Vieques and Culebra Islands: An Analysis of Cleanup Status and Costs

Congressional research reportJul 7, 2005

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CRS Report for Congress

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Vieques and Culebra Islands:

An Analysis of Cleanup Status and Costs

Updated July 7, 2005

David Bearden

Analyst in Environmental Policy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Vieques and Culebra Islands:

An Analysis of Cleanup Status and Costs

Summary

For decades, the U.S. Navy conducted ship-to-shore bombing exercises and

other live-fire training activities on Vieques Island and Culebra Island, located off the

coast of Puerto Rico. In response to concerns about risks to public safety, human

health, and the environment, Congress directed the Navy to close its training facilities

on Vieques Island in 2003 and to relocate them elsewhere. The Navy has begun to

investigate the presence of munitions and related contamination on Vieques to

determine the cleanup actions that will be necessary to protect human health and the

environment, and has begun the surface removal of munitions in some areas. In

1974, Congress had enacted legislation that required the Navy to cease its training

operations on Culebra Island, in response to similar public concerns. The Army

Corps of Engineers has removed some munitions on Culebra to address safety

hazards in publicly accessible areas, but has not begun a comprehensive cleanup of

the island. The Environmental Protection Agency (EPA) and the Puerto Rico

Environmental Quality Board are responsible for overseeing these actions.

There has been rising public interest in the degree to which the Department of

Defense (DOD) will be required to clean up both islands. The scope of the cleanup

will depend on the type and extent of contamination found, and whether a pathway

of human exposure exists. The National Defense Authorization Act for FY2002

(P.L. 107-107) prohibits public access within the Live Impact Area of the former

bombing range on Vieques. Public access also may be limited in other areas due to

the presence of munitions hazards. Since denying public access is intended to reduce

safety threats, DOD may be allowed to remove fewer munitions than would be

required otherwise. However, if contamination has leached from munitions and

migrated to present a pathway of exposure, removal of more munitions may be

required to protect human health. Possible pathways include the consumption of

contaminated groundwater and contaminated fish or shellfish.

At the request of the Governor of Puerto Rico, Sila M. Calderon, EPA listed

Vieques on the National Priorities List (NPL) of the nation’s most hazardous waste

sites on February 11, 2005. Listing a site on the NPL does not affect the stringency

of the cleanup that is required or increase the availability of funding for the Navy to

perform the cleanup. Rather, it identifies Vieques as a site that warrants further

investigation to determine actions that are necessary to protect human health and the

environment. The Governor also requested that EPA list Culebra on the NPL along

with Vieques. However, EPA “elected to take no action” on its final listing decision

for Culebra at that time, and reports that the Commonwealth of Puerto Rico and the

Army are negotiating a Memorandum of Agreement to govern the cleanup.

Regardless of the site listing decision, the degree of cleanup on either island will

depend on threats to human health and the environment and the types of remediation

that will be deemed necessary to address these threats. Whatever actions are

required, the progress of cleanup will depend on the availability of federal funding

to pay for the remediation. This report will be updated annually to track the status

of cleanup on both islands.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Vieques Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

NPL Site Listing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Implications of the Site Listing for Environmental Cleanup . . . . . . . . . 5

Source of Cleanup Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Total Estimated Costs to Clean Up Vieques . . . . . . . . . . . . . . . . . . . . . 8

Western Vieques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Status of Cleanup Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cleanup Cost Estimates for Western Vieques . . . . . . . . . . . . . . . 11

Eastern Vieques . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Status of Cleanup Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Degree of Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Potential Pathways of Exposure . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Cleanup Cost Estimates for Eastern Vieques . . . . . . . . . . . . . . . . 15

Actions Planned for FY2005 and FY2006 . . . . . . . . . . . . . . . . . . 16

Comparison to Cleanup Costs on Kaho’olawe Island . . . . . . . . . . . . . 17

Culebra Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Legal Issues Regarding the Use of Federal Funds for Cleanup . . . . . . 18

Status of Cleanup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Estimates of Cleanup Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

List of Figures

Figure 1. Map of Vieques Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

List of Tables

Table 1. Status and Costs of Cleaning Up Munitions and Environmental

Contamination on Vieques Island . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Table 2. Navy Planning Estimates of Costs to Clean Up Western Vieques Island

by Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Table 3. Navy Planning Estimates of Costs to Clean Up Eastern Vieques Island

by Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The information provided in this report was originally prepared at the

request of Representative Jose Serrano. It has been released in this format

for general distribution to interested Members and Committees of Congress

and their staff.

Vieques and Culebra Islands:

An Analysis of Cleanup Status and Costs

Introduction

There have been longstanding concerns about risks to human health, the

environment, and public safety from decades of live-fire training exercises conducted

by the U.S. Navy on Vieques Island and Culebra Island, located off the coast of

Puerto Rico. In response to these concerns, Congress directed the Navy to relocate

its training facilities on both islands elsewhere. The Navy ceased its operations on

Vieques in 2003,1 and on Culebra years earlier in 1975.2 There has been rising public

interest in the degree of cleanup that the Navy will be required to perform on Vieques

Island, and in the pace and extent of cleanup that has been underway on Culebra

Island. Federal studies of Vieques Island have not identified present risks to human

health from munitions-related contamination.3 However, these findings have been

controversial to residents who report health problems that they attribute to such

contamination. The possibility of future risks has yet to be examined fully, as much

remains unknown about the extent to which contamination is present.

Although the Navy has begun the surface removal of munitions on Vieques, the

cleanup is mostly in the early stages of investigating areas that the Navy previously

occupied to determine the degree of contamination and threat of human exposure.

Once these investigations are complete, the Navy will assess the degree of cleanup

that will be required, and will select remedial actions to achieve that degree of

cleanup, subject to approval by the Environmental Protection Agency (EPA) and the

Puerto Rico Environmental Quality Board. Thus far, the Army Corps of Engineers

has removed a limited number of munitions in publicly accessible areas on Culebra

to avoid safety hazards, but has not initiated a comprehensive cleanup of the former

bombardment areas. The Puerto Rico Environmental Quality Board is overseeing the

cleanup of Culebra.

In the 1940’s, the federal government acquired lands on western and eastern Vieques for

use by the Navy, and required the residents in these areas to relocate to the central portion

of the island, where 9,300 people now live. For a discussion of the closure of Navy

operations on Vieques, see CRS Report RS20458, Vieques, Puerto Rico Naval Training

Range: Background and Issues for Congress, by Ronald O’Rourke.

In 1901, the federal government placed Culebra Island under the control of the Navy to

conduct training exercises, and required the residential population to relocate to areas

outside of the bombardment zone. A civilian population of 1,700 now resides in the areas

to which people were relocated when the Navy assumed control of the island.

In this report, the term “munitions” includes unexploded ordnance (UXO), detonated

munitions, and munitions constituents, the latter of which includes substances contained in

munitions that can leach into the soil, surface water, and groundwater.

