Re: Trabuco Range debate (2nd of 4 messages)

[Lenny Siegel <lsiegel@cpeo.org>]

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Department of the Army
Los Angeles District Corps of Engineers
P.O. Box 532711
Los Angeles, CA 90053-2325

April 28, 2004

Mr. John Scandura
Chief, Office of Military Facilities
Department of Toxic Substances Control
5796 Corporate Avenue
Cypress, California 90630

Dear Mr. Scandura:

This is in response to your letters dated March 16, 2004 and April 16,
2004 concerning the United States Army Corps of Engineers' ("Corps")
Trabuco Creek Bikeway Time Critical Removal Action ("TCRA)" at the
former Trabuco Bombing Range, in Rancho Santa Margarita, California. The
removal action involves disposal of unexploded ordnance (3-lb miniature
practice bombs) discovered during construction of the bikeway. In your
letters, you requested that the schedule be revised to allow sufficient
time for your agency to complete its review of our planned removal
activity for compliance with California Health and Safety Code and
California Environmental Quality Act requirements. Because of the
urgency of this removal action, we decline to delay it in order to
accommodate your request. We assure you that our removal plan considers
impacts upon the environment and is designed to minimize them while
accomplishing the safe and efficient removal of the practice bombs.

The on-site disposal of unexploded ordnance at a former bombing range
does not require a permit from the Department of Toxic Substance Control
("DTSC"). Your letters focus upon DTSC's responsibilities with respect
to the disposal of hazardous wastes pursuant to the Comprehensive
Environmental Response, Compensation, and Recovery [sic] ("CERCLA"), the
Resource Conservation and Recovery Act, the National Oil and Hazardous
Substances Pollution Contingency Plan, and California Health and Safety
Codes, and other environmental statutes. Contrary to the views expressed
in your letters, the removal action at the former Trabuco Bombing Range
does not involve hazardous waste, as the Environmental Protection
Agency's implementing regulations define them. Pursuant to 40 C.F.R.
[section] 261.20, a hazardous waste is defined as a solid waste that
exhibits certain characteristics. In this case, more specific
regulations exclude the unexploded ordnance at the former Trabuco
Bombing Range from the definition of "solid waste" and thus also from
the definition of "hazardous waste" and the regulations that generally
govern the disposal of hazardous wastes. Pursuant to 40 C.F.R. [section]
266.202(a)(1)(iii), "a military munitions is not a solid waste when ...
used for its intended purpose, including: ... Recovery, collection and
on-range destruction of unexploded ordnance and munitions fragments
during range clearance activities at active or inactive ranges." The
removal action at the former Trabuco Bombing Range falls under this
provision. Accordingly, it is not subject to DTSC regulation.

The Corps is conducting the removal action at the former Trabuco Bombing
Range as a TRCA [sic] pursuant to the Federal regulations implementing
CERCLA, 40 C.F.R. [section] 300.415. As you probably know, CERCLA grants
the President authority to conduct response actions, and the authority
has been delegated to the Corps. In determining the appropriate response
action to be taken at Trabuco, the Corps is the lead agency, and we are
obligated to comply with applicable or relevant and appropriate
requirements under federal environmental or state environmental or
facility siting laws only to the extent practicable in light of the
urgency of the situation, the scope of the removal action, and other
considerations. 40 C.F.R. [section] 300.415(j). We have undertaken to
complete this removal action as soon as possible in order to protect
public health and welfare by promptly removing the potential hazard
posed by these articles. In so doing, we are being responsible to
concerns expressed by local government both as to public safety and the
costs of delay.

In accordance with 40 C.F.R. [section] 300.415 and Corps policy
guidelines, the Corps has consulted with the community and State and
local government, including DTSC, to the extent possible without
allowing the process of consultation to delay actions necessary to
prevent potential accidents. Our current TCRA schedule will not be
changed merely to accommodate further studies.

Should you have any further questions, please address them to our
District Counsel, Lawrence N. Minch, at the address above.

Sincerely,

Richard G. Thompson
Colonel, U.S. Army
District Engineer


-- 


Lenny Siegel
Director, Center for Public Environmental Oversight
c/o PSC, 278-A Hope St., Mountain View, CA 94041
Voice: 650/961-8918 or 650/969-1545
Fax: 650/961-8918
<lsiegel@cpeo.org>
http://www.cpeo.org

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