May 30, 2019

VIA EMAIL

Kevin Cloe
Remedial Project Manager
NAVFAC Atlantic
(Attn: Code EV31)
6506 Hampton Blvd.
Norfolk, VA 23508-1278
kevin.cloe@navy.mil

Dear Mr. Cloe:

RE: Public comment concerning the Navy’s Proposed Remedial Plan for UXO12 and UXO14
in former Vieques Naval Training Range

Mr. Cloe,

We write to submit our public comment in response to the Navy’s Proposed Remedial Plan for
UXO12 and UXO14 in Vieques, Puerto Rico, in accordance with the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA). As the Navy notes, UXO12 and UXO14 are
located in the former Vieques Naval Training Range (VNTR) and comprise over 4,800 acres of the
former Eastern Maneuver Area (EMA) and live bombing range. The Proposed Remedial Plan would
include Focused MEC Removal, Land Use Controls, and MEC Inspections for the specific areas
mentioned that formerly were part of the Navy’s active use for military training.

The Navy and EPA proposed three plans for clean-up of the indicated sites:

• Alternative 1 – No Action
• Alternative 2 – Land Use Controls and MEC Inspections
• Alternative 3 – Focused MEC Removal, Land Use Controls, and MEC Inspections

The agencies have indicated that the preferred choice of the three remedial options outlined is the
Alternative 3, which would notably likely involve the use of open-air detonations of unexploded
ordnance. The Navy stated in the invitation for public comments that, “the preferred alternative meets
the statutory requirements of CERCLA for protection of human health and the environment under
current and projected future land use as part of the Vieques National Wildlife Refuge with portions of
the managed areas open to the public for recreational use.” We disagree.

I. There are long-standing concerns that continue to exist about agency outreach,
compliance with public dissemination of information and meaningful community
engagement regarding clean-up strategy and decisions.

First, the Navy continues to do the absolute bare minimum to comply with their obligations to
inform the community about the on-going administrative clean-up in Vieques, which continues to be one

1
of the largest and most expensive Superfund sites in the United States. Information is not provided in an
accessible and timely way to the local residents, who because of historic (as well as recent) exclusionary
practices by the Navy and collaborating agencies, have not created an environment conducive to
informed, engaged and meaningful citizen oversight via the Restoration Advisory Board (“RAB”) as
contemplated by 10 U.S.C. § 2705(d)(2)(A), which for years has not benefitted from any robust civilian
engagement.

Information provided to the community is highly technical, autocratic and isolating, making it
challenging at best for any resident to digest and understand what is being asked of them, and impossible
at worst. As a result of these lackluster attempts to solicit feedback from the community, it is no
surprise that the community has not been able to meaningfully engage in decisions being made that
affect their lives, their land, their health and well-being and those of generations to come. The agencies
overseeing the clean-up process have shown a complete lack of respect for the local community by
failing to offer alternatives to engagement or to take seriously their concerns and proposed alternatives.
Emailing and posting a one-page flyer with highly technical military language and in legalese places the
burden on primarily Spanish-speaking residents who have been suffering from the ill-fated choices of
the Navy for over seven decades to decipher how best to intervene and advocate on their own behalf.

A. Community concerns about Proposed Remedial Plan

The local Vieques community has long expressed its serious concerns about the tactics used by
the Navy and its contractor, CH2M Hill (now believed to be known as Jacobs), that compromise their
weakened health and threaten to intensify the already existing ecological and environmental damage that
exists.1 In 2017, the group Vidas Viequenses Valen – whose membership consists of RAB members –
circulated a press release condemning the use of open-air detonations and open air burning of
vegetation.2 Those concerns were made known to the Navy and EPA at that time and went unaddressed.
A few weeks prior to that, a resident of Vieques and RAB member, Kathy Gannett, emailed the Navy’s
representative expressing frustration at the lack of communication concerning clean-up plans with the
community, no genuine effort at meaningful community engagement, and not providing materials far
enough in advance with technical guidance and explanation to facilitate community feedback. Ms.
Gannett’s email stated:

[There] is no excuse for the Navy or Fish and Wildlife [Service] not communicating well
with the community. We have suffered poor communication for about 15 years. The US
military spends billions on war. In comparison we are asking for a so very little to do a
professional job notifying and involving us. I suppose the information on what you’re

1
Jose Delgado, Expertos cuestionan la tecnología militar utilizada en Vieques, El Nuevo Dia (Feb. 16,
2019),
https://www.elnuevodia.com/noticias/locales/nota/expertoscuestionanlatecnologiamilitarutilizadaenvieq
ues-2477078/.
2
Vieques tiembla de nuevo con las explosiones provocadas por la Marina de Guerra (July 29, 2017).
The Navy admitted to open-air burning in 2016 via a publicly disseminated fact sheet on controlled
burns. See U.S. Navy Vieques Cleanup Fact Sheet, Controlled Burning in the Submunitions Area of
Vieques (October 2016) (“The Navy has determined that the only safe method for vegetation removal is
to conduct small (1 to 2 acre) controlled burns.”)

2
 doing arrives to the community a bit “off target” - just like the drones and bombs being
dropped on so many civilians around the world. Vieques is just another very clear case of
collateral damage.

