IN THE COURT OF APPEALS
FOR THE STATE OF NEW MEXICO
CITIZEN ACTION NEW MEXICO,
NEW MEXICO ENVIRONMENT DEPARTMENT,
APPELLANT’S DOCKETING STATEMENT
CIVIL APPEAL OF THE APPROVAL ISSUED BY THE NEW MEXICO
ENVIRONMENT DEPARTMENT ON JANUARY 8, 2014, OF THE MIXED
WASTE LANDFILL LONG-TERM MONITORING AND MAINTENANCE PLAN.
Pursuant to Rules 12–208 and 12-601 of the Rules of Appellant Procedure, by and through its attorney Robert McNeill, Appellant Citizen Action New Mexico offers the following Docketing Statement in this matter:
NATURE OF THE PROCEEDING
This is an appeal from the New Mexico Environmental Department (“NMED”) January 8, 2014, approval of the Mixed Waste Landfill (the “MWL”) Long-Term Monitoring and Maintenance Plan, March 2012, Sandia National Laboratories (“Sandia”), EPA ID #NM5890110518 HWB-Sandia-12-007 (the “LTMMP”). The NMED approval that is the subject of this appeal is an action by an administrative entity within the meaning of Rule 12-601 NMRA.
The MWL consists of 2.6 acres of unlined pits and trenches above Albuquerque's aquifer that received radioactive and hazardous chemical waste from 1959 to 1988. The MWL wastes are being released into Albuquerque's groundwater and pose an imminent and substantial endangerment to public health and the environment. (Exhibit 1, Eric Nuttall, Ph.D., Affidavit).
On May 26, 2005, a Final Order (“Final Order”) was signed by the Secretary of the New Mexico Environment Department (“NMED”). The Final Order was issued by NMED in response to a Resource Conservation and Recovery Act (“RCRA”), 42 USC § 6901 et seq., permit modification for Sandia pursuant to the New Mexico Hazardous Waste Act. The Final Order addresses corrective measures to be taken for the MWL at Sandia, and includes five “conditions” that Sandia is required to meet. (Exhibit 2). The adoption of the Final Order followed a lengthy administrative hearing process in December 2004 that included four (4) days of formal public hearings before an administrative hearing officer resulting in transcripts totaling nearly 1,118 pages.
The most significant condition included in the Final Order is condition 5 (hereinafter “Condition 5”). Because of the extremely toxic and dangerous nuclear weapon production wastes deposited in the MWL, Condition 5 of the Final Order unequivocally requires that “Sandia shall prepare a report every 5 years, re-evaluating the feasibility of excavation and analyzing the continued effectiveness of the selected remedy.” (Final Order P.5, ¶5.) The “selected remedy” described and approved in the Final Order is “a vegetative cover with bio-intrusion barrier.” In fact, the described cover is a dirt cover compacted over rocks beneath the dirt cover.
The Final Order requires that Sandia “prepare a report every 5 years, re-evaluating the feasibility of excavation and analyzing the continued effectiveness of the selected remedy,” i.e., will it be feasible to remove the hazardous wastes and other contaminants from the unlined pits and trenches, and will the planned dirt cover effectively prevent water or other substances from entering the highly contaminated pits and trenches? Arguably, the initial five-year report was due on May 26, 2010, or five years from the date of the Final Order. Further, Sandia did not request a delay in the production of the initial five-year report. Now, however, almost four years have passed since the dirt cover was installed in 2009, and Sandia has still not prepared any report reevaluating the feasibility of excavation and analyzing the effectiveness of the dirt cover. Allowing Sandia the broadest possible interpretation of the deadline for the initial five-year report and the supporting data, modeling and analysis required by the Final Order, a five-year report should be produced no later than May 2014.
NMED has now, by its January 8, 2014, approval of the MWL LTMMP dated March 2012, extended the deadline for the initial five-year report for another five years until the year 2019. NMED has thus not enforced Condition 5 of the Final Order, even giving NMED the benefit of the doubt as to the due date of the initial five-year report. By approving the LTMMP extending the due date for the initial five-year report to the year 2019, NMED has also violated federal law and its own Final Order by modifying the Final Order without complying with RCRA hazardous waste permit proceeding procedures, as required both by RCRA and the Final Order adopted pursuant to RCRA.
Appellant Citizen Action is an environmental organization that participated in the permit modification proceedings that resulted in the Final Order.
