2000 CPEO Military List Archive

From: Lenny Siegel <lsiegel@cpeo.org>
Date: Fri, 19 May 2000 01:22:09 -0700 (PDT)
Reply: cpeo-military
Subject: [CPEO-MEF] Vieques Amendment Passes House
On Thursday, May 18, before passing the Defense Authorization Act (H.R.
4205), the House of Representatives adopted the Skelton Amendment
(Section 1501), essentially backing the White House position on the
conveyance of the bulk of the Vieques Ammunition Support Detachment to
the Commonwealth of Puerto Rico. This is the western portion of the
island of Vieques, off Puerto Rico's eastern coast, not the eastern
Vieques Navy training range where federal forces recently detained and
removed a large number of demonstrators calling for a halt to Navy use
of the island. Earlier this year, President Clinton ordered the transfer
of the Ammunition facility, by December 31, 2000, as part of a package
calling for a local referendum on the future of the training range. The
Amendment passed 218-201 on a roll call vote, with most of the
opposition coming from Republicans who oppose the President's plan.

The legislation defines the property to be conveyed, excluding small
portions of the facility which are to be retained for continuing
military use. And it calls for the co-management - by the U.S. Interior
Department, the Puerto Rican government, and the Puerto Rican
Conservation Trust - of existing Conservation Zones as well as adjacent
areas. The amendment reaffirms the obligation of the Navy to conduct
cleanup, and it provides for the indemnification of transferees against
claims resulting for Navy contamination of the property.

The adopted version of the Amendment is substantially better than
language which was circulating earlier this week. The original Skelton
Amendment would have - according to most experts - exempted the facility
from environmental obligations under RCRA (the Resource Conservation and
Recovery Act) and limited the role of state and territorial
environmental regulators to consultation is the determination of
response actions. However, U.S. EPA, staff from Committees other than
Armed Services, and Puerto Rican members of Congress intervened to
strike that language.

Still, in ordering that the property be conveyed by December 31, the
Amendment arguably waives environmental laws that are in place for base
closure throughout the 50 United States. 

First, the Amendment appears to waive the provision of CERCLA (the
Comprehensive Environmental Response, Compensation, and Liability Act)
Section 120(h) requiring that cleanup remedies be in place before
federal property can be transferred. In a paragraph titled , "Conveyance
Despite Response Need," the Amendment states "If the Secretary of the
Navy, by December 31, 2000 is unable to provide the covenant required by
section 120(h)(3)(A)(ii)(I) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. 9620(h)(3)(A)(ii)(I)
with respect to the property to be conveyed, the Secretary shall still
complete the conveyance by the date..."

Later the Amendment declares, "Nothing in this subsection shall be
construed as affecting or modifying in any way subsection 120(h)..." but
it's hard to see how that would supersede the earlier language, which
has no function whatsoever if 120(h) is fully followed.

In theory, the Navy could utilize the Early Transfer provision of CERCLA
120(h) to transfer the property before remedies are in place, but that
provision calls for certain steps to be followed. Given the minimal
level of environmental characterization - as well as reports of serious,
unaddressed contamination - it is inconceivable to me that an honest
Early Transfer could be rushed through by the end of the year.

It's particularly difficult to see how the Navy could justify either a
conventional or early transfer of the property when the people of
Vieques have not been afforded the opportunity - offered at most Navy
bases elsewhere - to participate in the oversight of cleanup activities
there. As I understand it, the Navy has answered requests to form a
Restoration Advisory Board (RAB) on Vieques by explaining that it
already had a RAB at Roosevelt Roads, the Navy base on the Puerto Rican
mainland with which the Vieques facility is associated.

Second, simply by providing a conveyance deadline the legislation
appears to strip the National Environmental Policy Act (NEPA) of its
intended function. Given the amount of information to be collected and
NEPA's mandatory public participation process, it is also inconceivable
to me that the Navy could prepare an adequate Environmental Assessment,
let alone a full Environmental Impact Statement, by the end of the year.

Thus, Congress may be creating a serious conflict of law. Either the
legislation makes an empty promise of timely transfer, because the
deadline cannot possibly met for either environmental process, or it
will force the Navy to rush cleanup and environmental analysis, to the
detriment of the environment and people of Vieques.

In fact, I believe it will do both. Like the statutory and treaty
deadlines which the Army has used to push through the incineration of
the U.S. chemical weapons stockpile, this deadline will give the Navy an
excuse (or a reason) to make choices which will lead to the conveyance
the of the ammunition depot without adequate environmental protection.
Even so, I don't see how it will meet the December 31 deadline.

Unless the legislation is changed, Vieques will be governed by second
class environmental laws. This will set a precedent for the eventual
transfer of the eastern Vieques training range - where both explosive
and toxic contamination are more apparent and extensive - and it could
even set a precedent for special laws to ease the conveyance of base
closure property elsewhere.

There is still time to clarify the law and protect the environment.
Reportedly, the Senate Armed Services Committee has not yet taken up the
language, and then the versions from the two houses of Congress must be
reconciled in the Conference Committee.

The nation has over a decade of experience in dealing with the
environmental aspects of base closure. Rushing transfer despite
environmental concerns not only threatens public health, public safety,
and the environment, but it actually delays the economic and other
benefits that conveyance is supposed to bring. Unless fixed, this
legislation intended to help the people of Vieques will create a
situation that is worse than existing law.

Lenny Siegel

Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 222B View St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/968-1126

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