And please do not tell me you will get back to me on these ideas - I have made them dozens
of times - I even drafted a flyer for you all. But the outreach to the community continues
to be minimal. When you have so few people showing up at the meetings, it's time to
change your approach. And meetings are not the only way to involve people.3

In an email sent via press release on May 19, 2019, by life-long resident of Vieques and cancer
survivor, Wanda Bermudez, she states:

We suffocate in Vieques under clouds of smoke generated by fires in the landfill (and) by
open detonations for which the town is not notified. . . We have more pollutants here than
in Bayamón, Cataño and Ponce, but we do not have an air quality monitor like they do.
Neither the Department of Health, nor EPA, nor JCA, nor the Municipality of Vieques, nor
any private or public entity has taken charge of guiding the public and notifying us about
the level of pollution or deterioration of air quality, providing masks, or evacuating certain
areas, particularly those closest to the landfill. In my work as a medical technologist for
the only laboratory in Vieques . . . I nearly succumbed to an asthma attack while trying to
enter the laboratory to prepare the instruments for emergency patients. The smell of smoke
and the effect on my lungs was immediate.4

Residents who live near the former VNTR have documented5 and complained about the tremors
felt from the open-air detonations, which for all intents and purposes is bombing, and near a civilian
population with generational trauma from the Navy’s toxic practices. The have publicly condemned the
actions on social media and with local members of the legislature, expressing concern for their health
and that of their children – many of whom were born with and continue to suffer from asthma and
respiratory conditions. We are also aware of several other comments submitted to the Navy by residents
opposing the Proposed Remedial Plan.

The demands and complaints of Vieques residents who have long questioned the Navy’s clean-
up tactics have been met with little to no substantive response or alternatives to pre-determined plans
that include open-air burning and detonations, including massive public outrage in response to similar
plans the Navy proposed for the Solid Waste Management Unit (SWMU) 4 back in 2012. In fact, the
community has protested the Navy and EPA’s decision to shorten the RAB meetings over time,
minimizing the opportunity for meaningful community engagement. In 2017, the agency decided to
convert a quarterly RAB meeting into a poster board “show and tell,” leaving only 30 minutes for an

3
Email from Kathy Gannett to Kevin Cloe, Remedial Project Manager, NAVFAC Atlantic, U.S. Navy
(sent June 27, 2017).
4
Press Release issued by Wanda Bermudez, Medical Technician, resident of Vieques, cancer survivor
and chronic respiratory illness patient (May 19, 2019).
5
See attached photos by residents taken from the neighborhood of Monte Carmelo near the former naval
range.

3
actual RAB meeting with questions and answers.6 After the community let the Navy know that their
approach to community engagement and public dissemination of information was wholly insufficient,
the poster boards were removed and replaced with actual meeting time. Given the long-standing
objections by the community regarding the Navy’s insistence at burning vegetation near civilian
populations and openly detonating unexploded ordnance, despite the existence of safer alternatives, we
insist that the Navy and EPA halt from moving forward with any plan that includes open burning and
open detonation and that the agency solicit alternative proposals from independent scientists, public
health experts, military toxics experts, physicians and community members.

II. The Navy’s clean-up tactics do not comply with human rights standards and have been
repeatedly questioned by the scientific community for continuing to exacerbate the on-
going contamination in Vieques that is a central part of the remedial effort.

The Navy’s use of dangerous and hazardous clean-up tactics in Vieques has been questioned for
years by the community, scientists and human rights experts. This past year alone, several United
Nations independent experts on human rights addressed their concerns regarding the clean-up efforts to
the United States in a letter, noting specifically:

The ongoing cleanup process by the U.S. Navy allegedly includes methods that are harmful
to the community and the ecosystem of the island. One of the procedures reportedly used
is the controlled burning of vegetation to reveal the munitions, destroying vegetation and
potentially exposing the nearby communities to toxins that may have accumulated in the
biomass. Once the unexploded ordnances are found, open-air explosions are allegedly
carried out, potentially exposing nearby communities to toxic chemicals resulting from
their release into the environment. Further, it is alleged that removal of underwater
munitions may not sufficiently address the release of toxic chemicals into the environment
and alteration of the ecosystem resulting from disintegrating munitions.7

In an amicus curiae brief to the Inter-American Commission on Human Rights, the famed
national environmental justice organization, the National Resources Defense Council, stated:

In addition to the slow pace of the investigations and decontamination procedures [in
Vieques], some of the cleanup practices that the Navy has adopted are disruptive and
dangerous to the local population. For example, the Navy conducts open-air detonation of
live munitions and burns contaminated vegetation. The detonation of live munitions

6
Announcement, Reunión de la Junta Consejera para la Restauración de Vieques Número 54 (August 1,
2017).
7
Letter from Special Rapporteurs on the issue of human rights obligations relating to the enjoyment of a
safe, clean, healthy and sustainable environment; the Special Rapporteur on the right to food; the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression; and the
Special Rapporteur on the implications for human rights of the environmentally sound management and
disposal of hazardous substances and wastes to the United States, AL USA 11/2018, 29 May 2018.