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At the request of the Governor of Puerto Rico, Sila M. Calderon, EPA listed

Vieques Island on the National Priorities List (NPL) of the nation’s most hazardous

waste sites on February 11, 2005.4 Listing Vieques on the NPL does not affect the

stringency of the cleanup that is required or increase the availability of funding.

Rather, it identifies Vieques as a site that warrants further investigation to determine

actions necessary to protect human health and the environment. The Governor also

requested that EPA list Culebra on the NPL along with Vieques. However, EPA has

“elected to take no action” on its final listing decision for Culebra, and reports that

the Commonwealth of Puerto Rico and the U.S. Army are negotiating a

Memorandum of Agreement to govern the cleanup of Culebra.

Regardless of the site listing decision, the degree of the cleanup on both islands

will depend on threats to human health, safety, and the environment and the types of

remediation that will be deemed necessary to address these threats. Whatever actions

are required, the progress of cleanup will depend on the availability of federal

funding to pay for the remediation. The cleanup of Culebra is further complicated

by the legal issue of whether the Reserve Forces Facilities Authorization Act of 1974

(P.L. 93-166) prohibits federal expenditure for the decontamination of the island.

This report provides information on the listing of Vieques on the NPL, examines

the implications of the site listing for environmental cleanup, indicates the status and

estimated costs of cleaning up munitions and other environmental contamination on

Vieques, and discusses cleanup actions and costs at nearby Culebra Island.

Vieques Island

The Navy expects to be required to conduct some remediation on the western

end of Vieques, but the eastern lands are likely to contain the most severe hazards,

and therefore represent the greatest need for cleanup, as this area was the location of

the former bombing range. Although the Navy transferred some of the western lands

to the Municipality of Vieques and the Puerto Rico Conservation Trust, the U.S.

government has maintained ownership of all the eastern lands on Vieques. The

Department of the Interior is required to administer them as a National Wildlife

Refuge and a Wilderness Area, with public access prohibited in the Wilderness Area.

The Department of the Interior may limit public access to some extent in the National

Wildlife Refuge, due to the presence of munitions hazards or the need to protect

sensitive wildlife populations and their habitat. As limiting public access would

reduce the possibility of human exposure to health and safety hazards, the Navy may

be permitted to remove fewer munitions and clean up related contamination to a less

stringent degree than would otherwise be required for less restrictive land uses, such

as tourism or residential development.

NPL Site Listing. The areas of Vieques listed on the NPL encompass the

western side of the island where the Navy stored and disposed of munitions at the

former Naval Ammunition and Support Detachment (NASD), and the eastern side

where the Navy conducted live-fire training exercises in the Eastern Maneuver Area

(EMA) and the Atlantic Fleet Weapons Training Facility (AFWTF), including the

70 Federal Register 7182.

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former bombing range. EPA listed these areas jointly on the NPL as one site, naming

it the “Atlantic Fleet Weapons Training Area.” Each listed area is identified in the

map below.

Figure 1. Map of Vieques Island

Source: Environmental Protection Agency.

The final site listing does not include Culebra Island, where the Navy also had

conducted live-fire training exercises through 1975. EPA “elected to take no action”

on its final listing decision for Culebra at that time, citing legal issues as to whether

Vieques and Culebra could be treated as one facility for listing purposes.5 At the

time of the site listing, the Commonwealth of Puerto Rico and the Army had begun

negotiating a Memorandum of Agreement to govern the degree of cleanup on

Culebra that would protect human health and the environment. EPA reported that

the “.... terms or progress of such agreement may determine the point at which it may

be appropriate to withdraw the [original] proposal to list the Culebra areas.”6

As noted earlier, EPA listed Vieques on the NPL in response to a request by the

Governor of Puerto Rico, Sila M. Calderon, submitted in June 2003.7 The Governor

had asked EPA to list Vieques and Culebra as a single site. Residents have expressed

ongoing concern about the pace and degree of the cleanup that is being done on

Culebra, and advocated including it in the site listing along with Vieques. EPA

issued a proposal for the site listing on August 13, 2004.8 The proposal was open for

70 Federal Register 7186.

70 Federal Register 7185.

The Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) allows the governor of each state or U.S. territory to designate one site for

inclusion in the NPL (42 U.S.C. 9605(a)(8)(B)). This authority had not been used in Puerto

Rico prior to the governor’s request to list Vieques and Culebra on the NPL. EPA primarily

adds sites to the NPL based on the Hazard Ranking System (HRS), which assesses potential

threats to human health and the environment. A site listed at the request of a governor is not

subject to scoring under the HRS to determine eligibility for listing. However, an HRS

assessment may be useful in informing the cleanup process. For further information on the

HRS, refer to EPA’s website at [http://www.epa.gov/superfund/programs/npl_hrs/

hrsint.htm].

69 Federal Register 50115.

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public comment through October 12, 2004.9 EPA proposed two options for listing

Vieques and Culebra on the NPL. The first option would have involved listing both

islands as a single site, as the Governor had requested. The second option would

have been to list the two islands as separate sites. Under the second option, EPA

stated that it 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 [for the cleanup] between Puerto Rico and [the] Army.”10

According to EPA, Puerto Rico and the Army agreed to this second option for

the site listing. Consequently, EPA did not make a final decision on the listing of

Culebra when it finalized the listing of Vieques in February 2005. In its original

proposal, EPA had acknowledged the possibility of deciding not to list Culebra as an

NPL site under this second option, and instead, allow the cleanup to be determined

by a Memorandum of Agreement. Although the agreement itself would not be

subject to public comment, the cleanup actions necessary to fulfill it would be open

to comment prior to being finalized. To date, EPA has not announced a final

decision as to whether Culebra will be listed on the NPL in the future.

The Navy will be responsible for performing the cleanup of Vieques in

accordance with requirements specified in the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA).11 EPA and the Puerto Rico

Environmental Quality Board are responsible for overseeing and approving specific

cleanup actions. Prior to the site listing, the Navy had begun a cleanup investigation

in western Vieques under CERCLA, and will continue this investigation to fully

identify the type and extent of contamination. The Navy also had been performing

a cleanup investigation in the eastern areas, but with authorities under the Resource

Conservation and Recovery Act (RCRA).12 Now that both areas of Vieques are listed

jointly as one NPL site, the remediation of the eastern areas also will be performed

in accordance with CERCLA, as both areas will be treated as a single cleanup site.

Listing a site on the NPL is subject to standard federal rulemaking procedures, involving

formal notice of the proposed listing in the Federal Register, receipt and consideration of

public comment, and notice of final listing in the Federal Register.

69 Federal Register 50115.

CERCLA established the Superfund program to address the release or threatened release

of hazardous substances in the United States, and requires contamination to be cleaned up

to a level that is protective of human health and the environment. CERCLA is codified at

42 U.S.C. 9601 et seq. Compliance with CERCLA also entails meeting requirements

specified in the National Contingency Plan (NCP), which are the federal regulations that

EPA promulgated to implement the statute’s requirements, codified at 40 C.F.R. Part 300.

