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Affidavit

Robert (“Stu”) Dinwiddie, Ph.D., hereby submits this Affidavit to the New Mexico Court of Appeals in support of the appeal brought by Citizen Action New Mexico. If called upon to testify in this matter, I could competently testify to the following facts of my own knowledge:

  1. This affidavit is to support the request for the Appeal of Citizen Action New Mexico to enforce the duty for production of a five-year report as set forth in the May 26, 2005, Final Order of the New Mexico Environment Department (“NMED”) at page 5 (“Condition 5”).

  2. During the period from 1994 to 1995, I was the Supervisor for Department of Energy Permitting & Corrective Action Projects for the NMED Hazardous & Radioactive Materials Bureau.

  3. During the period from 1995 to 1999, I was the Manager for the Resource Conservation and Recovery (“RCRA”) Permits Management Program for the NMED Hazardous & Radioactive Materials Bureau.

  4. I am completely familiar with the state and federal RCRA requirements for public participation in the State of New Mexico and the federal RCRA permitting and enforcement procedures for hazardous waste facilities.

  5. The existing almost four-year delay and the NMED approved additional five-year delay for performance of Condition 5 violates the Final Order, RCRA permitting procedures and requirements for public participation, as will be further explained below.

  6. During the period of operation of the MWL from 1959 to December 1988, Sandia did not obtain a RCRA permit for the MWL as was required by RCRA. 40 CFR § 270.1(b). The MWL was not listed on a Part A or Part B application and operated in violation of federal law. In September of 1986, Sandia had not filed the necessary paperwork with the U.S. Environmental Protection Agency or the New Mexico Environment Department to retain interim status for the MWL. Interim status terminates for facilities that fail to comply with the applicable provisions of 40 CFR §§ 270.73(a) through (g), which establish deadlines for the submission of permit applications. Sandia missed what we call the “drop-dead date” by which date they had to file a Part A application for declaring hazardous waste operations at the MWL. The MWL thus lost interim status. Because the MWL lost interim status and was a regulated unit receiving waste after the effective date of July 26, 1982, for landfills, the MWL must then close under the requirements of 40 CFR § 264 Subpart F and G.

  7. Under interim status closure, 40 CFR § 265, there can be little or no chance of release from the unit. When a unit has lost interim status it must close under the more stringent 40 CFR § 264 standards. Under 40 CFR § 264.112 closure, there must be a description of all the steps needed to remove or decontaminate all hazardous waste residues and soils and a schedule set forth. Post-closure permits apply to owners and operators of surface impoundments, landfills, land treatment units, and waste piles that received waste after July 26, 1982, or that certified closure after January 26, 1983, unless they demonstrate closure by removal pursuant to § 270.1(c)(5) and (6). Sandia did not file a post-closure permit application for the MWL.

  8. Once again the MWL obtained interim status under RCRA when mixed waste was brought under RCRA Regulatory Authority in 1986. Once again Sandia National Laboratory failed to identify the Mixed Waste Landfill as an operating unit within the required time limit of 180 days by filing an amended Part A Application listing the MWL.

  9. In 1993 the EPA designated the MWL as a Solid Waste Management Unit (“SWMU”) that required Corrective Action. Under RCRA, all hazardous waste management units by definition are SWMUs because all hazardous waste is as solid waste by definition. The designation as a SWMU in need of corrective action was based on the indication of a release of hazardous constituents past the point of compliance of the unit. Notwithstanding, Phase 1 and 2 RCRA Facility Investigations under corrective action were required to be performed for the MWL under a modification to Module IV of the Sandia Hazardous Waste Permit.

  10. On September 11, 1997, as manager of the RCRA program, I denied a request from Sandia National Laboratories’ for the Mixed Waste Landfill to receive a “No Further Action” status. The MWL was and is not qualified or eligible to receive that NFA status because it is a “regulated unit.” By legal definition under RCRA, owners and operators of landfills that received waste after July 26, 1982 are regulated units. (40 CFR § 264.90(a)(2)). As a regulated unit, I required that Sandia obtain a post-closure permit for the MWL facility, unless closure by removal of the wastes was demonstrated. (20 NMAC 4.1, Subpart IX, 40 CFR § 270.1(c). Sandia did not submit a closure plan or a post-closure application to meet the requirements of 20 NMAC 4.1, Subpart VI, 40 CFR § 265.110-120 and § 265.310. Sandia did not remove wastes from the MWL. In or about 2004, Sandia submitted a RCRA Class 3 modification request for the 1993 EPA Module IV for Corrective Action that resulted in a public hearing and then the 2005 Final Order.

