SECTION II—REGULATIONS GOVERNING THE MWL DUMP AND THE RELEASE OF CONTAMINATION TO GROUNDWATER
The New Mexico Environment Department (NMED) was delegated the Hazardous Waste Management program by the U.S. Environmental Protection Agency (EPA) beginning in January 25, 1985. NMED must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent that the Federal hazardous waste program known as the Resource Conservation and Recovery Act (RCRA). 42 U.S.C. §6901 et seq. The statutory intent of RCRA for hazardous waste management is "cradle to grave" and applies to generators, transporters, treatment, storage and disposal facilities.
The regulations for RCRA are contained in the Code of Federal Regulations 40 CFR §§260-282. Public Participation requirements are at 40 CFR Part 124 and see also 63 Federal Register 56710 (October 22, 1988). RCRA is quite a complicated law to say the least.
The New Mexico Environment Department (NMED) was issued the authority from the U.S. Environmental Protection Agency to conduct the RCRA hazardous waste management program for New Mexico. The EPA retains statutory oversight responsibility for the state conduct of the RCRA program. (40 CFR §123.24).
As the Federal program changes, NMED must change its programs and ask the U.S. EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. NMED has adopted verbatim the regulations in the Code of Federal Regulations (CFR) for the program. NMAC 220.127.116.11 et seq.
The NMED hazardous waste regulations may be viewed here.
Other requirements are contained in the April 29, 2005 Compliance Order on Consent and the May 26, 2005 Final Order of NMED Secretary Ron Curry. Taken collectively, the above and the following regulations govern the monitoring and releases from the Mixed Waste Landfill dump (MWL dump) along with providing requirements and opportunities for public participation:
The Resource Conservation and Recovery Act ("RCRA")(42 USC 6901 et seq.) as amended, and the implementing EPA regulations at 40 Code of Federal Regulations Part264 and 265 regulate the treatment, storage, transport and disposition of hazardous waste.
RCRA provides for Corrective Action to include groundwater monitoring and clean up requirements in 40 CFR § 264.90-101 (Subpart F). RCRA Subpart F requires that networks of monitoring wells be installed in the "uppermost aquifer." The RCRAdefinitions of "aquifer" and "uppermost aquifer" are provided in 40 CFR § 260.10;
The Class 3 Permit Modification to Module IV of the Sandia Hazardous and Solid Waste Act (HSWA) Permit requires permittee (SNL/DOE) to submit a Long Term Monitoringand Maintenance Plan to the NMED within 180 days after the approval of the Corrective Measures Implementation Report. (P. 1-2 LTMMP).
40 CFR § 270.42 and Appendix I – Classification of Permit Modification-- section C. Ground-Water Protection, sections 1-8 thereto, provides that "changes in the number, location, depth, or design of upgradient or downgradient wells of permitted groundwater monitoring systems," "changes in point of compliance" are Class 2 Modification. "Replacement of an existing well that has been damaged or rendered inoperable, without change to location, design or depth of well" is a Class 1 Modification requiring public notification, review and comment. The changes to the MWL well monitoring network also constitute Class 2 modifications. For Class 2 Modifications, the permittee must submit a Modification request to the Director, notify persons, provide a comment period, provide a public meeting and other requirements. Appendix I, Section J.3, provides that addition or modification of a final cover constitutes a level 3 modification.
The April 29, 2004 Compliance Order on Consent (Consent Order) contains Section
IV.D for the MWL, Section VI provides the Corrective Action Process for the Mixed Waste Landfill dump. Section VII for Corrective Measures, Section VIII for Groundwater Monitoring Wells and Section IX for Groundwater. Section XI provides Compliance Schedule Tables for corrective action at the MWL dump.
The 2005 Final Order of the NMED Secretary provides for public participation as follows:
1. NMED and Sandia shall provide a convenient method for the public to review Sandia's Corrective Measures Implementation Plan, Corrective Measures Implementation Report, progress reports, long-term monitoring and maintenance plan, and any other major documents developed by NMED or Sandia for the MWL ("the documents"), including but not limited to, posting the documents on a publicly-accessible website.
