|From:||Aimee Houghton <email@example.com>|
|Date:||18 Nov 2004 17:19:03 -0000|
|Subject:||[CPEO-MEF] Points of Agreement btwn Army and Puerto Rico re Culebra|
What appears below is a signed agreement between the Army and the Puerto
Rico Environmental Quality Board (PREQB) to continue discussions to enter
into a Memorandum of Agreement to address contamination resulting from
military activities on the island of Culebra. If the negotiations
are successful then Puerto Rico will withdraw Culebra and surrounding
areas and water from proposed listing to the NPL. If, however, the
Army and PREQB are unable to come to agreement Puerto Rico will exercise
its right have Culebra included on the NPL listing along with Vieques and
This document refers to and other document entitled ?Outline of Army Plan of Action for Culebra? which I will post separately.
Preliminary Points of Agreement
The Department of the Army
The Puerto Rico Environmental Quality Board
Investigation and Response Activities Related to Contamination Resulting From Military Use and Training In Areas On and Around Culebra, Puerto Rico
Article I Purpose
The U.S. Department of the Army (?Army?) and the Puerto Rico Environmental Quality Board (?PREQB?) (hereinafter the ?Parties?) enter into this Preliminary Points of Agreement to foster a cooperative relationship and to facilitate current and future discussions regarding investigations and response activities related to contamination resulting from military use and training in areas on and around Culebra, Puerto Rico.
Article II Background
Whereas, Culebra is located 17 miles east of the island of Puerto Rico and is approximately nine miles from the island of Vieques. In 901, Culebra?s public lands were placed under Department of the Navy (?Navy?) control. In accordance with current information, the Navy used certain areas of Culebra for training activities from 1903 until 1941, and as a bombing and gunnery range from 1935 until 1975.
Whereas, unexploded ordnance and remnants of exploded ordnance and other contaminants resulting from military use and training may be present on Culebra, the keys (cays and small islands) of Culebra, and in the nearby and surrounding water areas. The Commonwealth of Puerto Rico believes that if the presence of these substances is not properly characterized, and response actions taken where appropriate, they may pose an unreasonable risk or threat to human health and the environment.
Whereas, in 1094, Congress enacted ?Notwhithstanding any other provisions of law, the present bombardment area on the island of Culebra shall not be utilized for any purpose that would require decontamination at the expense of the United States. Any lands sold, transferred, or otherwise disposed of by the United States as a result of the relocation of the operations referred to in the subsection (a) may be sold, transferred, or otherwise disposed of only for public or public recreational purposes.? Section 204(c) of the Military Construction Authorization Act of 1974, Publ.L. 93-166.
Whereas, in 1980, subsequent to the 1974 Authorization Act, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (?CERCLA?). CERCLA imposes liability on ?the owner and operator of a vessel or a facility? and on ?any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of[.]? 42 U.S.C. 9607(a)(1)-(2). The term ?person? includes ?an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State [including the Commonwealth of Puerto Rico], municipality, commission, political subdivision of a State or any interstate body.? 42 U.S.C. 9601(21) and (27). CERCLA 120(a) requires that each department, agency, and instrumentality of the United States shall be subject to, and comply with, CERCLA. 42 U.S.C. 9620(a).
Whereas, in 1992, subsequent to the 1974 Authorization Act, Congress enacted ?Each department, agency, and instrumentality ? of the Federal Government (1) having jurisdiction over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement or solid waste disposal and management in the same manner, and to the same extent, as any person is subject to such requirements[.]? 42 U.S.C. 6961(a).