4
 releases toxic chemicals and burning contaminated vegetation in these areas may imperil
the health of Vieques residents by emitting pollutants to the atmosphere.8

In fact, a full petition was submitted to the Inter-American Commission on Human Rights
alleging multiple human rights violations in Vieques by the U.S. Navy, including on-going violations as
part of the administrative clean-up effort currently underway and estimated to take decades longer.9

Several scientific studies affirm those conclusions, including a recent study that shows
significant exposure to toxic chemicals and materials in plant biomass in Vieques, as consistent with the
Navy’s military activities conducted on both land and sea for sixty years.10 Notably, the study pointed
out that the Environmental Protection Agency has not established safety standards for the noted
elements. The toxic exposure to heavy metals has long been documented through scientific evidence in
Vieques,11 and continues to be a problem for local residents.

Even more recently, a study was just published this year by the National Academies of Sciences,
Engineering and Medicine (NASEM) which called into question whether open-air burning and open-air
detonation were the safest, most effective and efficient means of clean-up tactics.12 The study was
actually commissioned by Congress through Section 1421 of the National Defense Authorization Act for
FY 2017, which directed the Secretary of the Army to enter into an arrangement with NASEM to
conduct an evaluation of alternative technologies for the demilitarization of conventional munitions.
This was in response to long-standing concerns by public interest groups about the serious health and
environmental impacts that open burning and open detonation (OB/OD) cause to local communities and
the environment. The report noted that alternative technologies to OB/OD exist and the only reason they
are not implemented by the Department of Defense is because of budgetary concerns. The continued
insistence by the Navy to resort to the mechanisms that have been rejected by the public and the
scientific community simply because they are cost effective but continue to expose civilians to severe
health risks are not reasoned decisions that prioritize and preserve the health and safety of residents and
the environment in an already contaminated atmosphere.

8
Natural Resources Defense Council, Amicus Brief of The Natural Resources Defense Council, Inc., in
Support of the Petition Alleging Violations of the Human Rights of Various Residents of Vieques,
Puerto Rico by the United States of America (Aug. 28, 2017).
9
Alianza de Mujeres Viequenses, et al., v. United States, Petition Alleging Violations of the Human
Rights of Various Residents of Vieques, Puerto Rico by the United States of America, Inter-American
Commission on Human Rights (filed 2013).
10
Elba Díaza, et al., Longitudinal survey of lead, cadmium, and copper in seagrass Syringodium
filiforme from a former bombing range (Vieques, Puerto Rico), 5 TOXICOLOGY REP. 2018, pp. 6 – 11,
https://doi.org/10.1016/j.toxrep.2017.11.007; see also Olivia Riggio, Student researches effect of
bombing range on remote island, Ithacan (Dec. 8, 2016), https://theithacan.org/news/student-researches-
effect-of-bombing-range-on-remote-island/.
11
Elba Díaz de Osborne et al., Universidad de Puerto Rico, Evaluación de Metales Pesados en
Productos Agrícolas de una Finca con Prácticas Orgánicas en el Bo. Luján Sector Destino de Vieques
(Puerto Rico) (Oct. 21, 2008).
12
National Academies of Sciences, Engineering, and Medicine, ALTERNATIVES FOR THE
DEMILITARIZATION OF CONVENTIONAL MUNITIONS (2019).

5
 These concerns of the public and experts are well-known to the Navy. Security and weapons
demilitarization expert Dr. Paul F. Walker, a former Professional Staff Member of the Armed Services
Committee and senior advisor to the Chairman of the Committee, informed the Navy and its contractor,
CH2M Hill, back in 2017 that open-air detonations were toxic and harmful to the health of residents and
engaging in detonations was unnecessary to comply with clean-up efforts. In his letter, he specifically
pointed out, “[w]hile it is clear that in situ detonation practices are necessary in certain circumstances in
order to reduce risk to workers, most old and abandoned ordnance can be safely destroyed by
excavation, defused if necessary, removed, and eliminated in a variety of ways including closed
detonation and/or neutralization.”13

The detonation of unexploded ordinance and the open-air burning of vegetation only perpetuates
the historical harm that the Navy has caused this island the thousands of residents who call it home. The
Navy has long since known about the long-term and serious damage to health of civilians who are
exposed to the contaminants released through their military activities.14 Engaging in open-air bombing
of unexploded ordnance and open-air burning of vegetation only exacerbates the serious and life-
threatening illnesses of residents of Vieques and damages air quality, land and water sources.

Finally, in addition to ceasing on-going contamination, the residents of Vieques and Puerto Rico
and the public at large have long demanded that the Navy make public the military toxics, chemicals and
biological materials that were practiced with at the naval base throughout its possession and
custodianship15 of the land in Vieques and that continue to be released into the air, water and lands
through current clean-up efforts. In 2014, Congress approved a request to the Secretary of Defense that
the department publish a public and declassified document detailing the agency’s use of military
weaponry and materials in Vieques.16 The Navy has yet to comply with the Joint Explanatory Statement
to Fiscal Year 2014 National Defense Authorization Act, nor to answer Congress’ follow-up
communications requesting an update on how the Department intends to implement the noted
congressional language.

