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Federal, State, and Local Property Transfer Efforts

ASTM Standards Add to Recipe for Success

by Ian Smith, Keith Muhlestein, Abigail Power, and Debra Tellez

In 1916, the United States War Department acquired approximately 1,310 acres [530 hectares] from several farmers in southeast Bexar County, Texas, and created Brooks Air Force Base to train pilots to fly. The base was established south of the city of San Antonio in a predominantly agricultural region. Today, the base is located immediately south of the main downtown business district of San Antonio (Figure 1) and is surrounded by single-family dwellings, small businesses and light industry. In the early 1960s, flying operations ceased at Brooks, yet the base retained much of its World War II-era infrastructure (including its more than 500 acres [200 hectares] of raw land) and high operating costs. By the late 1990s, the nature of Brooks’ missions, many of which were administrative, or oriented to R&D and medical training, no longer required the Air Force to own and operate the entire base.

As the United States military force structure continues to decline, ongoing efforts to reduce Department of Defense (DoD) infrastructure expenditures prompted the Air Force and the city of San Antonio (CoSA) to initiate the Brooks City-Base Project (BCBP or “Project”). Congress enacted legislation in 1999, which created this first of its kind Base Efficiency Project, an innovative partnering effort involving the Air Force, CoSA and the state of Texas. The BCBP’s purpose is to evaluate and demonstrate methods for more efficient operation of military installations through improved capital asset management and greater reliance on the public or private sector for less costly base support services, where available.

As a result of negotiations between the Air Force and CoSA, the parties agreed to transfer the deed to Brooks AFB property (federal property) to a specially created political subdivision of the state of Texas, the Brooks Development Authority (BDA). The Air Force agreed to lease back only the property they still needed to conduct their mission activities. The final property transfer occurred in July 2002. Changing the ownership of the property was necessary to allow third parties wishing to locate near the Air Force to enter into long-term facility leases at Brooks, as well as to enable productive BDA development of the raw land (which would have been hindered as long as the property remained federally owned).

Although there have been numerous federal to non-federal transfers of former military installation properties to date, primarily under the DoD Base Realignment and Closure (BRAC) process, few, if any, have occurred within the aggressive timeline established for the BCBP. None have involved a single, contiguous parcel of land as large as Brooks. Initially, some were concerned that the Brooks property transfer process would delay the timing of the overall project and overshadow the positive benefits the Air Force and its partners were seeking. Each of the partners involved in the Brooks property transfer, the Air Force, the U.S. Environmental Protection Agency (EPA), the Texas Commission on Environmental Quality (TCEQ) (formerly known as the Texas Natural Resource Conservation Commission) and CoSA, had prior BRAC property transfer experience. It was evident to the partners that a different approach, built on their past experience and reliant upon the use of ASTM standards, would be necessary to complete the Brooks transaction on time.

The Partners

The Air Force and CoSA entered into a non-binding agreement in late 2000 to convey the property from the Air Force to the BDA, with the Air Force agreeing to lease back that part of the base needed to continue its mission activities. Because the BDA was created relatively late in the overall negotiation process by an act of the Texas legislature, the BDA and CoSA worked closely together on the activities associated with property transfer. As stated, the BCBP partners had prior experience with BRAC property transfers in San Antonio (CoSA), the state of Texas (TCEQ), and around the nation (the Air Force). They knew that a significant number of BRAC property transfers had been expensive, time-consuming, adversarial and inefficient. All too often, the cumbersome BRAC property transfer process has been faulted for impeding economic redevelopment of former military properties. Based on their previous experience, an early decision was made by the BCBP partners to use a cooperative process for completing the statutorily required steps for transferring federal real property. This decision was later determined to be a critical success factor in accomplishing the property transfer on time.

As required by federal law, the Air Force was the lead agency responsible for complying with the primary environmental laws governing cleanup, compliance, natural and cultural resources preservation and federal property transfer for Brooks land. CoSA, acting on behalf of BDA and in protection of the city’s interests, fulfilled the necessary due diligence responsibilities prior to the BDA’s acceptance of the deed to the Brooks property. To ensure that regulatory concerns were promptly addressed, environmental regulators from EPA Region VI and TCEQ were asked to join the environmental compliance review team at the very start of the base property transfer effort. Citizens residing in the local community were also informed of the environmental review process by the Air Force, who provided information at the quarterly public meetings of the Brooks Restoration Advisory Board.

The Process

The federal to non-federal (Air Force to BDA) property conveyance at Brooks required the Air Force to comply with provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which requires federal agencies to ensure that all remedial actions necessary to protect human health and the environment prior to the date of property transfer have been taken. Concurrently, the Air Force was required to comply with the Resource Conservation and Recovery Act, which provides for cradle-to-grave management of hazardous and non-hazardous wastes, the National Environmental Policy Act, which directs the federal government to evaluate and inform the public of how its proposed actions will impact the environment, and the National Historic Preservation Act, which requires the inventory and protection of assets that are on or eligible for inclusion on the National Register of Historic Places. Additionally, applicable state environmental cleanup and compliance requirements needed to be fulfilled.