DATE OF JUDGMENT AND TIMELY APPEAL
NMED entered the Order from which Appellant appeals on January 8, 2014, and Appellant filed its Notice of Appeal on February 3, 2014. Accordingly, this appeal is timely. Rule 12-601(B) NMRA states that "[d]irect appeals from orders...of...administrative agencies, or officials shall be taken by filing a notice of appeal...within thirty (30) days from the date of the order...."
STATEMENT OF THE CASE
This appeal addresses the failure of NMED to adhere to and enforce the Final Order and then subsequently modifying the Final Order in violation of applicable RCRA administrative procedures adopted by NMED.
The Final Order was adopted as a Class 3 modification of Sandia National Laboratories' (“Sandia") Hazardous Waste Permit Module IV pursuant to the New Mexico Hazardous Waste Act, NMSA 1978, Section 74-4-1 et seq. (the “Hazardous Waste Act”), and the New Mexico Hazardous Waste Management Regulations (20.4.1 NMAC, Revised June 14, 2000) for Sandia's Mixed Waste Landfill (MWL). (Exhibit 2, p. 1). The cited New Mexico Administrative Code regulations are adopted in compliance with RCRA requirements. The 2012 LTMMP modification of the Final Order violates RCRA as well as the New Mexico Hazardous Waste Act and applicable NMAC regulations.
The State of New Mexico received authorization on January 25, 1985, from the U.S. Environmental Protection Agency (the EPA) to implement its hazardous waste management program. A state that receives final authorization from the EPA under RCRA, Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal Hazardous Waste Program. As the Federal program changes, states must change their programs and ask EPA to authorize the changes.
Changing the terms and conditions for a Final Order that is a part of a hazardous waste permit requires a formal process for public notice, an opportunity to comment, and a public meeting or hearing. 40 CFR § 270.41 requires: “If a permit modification is requested by the permittee, the Director shall approve or deny the request according to the procedures of 40 CFR § 270.42.” The extension of the compliance deadline for the performance of the Final Order Condition 5 constituted a material and substantial alteration requiring a level 3 permit modification of the Final Order. Permit modifications require that the permittee (here, Sandia) submit a written modification request to the Director (here, the Secretary of NMED) and send a notice of the modification request to all persons on the facility mailing list, publish the notice, and provide a public meeting for the modification request. 40 CFR 270.42. These actions were not performed.
The violation of Condition 5 of the Final Order should 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. (Exhibit 3, Affidavit of Robert Dinwiddie, Ph.D., paragraph 13).
During the period 2002-2003, Congress funded the Consortium for Environmental Education and Technology Development (known by the acronym “WERC”) to conduct an independent study of the corrective action plan for the MWL. The Final WERC Report dated January 31, 2003, states: “The Panel felt strongly that the uncertainty of the contents in the MWL could eventually lead to the requirement (or choice) of excavation followed by subsequent final disposal of the MWL contents.” (http://www.ieenmsu.com/wp-content/uploads/2011/07/finalreport.pdf p.iv)
After public hearings in December 2004, the Final Order requirement for reviews of the MWL “every five years” arose from the 2005 Hearing Officer Report that was adopted by the NMED Secretary in the Final Order. The Hearing Officer stated:
Two things can assist in understanding what is happening in the landfill in the future: a comprehensive model (discussed below), and continued monitoring and evaluation. I recommend that the Secretary require Sandia to prepare a report every 5 years re-evaluating the feasibility of excavation and analyzing the continued effectiveness of the selected remedy, as suggested by the Albuquerque-Bernalillo County Groundwater Advisory Board. The report should be presented in a public forum, and the public should have an opportunity to evaluate and comment on data presented. The report need not be of the magnitude of a full-scale RFI or CMS; NMED staff should determine what should be included, with input from Sandia and the public. (Emphasis added).
The Hearing Officer also wrote, at pages 38-39 in the Report adopted by the NMED in the Final Order, the following:
In the process of presiding over this hearing, I was impressed with the level of participation of the public and Citizen Action [New Mexico], with their technical knowledge and understanding, and their detailed study of the history of this landfill. Their presence and participation resulted in a more thorough and comprehensive review of the landfill and proposed permit modification. The public and Citizen Action [New Mexico] demonstrated over and over that these issues are of passionate importance to them, and they should be allowed to continue to participate in the process of review as the remedy for the landfill is implemented. It is particularly important for the public to be able to participate in identifying the triggers for future action, and 5-year evaluations offeasibility of excavation and continued effectiveness of the selected remedy. This will ensure that if the selected remedy is not effective, not properly implemented or maintained, or if new or not-predicted conditions or issues arise, they will be brought to NMED's attention and addressed.