13
Paul F. Walker, Letter to Vieques Restoration Advisory Board titled “Vieques Remediation and
OB/OD” (August 1, 2017).
14
Pacific Northwest EW Range Environmental Assessment (EA), U.S. Navy (September 2014),
available at
http://a123.g.akamai.net/7/123/11558/abc123/forestservic.download.akamai.com/11558/www/nepa/970
11_FSPLT3_2346870.pdf, see also Dahr Jamail, Navy Admits to Having Released Chemicals Known to
Injure Infants’ Brains, Truthout (October 17, 2016), https://truthout.org/articles/navy-admits-to-having-
released-chemicals-known-to-injure-infants-brains/.
15
This includes any chemicals or materials used by other entities, nations and military bodies who
leased the lands from the Navy throughout its custody.
16
P.L. 113-66, Joint Explanatory Statement to Fiscal Year 2014 National Defense Authorization Act;
see also Letter to Secretary Hagel by Members of Congress (March 21, 2014).

6
 III. The Navy’s clean-up tactics do not comply with federal environmental standards for
methodologies concerning human health risk assessment and ecological risk assessment.

A. The Plan does not comply with requirements under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) and the National Contingency
Plan (NCP).

All entities with oversight responsibility for the remedial process are subject to, and shall comply
procedurally and substantively with, CERCLA, which includes compliance with any applicable state
laws. 42 U.S.C. § 9620(a). Under CERCLA, the responsible agency must provide information on
contamination from each federal facility owned or operated, “if such contamination affects contiguous
or adjacent property,” including a description of the monitoring data obtained. 42 U.S.C. § 9620(b).
Additionally, under Section 3016(a) of the Solid Waste Disposal Act, an inventory of each site is
required to be conducted. The commenters below, and those who have submitted separate comments,
live, use, and recreate on lands and waters contiguous to, adjacent to, and affected by the VNTR, and
have an interest in the decontamination and cleanup of the VNTR. The commenters believe that the
inventory requirements are not being satisfied by the Navy, and that without this information, the
requirements for a feasibility study and remediation action proposals cannot be satisfied under CERCLA
and NCP.

CERCLA’s clean-up standards prescribe the minimum factors to assess remedial actions that will
in whole or in part result in a “permanent and significant” decrease in the toxicity, mobility, or volume
of the hazardous substance, pollutant, or contaminant.17 The focus of the remedial action is its long term
effectiveness, and the plan must be protective of human health and the environment.18 CERCLA
cleanup standards must also be in accordance with the NCP,19 to the extent practicable. The cost of
remedial actions specifically includes the costs necessary to protect public health or welfare and the
environment, not only short-term equipment or tactical costs for a speedy clean-up process.20 The degree
of cleanup required similarly must control further releases of hazardous substances, pollutants, and
contaminants which “at a minimum” must ensure the continuous protection of human health and the
environment.21 Lastly, for hazardous substances, pollutants, or contaminants that will remain on-site,
CERCLA requires compliance with other environmental and public health laws, standards,
requirements, criteria, and limitations.22

The NCP’s purpose is to identify procedures, techniques, materials, equipment, and methods to
be employed in identifying, removing, or remedying the releases of hazardous substances, comparable to

17
42 U.S.C. § 9621(a), § 9621(b) and § (b)(1)(A)-(G); 40 C.F.R. § 300 et seq.
18
Id.
19
42 U.S.C. § 9605(a).
20
42 U.S.C. § 9601(24).
21
42 U.S.C. § 9621(d).
22
These include, but are not limited to, Toxic Substances Control Act (15 U.S.C. § 2601 et seq.); Safe
Drinking Water Act (42 U.S.C. § 300f et seq.); Clean Air Act (42 U.S.C. § 7401 et seq.); Clean Water
Act (33 U.S.C. § 1251 et seq.); Marine Protection Research & Sanctuaries Act (16 U.S.C. § 1431 et seq.,
§ 1447 et seq., and 33 U.S.C. § 1401 et seq., § 2801 et seq.); Solid Waste Disposal Act (42 U.S.C. §
6901 et seq.); and the Resource Conservation and Recovery Act, 42 U.S.C.A. § 6901 et seq.

7
those required under the oil and hazardous substance liability provisions of the Clean Water Act.23 The
NCP also includes control and prevention measures,24 including instructions that the President “shall
ensure that the human health risks associated with the contamination or potential contamination (either
directly or as a result of the runoff of any hazardous substance or pollutant or contaminant from sites or
facilities) of surface water are appropriate assessed where such surface water is, or can be, used for
recreation or potable water consumption.”25 This assessment “shall take into account the potential
migration of any hazardous substance or pollutant or contaminant through such surface water to
downstream sources of drinking water.”26 As numerous commenters have addressed, the Proposed
Remedial Plan fails on numerous fronts to comply with CERCLA assessment and remediation proposal
requirements, the NCP, and other public health and environmental laws.