ASTM’s Participation

After years of frustration related to the slow pace of BRAC property transfers on the part of both the regulated military and the regulator communities, the DoD and the EPA encouraged ASTM to develop standards that would expedite former military property transfer at BRAC installations. In 1995, ASTM Committee D34 on Waste Management chartered subcommittee D34.05 on Site Remediation with the development of two standards that would facilitate the environmental site assessment process and the categorization of subsequent findings. Because of the unique nature of many military facilities and the types of activities that have historically occurred within their boundaries, neither the DoD nor the EPA believed the existing ASTM standard E 1527, Practice for Environmental Site Assessments: Phase 1 Environmental Site Assessment Process, and its categories identifying findings, were sufficient to comply with the federal property transfer provisions of CERCLA Section 120. By 1996, ASTM published two standards, D 5746, Standard Classification of Environmental Condition of Property Area Types for Defense Base Closure and Realignment Facilities and D 6008, Standard Practice for Conducting Environmental Baseline Surveys. In 1998, because of a slight modification to DoD and EPA guidelines, D 5746 was revised.

For current BRAC property transfers, the entire regulated community, including the military, relies on ASTM D 6008 to conduct environmental baseline surveys (EBS) of property in preparation for its transfer. Based on the prior experience of the Air Force, EPA and TCEQ with the use of this standard, the BCBP partners decided to use it for the Brooks property transfer. For use in conjunction with ASTM D 5746 (see sidebar), D 6008 is “intended to help a user gather and analyze data and information in order to classify property into seven environmental condition of property area types.” These seven environmental condition of property types, more commonly referred to by practitioners as “categories,” are more detailed than the description of findings associated with E 1527.

Under the D 6008 standard practice for conducting environmental baseline surveys, the EBS practitioner (in the case of BCBP, the Air Force) reviews previously prepared investigative reports to determine what relevant information already exists. The Air Force’s documentation of its 15 previous years of investigation and evaluation under the Installation Restoration Program (IRP) to locate and address areas of contamination on Brooks served as the foundation of the EBS.

The remainder of the EBS process can be briefly summarized as follows:

• After reviewing existing information, research into historical activities is conducted to determine whether data gaps exist. Such data gaps include areas where potential releases of hazardous substances or petroleum products may have occurred but had not been documented. Evaluations of real property records, drawings, maps, aerial photos, supply records, and histories/historical photographs are accomplished, along with interviews of current and past employees, to determine where hazardous substances have been used or stored in the past, and where potential releases may have occurred.
• Potential areas of concern are visually surveyed to determine whether there are any surface indications of distress, e.g., dead vegetation. Areas that warrant further study may have electromagnetic or other surveys accomplished to determine whether past structures are still in place. Depending upon the survey results, surface and subsurface soil samples may be obtained and analyzed to determine whether releases have occurred, and what levels of contaminants may remain. Required cleanups are accomplished if contamination levels warrant, and sites are then administratively closed through the normal regulatory procedures.

When the environmental conditions for the entire property have been determined using D 6008, the property is categorized using the seven area type or category designations in D 5746. These area type designations are summarized in the sidebar. The subsequent map that is created is generally color coded into “parcels” by category. Property parcels in Area Types 1-4 meet the statutory criteria prescribed in CERCLA Section 120 and are eligible for conveyance to a non-federal entity by the federal government. Parcels in Area Types 5-7 do not meet the CERCLA criteria and cannot be transferred because they require further evaluation and/or clean up. After any required additional actions have been taken, the parcels are recategorized to Area Types 1, 2, 3 or 4 and are then eligible for transfer. The results of the EBS are used to develop the environmental suitability for transfer document, which the Air Force, in the case of Brooks, provides to the regulators for comment prior to approval. Once this document is approved and signed the property may be conveyed.

A Different Angle

Although the EBS process described in D 6008 is functional, a shift in the traditional approach taken for its implementation was required for the BCBP partners to meet the ambitious schedule for property transfer. From the outset, the BCBP partners chose an inclusive/joint approach, rather than a traditional role-based approach. Although the Air Force had the lead agency role, representatives understood that they could not proceed expeditiously without the appropriate regulatory input and concurrence or without CoSA’s participation as a partner in the process. Bringing all of the players together at the start of the project effectively eliminated the time-consuming past practices of multiple report submissions and revisions with concomitant multiple sampling efforts. At the initial meetings, each group presented their agency’s position and identified their respective concerns largely based on past experience with the BRAC property transfer process or similar transactions. The ultimate goal of property conveyance was agreed upon, and a commitment was made by everyone to work together to achieve that goal.