For additional discussion, see CRS Report RL31154, Superfund: A Summary of the Law, by

(name redacted).

42 U.S.C. 6901 et seq. RCRA specifies requirements for storing and disposing of solid

and hazardous waste, and requires corrective action to clean up environmental

contamination that occurs as a result of storage and disposal practices. For additional

discussion, see CRS Report RL30798, Environmental Laws: Summaries of Statutes

Administered by the Environmental Protection Agency, “Solid Waste Disposal Act/Resource

Conservation and Recovery Act,” by (name redacted) and (name redacted).

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The Navy, Department of the Interior, EPA, and the Puerto Rico Environmental

Quality Board will enter a federal facility agreement governing the entire site to

determine the specific cleanup actions that will be necessary to protect human health

and the environment. The Navy expects that its ongoing cleanup investigation of the

eastern areas will continue under RCRA, until the federal facility agreement is

finalized and specific actions to comply with CERCLA are agreed upon. Whereas

requirements under CERCLA may differ procedurally from RCRA, the stringency

of the cleanup essentially will be the same, as cleanup performed under each statute

is very similar. Whether EPA lists Culebra on the NPL at a later date or withdraws

the listing proposal, the Army will continue its cleanup of Culebra in accordance with

CERCLA, which will govern the Memorandum of Agreement for the cleanup.

Implications of the Site Listing for Environmental Cleanup. The NPL

primarily serves informational purposes to identify sites that appear to warrant further

investigation to determine whether removal or remediation of contamination is

necessary to protect human health and the environment. As noted above, the Navy

already had begun cleanup investigations on Vieques prior to the site listing, and

these investigations will continue to identify the type and extent of contamination

that is in need of remediation.

However, the listing of Vieques does not necessitate a certain degree of cleanup.

Rather, the degree of cleanup will be determined by the potential risk of human

exposure to potentially hazardous substances and the remedies selected to prevent

exposure from occurring. The degree of cleanup on Vieques will be uncertain until

a federal facility agreement is finalized to specify the remedial actions that the Navy

will be required to perform. The listing of Vieques also does not guarantee a certain

amount of funding to perform the cleanup. Rather, the Navy reports that it allocates

cleanup funding according to human health risks. The allocation of funding for

Vieques would depend on the risks identified in site investigations, and how those

risks compare to other contaminated Navy sites across the country.

Although the site listing does not guarantee a certain degree of cleanup or

funding level, it does offer certain advantages, such as the potential for an expedited

cleanup through greater coordination among the Navy, Department of the Interior,

EPA, and the Puerto Rico Environmental Quality Board. A comprehensive federal

facility agreement among these parties for the cleanup will likely be more efficient

than entering separate agreements for each contaminated area of the island. Putting

a single agreement in place also might help to avoid potential confusion as to which

requirements are applicable to the cleanup of each area.

Although Culebra was not included in the final site listing, the Memorandum

of Agreement being negotiated for the cleanup of that island may offer similar

opportunities for increased coordination. On the other hand, if Culebra had been

included in the site listing as the Governor requested, the federal facility agreement

for Vieques would have included the contaminated areas of Culebra as well, resulting

in a comprehensive cleanup plan for both islands.

The listing of Vieques also offers the potential for the Navy to gain the approval

of cleanup actions more quickly in the eastern areas of the island, as the cleanup now

will be done under CERCLA rather than RCRA. CERCLA generally entails fewer

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administrative procedures for the approval of cleanup actions. For example, RCRA

typically requires permits to be obtained prior to the implementation of specific

actions, whereas CERCLA does not. With fewer administrative procedures to

follow, the Navy may be able to accomplish the cleanup of Vieques more quickly,

as long as sufficient funding is made available.

Although the Navy will not be subject to RCRA’s permitting procedures under

CERCLA, the Navy will still be subject to federal regulations for the selection of

cleanup actions.13 These regulations require the opportunity for community

involvement prior to final selection, for which a Record of Decision (ROD) is made

publicly available. Regardless of differences in procedure, performing the cleanup

under CERCLA will not alter the stringency of the cleanup relative to RCRA, as the

cleanup requirements under both statutes are very similar.

The site listing also offers at least one other potential advantage from the

standpoint of community involvement, as the Navy is authorized to provide a

centralized public forum through which residents could obtain comprehensive

information on cleanup of the entire island. Prior to the site listing, the Navy had

established a Technical Review Committee to inform citizens about the status of

cleanup on western Vieques, but a similar forum was not established for the eastern

areas being investigated under RCRA.

At the request of the community, the Navy converted the Technical Review

Committee into a Restoration Advisory Board (RAB) in FY2004. The RAB holds

meetings on a quarterly basis to inform the public about the status of the cleanup and

provide citizens with the opportunity to express concerns about proposed actions in

person to federal and state officials. As Vieques is now listed as a single site,

residents should be able to receive information about the cleanup of both the western

and eastern portions of the island through the RAB as one centralized forum.

Related to the issue of community involvement, the listing of Vieques on the

NPL also makes grant funds available for technical assistance to help citizens

interpret and review information on cleanup actions being considered. CERCLA

authorizes EPA to award up to a total of $50,000 in grants for technical assistance to

communities located adjacent to an NPL site.14 In March 2004, EPA awarded a

technical assistance grant in the amount of $20,000 to community groups to help

citizens understand the cleanup investigation on eastern Vieques that was being done

under RCRA.15 EPA reported that it was able to award this grant with discretionary

funds of the Office of the Administrator.16 Now that Vieques is listed on the NPL,

up to $50,000 in grants are available under CERCLA for technical assistance. This

amount would be in addition to the $20,000 grant that EPA has already awarded

under the RCRA investigation of the eastern areas of the island.

40 CFR 300.430.

42 U.S.C. 9617(e).

See EPA’s website: [http://www.epa.gov/region02/news/2004/04040.htm].

Information obtained from EPA Region 2 officials by telephone on July 28, 2004.

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Technical assistance grants authorized under CERCLA are available only to

communities that live next to an NPL site. Consequently, the residents of Culebra

Island are not eligible for these grants, as EPA did not include that island in the site

listing. On the other hand, if EPA were to list Culebra Island as a separate site at a

later date, the residents would be eligible to receive up to $50,000 in grants that

would be in addition to those awarded to the residents of Vieques. If EPA had listed

both islands as one site, as the Governor requested, the amount would have been

limited to a total of $50,000 for residents of both islands combined.

From the standpoint of the opportunity to bring citizen suits, there is a possible

disadvantage to performing the cleanup under CERCLA, rather than RCRA,

regardless of the listing status of Vieques or Culebra. Although EPA and the Puerto

Rico Environmental Quality Board are responsible for overseeing the cleanup, the

right of citizens to sue is a means by which the community can take enforcement

action against DOD if they believe that the Department is not conducting the cleanup

in accordance with statutory and regulatory requirements.