B. The Plan inadequately evaluates and assesses site risks, human health risks and
ecological risks.

According to the Proposed Remedial Plan, the government has concluded that despite decades of
munitions and ordnance explosive waste on UXO 12 and 14, no unacceptable current or potential human
health or ecological risks exist due to past munitions related activities and thus no remedial action is
necessary.27 The site risks presented by the Proposed Remedial Plan, however, are incomplete and
contrary to the EPA’s own conclusions in 2019 that the chemicals and toxic agents used on Vieques
have not been fully characterized.28

The Proposed Remedial Plan asserts that the agency’s assessment of the surface water,
groundwater, soil, and sediment characterization supported its conclusions. The commenters note that
selected certain sites and locations for sampling and focused only on areas with the “highest potential”
for contamination may not meet the rigorous health and safety standards to identify and capture
contamination, the profile of pollution plumes, and pollution migration. The commenters have serious
questions relating to the agency’s site risk characterization for chemical fate and transport, analysis, and
conclusions, as little meaningful information specific to the site is provided. The data indicates that soil
and subsurface soils showed consistently elevated quantities of chemicals, thus the agency’s decision to
employ Preferred Alternative 3 which does not address soil and subsurface soils appears inconsistent
with CERLCA and the NCP. The site profile also does not appear to directly address chemical migration
through the soil column to groundwater, and what the effects and impacts may be to human health and
the environment.

23
See 33 U.S.C. § 1321(c)(2)A) (“If a discharge, or a substantial threat of a discharge, is of such a size
or character as to be a substantial threat to the public health or welfare of United States (including its
resources), the President shall direct all federal, state, and private actions to remove the discharge or to
mitigate its threats.”)
24
33 U.S.C. § 1321(d)(2)(C).
25
42 U.S.C. § 9605(c)(2).
26
Id.
27
Proposed Remedial Plan at 7.
28
See U.S. EPA, National Center for Environmental Research “Addressing Environmental Concerns in
Vieques, Puerto Rico through Community Participatory Research.” (Feb. 20, 2019) (available at
https://www.epa.gov/research-grants/addressing-environmental-concerns-vieques-puerto-rico-through-
community).

8
 The commenters believe that the human health risk assessment (HHRA) conducted is
unreasonably narrow and cannot support a conclusion that no human health risks exist, especially
considering the voluminous amounts of data that have confirmed substantial increases in cancer,
diabetes, hypertension, cirrhosis, and respiratory diseases among Vieques residents; much higher than
their counterparts in the rest of Puerto Rico. The commenters refer the agencies to the documents
submitted herewith, in addition to the numerous studies and research the public has provided all four
agencies that form the administrative oversight of VNTR with for decades. These studies confirm
public health dangers on Vieques, including in relation to UXOs 12 and 14. Despite years of public data,
the HHRA was performed for UXOs 12 and 14 apparently based on analytical data collected during a
short 13-month period29 and one month of groundwater data in March 2017.30 This is an unreasonably
limited timeframe to base the proposed remedial action on. The soil samples were collected at shallow
depths considering the time elapsed since the Navy began using the site for military purposes and the
RIFS deleted subsurface soil from the risk calculations. Since all groundwater is considered potable
water in Puerto Rico, ignoring subsurface soil chemicals and the migration of these chemicals is
inconsistent with protecting human health. The Navy should not need to be reminded that drinking water
supplies are mandated to be a high priority for protection under CERCLA.31

While the HHRA presented soil, groundwater, surface water, and sediment scenarios and
ingestion of fish, crab, and gamebirds, the narrow framework is a problematic basis for the Navy’s
decision. For the ingestion data, the commenters require more information regarding the basis and
assumptions the Navy made to reach its conclusion. The commenters believe the scope of the receptor
groups proposed by the Navy is also too narrow, and does not account for ongoing and proposed
remediation, including contamination from open air detonations. The exposure point concentrations thus
may understate the risks and be too lenient, which is of great concern given the contaminants of concern
identified in the RIFS process, and that the remediation measures elected do not treat certain exposure
points.32 The Proposed Remedial Plan identified no contaminants of concern based on the exposure
pathways. In sum, the information presented in the Proposed Remedial Plan is, as the commenters and
the Vieques community has repeatedly documented for decades, wholly inconsistent with other
scientific sampling data.

In addition, the ecological risk assessment (ERA) did not evaluate groundwater, which is part of
the ecosystem and must be included in the Navy’s analysis to satisfy its CERCLA and NCP
obligations.33 The locations of the other ecosystem data appears to be based on decision unit locations;
whether the sampling locations were influenced by criteria more directly related to species’ behavior is
unspecified by the RIFS, so the value of some of the RIFS ecological risk assessment data is
questionable. Moreover, Puerto Rico has several endangered and threatened species (see below), but the
ERA does not appear to have specifically targeted data collection relating to those species. Lastly, the
timeframe for data collection is not specified by the ERA, so the Navy’s ability to actually assess
impacts is unfounded.

