[CPEO-MEF] Points of Agreement btwn Army and Puerto Rico re Culebra

[Aimee Houghton <aimeeh@cpeo.org>]

What appears below is a signed agreement between the Army and the Puerto
Rico Environmental Quality Board (PREQB) to continue discussions to enter
into a Memorandum of Agreement to address contamination resulting from
military activities on the island of Culebra.  If the negotiations
are successful then Puerto Rico will withdraw Culebra and surrounding
areas and water from proposed listing to the NPL.  If, however, the
Army and PREQB are unable to come to agreement Puerto Rico will exercise
its right have Culebra included on the NPL listing along with Vieques and
surrounding waters.

This document refers to and other document entitled ?Outline of Army Plan
of Action for Culebra? which I will post separately.

Aimee
****************************************************************

Preliminary Points of Agreement 
Between
The Department of the Army
And
The Puerto Rico Environmental Quality Board

Investigation and Response Activities Related to Contamination Resulting
From Military Use and Training In Areas On and Around Culebra, Puerto
Rico

Article I  Purpose

The U.S. Department of the Army (?Army?) and the Puerto Rico
Environmental Quality Board (?PREQB?) (hereinafter the ?Parties?) enter
into this Preliminary Points of Agreement to foster a cooperative
relationship and to facilitate current and future discussions regarding
investigations and response activities related to contamination resulting
from military use and training in areas on and around Culebra, Puerto
Rico.

Article II  Background

Whereas, Culebra is located 17 miles east of the island of Puerto Rico
and is approximately nine miles from the island of Vieques.  In 901,
Culebra?s public lands were placed under Department of the Navy (?Navy?)
control.  In accordance with current information, the Navy used
certain areas of Culebra for training activities from 1903 until 1941,
and as a bombing and gunnery range from 1935 until 1975.

Whereas, unexploded ordnance and remnants of exploded ordnance and other
contaminants resulting from military use and training may be present on
Culebra, the keys (cays and small islands) of Culebra, and in the nearby
and surrounding water areas.  The Commonwealth of Puerto Rico
believes that if the presence of these substances is not properly
characterized, and response actions taken where appropriate, they may
pose an unreasonable risk or threat to human health and the
environment.

Whereas, in 1094, Congress enacted ?Notwhithstanding any other provisions
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 the subsection (a) may be sold,
transferred, or otherwise disposed of only for public or public
recreational purposes.?  Section 204(c) of the Military Construction
Authorization Act of 1974, Publ.L. 93-166.

Whereas, in 1980, subsequent to the 1974 Authorization Act, Congress
enacted the Comprehensive Environmental Response, Compensation, and
Liability Act (?CERCLA?).  CERCLA imposes liability on ?the owner
and operator of a vessel or a facility? and on ?any person who at the
time of disposal of any hazardous substance owned or operated any
facility at which such hazardous substances were disposed of[.]? 42
U.S.C. 9607(a)(1)-(2).  The term ?person? includes ?an individual,
firm, corporation, association, partnership, consortium, joint venture,
commercial entity, United States Government, State [including the
Commonwealth of Puerto Rico], municipality, commission, political
subdivision of a State or any interstate body.?  42 U.S.C. 
9601(21) and (27).  CERCLA 120(a) requires that each department,
agency, and instrumentality of the United States shall be subject to, and
comply with, CERCLA.  42 U.S.C. 9620(a).

Whereas, in 1992, subsequent to the 1974 Authorization Act, Congress
enacted ?Each department, agency, and instrumentality ? of the Federal
Government (1) having jurisdiction over any solid waste management
facility or disposal site, or (2) engaged in any activity resulting, or
which may result, in the disposal or management of solid waste or
hazardous waste shall be subject to, and comply with, all Federal, State,
interstate, and local requirements, both substantive and procedural
(including any requirement for permits or reporting or any provisions for
injunctive relief and such sanctions as may be imposed by a court to
enforce such relief), respecting control and abatement or solid waste
disposal and management in the same manner, and to the same extent, as
any person is subject to such requirements[.]? 42 U.S.C. 6961(a).