CERCLA and RCRA differ in at least one substantial way, with regard to the

time frame within which citizens have the right to sue. The citizen suit provision in

CERCLA cannot be invoked in most “challenges to removal and remedial action,”17

until the removal or remedial action is completed.18 Cleanup actions taken under

RCRA have no such timing restriction.19 Citizens may sue under RCRA at any point

during the cleanup process, as opposed to after the completion of the action in

question under CERCLA.

Source of Cleanup Funds. Regardless of the site listing, the Navy is liable

for paying the costs to clean up Vieques.20 However, the payment of these costs is

subject to appropriations by Congress, which would come out of the Navy’s Defense

Environmental Restoration Account (DERA).21 Historically, Congress has funded

this account in the annual appropriations bill for the Department of Defense. As a

result of a subcommittee reorganization early in the 109th Congress, the House will

42 U.S.C. 9659.

42 U.S.C. 9613(h). See, Clinton County Commissioner v. U.S. EPA, 116 F.3d1018 (3rd.

Cir. 1997).

42 U.S.C. 6972.

The Navy accepted liability for the cleanup of lands transferred to the Department of the

Interior in western Vieques in a Memorandum of Agreement dated April 27, 2001, and in

eastern Vieques in a Memorandum of Agreement dated April 30, 2003. The liability for

cleanup when land is transferred from a federal agency to a non-federal entity is specified

in Section 120(h) of CERCLA, which applies to the transfer of lands on western Vieques

from the Navy to the Municipality of Vieques and the Puerto Rico Conservation Trust.

DOD’s budget contains five Defense Environmental Restoration Accounts: Army, Navy,

Air Force, Defense-Wide, and Formerly Used Defense Sites (FUDS). FUDS sites are

military properties that were previously owned or used by DOD and decommissioned prior

to the first rounds of base closings in 1988. Cleanup costs at sites closed with authorities

provided in the Defense Base Closure Act are funded out of the Base Realignment and

Closure (BRAC) Account.

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appropriate funding for this account in the annual appropriations bill for Military

Quality of Life and Veterans Affairs and Related Agencies, beginning in FY2006.

As in past years, the Senate will continue funding the Navy’s environmental

restoration account in the annual appropriations bill for the Department of Defense.

Congress traditionally has not allocated funding for the Defense Environmental

Restoration Accounts among the contaminated sites for which the Department of

Defense is liable. Rather, the Department has the discretion to determine the

allocations of funding for each site, taking into consideration the availability of

annual appropriations and the competing cleanup needs of its contaminated sites

across the country. Accordingly, the Navy will determine the annual funding

allocation for the cleanup of Vieques based on how much Congress appropriates to

its environmental restoration account and the cleanup priorities that it establishes

among the sites under its jurisdiction.22

Although Congress has left the allocation of cleanup funding to the Navy’s

discretion, the House Appropriations Committee included language in its report on

the Department of Defense Appropriations Act for FY2005 (H.R. 4613, H.Rept. 108553) directing the Department of Defense to consult with the National Oceanic and

Atmospheric Administration (NOAA) in the cleanup of Vieques. The House

Appropriations Committee also included language in its report on the Interior and

Related Agencies Appropriations Act for FY2005 (H.R. 4568, H.Rept. 108-542),

directing the Fish and Wildlife Service to consult with NOAA in fulfilling its

responsibilities in managing lands on Vieques transferred from the Navy. In addition

to this report language, the conference agreement on the Consolidated Appropriations

Act for FY2005 (H.R. 4818, H.Rept. 108-792) provided $1 million in earmarked

funds for NOAA to assist the Department of Defense, Department of the Interior, and

EPA in carrying out their respective responsibilities in the cleanup of Vieques.

Munitions are suspected to be present in underwater areas surrounding Vieques,

and NOAA has expertise in examining the effects of contamination on underwater

environments. As discussed later in this report, residents of Vieques have expressed

concern about possible health risks from consuming contaminated fish and shellfish.

The agencies involved will examine this and other potential pathways of human

exposure to determine what cleanup actions are necessary.

Total Estimated Costs to Clean Up Vieques. As indicated in Table 1,

the Navy reports that it had expended a total of $17.8 million through the end of

FY2004 on investigating contamination and initiating the surface removal of

munitions in certain areas of Vieques. The majority of this funding was spent in

western Vieques, as the Navy has been pursuing cleanup there longer than in the east

where live-fire training did not cease until 2003. As of March 2005, the Navy

estimated that a total of $112.6 million would be needed from FY2005 into the future

to complete cleanup in both the western and eastern areas of the island. The Navy

As of the end of FY2004, the Navy estimated that $3.5 billion would be needed to

complete cleanup of contaminated lands within its jurisdiction. Department of Defense,

Defense Environmental Programs Annual Report to Congress for FY2004, April 2005.

Appendix K, p. K-7-1.

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based its estimate on what it knew about the extent of contamination at that time and

on its assumptions as to what actions would be required to address risks to human

health, safety, and the environment. (A breakout of the future cost estimates for

western and eastern Vieques by fiscal year is provided later in this report.)

The March cost estimate of $112.6 million is substantially higher than the

Navy’s initial estimate of $30 million to complete the cleanup of Vieques, which it

reported in FY2003.23 According to the Navy, the substantially higher cost estimate

is the result of a more in-depth examination of potentially necessary cleanup actions,

performed subsequent to the closure of the eastern training areas in 2003 and the

listing of Vieques on the NPL in February 2005.

Table 1. Status and Costs of Cleaning Up Munitions and

Environmental Contamination on Vieques Island

Date of

Closure

Cleanup Status a

as of June 2005

Western Vieques:

Naval Ammunition

Support Detachment

2001

Eastern Vieques:

Eastern Maneuver Area/

Atlantic Fleet Weapons

Training Facility

2003

Area of Island

Vieques Island Total

Costs Through

FY2004

Costs FY2005

to Completion b

Remedial Investigation c

$11,310,000

$13,567,000

Remedial Investigation c

$6,458,000

$99,066,000

$17,768,000

$112,633,000

Source: Prepared by the Congressional Research Service using information from the Department of Defense. The

Navy’s Office of Legislative Affairs provided its most recent estimates of the costs for the cleanup of Vieques Island to

CRS in a written communication dated March 11, 2005.

The environmental cleanup process involves several stages leading up to actual cleanup: Site Inspection to determine

the presence of hazardous substances; Remedial Investigation and Feasibility Study (RI/FS) to determine the nature and

extent of contamination, and to examine the feasibility of cleanup remedies; Record of Decision (ROD) to finalize the

selection of a cleanup remedy and explain what this action entails; and Remedial Design and Remedial Action (RD/RA)

to prepare and implement the selected cleanup remedy. After construction of the remedy is complete, operating and

maintaining it may be necessary for several years. Long-term monitoring also may be needed to ensure the effectiveness

of the remedy to protect human health and the environment.

Navy estimates of future cleanup costs are preliminary, and are based on assumptions of the type and extent of

contamination that is present and on the remedial actions that will be necessary to protect human health, safety, and the

environment. Actual costs could differ, depending on the outcome of the site investigations and the final selection of

remedial actions, which are subject to approval by the Environmental Protection Agency and the Puerto Rico

Environmental Quality Board.

