BY MAIRE O’NEILL
The proposed conveyance of some 800 acres of land in Rendija Canyon from the Los Alamos National Laboratory to Los Alamos County was up for discussion at Wednesday’s Northern New Mexico Citizen’s Advisory Board virtual meeting. Concerns were raised about a proposed deed restriction requirement for unexploded ordnance surveys for any ground disturbance on the land in question.
On October 2, the Department of Energy wrote to Los Alamos County Council (see https://losalamosreporter.com/2020/10/12/doe-asks-county-for-response-in-30-days-on-possible-transfer-of-land-in-rendija-canyon-for-recreational-use/) and on Oct. 20 County Manager Harry Burgess discussed the issue under his report to Council. See https://losalamosreporter.com/2020/10/23/county-manager-updates-council-on-rendija-land-transfer-proposal/. There had been indications that proposed conveyance would be addressed at Tuesday’s Council meeting by DOE officials however, the topic was not raised.
At Thursday’s NNMCAB meeting, Pete Maggiore, Senior Advisor to DOE/NNSA Los Alamos Field Office Manager Mike Weis, said DOE has spent approximately $12 million to make some improvements and perform some mitigation measures that were initially intended to try and get the tract of land ready for residential use. He said more recent discussions have focused on recreational use which is the current use of the land. He noted that DOE has addressed some 25 archeological sites in the area, improved some of the fencing, rerouted the road in some cases and made improvements to trails to reduce or eliminate impacts to the cultural resources. The Army Corps of Engineers completed and an unexploded ordnance survey, paved the trailhead parking area, installed some kiosks and improved signage, he said. Maggiore also noted that DOE cleaned up what has been called Poorman’s shooting range where there was unauthorized shooting of firearms, abandoned vehicles, electronics and other debris, as well as a publicly built motocross track.
Maggiore said DOE also performed some wildland fire mitigation in Rendija Canyon and worked with the Pueblo of San Ildefonso on concerns over trespass and safety with respect to fires. He said San Ildefonso had been gracious enough to allow the use of the Rendija Canyon Road as an emergency evacuation route during fires. The DOE proposal would retain the Sportsmen’s Club property under DOE control.
“Previously the New Mexico Environment Department had concurred on the conveyance with the understanding that the ultimate conveyance would occur for recreational use. One of the obstacles or challenges that we are facing with the conveyance is that the proposal that we had on the table was to have some deed restrictions associated with the conveyance and these deed restrictions were established in consultation with the Army Corps of Engineers,” Maggiore said. “The canyon had historically been used as a munitions impact area and based upon the unexploded ordnance surveys that the Corps had performed they recommended a deed restriction that would require unexploded ordnance technicians to clear any areas where ground-disturbing activities would be proposed.”
He said the County made some requests in terms of DOE performing additional surveys or trying to limit the areas that would be subject to the deed restrictions. Maggiore did not mention that the depth noted in the proposed deed restriction for ground-breaking activities is a mere three inches.
“Those for several reasons are problematic to the Department of Energy so we have recently sent a letter to the County to reengage on this potential conveyance and discussions are ongoing with the County,” Maggiore said.
DOE Deputy Designated Federal Officer Lee Bishop told the CAB members that unexploded ordnance (UXO) is a funny thing. He said with ammunition, small projectiles and “armed things”, the canyon bottom shifts with weather so things get covered up and uncovered.
“Even with metal detection and remote sensing technologies and the like, the probability of finding unexploded ordnance after each survey and we clear the property is low. It’s not zero so it’s always with an abundance of caution that the Department recommends continuing unexploded ordnance surveys especially during excavations. Middle DP Road is probably a great example of where we did not have any 1940-1950 UXO, at least not yet, being discovered,” Bishop said. “Typically the Department recommends continued UXO surveys as they develop the property.
Maggiore said the surveys that were conducted were the basis for DOE deciding that if they continued with the conveyance, deed restrictions should be attached and that’s the current proposal before the County.
Asked who would be liable if there is an incident involving unexploded ordnance, Maggiore said that he is not an attorney but that it would be his understanding that if the quitclaim deed was developed, that the deed itself would establish who was responsible.
“But the intent of the deed restriction was to require that if we did convey the property and there was going to be any subsurface disturbance it certainly would require as a precondition a survey in the immediate area of where the subsurface work would occur,” Maggiore said.
Bishop said if something like a five-pound bomb or ordnance was found on the land, the Corps of Engineers or the Department of Defense will deploy from the closest military base, determine what the material is and go out to retrieve it. He said DOD has a “long-term liability approach to that”.
Asked why the County objects to a deed restriction, Maggiore said he can’t speak for the County.
“I can understand why it might be problematic or it could limit or cause future development to be more expensive. I would certainly defer to the County for the answer to that question,” he said.
Maggiore noted that the Los Alamos Sportsmen’s Club currently has a lease agreement with DOE.
“We’re not proposing to pull that land back or change the use. We think that use is okay. There are potentially some long-term cleanup requirements with the shooting range and that still will need to be worked out through the lease process. The Poorman’s shooting range too has some impact that we felt would be better for the DOE to still retain it,” he said.
Neelam Dhawan, NMED’s Permitting Manager for LANL, asked about the Solid Waste Management Units (SWMUs) noting that they that passed the residential assessment based on the soil data but that NMED did not give certificates of completion without controls for them because of safety reasons.
“Whenever these surveys are conducted we do find munitions there. I was wondering if you know where the SMWUs are located. They are not depicted on the map,” she said.
Maggiore said he knows DOE is aware of them and they are a consideration in the conveyances and other future activity in Rendija Canyon.
Asked if there is an addendum attached to the quitclaim deed to retain liability, Maggiore responded that to his knowledge, a draft deed has not been put together yet for this parcel.
“But those are precisely the kinds of considerations that need to be discussed and decided upon when the conveyance process occurs,” Maggiore said.
Asked why DOE would retain the Sportsmen’s Club site, Bishop said there is probably a couple of thousand pounds of lead out there as well as a ton of nitrates.
“Ammunition, by definition gun powder, is a large percentage nitrates so between the heavy metals and the nitrates, getting that to residential standards and the sporadic dispersal of it, you would pretty much have to shave off the first two or three feet and what are you going to do with that much lead-contaminated soil?” he said. “So it’s something that typically when you start looking at the challenge, it’s daunting, when you’re talking about acres and acres and random disposal of lead and other heavy metals.”
Joni Arends, executive director of Concerned Citizens for Nuclear Safety (CNNS) said the situation is a little more complicated than Maggiore conveyed in that land transfers have to be approved by NMED under Section 1.16 of the Hazardous Waste Permit.
“There’s a requirement for public notice as well as a review by NMED of SWMUs and (Areas of Concern). CCNS is very concerned about the fact that they’re talking about transferring the land with a deed restriction. If you recall back to Cerro Grande Fire, there was a lot of concern because folks didn’t have access to the Los Alamos County Public records during the fire to understand what sites at LANL had deed restrictions,” she said. “CCNS believes that it’s better for DOE to clean up the entire mess and transfer ‘clean’ land to other entities.”
County Manager Burgess told Council Oct. 20 that legal counsel in Washington, DC was working on the draft of a letter of response to DOE about the proposed conveyance, however that letter was not yet available for review as of Wednesday.