[CPEO-MEF] Outline of Army Plan of Action for Culebra

[Aimee Houghton <aimeeh@cpeo.org>]

Below is a document, prepared by the Army that outlines their plan of 
action on Culebra.  Note that there is a reference in 1 b (1) regarding an 
accompanying map.  In the documents CPEO received, there was no map.

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

June 25, 2004

Outline of Army Plan of Action for Culebra

1.  Background

  a.  Work accomplished under Department of Defense (DoD) Formerly Used 
Defense Sites (FUDS) program that supports future work in Puerto Rico's 
Areas of Concern:

    (1) 1991 - Started looking at possible FUDS eligibility on Culebra.

    (2) 1995 - Completed initial Archives Search Report used to identify 
areas for further investigations in an Engineering Evaluation/Cost Analysis 
(EE/CA) to identify contaminated areas.

    (3) 1997 - Completed EE/CA.  Representative areas were surveyed and 
sampled to obtain a statistical determination of the probable location and 
probable density of surface and subsurface unexploded ordnance.  Areas 
examined were Flamenco Peninsula, Mortar Range, Isla de Culebrita 
(northwest section), and seven surrounding cays (Cay Botella, Cay Geniqui, 
Cay Tiburon, Cay del Agua, Cay Lobo, Cay Alcarraza, and Cay Los 
Gemelos.)  Evidence of unexploded ordnance or ordnance-related scrap was found.

  b.  Deeds, property transfer-related documents, land management 
agreements are being re-examined in 2004 in light of Section 204, Military 
Construction Authorization (MILCON) Act of 1974.

    (1) Our research established that the area of Flamenco Peninsula 
demarcated on the accompanying map is included in the bombardment area 
referred to in Section 204, MILCON Act of 1974, and therefore subject to 
the prohibition of decontamination using federal funds.  Research is 
continuing to determine if any cays are also included in that bombardment 
area.  This research should be complete in September 2004.

    (2) Our research also establishes that the Mortar Range impact area in 
Cerro Balcon is not included within the bombardment area referenced in 
Section 204, the MILCON Act of 1974.

    (3) Deeds, land management agreements, and other documents for 
specific properties owned by the U.S. Department of Interior and the Puerto 
Rico Department of Natural and Environmental Resources contain conforming 
language to the prohibition of decontamination using federal funds.

2.  Path Forward under the FUDS Program

  a.  Conduct a Supplemental Archives Search Report as part of an 
assessment phase under Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA) to determine if there are additional areas that 
are eligible for FUDS investigation and/or cleanup on Culebra and 
surrounding islands and cays (start May 2004 and continue as required; 
interim report September 2004).

  b.  Conduct site inspections and remedial investigations if any 
additional FUDS-eligible areas that are identified above.

  c.  Conduct remedial investigations of all Puerto Rico's identified 
Areas of Concern including certain water areas within a 100 yards seaward 
of the mean high-tide point, such as Flamenco Peninsula, Mortar Range, 
Culebrita (northwest section) and seven Cays (initiate in Fiscal Year (FY) 
2004, weather dependent).

  d.  Cleanup of areas not subject to Section 204, MILCON Act of 1974 
(initiate in FY 2005).  These areas include the mortar range impact area in 
Cerro Balcon, and may also include many cays and surrounding islands.  A 
full list of these areas should be complete in September 2004.

  e.  Assist landowners in areas subject to Section 204, MILCON Act 1974 
through institutional controls, and public education (initiate in FY04, as 
requested).

3.  Effects of National Priorities List on Puerto Rico

  a.  Will not result in additional funds provided for Army cleanup.  The 
funding source for FUDS is the Defense Environmental Restoration Program 
(DERP).  There is no other source of Army funds, even if Culebra is 
included on the National Priorities List (NPL).

  b.  Puerto Rico, as a landowner who accepted transfer of the property 
with knowledge of the existing contamination and who acknowledged its 
responsibility for performing cleanup, will be subject to cost recovery 
actions arising from its Potentially Response Parties (PRP) status.  On a 
site listed on the NPL, Puerto Rico becomes subject to cleanup schedules 
and requirements as determined by U.S. Environmental Protection Agency (EPA).

  c.  Private landowners on Culebra may need to potentially confront 
allegations that their knowledge of contamination at the time of property 
transfer makes them liable as PRPs on a site listed on the NPL and subject 
to cleanup schedules and requirements determined by EPA.  Note that the 
former Mortar Range impact area on Cerro Balcon is privately owned.

  d.  NPL designation carries a stigma impairing Puerto Rico's ability to 
market Culebra as a tourist destination.

  e.  The legal peculiarities and complexities of Culebra will delay NPL 
cleanup of Vieques if the two island are part of the same listing.  This is 
already happening.

  f.  Puerto Rico Environmental Quality Board will lose its role as lead 
regulatory agency for cleanup.  EPA will become the lead regulatory agency.

  g.  The Army is already prepared to conduct investigations and cleanup 
work on Culebra.  If this becomes an NPL site the Army will have to delay 
work in order to avoid redundancy and additional costs until EPA decides 
the path ahead.

4.  NPL Listing Issues for the Federal Agencies

  a.  The proposed combined Culebra/Vieques listing is contrary to Federal 
case law, several Federal statute, and EPA policy and guidance.  This is an 
issue of concern for the Office of Management and Budget and the DoD.  If 
Culebra were to be removed from Puerto Rico's proposal, this issue would go 
away.  The Vieques portion of the proposal could be approved and cleanup 
could proceed on both islands (with Vieques on the NPL and Culebra off the 
NPL).

  b.  Without clarification from a public affairs standpoint, the listing 
may create expectations of Federally-funded cleanup on Culebra that cannot 
be met due to section 204 MILCON Act 1974, conforming deeds and agreements, 
and the Endangered Species Act.

  c.  Agreements (Federal Facility Agreement or Interagency Agreement) 
required under the NPL are complicated on Culebra because of the many 
landowners involved.  The Army is not a landowner on Culebra and is not 
required to sign landowner cleanup agreements.

  d.  The Army is already prepared to conduct investigations and cleanup 
work on Culebra.  The Army will have to delay its work in order to avoid 
redundancy and additional costs until EPA decides the path ahead.

  e.  The listing creates additional oversight and document review by EPA 
resulting in later completion dates for each action taken.

  f.  A joint NPL listing will needlessly complicate the Vieques situation.
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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