The Navy has begun preliminary removal of munitions at the surface in certain areas, while investigations are underway

to fully identify contaminated areas.

Department of Defense, Defense Environmental Restoration Program Annual Report to

Congress for FY2003, April 2004. Appendix A, p. A-149.

CRS-10

The actions upon which the Navy based its more recent estimate are subject to

approval by EPA and the Puerto Rico Environmental Quality Board. Consequently,

actual cleanup costs could be higher than estimated if more extensive actions than the

Navy has planned are required. Actual costs also could be higher than estimated if

the site investigations identify a greater extent of contamination in need of

remediation than previously thought. On the other hand, actual costs could be lower

than estimated if more cost-effective munitions detection and removal technologies

become available.

Western Vieques. In April 2001, the Navy transferred 8,100 acres on the

western side of Vieques Island to the Municipality of Vieques, the Puerto Rico

Conservation Trust, and the Department of the Interior. This land was the location

of the former Naval Ammunition Support Detachment (NASD). The National

Defense Authorization Act for FY2001 required the Navy to close this facility and

to transfer the property to the above entities.24 Of the 8,100 acres, the Navy

transferred 3,100 acres to the Department of the Interior for management as a

National Wildlife Refuge. The Municipality of Vieques and the Puerto Rico

Conservation Trust are managing the remaining 5,000 acres for conservation

purposes. Although the Navy has begun the surface removal of munitions in certain

areas, it still is investigating the extent of contamination to determine what actions

may be required to protect human health and the environment.

Status of Cleanup Investigation. The NASD primarily served as an

ammunition storage and disposal facility. Munitions and contamination from other

hazardous substances are suspected to be present as a result of these operations, and

may require remediation. As of the end of FY2004, the Navy had identified 17

potentially contaminated sites on the former NASD, including a 200-acre site where

military munitions were discarded.25 Ammunition was disposed on-site using “open

burn/open detonation” practices.26 Sites where these practices have occurred

typically require the cleanup of surface and subsurface soils. The Navy is performing

the cleanup investigation according to requirements specified in CERCLA. Prior to

the listing of Vieques on the NPL, the Puerto Rico Environmental Quality Board was

the lead agency responsible for oversight. Now that Vieques is listed, EPA will take

the lead with the Board’s continued participation in the oversight.27

P.L. 106-398, Sec. 1502 and 1508.

Department of Defense, Defense Environmental Programs Annual Report to Congress

Fiscal Year 2004, April 2005, Appendix J, p. J-146.

Open burn/open detonation operations are used to destroy excess, obsolete, or

unserviceable munitions. Open burning involves the destruction of a munition by an external

heat source, and open detonation destroys the munition with an external explosive charge.

These operations are conducted either on the surface of the land or in pits. Environmental

concerns about these practices have led to the use of burn trays and blast boxes to help

contain contaminants and emissions. The Department of Defense is using open burn/open

detonation practices less frequently at installations located near populated areas across the

country, due to potential environmental and safety hazards.

Both EPA and the state or territory in which a contaminated site is located play a role in

overseeing and approving cleanup actions. EPA typically takes the lead in overseeing

(continued...)

CRS-11

As of March 2005, the Navy had assumed that “no further action” would need

to be taken (i.e., no actual cleanup required) at 9 of the 17 total sites that it had

investigated, subject to approval by EPA and the Puerto Rico Environmental Quality

Board.28 The Navy reports that investigations also were complete at 5 of the 8

remaining sites, which indicate “low levels of contamination and no unacceptable

risk identified outside waste sites.”29 Investigation of the 3 other sites was planned

for 2005, including the removal of some munitions. The Navy also has planned to

begin the surface removal of munitions in open burn/open detonation areas.

Cleanup Cost Estimates for Western Vieques. As indicated in Table

2, the Navy had allocated $11.3 million through FY2004 for the investigation of

contamination at the above sites on the former NASD.30 The Navy has estimated that

an additional $13.6 million would be needed to complete the cleanup from FY2005

into the future, including long-term operation and monitoring.31 The Navy’s cost

estimate is based on the type and extent of contamination known at the time and the

remedies it assumed would be adequate to prevent human exposure. The removal of

munitions would be complete in FY2007, with the cleanup in later years focusing on

remediation of contamination from other hazardous substances.

Table 2. Navy Planning Estimates of Costs to Clean Up

Western Vieques Island by Fiscal Year

Fiscal Year

Cumulative through FY2004

FY2005

FY2006

FY2007

FY2008

FY2009

FY2010 and future years

Hazardous

Substances

Cleanup

$6,185,000

$4,354,000

$1,131,000

$226,000

$416,000

Munitions

Cleanup

Total Cleanup of

Western Vieques

$5,125,000

$1,450,000

$4,000,000

$1,538,000

$11,310,000

$5,804,000

$5,131,000

$1,764,000

$226,000

$416,000

FY2005 to completion

$6,579,000

$6,988,000

$13,567,000

Total

$12,764,000

$12,113,000

$24,877,000

Source: Prepared by the Congressional Research Service with information in a written communication

from the U.S. Navy, Office of Legislative Affairs, dated March 11, 2005.

(...continued)

cleanup of sites listed on the NPL, and states typically take the lead in overseeing cleanup

of those sites not listed on the NPL.

Information provided in a written communication to CRS from the U.S. Navy, Office of

Legislative Affairs, dated March 11, 2005.

Ibid.

CRS-12

Eastern Vieques. In April 2003, the Navy transferred 14,669 acres on the

eastern side of Vieques Island to the Department of the Interior.32 The majority of this

land was the site of the former Eastern Maneuver Area. The remaining land in the

most eastern portion was the site of the former Atlantic Fleet Weapons Training

Facility, which included the bombing range. In response to long-standing public

concerns about safety, health, and environmental hazards arising from weapons

training operations on Vieques, Congress included provisions in the National

Defense Authorization Act for FY2002 that required the Navy to close its

installations on the eastern end of the island, and to transfer its jurisdiction over these

lands to the Department of the Interior.33

The act stipulated that the Department of the Interior must “administer” the 900

acres on the eastern tip of the island as a Wilderness Area. This acreage is the site

of the Live Impact Area of the former bombing range. The law prohibits public

access in this area indefinitely to prevent human exposure to safety hazards. The act

requires the Department of the Interior to administer the remaining 13,769 acres of

land on eastern Vieques as a National Wildlife Refuge. While the act does not

prohibit public access within the refuge, the Department of the Interior may restrict

access in certain areas due to the presence of munitions hazards outside of the Live

Impact Area,34 or the need to protect sensitive wildlife populations and their habitat.

The former Eastern Maneuver Area and the Atlantic Fleet Weapons Training

Facility as a whole represent the greatest cleanup challenge on Vieques Island, due

to the overall size of the land area and the likelihood of severe contamination on the

bombing range. The Navy has begun a comprehensive investigation of contamination

in these areas, and has begun the surface removal of munitions in certain areas. EPA

and the Puerto Rico Environmental Quality Board are responsible for overseeing and

approving these actions.