Whereas, in the early 1980?s, the Navy transferred certain Culebra parcels to the Secretary of the Interior. In 1982, the Secretary of the Interior deeded some of these parcels to the Commonwealth of Puerto Rico. Section 9 of the Quitclaim Deed from the United States to the Commonwealth states: ?In accordance with the provisions of Section 204 of Public Law 93-166, that portion of the subject property which has heretofore been used as a bombardment area by the United States Navy is hereby accepted by Grantee in its present condition and further agrees that the United States shall not in any manner by responsible for decontamination of such area, nor for the costs thereof, but the same is and shall be solely (sic) the responsibility of the Grantee. The Grantee hereby agrees to indemnify and save the Grantor harmless from any and all claims, demands, actions, liabilities, judgments, costs, and attorney?s fees arising our of, claimed on account of or in any manner predicated upon loss or damage to property or injuries to or death of any and all persons whatsoever, arising in any way from any person?s use of or presence on the subject property.?
Whereas, in 1986, CERCLA was amended to state that ?there shall be no liability under subsection (a) of this section [42 U.S.C. 9607] for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting there from were caused solely by -- ? (3) an act or omission of a third party other than an employee or agent of the defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant (except where the sole contractual arrangement arises from a published tariff or acceptance for carriage by a common carrier by rail), if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substances, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions ?.? 42 U.S.C. 9607(b).
Whereas, in 1986, CERCLA was also amended to state that ?the term ?contractual relationship,? for the purpose of 9607(b)(3) of this title, includes, but is not limited to, land contracts, deeds, easements, leases, or other instruments transferring title or possession, unless the real property on which the facility concerned is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility, and one or more of the circumstances described in clause (i), (ii), or (iii) is also established by the defendant by a preponderance of the evidence: (i) At the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility ?. In addition to establishing the foregoing, the defendant must establish that the defendant has satisfied the requirements of section 9607(b)(3)(a) and (b) of this title, provides full cooperation, assistance, and facility (including the cooperation and access necessary for the installation, integrity, operation, and maintenance of any complete or partial response action at the facility), is in compliance with any land use restrictions established or relied on in connection with the response action as a facility, and does not impede the effectiveness or integrity of any institutional control employed at the facility in connection with a response action.?
Whereas, CERCLA provides that: ?(1) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section.? 42 U.S.C. 9607(e)(1).
Whereas, the Parties do not necessarily agree with the interpretation, application to the present situation, and/or legal significance of the foregoing legal provisions. Furthermore, the Parties willingly enter into this agreement without renouncing or disclaiming any legal or factual claims they may have and may invoke them at a later time or action if no agreement can be reached.
Whereas, despite their legal differences, the Parties desire to investigate and to take appropriate response actions to respond to threats to public health and the environment resulting from past military activities on Culebra.
Whereas, as a former Navy facility ?under the jurisdiction of the Secretary and owned by, leased to, or otherwise possessed by the United States at the time of actions leading to contamination,? portions of Culebra have been determined to be eligible for inclusion in the Department of Defense Formerly Used Defense Sites (?FUDS?) Program (See 10 U.S.C. 2701©(1)(A-B); 10 U.S.C. 2703). In coordination with the Commonwealth, the Army has been involved since 1991 in performing investigations related to Navy training activities on the island of Culebra and surrounding cays. As described in the Draft Outline Army Plan of Action of Culebra, the Army has already conducted inspections of many Culebra areas previously used by the Navy for training, and has completed an initial report to identify areas for further investigation. The Department of the Army is the Executive Agent for the FUDS Program and, through the U.S. Army Corps of Engineers, executes the FUDS Program in accordance with CERCLA and the National Contingency Plan (?NCP?).
Whereas, today, several non-Department of Defense entities, including the United States acting through the U.S. Fish and Wildlife Service; the Culebra Conservation and Development Authority; and private landowners own areas on and around Culebra.
Whereas, after discussions with the Commonwealth and U.S. Environmental Protection Agency (EPA) on the appropriateness and necessity of the listing, Army has drafted and ?Outline of Army Plan of Action for Culebra,? which is attached to this Preliminary Points of Agreement.
Whereas the Commonwealth of Puerto Rico and PREQB appreciate and acknowledge the Army?s ?Outline for Army Plan of Action for Culebra? as a positive first step forward.