Condition 5 of the Final Order unequivocally requires Sandia to perform that which the Hearing Officer’s Report noted was essential to insuring the “...feasibility of excavation and [the] continued effectiveness of the selected remedy [the ‘vegetative cover with bio-intrusion..,’]” and the subject of ongoing reevaluation. Condition 5 of the Final Order states:
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. Ineach 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. Addition- ally, 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 and supporting 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.
The failure to enforce Condition 5 was contrary to prior NMED representations made to Appellant Citizen Action and the public. A May 27, 2005, NMED Press Release (John Goldstein, NMED Communications Director) entitled Environment Secretary Ron Curry Approves Remedy for Mixed Waste Landfill at Sandia National Laboratories stated: “Finally, Sandia must prepare a report every five years that revaluates the feasibility of excavations and analyzes the continued effectiveness of the remedy.” Thus, NMED, while publicly taking credit for and emphasizing the importance of the every five-year reevaluation requirement, has not enforced that very requirement.
After participating in the December 2004 administrative public hearing, Citizen Action challenged the remedy decision of a dirt cover to be placed over the MWL in the New Mexico Court of Appeals. IN RE: Request for a Class 3 Permit Modification For Corrective Measures for the Mixed Waste Landfill, Sandia National Laboratories, Bernalillo County, New Mexico, EPA ID NO. NM5890110518, New Mexico Court of Appeals, No. 25,896, December 19, 2007. See:
http://www.nmenv.state.nm.us/HWB/documents/Court_of_Appeals_12-19-2007_Opinion_on_Citizen_Action_Appeal.pdf pp. 23-24). In the cited decision, this Court approved the Final Order. However, in doing so, this Court emphasized that the provisions of the Final Order that are the subject of this appeal were a necessary part of providing for continued public involvement, stating, at page 24 of its ruling:
The public has not been shut out of the decision-making; nor have public comments been made legally irrelevant. Instead the Secretary’s remedy includes additional provisions “to ensure that the public will remain involved in the future remedy for the MWL.”
By failing to timely order the five-year feasibility reevaluation review and modifying the Final Order in violation of RCRA and the New Mexico Hazardous Waste Act, NMED is effectively shutting out the public from involvement in the decision making process.
Numerous representations were made by the NMED in responses to public comments for various Corrective Measures documents that the MWL would be reviewed for excavation and the effectiveness of the cover every five years. For example:
“NMED Secretary to reevaluate the performance of the Landfill cover/bio-intrusion barrier and the feasibility of excavation every five years.”
http://www.nmenv.state.nm.us/HWB/Sandia/MWL/Final_Decision/Response_to_Comments_(08-02-2005).pdf , Comment A response, p.19, 23 and 41
“The final order signed by the Secretary requires that the effectiveness of the cover and the feasibility of excavation be reevaluated every five years; the FTM [Fate and Transport Model] is also to be updated.” (http://www.nmenv.state.nm.us/HWB/Sandia/MWL/Interested_Citizen_Letter_-_Response_Comments_(11-21-2006).pdf , Comment B, p.3-4)
“The NMED Secretary’s Final Order issued on May 26, 2005, requires that Sandia update the Fate and Transport Model every five years.” http://www.nmenv.state.nm.us/HWB/documents/Index_and_Response_to_Comments_Sandia_MWL_SV_SAP.pdf , p.6, Response R18.
“The five-year reviews ordered by the Secretary on May 26, 2005, provide for periodic analysis of the future protectiveness of the cover.” http://www.nmenv.state.nm.us/HWB/documents/Response_to_Comments_Sandia_MWL_CMI_Report_5-2011-2.pdf Comment 1 Response by NMED.
In pertinent part, Section 6.3 of the 2007 LTMMP--Application of Institutional Controls [ICs], provided for the application of institutional controls on a five year basis:
It is anticipated that the Sandia/NM IC inspection and site walkover will be conducted annually for the first five years, then biannually for four years, and then progress to once every five years. This frequency will be subject to adjustment as needed.
Sandia also recognized the five-year report requirement of the Final Order in its News Releases (11/02/2009).https://share.Sandia.gov/news/resources/news_releases/Sandia-announces-completion-of-mixed-waste-landfill-cover-construction/ (p.1):
The NMED regulates the corrective action of the MWL as well as the implementation of institutional controls and long-term monitoring and maintenance. Sandia and DOE continue to provide quarterly progress reports to the NMED. In addition, the final order requires compilation of a report that re-evaluates the feasibility of excavation and analyzes the continued effectiveness of the selected remedy every five years. Construction of the MWL alternative cover will be documented in the Corrective Measures Implementation Report which will be submitted to the NMED for approval. (Emphasis added).
