[CPEO-MEF] Lessons from the West Vieques Transfer

[Lenny Siegel <lsiegel@cpeo.org>]

At the beginning of May, 2001, as protesters and the media focused their
attention on the Navy's renewed bombing on the eastern end of the Puerto
Rican island of Vieques, a significant milestone was reached on the
western half of the island. On May 1, as provided by the Defense
Authorization Act for fiscal year 2001, the Navy transferred about 4,000
acres from the Naval Ammunition Support Detachment (NASD) to the
Municipality of Vieques. The process under which that transfer took
place provides important lessons, for all parties, that should help
conduct a better transfer when the Navy vacates the range areas on the
eastern third of the island.

The transfer of the western side was not as clear-cut as most Puerto
Ricans had hoped. The Navy has retained a radar site, a
telecommunications site, and supporting infrastructure, and it has
retained easements to ensure access and support while preventing the
installation of incompatible activities adjacent to those facilities.
Furthermore, about half the NASD property was (or is being) transferred
to the Interior Department and the Puerto Rican Conservation Trust for
management as conservation zones.

The residents of Vieques, most of whom had heard of the saber-rattling
by conservative members of the U.S. Congress, were surprised that the
transfer actually took place. When I visited Vieques, a little more than
a week before the transfer, many of them expressed disbelief when I told
them, simply, "It's the law."

THE CLEANUP PROCESS

In preparation for the transfer, the Navy's cleanup team—from the Navy
Facilities Engineering Command, or NAVFAC—had accelerated its
examination and documentation of the environmental condition of the
transferring property. Its task was aided by the Congressional decision
to turn over to the Interior Department what appears to be the most
contaminated section of the NASD property, the 439-acre former Open
Burning/Open Detonation (OB/OD) area on the western tip of Vieques.

The Navy identified potentially contaminated areas, put up fences to
discourage entry into the worst areas, and prepared a Finding of
Suitability  for Early Transfer (FOSET). It has established a community
relations program and formed a Technical Review Committee with numerous
participants from the local community. Though it's possible that other
localized contamination will be found, it appears that overall the
contamination in the NASD is minor compared to typical transferring
military property. 

Thus, the process for dealing with the NASD is perhaps more important as
a precedent for the environmental response on the east side than it is
in directly protecting the public and the environment. I have two concerns.

First, because the property is not on the "Superfund" National
Priorities List, the Puerto Rican Environmental Quality Board (EQB) is
responsible for regulating the Navy cleanup under CERCLA, the
Comprehensive Environmental Response, Compensation, and Liability Act.
U.S. EPA is visible, but it's really there by invitation of the Navy.
Yet the Puerto Rican regulators appear not to be on the case full time.
I suspect it's due to the lack of dedicated resources. Though Puerto
Rico signed a Defense State Memorandum of Agreement (DSMOA) with the
Defense Department in 1991, it apparently never negotiated a follow-up
cooperative agreement. Most states and at least two territories have
such cooperative agreements, which are designed to reimburse their
oversight expenses equal to about one percent of the military's cleanup
costs within the state or territory.

To oversee environmental restoration on both sides of the island, Puerto
Rico's Environmental Quality Board needs to line up a DSMOA cooperative
agreement. However, such reimbursement on the east side may turn out to
be less significant. Because cleanup on the east side of Vieques is
being pursued under the Corrective Action provisions of the Resource
Conservation and Recovery Act, U.S. EPA has lead authority for cleanup there.

Second, there was no effective public participation in the consideration
of the FOSET. That is, there were no public comments because the public
didn't know about the document until too late. Public notification of
the availability of the draft FOSET met the bare statutory minimum and
probably did not satisfy the April 24, 1998 Department of Defense
guidance on the Environmental Review Process. Members of the members of
the public who were following the proposed transfer - including those of
us who had commented on other transfer-related documents - were unaware
of the draft FOSET until 30 days after its official publication date. No
effort was made to contact individuals who had clearly expressed
interest. 

When parcels on the Vieques training range are proposed for transfer
from federal ownership, the Navy - as well as state and federal
regulators - should ensure that all interested parties have the
opportunity to review all key documents in time to provide constructive comments.

THE DEED

When I visited Vieques in April, I brought a briefcase full of
environmental documents, the type that I normally review. I assumed that
other people, lawyers retained by the municipality, were reviewing legal
transfer documents. Normally, at closing military bases, local
governments or reuse authorities receive planning funds from the
Pentagon's Office of Economic Adjustment, and they hire specialized
attorneys to carefully review transfer documents. However, the people
with whom I met on Vieques knew nothing of such documents.