Status of Cleanup Investigation. As discussed earlier, the Navy began a

cleanup investigation in certain areas of eastern Vieques in accordance with RCRA,

prior to the NPL site listing. EPA issued a RCRA Consent Order requiring the

The Navy transferred 14,573 acres on eastern Vieques to the Department of the Interior

through a Memorandum of Agreement on April 30, 2003. The Navy transferred 96

additional acres prior to this agreement on April 29, 2003, for a total acreage of 14,669.

Section 1049 of the National Defense Authorization Act for FY2002 (P.L. 107-107)

authorized the Secretary of the Navy to close its training installations on Vieques Island if

equivalent or superior training facilities were available elsewhere. On Jan. 10, 2003, the

Secretary of the Navy signed a letter of certification to Congress confirming that alternative

training sites had been identified and that training operations would cease on Vieques Island

by May 1, 2003.

The Live Impact Area of the former bombing range served as the target area for offshore

live-fire training exercises. While the majority of munitions landed within its perimeter,

some may have landed off-target in surrounding areas, including beaches and underwater

areas. Land-based maneuvers were also conducted in various portions of eastern Vieques,

which involved live-fire training. The extent to which munitions may be present outside of

the Live Impact Area is unknown at this time, and will not be determined until the cleanup

investigation is complete.

CRS-13

investigation in January 2000. The Navy reports that the investigation and cleanup

under RCRA will continue until a federal facility agreement is in place, which

specifies the actions that will be necessary to conduct the cleanup under CERCLA.

However, the stringency of the cleanup likely will be similar, as the requirements

upon which cleanup decisions are based are comparable to those in RCRA.

Under the RCRA Consent Order, the Navy has completed the first phase of

investigating environmental contamination at 12 waste storage and disposal sites. Of

these sites, 8 are located within the Eastern Maneuver Area, and 4 are located within

the Atlantic Fleet Weapons Training Facility. The collective land area of the 12 sites

covered under the Consent Order encompasses 80 acres, a relatively small portion of

the 14,669 acres that the Navy formerly occupied in eastern Vieques. The order does

not include the investigation of the former bombing range, as the range was still in

use when EPA issued the order in 2000.

In addition to the 12 sites noted above, the Navy expected to begin investigation

of 8 other sites in eastern Vieques in 2005.35 The Navy identified these sites in an

archive records search, which revealed past activities that may have resulted in

contamination. The Navy also identified 23 other “areas of concern” where

contamination may be present based on examination of aerial photographs. The

Navy expects to begin investigation of these sites “in the future,” with the time frame

not determined as of March 2005. The investigation of the presence of munitions

and related contamination on the former bombing range will be based on the findings

of a Preliminary Range Assessment that the Navy completed in April 2003.

Degree of Cleanup. There has been significant public interest in the extent

to which munitions and related contamination will be cleaned up on the eastern end

of Vieques Island. The scope of the cleanup will depend on public safety hazards

posed by the presence of munitions and whether a pathway of human exposure to

munitions-related contamination exists. The Live Impact Area of the former

bombing range that is to be administered as a Wilderness Area is likely the most

contaminated portion of the island. As the National Defense Authorization Act for

FY2002 prohibits public access on this land, a pathway of exposure through human

contact with soil or surface water presumably would not be present if this prohibition

is enforced. Consequently, cleanup may be less extensive than if the land were

designated for uses that would involve human presence.

However, if the cleanup investigation were to reveal that contamination has

migrated off-range and presented a pathway of exposure, the Navy could be subject

to more stringent cleanup actions. Similarly, the Department of the Interior could

limit public access to lands outside of the Live Impact Area that are to be

administered as a National Wildlife Refuge, if munitions hazards are present. If

access to these lands were restricted, the Navy could be subject to less stringent

cleanup requirements there as well, unless contamination were to migrate to areas

where people are present.

Information provided in a written communication to CRS from the U.S. Navy, Office of

Legislative Affairs, dated March 11, 2005.

CRS-14

Potential Pathways of Exposure. As noted above, the prohibition on

public access in the Wilderness Area, and the possibility of limited access in the

National Wildlife Refuge, would significantly reduce exposure to contamination

from contact with soil or surface water. However, there are other possible pathways

of exposure if contamination were to migrate outside of these areas. At this juncture,

a pathway of exposure to inhabited areas in the central portion of the island from the

migration of contamination through groundwater appears unlikely. The groundwater

has not been used as a primary drinking source since 1978 because of high saline

levels. The majority of residents receive their drinking water through a public water

supply that is piped in from the Puerto Rico mainland.36 A few public and private

groundwater wells still exist on the island and are occasionally used when the public

water supply is interrupted.

The Agency for Toxic Substances and Disease Registry (ATSDR) released a

public health assessment of public drinking water supplies and groundwater on

Vieques Island in October 2001.37 The agency concluded that the public water supply

was safe to drink. It also concluded that water from wells used when the mainland

supply is interrupted is safe to drink, with the exception of one private well that

contains water most likely contaminated from agricultural pollution.38 While it

appears that contamination from the former bombing range had not migrated to

drinking water wells at the time of the ATSDR’s assessment, EPA or the Puerto Rico

Environmental Quality Board could require the Navy to take actions that would

prevent migration in the future.

Another possible pathway of exposure is the consumption of contaminated fish

and shellfish. Contamination could migrate into the ocean from storm water runoff

from the beaches on the former bombing range or could leach into the ocean from

underwater munitions, possibly contaminating fish and shellfish populations. The

consumption of contaminated fish and shellfish could pose a risk to human health,

depending on the type and concentration of contaminants and extent of exposure. The

ATSDR released a public health assessment for the consumption of fish and shellfish

around Vieques Island in June 2003.39 The agency conducted a survey indicating that

nearly half of the residents on Vieques consume fish one or two times each week.

As a result of the salt water intrusion into the groundwater, an underground pipeline was

built in 1977 from the Puerto Rico mainland. Most residents receive their drinking water

from this pipeline. This water is stored in above-ground tanks prior to distribution.

Agency for Toxic Substances and Disease Registry. Public Health Assessment: Drinking

Water Supplies and Groundwater Pathway Evaluation, Isla De Vieques Bombing Range,

Vieques, Puerto Rico. October 16, 2001. The full text of the assessment is available on the

agency’s website at [http://www.atsdr.cdc.gov/HAC/PHA/vieques/vie_toc.html].

The ATSDR reports that a public health hazard advisory has been issued for this well, and

that residents have been personally informed that the water from this well is not safe to

drink.

Agency for Toxic Substances and Disease Registry. Public Health Assessment: Fish and

Shellfish Evaluation, Isla De Vieques Bombing Range, Vieques, Puerto Rico. June 27, 2003.

The full text of the assessment is available on the agency’s website at

[http://www.atsdr.cdc.gov/HAC/PHA/viequesfish/viequespr-toc.html].

