emerging/Novel
  35. 35. Traditional/Known Financing Approaches A h • BRAC/IRP A Appropriations i i – Traditional Congressional Appropriations • EPA Brownfields Program – Assessment, Cleanup, and Job Training Grants – Revolving Loan Funds • Tax Credits – Federal or State
  36. 36. Emerging/Novel Financing Approaches A h • E i Environmental S i t l Services C Cooperative A ti Agreements t (“ESCA”) – Allows the LRA to have increased control of BRAC site and allows the military service to “outsource” environmental responsibilities in exchange for a military obligation to reimburse the LRA. • National Defense A h l f Authorization A of Fiscal Year Act f l 1993 – DOD Indemnifies BRAC Facility Transferees from Liability for Contamination Resulting from DOD Activities – Includes duty to defend
  37. 37. Emerging/Novel Financing Approaches A h • Stimulus Funds – The Emergency Economic Stabilization Act of 2008 (“2008 Stimulus Bill”). Public Law 110-343 – Th American Recovery and R i The A i R d Reinvestment Act of 2009 t tA t f (“2009 Stimulus Bill”). Public Law 111-5. • Public/Private Partnerships – Private Developer Funding Environmental Oversight & Assurance – Developer Assistance with Environmental Remediation costs
  38. 38. Emerging/Novel Financing Approaches A h • FUDS Negotiated Settlement – In FY 2007, the estimated “cradle to grave” cost of the United States to address residual environmental contamination at FUDS sites was approximately $16.272 billion dollars. For FY 2007, Congress appropriated $262.1 million to address all FUDS sites for that year year. – United States Army Corps of Engineers • ER 200-3-1 Formerly Used Defense Sites (FUDS) y ( ) Program Policy • Chapter 5 Potentially Responsible Party Process
  39. 39. Emerging/Novel Financing Approaches A h • FUDS Negotiated Settlement Process (Cont’d) (Cont d) – The process to achieve settlement with USACE is necessarily site-specific but some of the common steps for y p p each site include: – Identification of appropriate site for settlement; –NNegotiation of a preliminary pro rata percentage of i i f li i f responsibility between the parties based on equitable factors; – Development of a remedial approach, implementation plan and Cost-to-Complete;
  40. 40. Emerging/Novel Financing Approaches A h • FUDS Negotiated Settlement Process (Continued) – Development of a Stakeholder Action Plan; – Technical discussions with the USACE District office regarding scope of any remaining investigation and remedial alternatives and their associated costs; – Settlement negotiations with the assigned Department of Justice Attorney and/or USACE District Counsel; – Referral of Settlement Demand by USACE chain-of- command; – Assignment of Department of Justice Attorney;
  41. 41. Emerging/Novel Financing Approaches A h • FUDS Negotiated Settlement Process ( g (Continued) ) – Implementation of all or portions of Stakeholder Action Plan, as needed; – Finalization of Settlement in the form of a judicially ordered Consent Decree; – Finalization of state Administrative Orders on Consent; – Implementation of Cost-to-Complete; – Five year Five-year reviews; and – Closure.
  42. 42. Emerging/Novel Financing Approachese A h • FUDS Cost Recovery Liti ti C tR Litigation – CERCLA 107(a) Cost Recovery Claim – United States v. Atlantic Research , 551 U.S. 128 (2007) v US • CERCLA 107(a) allows cost recovery by a private party that has itself incurred cleanup costs. p • One PRP may sue anther to recover response costs incurred in voluntary cleanup. – Site owners need not wait for EPA enforcement action to institute a CERCLA 113(f) Contribution Action A ti
  43. 43. Emerging/Novel Financing Approaches A h • FUDS C t R Cost Recovery Liti ti (C t’d) Litigation (Cont’d) – Next step following unsuccessful FUDS Negotiated Settlement – Litigation preparation • Remedial Determination / implementation schedule • Coordination with State and Federal Regulators • Demand on United States through COE • Assembling costs and evaluation of liability
  44. 44. Emerging/Novel Financing Approaches A h • FUDS C t R Cost Recovery Liti ti (C t’d) Litigation (Cont’d) – CERCLA 107(a) Cost Recovery Action • Elements • Defenses • Objectives/Goals j – Recovery of past costs expended for necessary and consistent (NCP) response costs – Secure Judicial determination allocating CERCLA liability among the parties
  45. 45. Emerging/Novel Financing Approaches A h • FUDS Cost Recovery Litigation (Cont’d) C tR Liti ti (C t’d) – Objectives/Goals (Continued) – Secure a declaration pursuant to Section 113(g) of CERCLA of the United States’ liability for future responses costs incurred in remediating the FUDS Site, including: • Judicial determination of United States’ pro rata share States for future response costs • Possible judicial determination for a lump sum payment of monetary damages for future response costs
  46. 46. Emerging/Novel Financing Approaches A h • Monetary Damages for Future Response Costs??? – Court Interpretations • CERCLA 107(a)(4)(B) – Jacksonville Electric Authority v. Eppinger and Russell Co. • Unpublished Opinion • Court awarded plaintiff over $21 million in lump-sum future response costs – Burlington Northern & Santa Fe Railway Company v. United States. • Supreme Court rules that when a term is undefined within CERCLA, one looks to the ordinary meaning • “Incur” is undefined in CERCLA • Plain Meeting of “incur” is “to be subject to or become liable for.”
  47. 47. Other Incentives • Obt i i Mi Obtaining Mineral Rights l Ri ht – Allowed under Section 209 of the Federal Land Policy Management Act – Application for Minerals is Made to Bureau of Land Management – May Act as Inducement to Prospective Redeveloper • Allows for Transfer of Complete Title (i.e. Surface and Subsurface) • May allow for the exploitation of any potential underlying value of the minerals y g • End-use may determine the real “value” of the minerals (site-specific analysis)
  48. 48. Questions / Discussions
  49. 49. Questions Down the Road? Chris Wendelbo The Session Law Firm Telephone: 816.842.4949 p Email: cwendelbo@session.com www.session.com
  50. 50. Questions Down the Road? Mr. Jeffrey A. Bolin The Dragun Corporation Telephone: 248.932.0228 p Email: Jbolin@dragun.com www.dragun.com
  51. 51. Questions Down the Road? Mr. Timothy Rogers Salina Airport Authority Telephone: 785.827.3914 p Email: trogers@salair.org www.salinaair.com
  52. 52. Questions Down the Road? Ms. Shawna Bligh The Session Law Firm Telephone: 816.842.4949 p Email: sbligh@session.com www.session.com

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