Nisha R. Kumar, Attorney-Advisor Office of the Assistant General Counsel for General Law, GC-56

“acquire, purchase, lease, and hold real and personal property, including patents” “and to sell, lease, grant, and dispose of such real and personal property as provided in this Act.” Broad discretion: no implementing regulations or legislative history Section 161g of the AEA:

Federal Property Act provides disposal authority for Federal agencies, for both real and personal property Absent express or reasonably implied statutory authorization, a Federal agency is powerless to dispose of property of the United States. Federal Property & Administrative Services Act

Federal Property Act exempts certain agencies and certain transactions from the GSA requirements “Nothing in this subtitle impairs or affects the authority of... the Secretary of Energy with respect to atomic energy.” Nonimpairment Clause

GC has interpreted “as provided in this Act” to require that any transactions under section 161g must be covered by one of two criteria: (1) Property DOE has acquired in connection with carrying out the objectives under the AEA or (2) Property that will be used/disposed to carry out such functions/objectives. NREL, NETL & Power Administrations can not use 161g authority. Criteria for 161g disposition

Example: Martin Marietta advised DOE that unneeded neutron generators would be used to identify contents of closed drums; supported 31.1a.(4), which provides that AEA will be used for processes for industrial and commercial uses. Not used very often Disposed to further AEA Example: Dispositions in Oak Ridge used 161g authority since entire complex was created to meet AEC goals Acquired in connection with AEA Examples

Section 1: common defense and security promote world peace Section 2: Military purposes Section 3: Assisting and fostering research and development Development and utilization of atomic energy for peaceful purposes International cooperation to promote common defense & security Purposes of AEA

No FMV requirement If less than FMV - sale of “real” property Notify Committee of Appropriations 60 days in advance of any proposed sale of land Notification does not apply to leases of real property or to personal property A no-cost transfer is considered a “sale” at less than FMV FAIR MARKET VALUE

Previously Used Property - If property was previously purchased for AEA purposes or if the property will be used for AEA purposes, can transfer unneeded personal property to foreign countries. New Property - If the purchase is new property it must be within the purposes of an appropriation GC review required - Appropriation, legislative history and budget submission Transfer of Personal Property to Foreign Countries

The Department disfavors long term leases (e.g. longer than a 20 year lease, with a 20 year renewal option). Any leases that exceed 40 years need to be reviewed by the Office of the General Counsel Term of lease period

By April 1, 1998 memo from GC-2, “routine transactions” pursuant to 161g no longer have to be reviewed by the Office of the Assistant General Counsel for General Law, and such reviews delegated to local counsel. GC is available to assist field counsel in review of novel, controversial matters. Delegations

Secretary may hold harmless an entity to whom real property is transferred, against any claim for injury to person or property that results from the release of a contaminant as a result of DOE activities (50 U.S.C. 2811) DOE indemnification regulations define “real property” as all interest in land, together with the improvements (10 CFR 770.4) Indemnification

Reimbursement for monetary damages Not an environmental clean up statute, like CERCLA Indemnification statute does not modify CERCLA requirements Provides transferee protection against personal injury & property claims Also applies to future transferees What is indemnification?

Legislative history: As DOE downsizes and closes facilities, local communities need assistance to transition from DOE centric economy to one based on private sector Intended to enhance “economic redevelopment & reuse activities.” Use authority only when it is deemed essential for reuse/redevelopment. Why does DOE have this authority?

Discretionary Applies to sales and leases of real property Economic Development – production, distribution, or consumption of goods/services From release that resulted from DOE activities Can transfer property at less than FMV What is scope of authority?

Congressional defense committee notification – 30 day requirement. Only applies to “defense nuclear facilities” Agreement to indemnify needs to be included in lease or deed Requirements

Under Secretary for Management & Performance, Under Secretary for Science, Assistant Secretary for Environmental Management, Director of Science have been delegated authority. Authority may only be redelegated to officials who have been appointed by the President with the advice and consent of the Senate. General Counsel review required. Who can make the decision to indemnify?