A letter from the Albuquerque Bernalillo County Water Protection Advisory Board (the “WPAB”) to the NMED dated February 24, 2012, recites its recommendation from 2001 and 2005 for 5-year reviews. The WPAB understanding is that the clock began ticking on May 26, 2005, for the five year review to be performed and that the review is already three years late. The WPAB stated (see Exhibit 4):
Sandia, DOE/NNSA, and NMED apparently have taken the position that the five-year clock does not start on this re-evaluation and reporting requirement until the LTMMP has been finalized and approved. However, given the remedy stipulated in the Final Order, the potential for groundwater contamination of a serious nature (low probability but high consequence), and the agreed-upon need for continued vigilance, moni- toring, modeling, and periodic re-evaluation, a legitimate case can be made that the clock on the five-year reports should have started when the Final Order was issued in 2005, which would have required the first five-year report in 2010. In any case, nearly five years have now passed since the cover was installed in 2009. It is the position of the WPAB that a five-year report, including the supporting data collection, modeling, and analysis, should be produced in 2014. The WPAB urges the NMED to require the DOE/Sandia to complete this report by the end of this year. (Bold face type in original).
Sandia first submitted a Long-Term Monitoring and Maintenance Plan to NMED in 2007 (the “2007 LTMMP”) which contained no provision for delay of the required Condition 5 reevaluation of the feasibility of excavation and analysis of the continued effectiveness of the dirt cover. Section 4.7.2 (Five-Year Reevaluation Reports) of the 2007 LTMMP would have allowed the use of annual ground water monitoring reports rather than long-term monitoring data for the five-year review. Sandia withdrew the 2007 LTMMP approximately four years later on December 7, 2011. http://www.nmenv.state.nm.us/HWB/documents/Sandia_12-7-2011_2007MWL_LTMMP_Withdrawal_Letter.pdf
Sandia then resubmitted a revised LTMMP on March 23, 2012. The requirements of the Final Order were changed by the 2012 LTMMP without any modification of the Final Order, nor any public hearing regarding the proposed modification as required by RCRA and the Final Order adopted pursuant to RCRA. NMED relies on Section 1.3 of the 2012 LTMMP for its decision to allow the performance of Condition 5 of the Final Order to be delayed for almost nine years beyond May 26, 2010, when the first Condition 5 report was arguably due, and certainly at least five years past the deadline for the initial report. This is a self-serving accommodation by the NMED of its failure to enforce its own directive clearly stated in the Final Order, and the action is in violation of federal and state law.
The NMED approval of the 2012 LTMMP will endanger the public health and safety and expose the public to health and environmental dangers that the five-year reports were expressly intended to prevent. The approval also evades the requirement that the public be afforded an opportunity to comment regarding relevant public health and safety concerns related to permit modification.
The hazardous waste permit issued to Sandia in this case includes the requirements imposed by the Final Order. Any modification of the Final Order, and thereby the permit, must first be requested in writing by the Permittee (Sandia) from the NMED with appropriate public notification. The applicable procedures of 40 CFR § 270.42 for Class 1-3 permit modifications include the necessity of public notice and opportunity for comment. 40 CFR § 270.41. Sandia did not make a written request for modification of the permit in accordance with the procedures required by 40 CFR § 270.42 and NMAC 18.104.22.1681; thus, the public was not informed of Sandia’s intent to modify the Final Order, nor was the public informed of NMED’s consideration of the requested modification, which consisted of the deadline extension for compliance with Condition 5 of the Final Order.
Appellant Citizen Action requested a public hearing regarding the requested modification of the permit that would be accomplished by the 2012 LTMMP. No public hearing was conducted, however, and the 2012 LTMMP included a provision in Section 1.3 (discussed below) extending the Final Order five-year reevaluation report deadline, and thereby modifying the Sandia Hazardous Waste Permit as well as the Final Order.
