The Defense Department has proposed a rule outlining the process for local redevelopment authorities (LRAs), owners and others in control of BRAC sites to request legal representation from DOD according to a federal statute intended to protect them from liability for undiscovered contamination.
The proposed rule, published in the Dec. 7 Federal Register, stems from Section 330 of the 1993 defense authorization act, which indemnifies owners of former military base property from lawsuits, judgements and other actions arising out of claims for personal injury or property damage. To date, the statute primarily has been relied on by LRAs and their insurers to recover damages from the military after they encounter previously unknown contamination.
Until very recently, however, the statute’s provision for DOD to defend property owners from a lawsuit or similar claim apparently had never been tapped. The proposed rule appears to be a response to what likely was the first case of an entity demanding representation under the statute, Barry Steinberg, a partner in the Washington, D.C., office of law firm Kutak Rock, told Defense Communities 360.
An LRA recently requested the department provide it counsel to defend it in a lawsuit brought by an environmental advocacy organization alleging a violation of the Clean Water Act at a former military base. The suit claims contaminants are spreading beyond the former base property without an appropriate permit. Steinberg, who is representing the redevelopment authority, said the pollutants at issue are connected to ongoing activities of the military service that continues to operate at a portion of the installation. The LRA also has the appropriate permit, he said.
The LRA’s request for representation was denied by the DOD General Counsel’s office; the LRA is considering further legal action, according to Steinberg.
The proposed rule would require an LRA or property owner to request indemnification or defense from the DOD General Counsel’s office within 30 days of receipt of a third-party claim against it. The proposed deadline, however, is not contained in the statute, Steinberg said. On the other hand, the rule does not specify the consequences of failing to meet the deadline.
The rule also would require each individual seeking legal representation from DOD to notify the department of its request. Such a requirement would limit the benefits of a class action lawsuit, which could arise in the near future. The growing concern about the elevated levels of perfluorinated compounds (PFCs) found in the drinking water supply in defense communities across the country could result in a class action lawsuit filed in the U.S. Court of Federal Claims, he said.
ADC is planning to submit comments to the proposed rule; the comment period ends Feb. 6, 2017.