  11. There have been releases from the MWL. These releases were identified in an October 30, 1998, Notice of Deficiency along with discussion of the defective groundwater monitoring network. The point of compliance for determining a release is defined as the bottom of the trench or pit and the vertical sides of the trench or pits. There are releases from the MWL of tritium, cesium, heavy metals and solvents. Therefore, in order to comply with the 40 CFR § 264 standards for closure utilizing the current solid waste management unit corrective action, those releases must be remediated or removed, and Sandia has been recalcitrant in doing that. NMED has been recalcitrant in ordering them to meet the requirements of the regulations to protect the releases. The refusal to enforce and comply with Condition 5 of the Final Order is further evidence of failure to comply with RCRA corrective action for the MWL.

  12. I have read the Final Order in its entirety. The language of the Final Order is very specific and unambiguous that Sandia shall perform a feasibility study for excavation and other matters “every five years.” The requirement is mandatory for compliance by Sandia and for enforcement by the NMED. As a former regulator for the RCRA permits program, I conclude that Condition 5 cannot be read in relation to the other terms and conditions in the Final Order so as to allow the interpretation that a delay would be possible. The delay of Condition 5 for any reason is a violation of the Final Order and of the 1993 Module IV of the Sandia RCRA facility permit.

  13. No Level 3 RCRA permit modification request and proceeding in accord with 40 CFR § 270.42 has been submitted by Sandia and issued by NMED for public comment, response and a public hearing before the approval issued to modify Final Order Condition 5. The violation of Condition 5 of the Final Order would invalidate the entire Final Order because the Final Order contains no severability clause and no savings clause and would require reopening the entire Class 3 proceeding for the Final Order for corrective action for the MWL.

  14. The existing almost four-year delay for production of the five-year feasibility report was improperly accomplished without a request for delay of compliance with Condition 5. NMED is required by the RCRA program to enforce the minimum requirements of the EPA permitting regulations. The 2005 Final Order was a modification of the 1993 Sandia hazardous waste permit issued by the EPA Region 6. To modify terms or conditions of the Final Order, a level 3 request for permit modification must be submitted in writing by Sandia as the permittee. (40 CFR Subpart D -- Changes to Permit). Sandia did not submit any modification request for the Final Order to achieve an extension or change in the schedule for compliance that requires a level 3 modification. (40 CFR § 270.42 Appendix I A.5.b.).

  15. An October 14, 2011 NMED approval letter for the Corrective Action Implementation Report (“CMI Report”) improperly inserted an approval for another five years of delay for the five-year reevaluation and feasibility report after NMED approval of the Long Term Monitoring and Maintenance Plan (LTMMP). However, the CMI Report did not present the public any opportunity to comment on or receive a public hearing on any provision to delay the five-year feasibility report. The inclusion of the modification of the delay provision in the Long Term Monitoring and Maintenance Plan (LTMMP) required a public hearing but that was not accomplished.

  16. The Class 3 2005 Final Order was thereby modified without any public participation whatsoever, in violation of RCRA. By this regulatory sleight of hand, the public was denied any right to participation in the decision making process required by RCRA for permit modifications. (40 CFR § 270.42 -- Permit modifications at the request of the permittee.)

  17. There has been significant public concern regarding the MWL for well over a decade. The complex nature of changing the five-year compliance schedule of the Final Order, especially given new technical information for the MWL, requires the more extensive procedures of a Level (Class) 3 modification. 40 CFR § 270.42(b).

  18. There are known releases of RCRA contaminants from the MWL to the groundwater and RCRA requirements for a SWMU or a regulated unit that require remediation and the cleanup of contamination.

  19. The Final Order Condition 5 recognizes the continuing need to address and report “every five years” on the feasibility for excavation of the waste and evaluating whether the dirt cover over the waste is protective.

  20. Sandia did not conduct the groundwater monitoring necessary for a regulated unit to comply with RCRA. (40 CFR § 264.91-100). Sandia was repeatedly informed by the NMED and EPA Region 6 in the 1990s that the MWL groundwater monitoring well network was inadequate for detection of groundwater contamination. The monitoring wells were improperly located to determine the groundwater flow direction and the hydraulic gradient. Other features prevented the monitoring wells from providing reliable sampling data. Corrosion was present and Bentonite clay was used in drilling the wells so that evidence of contamination was hidden.