CRS-15

Heavy metals in fish and shellfish were detected, but the agency concluded that the

concentrations were too low to harm human health.

These findings have been controversial among local residents who have

attributed various symptoms that they have experienced to the consumption of

contaminated fish. There appear to be no reports of data to confirm that the

consumption of contaminated fish poses a health threat at this time. However, EPA

or the Puerto Rico Environmental Quality Board could require the Navy to take

cleanup actions that would prevent migration of contamination into the ocean, based

on the possibility that the concentration of contaminants in fish and shellfish could

rise to harmful levels in the future if migration were to occur.

Cleanup Cost Estimates for Eastern Vieques. Thus far, the Navy has

expended some funds on investigating the presence of munitions and other hazardous

substances on former training areas in eastern Vieques and on the removal of

munitions from the surface in certain high risk areas. The Navy also has calculated

a preliminary estimate of the costs to complete the cleanup. As indicated in Table

3, the Navy reports that it had expended a total of $6.5 million on cleanup in eastern

Vieques through FY2004, and estimates that an additional $99.1 million would be

needed from FY2005 into the future to complete the cleanup.

Table 3. Navy Planning Estimates of Costs to Clean Up

Eastern Vieques Island by Fiscal Year

Cumulative through FY2004

FY2005

FY2006

FY2007

FY2008

FY2009

FY2010 and future years

Hazardous

Substances

Cleanup

$4,024,000

$159,000

$2,437,000

$2,368,000

$2,247,000

$2,000,000

$5,855,000

FY2005 to completion

Total

Fiscal Year

Munitions

Cleanup

Total Cleanup of

Eastern Vieques

$2,434,000

$8,000,000

$20,000,000

$16,000,000

$6,458,000

$8,159,000

$22,437,000

$22,368,000

$22,247,000

$18,000,000

$5,855,000

$15,066,000

$84,000,000

$99,066,000

$19,090,000

$86,434,000

$105,524,000

Source: Prepared by the Congressional Research Service using information provided in a written

communication to CRS from the U.S. Navy, Office of Legislative Affairs, dated March 11, 2005.

The Navy’s future cost estimate of $99.1 million may require further calculation

as more is learned from the site investigations to identify the areas where munitions

are present, and as final decisions are made regarding the extent to which munitions

must be removed and related contamination remediated. Actual costs could be

higher than estimated if more munitions are identified than the Navy has assumed are

present, or if final cleanup decisions differ from the Navy’s present assumptions.

Costs also could rise if contamination were to migrate off the former bombing range

and present a pathway of human exposure, possibly requiring the clearance of

CRS-16

additional munitions to eliminate the source of the contamination. On the other hand,

costs to clean up munitions could be lower than estimated if more cost-effective

detection and removal technologies become available.

Another factor that could have a significant impact on cleanup costs is whether

the land continues to be administered as a National Wildlife Refuge and a Wilderness

Area by the Department of the Interior, as required by current law. Some stakeholders

advocate the transfer of these lands to private property developers. If Congress were

to amend the law to allow the property to be transferred to a private entity for a land

use with a greater potential for human exposure, the cleanup could be more costly.

For example, if the land were used for tourism or residential development, the degree

to which the contamination would need to be remediated could be more stringent and

therefore more costly.

Actions Planned for FY2005 and FY2006. With the funding identified

in Table 3, the Navy has planned to conduct specific actions in eastern Vieques to

investigate the presence of munitions and remove munitions in certain areas.

Actions planned for FY2005 with enacted appropriations include:

completion of the Range Assessment (as noted earlier, a Preliminary

Assessment was completed in 2003);

completion of surface removal of munitions on beaches;

completion of surface removal of munitions on approximately 200

acres within the Live Impact Area of the former bombing range;

completion of surface removal of munitions and targets in the 20acre 40 mm Mortar Range; and

the repair of roads damaged from Tropical Storm Jean to gain safe

access to contaminated areas for future cleanup activities.40

Actions planned for FY2006, subject to appropriations, include:

continuation of site inspections to identify munitions;

continuation of surface removal of munitions at various sites within

the Live Impact Area;

continuation of surface removal of munitions at high risk ranges

outside the Live Impact Area;

initiation of subsurface removal of munitions at certain beaches; and

continuation of mapping of areas where munitions have been cleared

from the surface.41

To date, the Navy has not finalized actions planned for FY2007 and in future

years, as the negotiation of the federal facility agreement was still underway. The

Navy stated that in the future “... cleanup/munitions clearance efforts will continue

and be specified on the basis of [human health, safety, and environmental] risk and

Ibid.

CRS-17

priorities determined in partnership with EPA, DOI [Department of the Interior],

PREQB [Puerto Rico Environmental Quality Board], and the community.”42

Comparison to Cleanup Costs on Kaho’olawe Island. Numerous press

articles have stated that the roughly $400 million43 in cleanup costs of the Navy’s

former bombing range on Kaho’olawe Island44 in Hawaii is an indicator of the “true”

costs facing the Navy at Vieques. The Navy began a comprehensive cleanup of the

island in 1993 and transferred control of access to the State of Hawaii in November

2003 upon completion of the cleanup. The Memorandum of Agreement for the

transfer of Kaho’olawe from the Navy to the State of Hawaii specified that munitions

would have to be cleared to a level that would allow public access. The agreement

stipulated that all munitions would be cleared from 100% of the surface, and that

25% of the land would be restored to the point that it would be safe for multiple uses,

one of which is human habitation.45 There has been some disagreement as to whether

the Navy met these standards in cleaning up the island.

There are no munitions clearance levels stipulated in the Memorandum of

Agreement for the transfer of land on Vieques Island from the Navy to the

Department of the Interior. As discussed earlier, the National Defense Authorization

Act for FY2002 prohibits public access in the former Live Impact Area that is to be

managed as a Wilderness Area. The act does not specify the extent to which the

public may have access to other lands in eastern Vieques that the Department of the

Interior is to manage as a National Wildlife Refuge. From a safety standpoint,

neither of these land uses would necessitate the clearance of munitions at Vieques to

address explosive hazards, which are similar to clearance levels at Kaho’olawe

Island. Consequently, the extent and costs of removing munitions may be lower at

Vieques. However, if contamination on the former bombing range on Vieques were

to migrate and present a pathway of exposure, a more extensive and costlier cleanup

than the Navy has assumed may be required.

Culebra Island

Culebra Island is located nine miles north of Vieques Island, and was once part

of a comprehensive training range complex for the Navy along with Vieques.

President Roosevelt placed Culebra Island under the control of the Navy in 1901, and

Information provided in a written communication to CRS from the U.S. Navy, Office of

Legislative Affairs, dated March 11, 2005.

Congress appropriated a total of $460.5 million for the cleanup of Kaho’olawe Island from

FY1993 through FY2004. Beginning in FY1995, Congress appropriated funds for this

purpose under a new line-item account, the Kaho’olawe Island Conveyance, Remediation,

and Environmental Restoration Trust Fund, to set aside dedicated funds for the cleanup.