Whereas, in the early 1980?s, the Navy transferred certain Culebra
parcels to the Secretary of the Interior.  In 1982, the Secretary of
the Interior deeded some of these parcels to the Commonwealth of Puerto
Rico.  Section 9 of the Quitclaim Deed from the United States to the
Commonwealth states: ?In accordance with the provisions of Section 204 of
Public Law 93-166, that portion of the subject property which has
heretofore been used as a bombardment area by the United States Navy is
hereby accepted by Grantee in its present condition and further agrees
that the United States shall not in any manner by responsible for
decontamination of such area, nor for the costs thereof, but the same is
and shall be solely (sic) the responsibility of the Grantee.  The
Grantee hereby agrees to indemnify and save the Grantor harmless from any
and all claims, demands, actions, liabilities, judgments, costs, and
attorney?s fees arising our of, claimed on account of or in any manner
predicated upon loss or damage to property or injuries to or death of any
and all persons whatsoever, arising in any way from any person?s use of
or presence on the subject property.?

Whereas, in 1986, CERCLA was amended to state that ?there shall be no
liability under subsection (a) of this section [42 U.S.C. 9607] for a
person otherwise liable who can establish by a preponderance of the
evidence that the release or threat of release of a hazardous substance
and the damages resulting there from were caused solely by -- ? (3) an
act or omission of a third party other than an employee or agent of the
defendant, or than one whose act or omission occurs in connection with a
contractual relationship, existing directly or indirectly, with the
defendant (except where the sole contractual  arrangement arises
from a published tariff or acceptance for carriage by a common carrier by
rail), if the defendant establishes by a preponderance of the evidence
that (a) he exercised due care with respect to the hazardous substance
concerned, taking into consideration the characteristics of such
hazardous substances, in light of all relevant facts and circumstances,
and (b) he took precautions against foreseeable acts or omissions of any
such third party and the consequences that could foreseeably result from
such acts or omissions ?.?  42 U.S.C. 9607(b).

Whereas, in 1986, CERCLA was also amended to state that ?the term
?contractual relationship,? for the purpose of 9607(b)(3) of this title,
includes, but is not limited to, land contracts, deeds, easements,
leases, or other instruments transferring title or possession, unless the
real property on which the facility concerned is located was acquired by
the defendant after the disposal or placement of the hazardous substance
on, in, or at the facility, and one or more of the circumstances
described in clause (i), (ii), or (iii) is also established by the
defendant by a preponderance of the evidence:  (i) At the time the
defendant acquired the facility the defendant did not know and had no
reason to know that any hazardous substance which is the subject of the
release or threatened release was disposed of on, in, or at the facility
?. In addition to establishing the foregoing, the defendant must
establish that the defendant has satisfied the requirements of section
9607(b)(3)(a) and (b) of this title, provides full cooperation,
assistance, and facility (including the cooperation and access necessary
for the installation, integrity, operation, and maintenance of any
complete or partial response action at the facility), is in compliance
with any land use restrictions established or relied on in connection
with the response action as a facility, and does not impede the
effectiveness or integrity of any institutional control employed at the
facility in connection with a response action.?

Whereas, CERCLA provides that: ?(1) No indemnification, hold harmless, or
similar agreement or conveyance shall be effective to transfer from the
owner or operator of any vessel or facility or from any person who may be
liable for a release or threat of release under this section, to any
person the liability imposed under this section.  Nothing in this
subsection shall bar any agreement to insure, hold harmless, or indemnify
a party to such agreement for any liability under this section.?  42
U.S.C. 9607(e)(1).

Whereas, the Parties do not necessarily agree with the interpretation,
application to the present situation, and/or legal significance of the
foregoing legal provisions.  Furthermore, the Parties willingly
enter into this agreement without renouncing or disclaiming any legal or
factual claims they may have and may invoke them at a later time or
action if no agreement can be reached.

Whereas, despite their legal differences, the Parties desire to
investigate and to take appropriate response actions to respond to
threats to public health and the environment resulting from past military
activities on Culebra.