This agreement among the regulators and the regulated community to work cooperatively was a significant one that has had far reaching benefits. Each agency involved minimized the turmoil frequently found in these large projects by keeping the same key personnel involved from start to finish. This continuity and consistency ensured that very little time was lost bringing new people up to speed or adjusting to shifting goals and approaches.

From the start, the Air Force not only shared all of its environmental reports and data with CoSA staff, but also provided Air Force staff to assist and guide them through the voluminous collection of existing IRP information. As a result, CoSA staff members were able to maximize their limited resources to meet the due diligence required of a buyer. EPA Region VI and TCEQ representatives provided specific advice on what sampling and documentation were needed to meet regulatory requirements before the Air Force signed environmental engineering contracts. This approach allowed the Air Force to adhere to the challenging timeline and to focus its resources on critical areas, rather than gathering “just in case” data followed by the sample-report-resample-resubmit approach employed in the past. This success was enabled by use of the two ASTM standards and the BCBP partners’ reliance on the quality of the reports generated by their use.

CERCLA Section 120 provides for federal property to be transferred by deed even in cases where long-term remedies have not achieved final cleanup levels at the time of property conveyance. In such cases, the EPA regional administrator must sign a determination stating that a remedial action is operating properly and successfully (called the OPS determination). The OPS determination ensures that remediation systems are working as designed and are protective of human health and the environment. At Brooks, contaminated groundwater associated with a former fire protection training area was actively undergoing pump and treat remediation. The system was scheduled to continue operating for eight years after the projected conveyance date of July 2002. A very limited number of OPS certificates had ever been issued by EPA at that time, and none by EPA Region VI. Rather than the Air Force drafting documents and having the EPA review them, the parties worked together on the document’s format and content requirements. The result was an expedited review and approval process that saved all parties both time and money. The EPA Region VI administrator issued the Brooks OPS determination within four months of the report being submitted, while previous certificates had taken at least a year.

The close cooperation and confidence established among the BCBP partners translated into a greatly accelerated approval process for environmental cleanup site closures. Six cleanup sites at Brooks were closed within a month of the final reports being submitted to the TCEQ. This occurred without the customary iterations of revision and correction.


Because of the quality of the documentation produced by using the ASTM standards, the regulators approved the Air Force EBS within 30 days of submittal although, by statute, they are allowed to take up to 90 days. The Brooks EBS also included significant sections of the base that were designated as Area Type or Category 1 (Uncontaminated). Typically, such a designation is a major point of contention because many redevelopment projects have encountered previously undetected contamination that should have been suspected during site assessment activities. The Air Force signed the Base Environmental Suitability for Transfer determination well in advance of the other documents needed to complete the real estate transaction. This eliminated the major concern that environmental issues would delay the property transfer.

This new approach to implementing ASTM D 6008 proved beneficial to all parties. Both the buyer and seller minimized their costs of environmental investigations. The cooperative efforts at all phases of the project resulted in rapid regulatory approval and facilitated meeting what many thought to be impossible timelines. The entire property transfer, including fulfillment of all environmental requirements, was completed within two years of enacting the City-Base legislation (relatively quick in comparison with most BRAC property transfers). The regulators helped the project move forward quickly and allowed the local community to begin developing former federal property for increased revenues and jobs. The EPA and the TCEQ recognized this new standard of cooperation when they presented the BCBP with the first “Ready-for-Reuse” Determination awarded to a federal facility. It is anticipated that the cooperative federal/state/local government partnership approach established among the BCBP parties will be emulated by the military, communities and regulators during the implementation of the anticipated next round of BRAC that begins in late 2005. //

Copyright 2003, ASTM

Ian Smith has been an engineer with the Air Force for 22 years. He spent two and one-half years as the environmental coordinator for the Brooks City-Base Project. He is a professional engineer and registered environmental manager.

Keith Muhlestein is a registered environmental manager and professional geologist for Brooks City-Base and was the City of San Antonio’s environmental manager for the Brooks City-Base Project.

Abigail Power is the federal facilities coordinator for the Texas Commission on Environmental Quality. Power has worked for the TCEQ and its predecessors since 1987. Prior to working with TCEQ, she worked for the City of San Antonio and Morrison-Knudsen Co., Inc.

Debra Tellez is an industrial engineer with the U.S. Environmental Protection Agency. She served as the EPA facility manager for Brooks AFB. Tellez has 20 years of government service with the U.S. Environmental Protection Agency, Department of the Air Force, and Department of the Navy.

Area type designations from ASTM D 5746, Standard Classification of Environmental Condition of Property Area Types for Defense Base Closure and Realignment Facilities

1. No storage, release, disposal, or migration of hazardous substances or petroleum products
2. Release or disposal of only petroleum products
3. Storage, release, disposal or migration, but no removal/remedial actions required
4. Required removal/remedial actions have been taken
5. Removal/remedial actions under way
6. Response actions not yet
7. Further evaluation required