Re: Trabuco Range debate (3rd of 4 messages)

[Lenny Siegel <lsiegel@cpeo.org>]

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California Department of Toxic Substances Control
8800 Cal Center Drive
Sacramento, California 95826-3200

August 3, 2004

Colonel Richard G. Thompson
District Engineer
Department of the Army
Los Angeles District Corps of Engineers
P.O. Box 532711
Los Angeles, California 90053-2325

FORMER TRABUCO BOMBING RANGE IN RANCHO SANTA MARGARITA, CALIFORNIA

Dear Colonel Thompson:

I am writing in response to your letter dated April 28, 2004, concerning
the United States Army Corps of Engineers' (Corps) removal action at the
Trabuco Creek Bikeway construction at O'Neill Regional Park in Rancho
Santa Margarita, California. The Department of Toxic Substances Control
(DTSC) sent two letters prior to the April 28, 2004, response from the
Corps, explaining DTSC's position and State and federal laws in support
thereof. In response, the Corps proceeded with a "time-critical" removal
action (TCRA) and declined to follow the appropriate removal action
process. This latest response from the Corps, together with past actions
at Formerly Used Defense Sites (FUDS), appears as an attempt by the
Corps to circumvent State and federal laws. This is of great concern to
DTSC. The Corps' action is undermining our working relationship in
furtherance of protection of human health and the environment.

Your letter states two main justifications for declining to comply with
DTSC's request. The first is that unexploded ordnance (UXO) is not
considered hazardous waste and that the former Trabuco Bombing Range is
an operational range because of the Military Munitions Rule exemption.
The second is that the removal action was time critical.

The Corps' April 28, 2004, letter quotes inapplicable law and claims
that the action conducted was a TCRA. You quote the Military Munitions
Rule (40 C.F.R. [section]261.20), specifically section
266.202(a)(1)(iii), which states, "a military munition 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." You further state that "The removal action at the former
Trabuco Bombing Range falls under this provision. Accordingly, it is not
subject to DTSC regulation." Your conclusion is not correct; the former
Trabuco Bombing range is NOT an active or inactive range. It is a FUDS
that is not subject to the Military Munitions Rule. Even if it were
subject to the Military Munitions Rule, DTSC has not adopted that rule.

The former Trabuco Bombing Range is a historic training range that
operated in the 1940's and 1950's. Since approximately 1984, Rancho
Santa Margarita, Orange County, California, has been developing the area
for residential and park use. Part of the former Trabuco Bombing Range
is located in O'Neill Regional Park in Rancho Santa Margarita, and is
the subject of this letter. This recreational park area is clearly not
an operational range (neither "active" and nor "inactive.")

Federal law, guidance and Department of Defense (DoD) directives define
"ranges." The Military Munitions Rule defines an active range as "a
military range that is currently in service and being regularly used for
range activities," and an inactive range as "a military range that is
not currently being used, but that is still under military control and
considered by the military to be a potential range area, and that has
not been put to a new use that is incompatible with range activities."
(40 C.F.R. [section]2666.201) Recent DoD Directive Number 4715.11, dated
May 10, 2004, defines "Operational Range" as a "range that is under the
jurisdiction, custody, or control of the Secretary of Defense and : ...
is used for range activities; or ... Although not currently being used
for range activities, that is still considered by the Secretary to be
[a] range and has not been put to a new use that is incompatible with
range activities." Based upon these federal government definitions, it
is abundantly clear that a site that has been a regional park for the
past decades has been put to a "new" use and is not compatible with
range activities.

"Active and inactive ranges" refer to operational ranges that remain
under DoD control. "Closed, transferred, and transferring ranges" refer
to non-operational ranges. Non-operational ranges are those former
military ranges that have been closed by DoD or whose current or
potential use or setting makes their use as ranges no longer acceptable.
These non-operational ranges include FUDS. DTSC and the Corps have
recognized, unequivocally, that the former Trabuco Bombing Range is a
FUDS. Therefore, is it inconceivable that the Corps, suddenly as of
April 28, 2004, considers the former Trabuco Bombing Range an
operational range.

In addition, DTSC considers UXO at FUDS a hazardous waste and hazardous
substances under State law, the Comprehensive Environmental Response,
Compensation and Liability Act and the Resource Conservation and
Recovery Act. Releases of threats of releases associated with UXO at
FUDS should be evaluated in the same manner as would any other release
of hazardous substances or hazardous waste. Your only argument ... that
the Corps is not subject to DTSC regulation seems to be the exemption
under the Military Munitions Rule, which, as discussed previously, is inapplicable.

Your second justification categorized this removal action as a TCRA. You
respond in your letter that, "Because of the urgency of this removal
action, we decline to delay it in order to accommodate your request."
You further state that this is a TCRA in light of the urgency of the
situation, the scope of the removal action, and other considerations.
DTSC disagrees with this determination. A TCRA occurs when, based upon
site evaluation, a determination is made that a removal action is
appropriate and there is less than six months available before on-site
activities must be initiated.

DTSC had correspondence with the Corps, dating back to October 2000,
listing specific high priority FUDS sites where DTSC believes a high
potential for public encounter with ordnance may exist. The former
Trabuco Bombing Range was specifically listed. Nevertheless, the Corps
took no action until September 2003, when practice bombs were discovered
during construction of a bike path. At that time, the Corps agreed to
remove substances along the bike path.

The planned completion for the TCRA was June 4, 2004, and the actual
completion date was May 28, 2004. This "TCRA" took approximately nine
months, well above the six month period prescribed by the National Oil
and Hazardous Substances Contingency Plan. Not only was the period well
beyond the prescribed six-month period, but the Corps had notice of this
site at least since September 2003. If the situation at this site were
of such urgency, the Corps should have been involved when first notified
by DTSC of the potential risks and high priority status in 2000.

In closing, it is DTSC's position that the UXO found at the former
Trabuco Bombing Range was considered both a hazardous substance and a
hazardous waste under State and federal laws. Further, the State of
California has regulatory authority over non-operational (closed,
transferring, transferred, including FUDS) ranges and intends to pursue
enforcement actions against all entities that violate State law.

Should you have any questions, or with [sic] to discuss this matter
further, please feel free to contact me at ...

Frederick S. Moss, Chief
Office of Military Facilities Division

-- 


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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