Whereas, as a former Navy facility ?under the jurisdiction of the
Secretary and owned by, leased to, or otherwise possessed by the United
States at the time of actions leading to contamination,? portions of
Culebra have been determined to be eligible for inclusion in the
Department of Defense Formerly Used Defense Sites (?FUDS?) Program (See
10 U.S.C. 2701©(1)(A-B); 10 U.S.C. 2703).  In coordination with the
Commonwealth, the Army has been involved since 1991 in performing
investigations related to Navy training activities on the island of
Culebra and surrounding cays.  As described in the Draft Outline
Army Plan of Action of Culebra, the Army has already conducted
inspections of many Culebra areas previously used by the Navy for
training, and has completed an initial report to identify areas for
further investigation.  The Department of the Army is the Executive
Agent for the FUDS Program and, through the U.S. Army Corps of Engineers,
executes the FUDS Program in accordance with CERCLA and the National
Contingency Plan (?NCP?).

Whereas, today, several non-Department of Defense entities, including the
United States acting through the U.S. Fish and Wildlife Service; the
Culebra Conservation and Development Authority; and private landowners
own areas on and around Culebra.

Whereas, after discussions with the Commonwealth and U.S. Environmental
Protection Agency (EPA) on the appropriateness and necessity of the
listing, Army has drafted and ?Outline of Army Plan of Action for
Culebra,? which is attached to this Preliminary Points of 
Agreement.

Whereas the Commonwealth of Puerto Rico and PREQB appreciate and
acknowledge the Army?s ?Outline for Army Plan of Action for Culebra? as a
positive first step forward.

Whereas, on 13 June 2003, the Governor of Puerto Rico requested that EPA
include certain ?lands and bodies of water on Vieques and Culebra? which
the Commonwealth has identified collectively as the Atlantic Fleet
Weapons Training Area (?AFWTA?), as Puerto Rico?s single highest priority
site for purposes of listing on the National Priorities List (NPL)
pursuant to CERCLA 105(a)(8)(B).  By letters dated October 21, 2003,
May 26, 2004 and July 28, 2004, Puerto Rico provided a more specific
description of the lands and waters proposed for listing.

Whereas, on August 13, 2004, EPA published a notice of a proposal to add
to the NPL certain areas on and around Vieques and Culebra, which the
Commonwealth has identified collectively in its listing request as the
AFWTA, the Commonwealth?s single highest priority site.  In the
notice, EPA solicited ?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 decisions 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.?  69 Fed. Reg. 50115,50119 (August 13, 2004).

Whereas Puerto Rico is willing to withdraw or modify its request to
include the Culebra area proposed for listing on the NPL at some point in
the future if satisfactory progress is being made by other means toward
investigating and responding to threats and conditions to be negotiated
in the Memorandum of Agreement.  If an agreement cannot be reached,
Puerto Rico intends to request that the Culebra portions of the facility
achieve the same NPL status as the Vieques portions.

ARTICLE III  Scope of Preliminary Points of Agreement

NOW, THEREFORE, the Parties have agreed to the following 
principles:

A.      

Open Communications.  The Parties agree to cooperate with each other through an open and transparent process with respect to communications with each other and with respect to communication with the public and other stakeholders.  The Parties agree to raise and resolve issues at the Program Manager lever.  The Parties? signatories (or senior representatives) agree to meet as necessary, by telephone or in person, to address issues that cannot be resolved at lower levels.  The Parties agree to resolve any conflicts using a consensus building approach to identify practical and effective solutions.

B.      

Outline of Army Plan of Action for Culebra.  The Army has provided the ?Outline of Army Plan of Action for Culebra? to the PREQB for review and comment.  The Parties agree that the ?Outline of Army Plan of Action for Culebra? provides a framework for defining the nature and scope of past, current, and future Army investigation and response activities on and around Culebra.  The Parties agree to revise the Action Plan to achieve results that are legally permissible, technically feasible, consistent with explosives safety principles, protective of human health and the environment and compliant with CERCLA and the NCP.  The PREQB further agrees to provide its comments to the Army within 30 days following the signing of this Preliminary Points of Agreement by all Parties.  The Parties agree to meet and discuss any issues, including revisions to the ?Outline of Army Plan of Action for Culebra? based on ongoing investigations, as needed, thereafter.

C.      

 Document Sharing.  Throughout this effort, the Parties agree to share with each other any non-privileged documentation in their possession pertinent to the investigation and response activities related to contamination resulting from military use and training on or near Culebra.  The Parties agree to provide any comments they might have on such documentation within a reasonable time frame such as not to disrupt or delay unnecessarily the schedule for the work to be performed.

D.      