After I left, just a few days before the Congressionally mandated
transfer deadline, I learned that the Navy had prepared a lengthy
Quitclaim Deed. It presented it to the Vieques and Puerto Rican
government with little time for review. The Mayor of Vieques was taking
part in demonstrations against the bombing. As far as I know, the
municipality had no direct legal representation. The Navy kept revising
the document, but as far as the Puerto Ricans were concerned, they had
to sign by April 30 or risk aborting the entire transfer. 

Most of the 60-page final documents consists of metes and bounds,
detailed physical descriptions of the property to be transferred as well
as the access, use, and environmental easements. Three substantive
elements of the Deed, however, suggest that Navy lawyers were fully
prepared to take advantage of the underrepresented Viequensians,
particularly since they felt they had no bargaining power in
negotiations over the language.

First and foremost, one of the drafts contained the following paragraph
on unexploded ordnance (UXO): "Government [that is, U.S. federal
government acting through the Navy] and Grantee [the Municipality of
Vieques] recognize that there is a potential for unexploded ordnance to
be found on the Premises. The Government hereby agrees that it will
assist Grantee regarding the removal and disposal of discovered
unexploded ordnance if and to the extent required by then-applicable
federal  laws and regulations and then-applicable Navy and Department of
Defense policies, and subject to Congressional authorization and the
availability of appropriated funds."

No reuse authority in the fifty states would take such language
seriously! The Navy was offering to promise less than it was required to
do by law. It sought to give Vieques primary responsibility for
responding to UXO discoveries. While there is currently no evidence of
UXO on the transfer parcel, it might be found later. Since, on the
eastern side, even those sections that are not officially designated as
impact areas contain ordnance, a similar approach there could be a
public safety disaster. It would transfer significant costs and
liability to the local government.

At the request of the Puerto Rican side, the Navy slightly modified the
language in the final Deed, saying "The government hereby agrees that it
will remove and dispose of discovered unexploded ordnance ..." But
that's not much better. The military routinely sends out emergency
response teams when military ordnance is discovered, almost anywhere
within the U.S. But on Vieques, an island used by the military for the
use, storage, and disposal of ordnance, it chose not to promise to
conduct a systematic search and response, should discoveries indicate a
need.. 

The second and third problems are similar. Instead of the longer periods
that normally apply at contaminated facilities undergoing closure and
transfer, the Navy wrote the Deed to allow only 90 days for the
municipality to seek additional response action - that is, the cleanup
of previously unidentified contamination - or to file for
indemnification. As I understand it, federal statute provides up to two
years, following the discovery of contamination, for both processes.

I know that some Defense Department lawyers don't like those particular
provisions of law, but I consider it an article of bad faith that the
Navy proposed - and achieved in the final document - time periods much
less than those provided by Congress.

Assuming that Vieques will receive the major portion of the ranges on
the eastern side of its island in the not-too-distant future, the
municipal government needs to be prepared. It can't count upon the Navy,
led by people angered and frustrated by Puerto Rican opposition to
training that they consider essential, to look out for its interests.
The Pentagon needs to provide the type of financial help that it
provides to other closing bases, and the municipality needs to obtain
expert legal advisers to commence negotiations long before any
anticipated transfer date.

PLAN AHEAD

Furthermore, when Congress passed special legislation mandating the
transfer and cleanup of the Hawai'ian island of Kaho'olawe, some critics
felt that Sen. Daniel Inouye, the architect of the legislation, had
compromised too far on the environmental requirements. However, Vieques,
which has no Senators of its own, could learn from the Hawai'ian
experience, and there are Senators and Representatives with extensive
Puerto Rican constituencies. Without Congressional mandates, it's
unlikely that much will be done to make the more dangerous portions of
Vieques safe for public use. Puerto Rico's legislative supporters are
still focusing on stopping the Navy's training exercises; someone needs
to pay attention to what is likely to happen next.

Similarly, few people are paying attention to the properties being
transferred to the Interior Department and the Puerto Rican Conservation
Trust. Typically, when such transfers are carried out at base closures
in the 50 states, there is an extensive public involvement process
designed to weigh the land management goals of preservation, public
visitation, and resource-based industries (such as fishing). Admittedly,
the Interior Department has been helping the Navy manage its
conservation zones, but the Navy's exit calls for the re-examination of
management strategies. Interior needs to devise a process, and Congress
needs to fund it. Particularly because Congress has directed that the
eastern Vieques Impact Area be turned over to Interior if the Navy
vacates, it's essential to plan ahead. The conversion of hazardous areas
into wildlife refuges without resources and rules is an invitation to disaster.


-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
lsiegel@cpeo.org
http://www.cpeo.org

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