Moderator:Richard W. Holtz General Counsel, MassDevelopment Panelists:Bryan Olson Chief of the Federal Facilities Superfund Section, EPA Region 1 Adam Kahn Partner, Foley Hoag LLP Anne Marie Dowd Executive Vice President of Legislative Affairs, MassDevelopment David Hall Senior Vice President, LNR Property Corporation Robert Hallenbeck Senior Vice President for Business Development, XL Insurance Military Base Redevelopment: General and Major Issues, Strategies, and Successes

BRAC Terminology BRAC Terminology BRAC – Base Realignment and Closure BRAC – Base Realignment and Closure LRA – Local Redevelopment Authority LRA – Local Redevelopment Authority BCT – BRAC Cleanup Team BCT – BRAC Cleanup Team RAB – Restoration Advisory Board RAB – Restoration Advisory Board BRAC Rounds BRAC Rounds 1988, 1991, 1993, 1995, , 1991, 1993, 1995, 2005 Overview

New England Military Bases Affected by BRAC Since 1988 Connecticut (19 installations) Connecticut (19 installations) Maine (7 installations) Maine (7 installations) Massachusetts (30 installations) Massachusetts (30 installations) New Hampshire (4 installations) New Hampshire (4 installations) Rhode Island (9 installations) Rhode Island (9 installations) Vermont (1 installation) Vermont (1 installation)

Contaminants Frequently Discovered at Military Bases Fuels Fuels Solvents Solvents Pesticides Pesticides Perchlorate Perchlorate MEC MEC

Significant Players in Cleanup Process Significant Players in Cleanup Process Military Military LRA LRA Regulators Regulators Developers Developers Community Community Cleanup Process

BRAC Property Disposal Overview Phase 1: Redevelopment & Disposal Planning Phase 1: Redevelopment & Disposal Planning Phase 2: Property Disposal Decisions Phase 2: Property Disposal Decisions Phase 3: Property Conveyance Phase 3: Property Conveyance

Conveyance Tools Public Benefit Conveyance Public Benefit Conveyance Homeless Assistance Conveyance Homeless Assistance Conveyance Negotiated Sale Negotiated Sale Advertised Public Sale Advertised Public Sale Environmental Remediation Conveyance Environmental Remediation Conveyance Economic Development Conveyance Economic Development Conveyance Conservation Conveyance Conservation Conveyance Disposal to Depository Institutions Disposal to Depository Institutions Exchanges for Military Construction Exchanges for Military Construction

Environmental Findings National Environmental Policy Act National Environmental Policy Act Environmental Condition of Property Environmental Condition of Property Identification of Uncontaminated Property Identification of Uncontaminated Property Finding of Suitability to Transfer/Lease Finding of Suitability to Transfer/Lease Covenant Deferral Request/ Finding of Suitability for Early Transfer Covenant Deferral Request/ Finding of Suitability for Early Transfer

Land Use/Institutional Controls Private Controls Examples- Deed Restrictions, Restrictive Covenants, Easements, Reversionary Interests Governmental Controls Examples- Ordinances, Zoning Rules, Advisories, Permits Enforcement Tools with IC Components Examples- EPA Orders, Permits or Agreements Informational Devices Example- Deed Notices

Legal Challenges Associated with Military Base Remediation Adam Kahn Foley Hoag LLP Boston, MA

Former Military Bases are Different from Most Other Brownfields Sites  Not “orphan sites”  Sites are normally supposed to be “clean” before transfer  Sites often feature unusual contaminants (MEC/UXO, chemical weapons) or unusual scale  High profile; many NPL listed  From a legal perspective, military bases enjoy significant advantages and suffer significant disadvantages that both help and hinder remediation and redevelopment

The United States’ Statutory Commitment to Cleanup  Main Advantage: Former Military Bases enjoy built-in remediation coverage and liability protection  CERCLA 120(h) covenants -Notice -Cleanup before transfer -Post transfer warranty  Section 330 Indemnification

Why Isn’t the Statutory Scheme Perfect for Brownfields Redevelopment?  Sometimes there is no time to wait for the cleanup to be finished  What cleanup is “necessary and appropriate”? -The difference between “safe” and “useable” -Indoor air pollution/building materials/UXO  Speed and flexibility of the cleanup  What about oil?  How to account for changing reuse plans?  Cleanups “look” different?  Is the best recourse really suing DOD?