29
RIFS at § 6-1.
30
RIFS at Appendix M § 2-1.
31
42 U.S.C. § 9618.
32
RIFS at § 6-5.
33
Id. at § 7.1.

9
 C. The Proposed Remediation Plan and the development of alternatives to open-air burning
and open detonation.

Throughout the RIFS process, the government is required to develop remedial alternatives
reflecting the scope and complexity of the remedial action, data collection, risk assessment, treatability
studies, and the analysis of alternatives.34 These efforts are to be tailored to the nature and complexity of
the problem, which in Vieques is immense. These alternatives are to be informed by the remedial
investigation35 and the feasibility study,36 the goal of which is to ensure appropriate remedial measures
are developed and evaluated such that relevant information concerning the remedial options can be
presented to a decision maker and an appropriate remedy selected. Remediation shall establish that any
exposure levels are protective of human health and the environment,37 and alternatives must consider
other laws protective of the same.38 Remedial alternatives’ short and long term aspects shall be
developed, screened, and guided by: (1) effectiveness, (2) implementability, and (3) cost.39 The
government is also to consider available technologies, such as detonation chambers that scientists have
long signaled would lessen the harm to human health and the environment in Vieques.40 As discussed
herein, the commenters believe that the government’s conclusion that there are no human or ecological
risks is inconsistent with CERLCA and the NCP.

The commenters object to the information, assumptions, analysis, and conclusions made by the
government regarding the CERCLA threshold and its modification of criteria for the Proposed Remedial
Plan under 40 C.F.R. § 300.430(e)(9).41 The Proposed Remedial Plan’s disclosure of the criteria the
government must evaluate is merely a restatement of the standard and provides no meaningful
information describing the government’s analysis and decision-making process. Without meaningful
discussion and analysis, the Navy’s conclusions and remediation proposal does not satisfy CERCLA and
the NCP, and thus cannot move forward as is.

34
40 C.F.R. § 300.430(a)(2).
35
40 C.F.R. § 300.430(d).
36
40 C.F.R. § 300.430(e).
37
40 C.F.R. § 300.430(e)(2).
38
40 C.F.R. § 300.430(e)(2)(A). There is a series of additional health and environmental safety laws that
must be consulted when devising the Proposed Remedial Plan, as well as in establishing alternatives for
clean-up activities. Alternatives must take into account known or suspected carcinogens, as well as
account for detection and uncertainty factors. In addition, the Navy must establish maximum
contaminant level goals under the Safe Drinking Water Act and for water quality criteria per the Clean
Water Act. Environmental evaluations, including species and habitats, must be conducted and are
subject to the Endangered Species Act.
39
40 CFR § 300.430(e)(7)(i)-(iii).
40
40 CFR § 300.430(e)(5).
41
Proposed Remedial Plan at 19-21.

10
 D. The Preferred Alternative does not meet the statutory and regulatory requirements, lacks
definition and inadequately considers the health and environmental risks.

The Proposed Remedial Plan only provides a table summary and three conclusory bullet points
for why the Alternative 3 is the government’s preferred action.42 The Preferred Alternative appears to
limit any removal actions only to “planned recreational use areas” and to limit public access to “portions
of the site,”43 as well as proposing “educational kiosks,” “land use control,” and “long term monitoring.”
The concept of exposing the public to hazardous contaminants while simultaneously educating them is
incongruous in light of CERCLA’s human health protection requirements, which have been expounded
upon above. The assumptions the government has appeared to work from to develop its proposed
alternatives—that there exist no human health or environmental risks—drive the remediation plan’s
limited “guide” to public access to areas planned for public use is wholly inconsistent with CERCLA
and the NCP.

First, the term “long term monitoring” as referenced by the Navy is not defined and appears to
focus merely on “periodic inspections for trespassing, erosion, MEC/MD recurrence in public-access
areas, and the integrity and effectiveness of physical LUCs.”44 In fact, further details of a long-term
monitoring program are not even offered as the Proposed Remedial Plan indicates that such a plan
“would be established” at some unspecified point in the future.45 The Preferred Alternative does
reference a groundwater long-term monitoring program, but again provides no details and similarly
states that the program “would be established” at some unspecified point in the future. The only
proposed purpose of the groundwater monitoring in the Preferred Alternative is “to evaluate long-term
trends in contaminant concentrations.” The commenters believe the extent and risk of contamination
merits a more robust, targeted, and responsive groundwater monitoring program so that public health
and the environment can be protected. The government’s proposal falls short of this important standard.
The Preferred Alternative also references the Comprehensive Conservation Plan (CCP) for the wildlife
refuge and how the CCP will address potential explosive hazards in UXOs 12 and 14, but the CCP
components are not provided to the public in the Proposed Remedial Plan. The government then sua
sponte and without meaningful citizen consultation concludes that the Preferred Alternative meets and is
compatible with objectives, standards and laws. The commenters object to the sufficiency of the
proposed “long term monitoring” as a legally sufficient remedy, and instead insist that the Navy perform
additional removal and implementation monitoring, and implement, monitor and maintain land use
controls.

E. Preferred Alternative, Technology, and Open Burning/Open Detonation

The Preferred Alternative does not address whether open burning/open detonation (OB/OD) will
be employed, as the Navy has conducted, and is currently conducting, in other cleanup activities
elsewhere. The commenters do not support such strategies and certainly not without stringent
restrictions on potential or actual releases, recycling and recovery. Since the technology to conduct
closed burning and closed detonation exists, the commenters point out that OB/OD is no longer the most

42
Proposed Remedial Plan at 17, 23.
43
Proposed Remedial Plan at 17.
44
Id.
45
Id.

11
effective or efficient technology, particularly given the public health and environmental risks associated
with it.

