Former Military Sites: An Emerging Trend in Brownfields Law

Jeff Orrell, Senior Associate, Brown & Winters

While it may not be obvious to the naked eye, former military sites can be anywhere, and in fact, they appear to be everywhere.  These are often sizeable properties, making them well-suited for large redevelopment projects.  However, Brownfields redevelopment often requires contaminant remediation, which in turn requires remediation funding.  This article discusses funding sources for remediating former military sites.  

Former Military Sites are Unique Properties with Unique Funding Opportunities

Former military sites are not your typical Brownfields. They present unique technical challenges, as they are often contaminated in large quantities with unusual constituents of concern arising out of wartime operations.  They also present unique legal issues.  At certain sites, there are Federal funds earmarked for cleanup, but for others, it may be necessary to request (and even compel) Federal contribution.  The latter effort requires timely compliance with specific claims filing procedures.

The good news is that former military sites offer unique opportunities for garnering remediation funds.  At a typical Brownfield, responsible parties are often no longer operating, and no longer viable.  The U.S. Government, on the other hand, is a solvent source of remediation funding.  We have seen that if the military formerly owned a site, or if the military's control of a site was sufficiently pervasive, the U.S. Government is generally willing to make a substantial contribution towards investigation and cleanup.  In these and other circumstances, the Government may face liability, just as any other responsible party under Federal Superfund law.    

Military Sites – Types, Frequency, and Funding Opportunities

There are countless former military sites, both in California and throughout the nation.  These sites typically fall into one of three categories. The options for obtaining remediation funds often depends upon the site category, as well as the nature of the military's involvement.  

1. Properties formerly owned, leased or possessed by the Military

The first type of site is the most obvious type - former military properties (often bases), once owned by, leased to or otherwise possessed by the military.  These sites are candidates for remediation through special Federal programs.  For example, if the Department of Defense (“DOD”) relinquished such a property prior to October 1986, the Formerly Used Defense Sites (“FUDS”) program provides funding.  The funds allow the Army Corps of Engineers to remediate contaminants that were released due to military operations.  The Federal Government reports that in California alone, there are currently 669 sites on the FUDS database, though not all are likely to be deemed by the Government to require remediation.  

If a city or county does not have a current desire to redevelop a property listed on the FUDS database, it may not be necessary to compel Federal Government remediation.  In theory, the Army Corps will someday address these sites.  However, in order to take advantage of that option, the city or county must verify that eligible properties within their jurisdiction are actually included on the FUDS database.  This is not always the case.

For example, in April 2016 the United States settled with Boeing Company, agreeing to contribute $41 million towards costs of cleaning up soil and groundwater at a former aircraft manufacturing plant in Long Beach.  The Site was not listed on the FUDS database, despite the fact that the Federal Government held title to much of the property from 1940-1961.  ( The Boeing Co. v. United States of America, U.S. District Court, Central District of California, Case No. 2:16-cv-02416.)  

On the other hand, there are sites on the FUDS database where the U.S. Government has been compelled to contribute more quickly than would typically occur under the FUDS schedule. Due to the large number of FUDS sites, they are typically not remediated quickly, and in fact, the DOD estimates that FUDS cleanup projects may carry on through the year 2085.   Yet, in March 2016 the Government agreed to pay Boeing $32.25 million, based upon similar ownership and operation of an aircraft manufacturing plant in Wichita, Kansas, which appears on the FUDS database.  ( The Boeing Co. vs. United States of America , U.S. District Court for the District of Kansas, Case No. 6:16-cv-01061.)  This expedited result arises from Boeing's willingness to compel Government action, even for properties on the FUDS.  

The Boeing cases demonstrate that the military can be a reliable source of remediation funding for properties that the military formerly occupied.  Thus, if a parcel is desirable for redevelopment, municipalities should determine whether the military ever owned, leased or otherwise possessed that parcel.  If so, the fastest option, as shown by the Boeing cases, is to negotiate with the Government, compelling Government contribution through litigation if necessary.  

2. Facilities taken over by the Military during War Years

The second type of site involves properties, such as manufacturing facilities, that the military took over and operated during wartime, and/or otherwise exercised substantial control over.  There are scores of these types of facilities.  While the Government has relatively clear Federal Superfund liability as an “operator” of this second type of site, it may be necessary to compel the Government's involvement.  