  21. Monitoring Well MW4 was installed to 1) resolve uncertainty as to the hydraulic gradient, 2) the flow direction and 3) whether 271,000 gallons of radioactive reactor waste water dumped into Trench D had reached the groundwater. MW4 was installed 22 feet too deep below the water table compared to the other monitoring wells to measure the groundwater flow direction or hydraulic gradient. The upper and lower well screens of MW4 were not sealed off from each other by a packer for over a year and radioactive waste water may have drained to the aquifer.

  22. Pumping tests for the monitoring wells failed and could not determine hydraulic conductivity and transmissivity.

  23. Monitoring wells MW5 and MW6 were ordered to be installed. MW6 was installed too distant from the MWL to meet the RCRA point of compliance requirement (40 CFR § 264.95) and installed too deep to resolve the issues of hydraulic conductivity and groundwater flow direction in the fine-grained sediments. MW5 was also installed too distant and its well screen was installed across both the fine-grained strata and the deeper Ancient Rio Grande strata which violates the RCRA requirement against cross contamination.

  24. The evidence of contamination to the groundwater that was indicated from the improperly located and inadequate groundwater well monitoring network was ignored in the December 2004 public hearings that considered and approved the evapo-transpirative (dirt) cover remedy for the MWL. Witnesses for Sandia and the NMED testified that there was “no evidence of contamination to the groundwater.” This was fabricated, result-oriented evidence that can now only be remedied by consideration of Condition 5 of the Final Order.

  25. There is much new evidence confirming the defective MWL groundwater monitoring identified by the NMED in the 1990s and that continues to the present. A “Confidential” Oversight Report written by EPA Region 6 hydrologists and a geologist recalls many of the deficiencies of the EPA Region 6 NOD and the NMED 1996 denial and 1998 NOD. This would include the need for additional groundwater monitoring wells to be placed both to the north and south of the MWL. New technical information since the Final Order decision for the MWL also includes the 2006 TechLaw, Inc. report and an Environmental Protection Agency (EPA) Region 6 Oversight Report (2007) and EPA Office of Inspector General Report (April 14, 2010). These reports chronicle technical deficiencies for the MWL cover construction, defective groundwater monitoring, refusal to provide information, violation of agency procedures and denial of public participation.

  26. The deficiencies in groundwater monitoring makes further delay inappropriate for the consideration of excavation and the dirt cover.

  27. There are releases of dangerous radioactive and hazardous waste contaminants from the unlined MWL pits and trenches. In 1996 and 1998, the Hazardous and Radioactive Waste Bureau (now called the Hazardous Waste Bureau) respectively issued a Letter of Denial and a Notice of Deficiencies for Sandia’s RCRA Phase 2 Facility Investigation. Records of the types and amounts of waste disposed of at the MWL were never complete. Groundwater monitoring was wholly inadequate. Because the site characterization was inadequate, the results of the risk assessment might not be valid and institutional controls would be required. The Final Order provision for 5 year reviews is a form of institutional control to excavate the MWL.

  28. Pits SP-4, SP-35, and SP-36 showed high surface level readings of radioactivity that exceeded background radiation levels by nearly three times. There is a very large amount of radioactivity at the MWL including annual releases of tritium and radon gas to the air. PCBs, and solvents such as Toluene, PCE, TCE are present in the MWL. RCRA metals were disposed of in the MWL including cadmium, copper, vanadium, cobalt, zinc, and beryllium and are hazardous constituents for groundwater. 20 NMAC 4.1. Thallium and thorium was detected. High detections of nitrate were in the groundwater. Nickel was detected in MW1 and later exceeded EPA maximum contaminant limit for drinking water. 119 barrels of Plutonium contaminated waste is in the MWL. Over 68,000 pounds of depleted uranium is in the MWL. Human health and ecological risks from these contaminants were inadequately evaluated. Many of the contaminants will remain dangerous for tens of thousands of years.

  29. Given the factors stated above, timely enforcement of the Final Order Condition 5 by a compliance schedule is the starting point to begin the consideration for clean closure by excavation for the MWL. The fact that Condition 5 is in the Final Order is a strong indicator that the radioactive and hazardous wastes in the MWL were not intended to be left under a dirt cover. Clean closure is required for the MWL as a regulated unit that lost interim status not once, but twice.

 

I hereby swear under penalty of perjury under the laws of the United States of America and the State of New Mexico that the above statement is true and correct to the best of my knowledge.

 

 

Dated this ___ day of ________, 2014.

 

________________________________

Robert S. (Stu) Dinwiddie, Ph.D.

P.O. Box 308

Rowe, NM 87562

Telephone: 505-470-3673