Critique of CRS report on Vieques & Culebra

[Lenny Siegel <lsiegel@cpeo.org>]

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On August 4, 2004, the Congressional Research Services (CRS) released a
report, "Environmental Cleanup at Vieques Island and Culebra Island."
Though the report contains useful information the status of these two
Puerto Rican islands, some of its findings may be misleading.

First, however, I want to endorse the following statement from the final
paragraph in the otherwise weak report: "Whatever actions are required,
the progress of cleanup will ultimately depend on the availability of
federal funding to pay for the remediation. The Defense Environmental
Restoration Accounts are currently the only source of funding for
cleanup on Vieques and Culebra. How much would be available under these
accounts for these areas is limited by annual appropriations by Congress
and the competing needs of other contaminated sites across the country."

The biggest problem is that CRS concluded, and the press reported, that
there would be little advantage to listing Cuelbra and Vieques on the
"Superfund" National Priorities List (NPL). That's wrong. CRS fails to
note that for the Vieques Naval Ammunition Support Detachment (West
Vieques), Culebra, and those portions of the East Side not incorporated
into the Resource Conservation and Recovery Act (RCRA) order, U.S. EPA
does not currently exercise regulatory authority. If these properties
are placed on the NPL, EPA would not only be a regulator, but the EPA
administrator would be the final arbiter of disputes between the
military and its regulators. Perhaps, as an alternative at the Live
Impact Area on eastern Vieques, EPA could expand the geographic scope of
its existing RCRA order, but that's not an option for western Vieques or Culebra.

In addition, CRS has accepted the argument, by some military lawyers,
that the nation's hazardous waste laws don't apply to former munitions
ranges. It states, "According to these regulations, munitions are not
considered solid or hazardous waste, and are therefore not subject to
waste management and disposal requirements under the Solid Waste
Disposal Act, until they are removed from the range." This may be true
for operational ranges, but Vieques no longer serves that purpose. The
argument that dangerous munitions are still serving their intended
purpose on property that has been converted into a wildlife refuge does
not, as I have pointed out before, pass the "laugh test." EPA, which
wrote the applicable Military Munitions Rule, does not recognize this
supposed loophole.

CRS offers the first glimpse at the Navy's remediation plans for the
Vieques Live Impact Area: "The $30 million would be for conducting
surface sweeps to clear munitions along the perimeter of this area to
allow the Department of the Interior to enforce the statutory
prohibition on public access, respond to fires, and manage protected
habitat. This amount also includes costs for the construction of fences
at key points to prevent public access, and the posting of signs to warn
possible intruders of access restrictions due to safety hazards. The
Navy?s cost estimate does not include removal of munitions or the
cleanup of munitions-related contamination within the 900-acre area itself."

If that's the extend of the response, the $30 million would do very
little to reduce risk. It wouldn't even ensure a reasonable level of
site security. Declaring limited access in the absence of effective site
security is no justification for limited cleanup. I recall, from my
visit, the fences on the west side. They could easily be circumvented
because they stopped at the water line. If the Navy, with all its MPs
and other security personnel, couldn't keep people out of the Live
Impact Area during firing exercises, it's hard to imagine a few wildlife
rangers doing the job. Furthermore, even effective restrictions on
public access do not necessarily imply that no ordnance cleanup is
needed. The U.S. Fish and Wildlife Service may need to send in
scientists or conduct other activities to manage the Wilderness area,
and they need to be protected. 

On Culebra, CRS warns that it might be illegal to fund cleanup. It cites
the Reserve Forces Facilities Authorization Act of 1974, which declares:
"Notwithstanding any other provision of law, the present bombardment
area on the island of Culebra shall not be utilized for any purpose that
would require decontamination at the expense of the United States. Any
lands sold, transferred, or otherwise disposed of by the United States
as a result of the relocation of the operations referred to in
subsection (a) [ship-to-shore and other gun fire and bombing operations
of the U.S. Navy] may be sold, transferred, or otherwise disposed of
only for public park or public recreational purposes.."

I'm not a lawyer, but I believe that this issue has been resolved. The
Army has already spent money on Culebra cleanup. Furthermore, the notion
that the land "not be used for any purpose that would require
decontamination at the expense of the United States" is an impossible
condition. There is no use - including parks and recreation - that
requires absolutely no decontamination to make the public safe

CRS raises a "straw man" when it suggests that NPL listing might affect
the source of cleanup funds: "However, if the Navy were designated as
being solely responsible for the cleanup under the site listing, instead
of jointly with the Corps, less funding might be available for cleanup."
There is no reason to believe that listing Culebra and Vieques on the
National Priorities List as one entity would affect funding. There are
other federal facilities on the NPL- notably the Massachusetts Military
Reservation - where cleanup money comes from more than one federal source.

CRS also argues that listing these lands on the NPL would force delays
if citizens want to go to court to challenge the cleanup remedy. That's
actually a murky area. At Fort Ord, California, a judge recently ruled
that the delay doesn't apply to federal sites. The Defense Department
has asked Congress to overturn that decision, but as far as I know the
item is still pending in the Defense Authorization Act for fiscal year 2005.

Finally, CRS fails to address what I consider the two underlying
problems: First, although EPA considers unexploded ordnance and
munitions constituents on former ranges to be hazardous
wastes/substances, it has not updated the method for scoring potential
NPL sites to take that into account. Second, though many career
professionals at EPA understand the value of Superfund enforcement - at
federal facilities the "Superfund" itself is not the source of cleanup
money" - the political leadership is increasingly relying on programs
where regulatory oversight is muted. That may be OK at a corner gas
station, but it's gambling with public safety and health to apply that
approach to Vieques and Culebra.

EPA needs to act quickly to assert regulatory authority at these Puerto
Rican sites, and Congress must provide enough cleanup funding nationally
so people elsewhere are not endangered by the need to clean Vieques and Culebra.


Lenny

-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope 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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