Kaho’olawe Island is located six miles southwest of Maui and covers 28,000 acres. The

Navy used the uninhabited island as a bombing range for training exercises from 1941

through 1990. See the Navy’s website for additional background information at

[http://www.hawaii.navy.mil/Environmental/Environmental_Index.htm].

Memorandum of Agreement between the Navy and the State of Hawaii, May 6, 1994,

Article VI.

CRS-18

the Navy conducted training exercises on the island and its surrounding waters

through 1975. In response to concern about public safety hazards posed by live-fire

training on Culebra, Congress included provisions in Section 204 of the Reserve

Forces Facilities Authorization Act of 1974, which directed the Navy to cease its

operations on and around the island and to relocate them elsewhere.46 In accordance

with this act, the Navy turned the land over to the General Services Administration

in 1975 for conveyance to non-federal entities for conservation and public

recreational purposes. The U.S. government retained a portion of the land, which is

currently managed as a National Wildlife Refuge by the Department of the Interior.

Legal Issues Regarding the Use of Federal Funds for Cleanup. For

safety purposes, public access was to be limited in areas of the transferred land where

munitions were present. Section 204(c) of the 1974 Act addresses the expenditure

of federal funds for environmental cleanup on the island:

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.47

Several legal issues are raised by the above provision. The threshold issue is

whether it bars federal expenditures or land uses — that is, whether it prohibits any

decontamination expenditures by the United States on Culebra or, read more literally,

prohibits land uses that would require decontamination expenditures by the United

States. The two readings are quite different. The first blocks any federal expenditure

for cleanup, while the second contemplates the possibility of federal expenditure for

this purpose in certain circumstances (as the result of pre-1974 activities, or post1974 activities, improperly allowed or carried out in open violation of the act).

If this initial issue is resolved in favor of prohibiting all payments by the United

States for cleanup after 1974, a second issue arises. What is the effect of CERCLA’s

enactment in 1980, and subsequent amendments in 1986 that clarified the

applicability of CERCLA to federal facilities? The broad cleanup authorities in

CERCLA, on their face, recognize no exception for Culebra. Thus, one must

ascertain whether CERCLA by implication amends the 1974 law to repeal its

expenditure-barring language, or whether the 1974 prohibition remains in effect as

an exception to CERCLA.

If the 1974 language is construed merely as a land use prohibition, there would

not be a conflict with CERCLA, which would allow the federal government to pay

for cleanup actions if the land is being used for purposes that would require

remediation to protect human health and the environment.

P.L. 93-166, Section 204.

P.L. 93-166, Section 204(c).

CRS-19

Status of Cleanup. To protect public safety, the Army Corps of Engineers

has paid for the limited surface removal of munitions on Culebra Island in publicly

accessible areas since 1995. These areas include beaches and campgrounds where

munitions have been found in the soil or have washed up on the beach. The Corps

has conducted these removal actions with authorities provided under CERCLA to

address immediate threats, which establishes a precedent for the use of federal funds

to pay for at least some cleanup of the island. The Corps has performed these

actions, as it is responsible for cleaning up Formerly Used Defense Sites (FUDS).

These sites are lands formerly owned or leased by the Department of Defense that

were decommissioned before the first large round of base closings in 1988. The

Corps included the former bombardment areas on Culebra in the FUDS program, as

these areas were decommissioned in 1975.

Estimates of Cleanup Costs. Through the end of FY2004, the Corps

reports that it had spent $4.8 million on the removal of munitions on Culebra

Island.48 The funding for these activities came from the Defense Environmental

Restoration Account for FUDS sites. The Corps allocated this funding based on the

availability of annual appropriations and the competing cleanup needs of other FUDS

sites across the country.49 At this time, CRS is not aware of any court decisions

regarding whether the 1974 Act prohibits the expenditure of additional federal funds

in the future for the cleanup of Culebra Island. As discussed earlier regarding the

listing of Vieques on the NPL, the Army and the Commonwealth of Puerto Rico are

negotiating a Memorandum of Agreement for the cleanup of Culebra Island. Actions

agreed to in this memorandum presumably would necessitate an expenditure of funds

in the future.

As of the end of FY2004, the Army had planned to spend $2.3 million in

FY2005 and $1.8 million in FY2006 for the investigation and removal of munitions

in certain areas of Culebra Island.50 The Army estimated that an additional $30.1

million would be needed from FY2007 into the future to complete the cleanup,

including the remediation of other hazardous substances.51 However, the estimated

future costs are preliminary and are based on the Army’s assumptions regarding the

presence of munitions and other hazardous substances and the remediation that

would be required to address human health, safety, and environmental risks. The

Army may revise this estimate if final cleanup decisions differ from present

assumptions, or if the site investigations reveal that more munitions or other

contamination are present.

Department of Defense, Defense Environmental Programs Report to Congress for

FY2004, April 2005, Appendix K, pp. K-2-18, Appendix L, pp. L-1-103.

As of the end of FY2004, the Department of Defense estimated that a total of $15.8 billion

would be necessary to complete cleanup at FUDS sites, of which $12.2 billion would be for

the cleanup of munitions. Department of Defense, Defense Environmental Programs

Annual Report to Congress for FY2004, April 2005, Appendix K, p. K-6-1.

Department of Defense, Defense Environmental Programs Annual Report to Congress

for FY2004, April 2005, Appendix L, pp. L-1-103.

Ibid.

CRS-20

Conclusion

The listing of Vieques on the NPL offers certain advantages in terms of the

potential for an expedited cleanup through increased coordination among the parties

involved, the opportunity for heightened community involvement through

participation in Restoration Advisory Board forums to learn about cleanup efforts,

and the possibility of technical assistance grants to help residents understand cleanup

documents open to public comment. However, the site listing does not guarantee a

certain degree of cleanup or a particular amount of funding. Regardless of the site

listing, the cleanup of both Vieques and Culebra will be subject to the same

requirements under CERCLA.

The extent of the cleanup on both islands will depend on threats to human

health, safety, and the environment, and the types of remediation that will be deemed

necessary to address these threats. The pace of the cleanup will depend on the extent

to which the site investigations reveal immediate threats that require time-critical

removal actions. Otherwise, long-term remedial actions may be used to address

potential threats of exposure. Depending on the remedy selected and the quantity of

contamination, long-term remediation can take several years or even decades in some

cases, making for a lengthy cleanup.

Whatever actions are required, the progress of cleanup will depend on the

availability of federal funds 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 is limited by

congressional appropriations and the competing needs of other sites across the

country. The availability of federal funding for cleanup at Culebra is further

complicated by the legal issue of whether the Reserve Forces Facilities Authorization

Act of 1974 prohibits federal expenditure for decontamination of the island. The

Army and the Commonwealth of Puerto Rico agreed to negotiate a Memorandum of

Agreement to specify the actions that will be necessary to clean up Culebra, the

implementation of which presumes an expenditure of some funds in the future.

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