In term of the Navy’s acquisition of permits under RCRA, it is well-known that such permits are
no longer sufficient protections to the public’s health and overall well-being.46 To the extent permits
such as ones under RCRA do not fully address remediation or remediation technology for the
contaminants at the sites, the Navy must clearly and publicly disclose and describe treatment
methodologies, analyses, emissions, estimations to address issues and questions. The 2019 National
Academy of Sciences Report notes that from a technology perspective, “[t]here are no significant
technical, safety, or regulatory barriers to full-scale deployment of alternative technologies for
demilitarization of the vast majority of the conventional waste munitions, bulk energetics, and
associated wastes.”47 The technology aspect must be considered by the Navy under CERCLA, and the
Proposed Remedial Plan does not sustain a finding of such compliance.

F. The substance of the Proposed Remedial Plan eschews meaningful public review.

The 28-page Proposed Remedial Plan contains no meaningful references to the results of human
health or ecological assessment results and contains no information on how the government proposes to
implement the cleanup. The commenters note that the 4,319-page RIFS does not further enlighten the
public on the potential human health or ecological effects of such plan, or on what actions the Preferred
Alternative 3 actually proposes.48 Despite these failures, the Proposed Remedial Plan purports to
“summarize” environmental investigations and removal actions and to solicit public review of the
alternatives presented. The site investigations are simply characterized as “a number of investigations”
and that “a relatively low quantity” of munitions and explosives of concern (MEC) was anticipated.49
The Proposed Remedial Plan identifies a density of MEC per acre found in the RIFS stage50 but does not
describe for the public’s benefit the quantity or intensity of the chemicals in the MEC. The Proposed
Remedial Plan admits, however, that there are still potential explosive hazards on the surface and the
subsurface due to the possibility of munitions remaining at each site.51

G. Scope of Proposed Remedial Plan for UXO 12 and UXO 14 and CERCLA’s NEPA-like
review process and the Administrative Procedures Act (APA).

The National Environmental Policy Act (NEPA)52 is our nation’s bedrock environmental
protection law, which the commenters assert should be complied with here. In some instances, CERCLA
may permit a government to not comply with the formal requirements of NEPA where a CERCLA

46
42 U.S.C. § 6902.
47
See supra, note 13, at 4-5 (Finding 9-1); see also Findings 9-2 and 9-6 (noting that it is DOD and the
Army that has placed a relatively low priority on funding the demilitarization program, including the
implementation of additional alternative technologies to replace OB/OD, while the EPA has indicated
an evolving preference to move away from OB/OD.)
48
See RIFS § 10.3.
49
Proposed Remedial Plan at 2.
50
Id. at 7.
51
Id. at 9, 15.
52
42 U.S.C. § 4321 et seq.; CEQ Regulations 40 C.F.R. § 1500 et seq.

12
feasibility study and remedial action selection process follow a NEPA-like process.53 However, under
the Administrative Procedure Act, CERCLA feasibility and remedial actions may not be arbitrary,
capricious and contrary to CERCLA and the NCP.54

Notably, here, the Navy’s Proposed Remedial Plan only addresses UXOs 12 and 14. Cleanup
and remediation proposals for other sites on the eastern side of the island should be analyzed in
conjunction with this Proposed Remedial Plan before a final remedy is approved for UXOs 12 and 14, as
well as for any other site.55 If the Navy continues to determine in its final action—as it is attempting to
do here—that no human or ecological health risks exist for each of the remediation sites, but fails to
consider the cleanup and remediation needs for all of the sites, its decision-making as to the scope and
impacts of the contamination problems wholly ignores the cumulative impacts of the entirety of the
cleanup proposals. Failure to identify, disclose, analyze and consider the cumulative impacts of the
Navy’s proposed remediation plans turns a blind eye to human and ecological health impacts, and may
be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law as described in
detail above. The Proposed Remedial Plan also limits its assessment to anticipated public use areas in
UXO 12 and UXO 14 while ignoring potential off-site impacts. What potential expansions of public use
areas it does acknowledge that may occur through the CCP are summarily dismissed by the government
as having any meaningful impact.56 Moreover, CERCLA recognizes that certain remedial actions may
only be part of a total remediation action, and the Navy must conduct an overall remediation and
cleanup that fully complies with CERCLA’s standards and requirements.57 As the Navy and EPA are
proposing multiple remediation plans, the agencies should demonstrate how all of its proposals fully
comply with CERCLA.

Additionally, all alternatives assume a 30-year timeframe to achieve the components of the
proposed actions.58 Given the limited actions the Navy is actually proposing in its Preferred Alternative,
30 years is an excessively long time to achieve simple tasks like “educational kiosks” and land use
controls. The commenters do not disagree that (at a minimum) 30 years of groundwater monitoring
should be undertaken, but as referenced above, the parameters of such monitoring program must be
clearly geared towards protecting public health.