2. NMED and Sandia shall provide a method and schedule that allows interested members of the public to review and comment on the documents, and NMED shall review, consider and respond to these public comments prior to approving any of these documents (with the exception of any documents, such as progress reports, that NMED does not approve in the normal course of permit review and oversight).
5. Sandia shall prepare a report every 5 years, re-evaluating the feasibility of excavation and analyzing the continued effectiveness of the selected remedy. The report shall include a review of the documents, monitoring reports and any other pertinent data, and anything additional required by NMED. In each 5-year report, Sandia shall update the fate and transport model for the site with current data, and re-evaluate any likelihood of contaminants reaching groundwater. Additionally, the report shall detail all efforts to ensure any future releases or movement of contaminants are detected and addressed well before any effect on groundwater or increased risk to public health or the environment. Sandia shall make the report andsupporting information readily available to the public, before it is approved by NMED. NMED shall provide a process whereby members of the public may comment on the report and its conclusions, and shall respond to those comments in its final approval of the report.
RCRA permits, such as the Sandia RCRA Part B permit are subject to the conditions contained in a permit (including those in any attachments) and the applicable regulations contained in 40 CFR Parts 260 through 264, 270, and 124 as specified in the permit and statutory requirements of RCRA, as amended by the Hazardous and Solid Waste Act. The MWL dump is a part of the RCRA Part B permit listed as SWMU 76.
40 CFR §§ 270.30 (l)(11) and 18.104.22.1680 NMAC require that NMED and DOE/Sandia have a duty to verify whether information is incorrect and to promptly submit correct information. Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Director, it shall promptly submit such facts or information.
40 CFR §§ 270.41-270.43, 270.43(2) The permittee's failure to fully disclose all relevant facts in the application or during the permit issuance process, or the permittee's misrepresentation of any relevant facts at any time can be grounds for the termination, modification, revocation or reissuance of a RCRA permit).
There are requirements for public participation in RCRA proceedings at 40 CFR § 124.5; 63 Fed. Reg. 56710 et seq. 63 Federal Register 56710, 56720 (October 22, 1998) sets out the requirements for public comment throughout the cleanup process including site characterization: "For example, the affected community should be notified and given the opportunity to comment prior to the initiation of any activity to assess contamination." Public participation is to take place "very early in the process" and "prior to the initiation of any activity to assess contamination or prior to the implementation of any interim measure."
Department of Energy Orders – DOE O 450.1A and earlier 5820.2A
Pathways for administrative and court appeal
The authority to manage the RCRA program can be withdrawn from the NMED by the EPA. The NMED is required to meet certain standards of compliance for maintaining the RCRA program. There are criteria and procedures for withdrawal of the RCRA program from a state where substantive information is furnished to the EPA Regional Administrator that the program may no longer be adequate (40 CFR § 239.13 (2)(b)):
The Regional Administrator may initiate withdrawal of a determination of adequacy when the Regional Administrator has reason to believe that: (1) A state no longer has an adequate permit program; or (2) The state no longer has adequate authority to administer and enforce an approved program in accordance with this part.
Upon receipt of substantive information sufficient to indicate that a state program may no longer be adequate, the Regional Administrator shall inform the state in writing of the information.
The state RCRA program has requirements for compliance evaluation. 40 CFR 270.15. The state must encourage and maintain procedures for receiving and ensuring proper consideration of information submitted by the public about violations. The state program must verify the accuracy of information submitted by the permittee, i.e., Sandia National Laboratories, in reporting forms and other forms providing monitoring data. The state must verify the accuracy of sampling, monitoring, and other methods used by permittees and other persons to develop that information.
An administrative challenge may be brought against a State RCRA program with the EPA for failure to comply with program requirements. The criteria for withdrawing the approval of a State's RCRA programs provides as follows (40 CFR §271.22):
(a) The Administrator may withdraw program approval when a State program no longer complies with the requirements of this subpart, and the State fails to take corrective action. Such circumstances include the following: (1) When the State's legal authority no longer meets the requirements of this part, including: (i) Failure of the State to promulgate or enact new authorities when necessary; or (ii) Action by a State legislature or court striking down or limiting State authorities.