In the Boeing cases, for example, Federal property ownership was not the only basis for military liability.  Boeing also alleged that the military exercised pervasive control over operations, was actively involved in manufacturing activities, had staff on site for management and inspections, owned the hazardous substances, and approved the manner in which hazardous substances were disposed of, including controlling such decisions through regulations, contracts and specifications.  When such allegations are proven through trial, they tend to support a finding of “operator” liability under Federal Superfund law. ( See , e.g., FMC Corp. v. United States Dep't of Commerce , 29 F.3d 833, 84845 (3d Cir. 1994).)   This too likely contributed to the large settlement payments to Boeing, as it appears that the military was more than just a passive owner deferring to Boeing's manufacturing disposal decisions.

3. Manufacturing Facilities that Held Military Contracts during War Years

The final type of site involves manufacturing facilities that remained under private ownership and operation during the war years.  The private owners agreed to manufacture products to support the war effort, and dedicated most of their operations towards that goal.  It is likely that most large manufacturing facilities in California were used for this purpose during WWI, WWII and/or the Korean War.  

Federal remediation funding for this type of site is slightly more difficult to obtain.  These properties are not typically listed on the FUDS, making it necessary to file a claim with the Federal Government, and to compel the Government's involvement.  Again, the Government's willingness to pay, and its liability will typically depend on the level of Government control over the contaminating activities.  

Recent case law demonstrates that where the Government contracted with private contractors, and did not exercise pervasive control over waste disposal methods, the Government may escape with very little cost contribution liability.  For example, the military was recently allocated 0% of remediation costs for a site in San Diego.  ( TDY Holdings, LLC v. United States , U.S. District Court, Southern District of California, Case No. USDC So. Dist, 3:07-CV-787-CAB-BGS.)  In that case, TDY paid to resolve contamination resulting from years of aerospace manufacturing operations on behalf of the military, and then sought contribution from the Government.  The Court found the Government liable under Federal Superfund as an “owner” of certain types of equipment, including leaking chromium tanks and transformers containing PCBs.  Yet, the Court allocated responsibility for all remediation costs to TDY, citing primarily the fact that TDY conducted all of the operations that caused the releases, and made all of the decisions related to environmental compliance.  The TDY case is currently on appeal to the 9 th Circuit.

Reviewing the Boeing cases and TDY together, it is clear that when the military formerly owned or occupied the parcel, the Government is likely to make a substantial contribution towards cleanup.  A similar contribution is available where the Government exercised pervasive control over operations, including waste disposal decisions.  However, where the Government merely contracted with a private party without exercising pervasive control, courts are more likely to relieve the Government from cleanup cost liability.  

The Do's and Don'ts of Addressing Former Military Sites

As noted, former military sites offer unique opportunities for remediation funding.  Unless a site is listed on the FUDS, however, it is unlikely that the Federal Government will voluntarily identify and remediate properties.  Even if a site is listed on the FUDS, it may not be addressed for years, depending upon its priority.  

Thus, it is critical that municipalities examine the history of properties within their jurisdiction – particularly manufacturing facilities – to determine whether those facilities were used in any manner to support the wartime efforts.  For example, municipalities should conduct historic title searches for potential Federal ownership, review historic newspaper records, council/board minutes and aerial photographs, and conduct interviews of aging residents.  

In conducting this analysis, or if it becomes apparent that the military was involved with a site, the municipality should then seek advice from Brownfields professionals, or from other communities with military Brownfields experience.  As noted, these sites present unique technical and legal challenges.  

Brownfields professionals should advise, among other things, that the municipality quickly file claims with the Federal Government under the Federal Tort Claims Act (“FTCA”).  Such claims are a prerequisite to most litigation against the Federal Government, and can also be a springboard to a negotiated resolution.   The FTCA establishes very strict timelines for filing such claims, and very strict timelines for filing suit if a claim is denied.  Do not delay - the time for submitting claims may be running for properties within your municipal jurisdiction.  

Finally, it is important to remember that in dealing with the Federal Government, patience is a virtue.  The U.S. military has countless wartime sites to address.  Yet, when interested parties demand cleanup, we have seen a willingness from the Federal Government to assist in cleaning up sites where liability is relatively clear.  


Remediation of former military properties is an emerging trend in Brownfields law.  Several properties around the nation have benefitted from direct Federal remediation funding.    We encourage municipalities to review the history of the properties within their jurisdiction, and secure access to Federal funding before the claims period has expired.

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