Additional Investigation and Response Activities.  Pursuant to the revised Outline of Army Plan of Action for Culebra, and in accordance with CERCLA and the NCP, Army shall conduct investigations to determine the presence of contamination resulting from military use and training in Culebra areas that are eligible under the FUDS program.  These areas, as well as the associated water areas include, but are not necessarily limited to, the following:

1.      

Flamenco Peninsula (Northwest Peninsula);

2.      

Alcarraza Cay (Fungy Bowl);

3.      

Los Gemelos (Twin Rocks);

4.      

Cayo del Agua;

5.      

Culebrita (northwest section);

6.      

Cayo Geniqui (Palada Cay);

7.      

Cayo Tiburon (Shark Cay);

8.      

Cayo Botella (Ladrone Cay); and

9.      

Mortar Range Area in Cerro Balcon

E.      

 Parties Roles and Responsibilities.  The Army recognizes the PREQB as the Lead Regulatory Agency and agrees to conduct response activities in accordance with CERCLA and the NCP, and applicable Puerto Rico law in those Culebra areas that are eligible under the FUDS program and to the extent authorized and not otherwise prohibited by law.

Army shall coordinate and perform its investigative and response activities under the oversight of PREQB.  If deemed necessary, the PREQB intends to utilize technical assistance from EPA.  Nothing in this agreement may be interpreted as impeding EPA to provide whatever technical assistance is requested by PREQB in this process.

F.      

Memorandum of Agreement.  The Parties contemplate that the PREQB and Army will enter into a Memorandum of Agreement to implement this Preliminary Points of Agreement.  Specifically, the Memorandum of Agreement will provide for an open and transparent process; identification of legally permissible, technically feasible, safe, and protective objectives; establishment of realistic timelines and milestones to be negotiated during the final Memorandum of Agreement; formulation of reliable measures of merit; consideration of the Parties? respective roles and responsibilities; public and stakeholder participation; and a process for issue resolution.  The Parties agree to use their best efforts to reach an agreement that effectively and efficiently deals with human health and environmental issues arising from contamination resulting from military use and training on Culebra and its surrounding keys and waters, and that focuses on results, including protecting public health and the environment from unreasonable risks, if any.

ARTICLE IV  ACCESS TO PROPERTIES

Activities pursuant to this Preliminary Points of Agreement will be carried out on property that is no longer under the jurisdiction of the Secretary of the Defense and is neither owned, leased to, nor otherwise possessed by the Department of Defense.  This property is currently under the jurisdiction of the U.S. Fish and Wildlife Service, the Commonwealth, the Municipality of Culebra, or private landowners.  In order to ensure the efficient progress of activities, the Parties agree to use their best efforts and available authorities to obtain access for Army to all applicable Culebra properties.  The PREQB agrees to coordinate access to properties owned by the Commonwealth and/or the Municipality of Culebra.  In the event that Army is unable to obtain access required for investigative or response activities, Army shall promptly notify PREQB.

ARTICLE V  QUALIFICATIONS AND LIMITATIONS

This Preliminary Points of Agreement is neither fiscal nor a funds obligation document.

Nothing in this Agreement is intended to alter the specific statutory or regulatory authorities or responsibilities possessed by any of the signatories, or of other non-signatory agencies or parties, including the inherent authority of the Parties and their successors, to exercise their prerogatives, including enforcement and regulatory authority.

The activities contemplated in the Preliminary Points of Agreement will be carried out in accordance with existing statutory authorities, obligations, and restrictions.

ARTICLE VI  EFFECTIVE DATE

This Preliminary Points of Agreement will be effective when approved by all of the indicated signatories.  The Parties will continue to discuss and contemplate a final memorandum of agreement, which when final will supercede this document.

APPROVED: October 28, 2004

Raymond J. Fatz

 

        

        

        

        

Esteban Mujica-Cotto
Deputy Assistant Secretary of the Army

  

        

President
(Environment, Safety and Occupational Health

    

        

Environmental Quality Board

        

        

        

        

        

        

        

Commonwealth of Puerto Rico


We've Moved!  Please note new contact information
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Aimee R. Houghton                                  
Associate Director, CPEO
815 King Street, Suite 206
Alexandria, VA 22314
tel: 703-567-4104
fax: 703-683-0295
Email: aimeeh@cpeo.org
www.cpeo.org
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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