When the operation of the State program fails to comply with the requirements of this part, including: (i) Failure to exercise control over activities required to be regulated under this part, including failure to issue permits; (ii) Repeated issuance of permits which do not conform to the requirements of this part; or (iii) Failure to comply with the public participation requirements of this part.
When the State's enforcement program fails to comply with the requirements of this part, including: (i) Failure to act on violations of permits or other program requirements; (ii) Failure to seek adequate enforcement penalties or to collect administrative fines when imposed; or (iii) Failure to inspect and monitor activities subject to regulation.
When the State program fails to comply with the terms of the Memorandum of Agreement required under §271.8.
40 CFR §271.23 provides that a petition can be filed by "an interested person" alleging the failure of the state to comply with the requirements of 40 CFR §271.22. The EPA Administrator may conduct an informal investigation of the allegations to determine if cause exists under §271.22 to commence proceedings. The EPA Administrator "shall respond in writing to any petition to commence withdrawal proceedings." The petitioner may receive a formal, on the record administrative hearing with an administrative law judge and the opportunity to present evidence. The procedures are provided in 40 CFR §22 and include representation by an attorney and discovery. Intervention may be allowed. The EPA Administrator makes a decision based on the recommendations of the hearing's Presiding Officer. The EPA Administrator can then list deficiencies in the State program for corrective action to be taken by the State. If corrective action is not taken by the State, the EPA Administrator may issue a supplementary order withdrawing approval of the program. The supplementary order is a final Agency action for judicial appeal under 5 U.S.C. § 704. If no supplementary order is issued, however, there would be no grounds for appeal.
A petition may be made to the Secretary of a State RCRA program. 40 CFR § 124.5 provides that "any interested person" may request the modification, revocation or termination of a RCRA permit for the reasons listed in 40 CFR § 270.41 or 270.43. Those regulations apply where the permittee fails in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee misrepresents any relevant facts at any time. The Secretary can send a brief written response for a decision of denial. Denials of requests for modification, revocation and reissuance or termination are not subject to public notice, comment or hearings. [Note: No provision is made for an appeal of the denial.]
Citizen Suit for RCRA Violations is provided for by 42 U.S.C. §6972. §6972 subpart (a)(1)(A) states any person may commence a civil action on his own behalf - (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter: §6972 subpart (a)(1)(B) states that any person may commence a civil action on his own behalf or:
"[A]gainst any person … and including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment."
A RCRA Citizen Suit may be brought in the District Court where the violation or endangerment occurred. The plaintiff must give a 60 day notice for an (a)(1)(A) violation and a 90 day notice of an (a)(1)(B) violation to - (i) the EPA Administrator; (ii) the State in which the alleged violation occurs; and (iii) to any alleged violator of such permit, standard, regulation, condition, requirement, prohibition, or order.
Citizen Suits are injunctive and the costs of site investigation, monitoring and testing costs can be awarded. Costs, including attorney and expert fees, may be awarded to the prevailing or substantially prevailing party pursuant to 42 U.S.C. Section § 6972 (e):
The court may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate.
After the 60 or 90 day notice period has expired, the United States Attorney General and Director of the EPA must be served with the Complaint where the claim is asserted pursuant to subsection (a)(1)(B).
The USEPA and the DOE both maintain an Office of Inspector General Hotline Compliant process for the public to report fraud, waste and abuse in agency operations and oversight. EPA OIG Hotline is here, DOE OIG Hotline is here.
The Freedom of Information Act (FOIA) allows a person to obtain information from federal agencies. FOIA is codified at 5 U.S.C. Section 552. Each federal agency has a FOIA officer and the agencies have forms online that can be filled out. The FOIA applies to Executive Branch departments, agencies, and offices; federal regulatory agencies; and federal corporations. Congress, the federal courts, and parts of the Executive Office of the President that function solely to advise and assist the President, are NOT subject to the FOIA. Records obtainable under the FOIA include all "agency records" - such as print documents, photographs, videos, maps, e- mail and electronic records - that were created or obtained by a Federal agency and are, at the time the request is filed, in that agency's possession and control. Nine different exemptions apply to The best place to get information about filing with an agency is on the agency's website. Fee waivers for the materials sought may be had under certain circumstances.