Consequences of These Challenges  Disagreements over scope of liability have led to high stakes, multi-year litigation  Some projects have simply located elsewhere  DOD and LRAs have developed creative solutions to use the 120(h) covenants faster and more efficiently for all

Creative Solutions  Privatization to leverage 120(h) commitments to fit into a more contemporary, responsive model  Early transfer agreements  Service agreements  Simple private investment for high value projects  Common theme: Redevelopers are willing to assume certain additional private sector risk in exchange for increased flexibility

Redevelopment of the Former Fort Devens

The Devens Project BRAC ,000 population at its peak 7,000 jobs lost MassDevelopment named LRA May, 1996: MassDevelopment takes title

Reuse Plan Reuse Plan: 8.5M sf of development 5 development zones: Innovation/technology Industrial Housing Business services Corporate campus Protects environmental resources 75 day permitting

Post Transfer Environmental Issues 90% of leased parcels cleaned up and transferred Perchlorate and arsenic concerns abated 6 landfills consolidated Examples of Creative Solutions 200 underground storage tanks removed Asbestos/pesticides removed from housing area Early Transfer of “Thumb” Parcel

Devens Successes  85 Businesses located at Devens  4,200+ Jobs; $220 million annual payroll  250 residents  Its own zip code  $460 million private sector investments  $284 million in state & federal investments  BMS facility

Reasons for Success Experienced and driven governmental LRA Committed environmental partners LRA kept focus on redevelopment schedule and prioritized environmental issues. LRA pursued privatized or negotiated solutions with Army based on that priority

Redevelopment of Former Naval Air Station South Weymouth Brownfields 2006

Thoughtful Integration of Uses: SouthField Master Plan Large Scale. 1,400 acres, 2 square miles “Bigger than Boston ” Community Building Like a new Town, > than 135 MA Towns Over 7,000 people will call it home Five residential villages 2,855 units 1.7 msf office/biotech, 300k sf retail Model of Smart Growth Mixed-use, Transit Oriented 1,007 acres of open space (70%) A Day in the Life – “live, work, play & shop” Responsive to Commonwealth Needs Hi-density, infill development near transit Job Growth – keep Biotech jobs in MA Range of affordable housing types Open Space, recreation & env. Sensitivity

The Private Development Objective A balanced development plan must be… Sustainable for Generations! Good for the Community Good for the Environment Profitable

Characterization of Cleanup Issues NAS South Weymouth History -WWII Airfield for blimps & jets -Low intensity of use -No major nuclear/radiological or UXO -Use did not include heavy industrial/manufacturing Status-NPL listed Superfund Site, plus several State DEP sites -but contamination is routine and manageable Per Navy- “compared to other bases, this one is no-brainer” -$90 million total cost …modest when compared to Hunters Point, some $400 million Specifically-Landfills -Jet fuel spills -Solvent releases -Misc…minor PCB’s, coal ash, metals

Challenges for Private Development Disagreement with DoD over transfer method. Years wasted. Uncertainty over cost & time. No alignment of clean-up sequencing and scheduling. DoD & Regulators not driven by same objectives as private sector Disagreement with DoD over level of clean-up and difficulty integrating with Re-Use Plan and phasing Developer is an “innocent party” – must be shielded from liability. Use of PLL Insurance not appreciated by DoD Difficulty negotiating use restrictions, long–term O&M and DoD “comeback” for unknowns

Solutions Privatization Let developers do what they do best - Execute projects on a critical path with focus on profitability and sustainability. Eliminate Uncertainty & Reduce Risk Don’t shift risk to developer, but make it go away (where possible). Leverage Public Investment Mega-projects but do not work with 100% private funding. Leverage federal dollars & bonding, all on the “increment.” Align Interests, Communicate & Execute with Common Goals