Vieques and Culebra Islands: An Analysis of Environmental Cleanup Issues
CRS Report for Congress
Vieques and Culebra Islands:
An Analysis of Cleanup Status and Costs
Updated July 7, 2005
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
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.
In troduction ..................................................1
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
Status of Cleanup Investigation..........................10
Cleanup Cost Estimates for Western Vieques...............11
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
Legal Issues Regarding the Use of Federal Funds for Cleanup......18
Status of Cleanup.........................................19
Estimates of Cleanup Costs.................................19
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
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 on12
Vieques in 2003, and on Culebra years earlier in 1975. 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 human3
health from munitions-related contamination. 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.
1 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.
2 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.
3 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.
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.
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
4 70 Federal Register 7182.
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
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 whether5
Vieques and Culebra could be treated as one facility for listing purposes. 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 the7
Governor of Puerto Rico, Sila M. Calderon, submitted in June 2003. 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. EPA8
issued a proposal for the site listing on August 13, 2004. The proposal was open for
5 70 Federal Register 7186.
6 70 Federal Register 7185.
7 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/
8 69 Federal Register 50115.
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.
9 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.
10 69 Federal Register 50115.
11 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
12 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 James E. McCarthy and Mary Tiemann.
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
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.
13 40 CFR 300.430.
14 42 U.S.C. 9617(e).
15 See EPA’s website: [http://www.epa.gov/region02/news/2004/04040.htm].
16 Information obtained from EPA Region 2 officials by telephone on July 28, 2004.
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 liable20
for paying the costs to clean up Vieques. However, the payment of these costs is
subject to appropriations by Congress, which would come out of the Navy’s Defense21
Environmental Restoration Account (DERA). Historically, Congress has funded
this account in the annual appropriations bill for the Department of Defense. As ath
result of a subcommittee reorganization early in the 109 Congress, the House will
17 42 U.S.C. 9659.
18 42 U.S.C. 9613(h). See, Clinton County Commissioner v. U.S. EPA, 116 F.3d1018 (3rd.
19 42 U.S.C. 6972.
20 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.
21 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.
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. 108-
553) 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
22 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.
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
aCosts ThroughCosts FY2005
Area of IslandDate ofClosureCleanup Status as of June 2005FY2004to Completion b
Naval Ammunition2001Remedial Investigation $11,310,000$13,567,000
Eastern Maneuver Area/2003Remedial Investigation c$6,458,000$99,066,000
Atlantic Fleet Weapons
Vieques Island Total$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.
a 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.
b 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.
c The Navy has begun preliminary removal of munitions at the surface in certain areas, while investigations are underway
to fully identify contaminated areas.
23 Department of Defense, Defense Environmental Restoration Program Annual Report to
Congress for FY2003, April 2004. Appendix A, p. A-149.
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
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 and24
to transfer the property to the above entities. 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
24 P.L. 106-398, Sec. 1502 and 1508.
25 Department of Defense, Defense Environmental Programs Annual Report to Congress
Fiscal Year 2004, April 2005, Appendix J, p. J-146.
26 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.
27 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
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
HazardousMunitionsTotal Cleanup of
Fiscal YearSubstancesCleanupWestern Vieques
Cumulative through FY2004$6,185,000$5,125,000$11,310,000
FY 2005 $4,354,000 $1,450,000 $5,804,000
FY 2006 $1,131,000 $4,000,000 $5,131,000
FY 2007 $226,000 $1,538,000 $1,764,000
FY 2008 $226,000 $0 $226,000
FY 2009 $226,000 $0 $226,000
FY2010 and future years$416,000$0$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.
cleanup of sites listed on the NPL, and states typically take the lead in overseeing cleanup
of those sites not listed on the NPL.
28 Information provided in a written communication to CRS from the U.S. Navy, Office of
Legislative Affairs, dated March 11, 2005.
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
32 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.
33 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.
34 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.
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.
35 Information provided in a written communication to CRS from the U.S. Navy, Office of
Legislative Affairs, dated March 11, 2005.
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 that38
contains water most likely contaminated from agricultural pollution. 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.
36 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.
37 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].
38 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
39 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
[ h t t p : / / www.a t s d r . c d c . go v/ HAC/ P HA/ vi e que s f i s h/ vi e que s p r -t o c .ht ml ] .
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
HazardousMunitionsTotal Cleanup of
Fiscal YearSubstancesCleanupEastern Vieques
Cumulative through FY2004$4,024,000$2,434,000$6,458,000
FY 2005 $159,000 $8,000,000 $8,159,000
FY 2006 $2,437,000 $20,000,000 $22,437,000
FY 2007 $2,368,000 $20,000,000 $22,368,000
FY 2008 $2,247,000 $20,000,000 $22,247,000
FY 2009 $2,000,000 $16,000,000 $18,000,000
FY2010 and future years$5,855,000$0$5,855,000
FY2005 to completion$15,066,000$84,000,000$99,066,000
Total $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
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 20-
acre 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
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 press43
articles have stated that the roughly $400 million 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
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 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
42 Information provided in a written communication to CRS from the U.S. Navy, Office of
Legislative Affairs, dated March 11, 2005.
43 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.
44 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
45 Memorandum of Agreement between the Navy and the State of Hawaii, May 6, 1994,
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 otherwise47
disposed of only for public park or public recreational purposes.
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 post-
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.
46 P.L. 93-166, Section 204.
47 P.L. 93-166, Section 204(c).
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.
48 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.
49 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.
50 Department of Defense, Defense Environmental Programs Annual Report to Congress
for FY2004, April 2005, Appendix L, pp. L-1-103.
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.