Whereas, on 13 June 2003, the Governor of Puerto Rico requested that EPA include certain ?lands and bodies of water on Vieques and Culebra? which the Commonwealth has identified collectively as the Atlantic Fleet Weapons Training Area (?AFWTA?), as Puerto Rico?s single highest priority site for purposes of listing on the National Priorities List (NPL) pursuant to CERCLA 105(a)(8)(B). By letters dated October 21, 2003, May 26, 2004 and July 28, 2004, Puerto Rico provided a more specific description of the lands and waters proposed for listing.
Whereas, on August 13, 2004, EPA published a notice of a proposal to add to the NPL certain areas on and around Vieques and Culebra, which the Commonwealth has identified collectively in its listing request as the AFWTA, the Commonwealth?s single highest priority site. In the notice, EPA solicited ?comment on an approach that would separate the final listing decision for Culebra from the final listing decision for Vieques. Under such an approach, EPA would go forward with a final rule listing Vieques and postpone the final listing decisions of Culebra to allow the completion of a Memorandum of Agreement between Puerto Rico and Army. The Memorandum of Agreement would govern the response actions necessary to protect Culebra?s human health and environment. The EPA, Puerto Rico and the Army have agreed to pursue this alternate arrangement. The terms or progress under such agreement may determine the point at which it may be appropriate to withdraw the proposal to list the Culebra areas. EPA?s intent would be to allow the Culebra areas to be addressed by the two parties under their agreement.? 69 Fed. Reg. 50115,50119 (August 13, 2004).
Whereas Puerto Rico is willing to withdraw or modify its request to include the Culebra area proposed for listing on the NPL at some point in the future if satisfactory progress is being made by other means toward investigating and responding to threats and conditions to be negotiated in the Memorandum of Agreement. If an agreement cannot be reached, Puerto Rico intends to request that the Culebra portions of the facility achieve the same NPL status as the Vieques portions.
ARTICLE III Scope of Preliminary Points of Agreement
NOW, THEREFORE, the Parties have agreed to the following principles:
Army shall coordinate and perform its investigative and response activities under the oversight of PREQB. If deemed necessary, the PREQB intends to utilize technical assistance from EPA. Nothing in this agreement may be interpreted as impeding EPA to provide whatever technical assistance is requested by PREQB in this process.
ARTICLE IV ACCESS TO PROPERTIES
Activities pursuant to this Preliminary Points of Agreement will be carried out on property that is no longer under the jurisdiction of the Secretary of the Defense and is neither owned, leased to, nor otherwise possessed by the Department of Defense. This property is currently under the jurisdiction of the U.S. Fish and Wildlife Service, the Commonwealth, the Municipality of Culebra, or private landowners. In order to ensure the efficient progress of activities, the Parties agree to use their best efforts and available authorities to obtain access for Army to all applicable Culebra properties. The PREQB agrees to coordinate access to properties owned by the Commonwealth and/or the Municipality of Culebra. In the event that Army is unable to obtain access required for investigative or response activities, Army shall promptly notify PREQB.
ARTICLE V QUALIFICATIONS AND LIMITATIONS
This Preliminary Points of Agreement is neither fiscal nor a funds obligation document.
Nothing in this Agreement is intended to alter the specific statutory or regulatory authorities or responsibilities possessed by any of the signatories, or of other non-signatory agencies or parties, including the inherent authority of the Parties and their successors, to exercise their prerogatives, including enforcement and regulatory authority.
The activities contemplated in the Preliminary Points of Agreement will be carried out in accordance with existing statutory authorities, obligations, and restrictions.
ARTICLE VI EFFECTIVE DATE
This Preliminary Points of Agreement will be effective when approved by all of the indicated signatories. The Parties will continue to discuss and contemplate a final memorandum of agreement, which when final will supercede this document.
APPROVED: October 28, 2004
Raymond J. Fatz
Deputy Assistant Secretary of the Army
(Environment, Safety and Occupational Health
We've Moved! Please note new contact information
Aimee R. Houghton
Associate Director, CPEO
815 King Street, Suite 206
Alexandria, VA 22314
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