Re: Trabuco Range debate (4th of 4 messages)

[Lenny Siegel <lsiegel@cpeo.org>]

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Army Corps' Claim Doesn't Pass the "Laugh Test" at Trabuco

by Lenny Siegel


The exchange between the Army Corps of Engineers, Los Angeles District,
and California's Department of Toxic Substances Control revives a debate
that has continued for more than a dozen years. Is munitions response -
particularly the clearance of unexploded ordnance - at former military
impact ranges subject to regulatory oversight under the nation's
environmental laws?

CPEO's view, based upon years of research - site visits, conferences,
and communications with a wide range of stakeholders - is yes. There is
a consensus, among affected communities, that the responsible party -
for ranges, it's usually the Department of Defense - should not have
final say over the scope, depth, or manner of cleanup. That is, the fox
should not guard the henhouse.

In proposing the Readiness and Range Preservation Initiative for the
past three years, the Defense Department claimed that the legislation
was intended only to exempt operational ranges, not former ranges, from
regulatory oversight under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA, the Superfund law) and the
Resource Conservation and Recovery Act (RCRA). However, in attempting to
clarify that point, it never agreed to confirm that former
("non-operational") ranges were indeed subject to regulatory oversight.
That's why the language was so convoluted and unfathomable.

The Army Corps' April 28, 2004 letter clearly over-interprets EPA's
Military Munitions Rule by asserting an exemption to RCRA and CERCLA
that the Rule only applies to operational ranges. Furthermore, its
explanation, repeated many times over the last several years, DOESN'T
PASS THE LAUGH TEST.

The Army Corps's attorneys are arguing that munitions on a bike trail in
a regional public park are being used for their "intended purpose." It's
hard to envision anyone making that case with a straight face.

No one is arguing that active impact areas must be clean and safe enough
to use as a public park or child care center, but at some point a fired,
launched, or dropped munition may become a hazardous waste and hazardous
substance due to its condition, time, or a change in the property's use.

To argue otherwise, Corps' lawyers are undermining the trust that
communities want to feel toward our federal government.


The debate over whether the Trabuco Range bikeway clearance is a
time-critical removal action (TCRA) is more complicated. Historically,
the Army Corps has not recognized EPA's definition of a TCRA as an
action taking less than six months (or costing under $2 million). There
are situations in which TCRAs are appropriate, but since they limit
regulatory review of decisions and public involvement in the process,
they should be used sparingly and carefully.

The use of TCRAs at Pennsylvania's former Tobyhanna Artillery  Range,
which I recently reported on, has not been controversial, but there the
Army Corps works in partnership the Pennsylvania Department of
Environmental Protection.

In my community, at the former Moffett Naval Air Station - this is not a
munitions response site - the Navy last year undertook a TCRA to prevent
further PCB releases from the huge dirigible hangar that serves as the
facility's primary landmark. The Navy checked with all stakeholders -
regulators, the public, and NASA (the current owner) - and everyone
agreed: The need for prompt action, before the rainy season, outweighed
the need to generate extensive documentation up front.

The Army seems to be arguing that any munitions site where people might
encounter ordnance requires a time-critical response. Unfortunately, it
doesn't follow this premise when submitting cleanup budgets to Congress.

I don't know enough about the O'Neill Regional Park site to judge how
urgent the response is, but it's fairly clear that the Army is gambling
by taking action without regulatory concurrence. By taking full
responsibility for cleanup decisions, it is risking that the state may
send it back to conduct a second cleanup.


I cannot help but think that Army attorneys, concerned more about
precedent than getting the job done in the field, have taken control of
the process from the engineers. It reminds me of a lesson I learned when
I first started working on hazardous waste issues in Silicon Valley in
the early 1980s. When environmental activists and local officials - led
by fire chiefs - negotiated with polluters over hazardous waste storage
requirements, the petrochemical industry sent lawyers and the
electronics industry sent engineers. Though the communities still had
hard bargaining to do with the high-tech engineers, they were problem
solvers, and we came up with solutions that served everyone. The oil
lawyers kept arguing for exemptions.

If the Defense Department wants to solve the problem of unexploded
ordnance on former ranges across the country, it should turn over
responsibility to problem-solvers, not rely upon attorneys who will
continue to make convoluted arguments that range munitions are never a waste.

-- 


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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