Vieques and Cluebra proposed for NPL listing

[Aimee Houghton <aimeeh@cpeo.org>]

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EPA has published a proposed rule in the Federal Register to add certain 
areas both on and around the islands of Vieques and Culebra to the National 
Priorities List.

You can access the full contents of the rule at:

<http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.go 
v/2004/04-18655.htm>http://a257.g.akamaitech.net/7/257/2422/06jun20041800/ed 
ocket.access.gpo.gov/2004/04-18655.<http://a257.g.akamaitech.net/7/257/2422/ 
06jun20041800/edocket.access.gpo.gov/2004/04-18655.htm>htm

Below is a detailed description of the two listing options.  EPA is seeking 
public comment on the rule due on or before October 12, 2004.



III. Contents of This Proposed Rule

A. Proposed Addition to the NPL

    Pursuant to section 105 (a)(8)(B) of CERCLA, Puerto Rico has
requested that EPA propose to list certain areas on and around Vieques
and Culebra, identified by the Governor as the AFWTA, on the NPL. The
AFWTA includes certain land areas, waters and keys in and around the
islands of Vieques and Culebra where military exercises carried out
primarily by the Department of Defense have potentially left CERCLA
hazardous substances, pollutants or contaminants.

    Section 105(a)(8)(B) of CERCLA provides that the NPL ``to the
extent practicable, shall include among the one hundred highest
priority facilities one such facility from each State which shall be
the facility designated by the State as presenting the greatest danger
to public health or welfare or the environment among the known
facilities in such State. A State shall be allowed to designate its
highest priority facility only once.'' In a letter from Governor Sila
M. Calderon to former EPA Administrator Christine Todd Whitman dated
June 13, 2003, Puerto Rico designated the AFWTA, comprising certain
areas of concern in and around Vieques and Culebra as the
Commonwealth's single highest priority facility (``State pick'') and
requested that EPA list the AFWTA on the NPL. Puerto Rico clarified its
designation in letters dated October 21, 2003 , and July 28, 2004 with
respect to both Vieques and Culebra, and May 26, 2004 with respect to
Vieques. Support for Puerto Rico's designation of the AFWTA as their
highest priority facility and a detailed description of areas
preliminarily identified as part of the facility or as requiring
investigation can be found in the docket for this rulemaking. EPA seeks
comment on treating the noncontiguous islands of Vieques and Culebra as
one facility considering court decisions such as Mead Corp. v. Browner,
100 F.3d. 152 (D.C. Cir. 1996). The Mead court rejected EPA's attempt
to treat non-contiguous sites as one NPL site in a case in which one of
the sites qualified for listing on the basis of an ATSDR advisory. The
only rationale presented for combining the two sites for the purposes
of the listing was that there were joint operations carried out at the
two sites. In the Mead case, EPA had relied on a 1984 aggregation
policy (49 FR 37,070 (Sept. 21, 1984)) that was premised on language in
section 104(d)(4) of CERCLA which authorizes EPA to treat non-
contiguous facilities as one for purposes of section 104. EPA no longer
relies on the 1984 aggregation policy in the listing context.

    EPA would also like to solicit comment on an approach that would
separate the final listing decision for Culebra from the final listing
decision for Vieques. Under such an approach, EPA would go forward with
a final rule listing Vieques and postpone the final listing decision of
Culebra to allow the completion of a Memorandum of Agreement between
Puerto Rico and Army. The Memorandum of Agreement would govern the
response actions necessary to protect Culebra's human health and
environment. The EPA, Puerto Rico and the Army have agreed to pursue
this alternate arrangement. The terms or progress under such agreement
may determine the point at which it may be appropriate to withdraw the
proposal to list the Culebra areas. EPA's intent would be to allow the
Culebra areas to be addressed by the two parties under their agreement.

    The Culebra portions of the proposal consist of land and water
areas identified by Puerto Rico that were owned by, leased to, or
otherwise utilized by the United States and under the jurisdiction of
the Secretary of Defense that potentially contain CERCLA hazardous
substances, pollutants or contaminants left from past military
activities. These land areas and associated water areas include, but
are not limited to, the following: the Flamenco Peninsula (Northwest
Peninsula), Alcarraza Cay (Fungy Bowl), Los Gemelos (Twin Rocks), Cayo
del Agua, Culebrita, Cayos Geniqui (Palada Cays), Cayo Tiburon (Shark
Cay), Cayo Botella (Ladrone Cay), and a former mortar range Area in
Culebra's Cerro Balcon region. Vieques includes all areas agreed to by
Puerto Rico and the Navy in May 26, 2004 letter to EPA. For more
detailed information on the Vieques portions, please refer to the May
26, 2004 letter with attached maps in the Docket (Docket ID No. SFUND-
2004-0011). The description of the site may change as more information
is gathered on the nature and extent of contamination.



~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Aimee R. Houghton
Associate Director, CPEO
1101 Connecticut Avenue, NW, Suite 1000
Washington, DC  20036
tel: 202-452-8039; fax: 202-452-8095
Email: aimeeh@cpeo.org
www.cpeo.org
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

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