H. The Navy must enact a Proposed Remedial Plan that also complies with the overall
statutory environmental and species protection frameworks, including the Endangered
Species Act, the National Wildlife Refuge Act, the National Migratory Bird Treaty Act,
the Marine Mammal Protection Act, and the Marine Protection Research & Sanctuaries
Act.

Since the Navy decided to transition the UXO 12 and UXO14 into national wildlife refuges
instead of cleaning up the areas to meet human health standards, the agency is now also bound by
environmental and species protection laws. All CERCLA remediation proposals must ensure protection

53
See 40 C.F.R. § 300.430(a)(2).
54
5 U.S.C. § 706.
55
Proposed Remedial Plan at 15.
56
Id. at 20.
57
42 U.S.C. § 9621(d)(4).
58
Proposed Remedial Plan at 17.

13
of the environment.59 Vieques supports important terrestrial habitat for hundreds of fauna. The Vieques
National Wildlife Refuge (NWR) and its surrounding waters are designated as an EPA Superfund site
and supports important habitat for native, migratory, rare, and protected species.60 The Vieques NWR is
home to federally listed plants (stahlia monosperma, calyptranthes thomasiana, chamaecrista glandulos
var. maribilis, and goetze elegans), reptiles (Hawksbill, Leatherback, Green and Loggerhead sea turtles),
birds (brown pelican, roseate tern), migratory birds (peregrine falcon) and species of concern (Puerto
Rican Broad-winged hawk, white-cheeked pintail). Vieques also supports habitat for endangered marine
mammals (Antillean manatee, blue whale, fin whale, humpback, and sei whales). The commenters are
concerned that ERA insufficiencies mean that the Proposed Remedial Plan will affect wildlife in a
manner that risks violations of CERCLA, the APA, the ESA,61 the National Wildlife Refuge Act,62 the
Migratory Bird Treaty Act,63 the Marine Mammal Protection Act,64 and the Marine Protection Research
& Sanctuaries Act.65 As referenced above, many of the protected species were not analyzed in the ERA,
and thus the Navy has not demonstrated compliance with these laws.

IV. Summary and Conclusion

The Proposed Remedial Action Plan does not meet the statutory or regulatory requirements for a
safe clean-up; one that does not further put the local civilian population at further risk of health hazards
and environmental contamination. Prior to approval of the Proposed Remedial Action Plan and given
the lack of comprehensive information provided to the public concerning the Proposed Remedial Plan,
the commenters seek answers to our above questions, as well as clarification concerning the following:

• What was the criteria used to determine that UXO12 and UXO14 are the priority clean-up areas,
and what is their proximity to civilian populations versus other areas of the VNTR?

• How many actual munitions have been estimated or located at each site?

• What are the proposed mechanisms for clean-up under Alternative 3 and what do they each
entail?

• Is open-air detonation of unexploded ordnance and open-air burning of vegetation anticipated

under Alternative 3?

• What weight has been given the research of independent scientists, physicians and health experts
on the on-going clean-up mechanisms being currently used by the Navy – included open-air

59
40 C.F.R. § 300.430(e)(2)(G).
60
50 C.F.R. § 17.11(h); U.S. Fish & Wildlife Service, Vieques National Wildlife Refuge, available at
https://www.fws.gov/southeast/pdf/brochure/vieques-national-wildlife-refuge-english.pdf.
61
16 U.S.C. § 1531 et seq.
62
16 U.S.C. § 668dd et seq.
63
16 U.S.C. § 703 et seq.
64
16 U.S.C. § 1361 et seq.
65
16 U.S.C. § 1431 et seq.

14
 detonation and open-air burning of vegetation – on local flora and fauna, as well as the civilian
population?

• Has the Navy attempted to locate and use detonation chambers for unexploded ordnance in
Vieques? If so, when and what was the outcome? If not, why not?

• What is the estimated cost per area for clean-up under each proposed Alternative?

• What are the names of the scientists and scientific experts that the EPA, the Navy and its
contractor, CH2M Hill, have used to conduct an assessment concerning environmental
contamination and health risks per proposed Alternative and per site?

• When can the sampling data be made available to the community?

• What is the estimated timeline for each proposed Alternative per site? How does prioritizing
UXO12 and UXO14 affect clean-up at the other affected locations?

• Will you be conducting long-term groundwater monitoring, and if so under which Alternative
and when?

We appreciate your timely attention to our comment and requests for information and await your
response.

Best,

_______/s/______________
Natasha Lycia Ora Bannan
Associate Counsel
LatinoJustice PRLDEF
475 Riverside Drive
Suite 1901
New York, NY 10115
T: 212-739-7583
Email: nbannan@latinojustice.org

Elisabeth Holmes
Blue River Law, P.C.
P.O. Box 293
Eugene, OR 97440
T: 541-870-7722
Email: eli.blueriverlaw@gmail.com

Myrna Pagan
Vidas Viequenses Valen
Vieques, PR
Email: paganveda@aol.com

15
Cc: Juan Babá Peebles, Junta de Calidad Ambiental
Susan Silander, Fish and Wildlife Service
Jessica Mollin, Environmental Protection Agency
Damaris Delgado, Departamento de Recursos Naturales

Enclosures

16