When corrective action is proceeding under a permit, proposals to complete corrective measures should adhere to the procedures applicable to Class 3 permit modifications, which include utilizing the Expanded Public Participation Rule. (60 FR 63417, December 11, 1995). http://www.epa.gov/osw/hazard/tsd/permit/pubpart/chp_3.txt
Class 1-3 modifications of a Final Order for a Hazardous Waste Permit require public notice, and an opportunity for comment. For a general permit modification that changes a schedule of compliance i.e., an extension of a final compliance date, a Class 3 modification is required. 40 CFR § 270.42 Appendix I A.5.b. A Class 3 modification requires notice, opportunity for comment, and a public meeting or public hearing if requested. 40 CFR § 270.42 (c). The Final Order Condition 5 requirement for the feasibility report is every five years. There is no language in the Final Order that authorizes a delay of the five-year report deadline to a date after NMED approves the LTMMP. The Final Order unequivocally states that “Sandia shall prepare a report every 5 years....” This mandatory language contains no provision for delay.
The change of schedule for the compliance date for the feasibility report was arbitrarily changed in an informal process limited to communications exclusively between NMED and Sandia that ignored the requirements of RCRA and Code of Federal Regulations (CFR) permit modification procedures, including those requiring a written permit modification request from the permittee, public notice, a public meeting, an opportunity for comment, and the honoring of requests for a public hearing. In this instance, the requirements for public participation in the permit modification process were violated by the NMED’s denial of a public hearing. This denial was notwithstanding a request made by petitions containing more than 200 signatures received by NMED seeking a public hearing concerning the 2012 LTMMP.
The decision to extend the five-year review requirement was made by NMED Hazardous Waste Bureau Chief John Kieling in a letter dated October 14, 2011, addressed to DOE and Sandia and titled “Notice of Approval; Mixed Waste Landfill Corrective Measures Implementation Report, January 2010” (the MWL CMI Report). Without any notice or opportunity for Citizen Action or the public to comment, the NMED (John Kieling and William Moats) agreed in meetings and e-mails with Sandia, and in “revised” minutes of one such meeting, to modify the Final Order and its conditions to extend the period for the five-year review. The minutes are titled “revised” because they were issued some nine months after the original meeting minutes were issued. The minutes and emails were not posted for public review by NMED or Sandia. Citizen Action submitted an Inspection of Public Records Act request (IPRA) to NMED on May 9, 2012, requesting all documents upon which the NMED relied for its interpretation that the five-year review of the MWL was to be performed five years after the approval of the LTMMP. NMED responded on May 24, 2012, stating “[n]o such documents exist, other than the May 26, 2005, Final Order itself.” This response is obviously contrary to the explicit wording of the Final Order, which says quite exactly the opposite.
In its May 9, 2012, IPRA request, Appellant Citizen Action also asked NMED to “[p]rovide any letter of approval furnished to Sandia for that interpretation [extending the five-year reevaluation for an additional five years after an LTMMP approval].” The NMED responded as follows: “NMED’s interpretation of the provision at issue is included in the October 14, 2011, letter approving the MWL CMI Report, which is enclosed.” The referenced letter addressed to DOE and Sandia states:
The Permittees must submit a Long-Term Monitoring and Maintenance Plan (LTMMP) for the Mixed Waste Landfill within 180 days of the date of this letter. Upon NMED approval of the LTMMP, the first five-year period for re-evaluating the feasibility of excavation and analyzing the effectiveness of the remedy, required under the Secretary's Final Order of May 26, 2005, will begin. This will allow for monitoring data to be acquired under the LTMMP to be available for the purpose of conducting the evaluation.
The October 14, 2011, NMED letter is significant in several respects. First, the letter had not been seen by anyone other than NMED, DOE, and Sandia representatives prior to the May 24, 2012, IPRA response by NMED. Secondly, the letter is a Notice of Approval of the Mixed Waste Landfill Corrective Measure Implementation Report (the CMI Report), and the CMI Report did not include any statement or implication that Condition 5 of the Final Order was being modified. Finally, neither Appellant Citizen Action nor any other member of the public was aware of any intention on the part of NMED to modify Condition 5 of the Final Order. Thus, NMED effectively denied Appellant Citizen Action and the public any opportunity for participation and commentary regarding what was essentially a permit modification process, contrary to RCRA and applicable CFR regulations directly on point.
Notwithstanding the unequivocal and clear language of Condition 5 of the Final Order, the NMED response to Appellant Citizen Action's IPRA request also made it evident that in February 2011, no consensus on the part of NMED and Sandia existed regarding the deadline for the initial five-year reevaluation report. For example, in the “revised” minutes of the meeting between NMED and Sandia held February 17, 2011,
NMED stated they believe the first 5-year Re-Evaluation Report is due 5 years after completion of the cover, which would be Sept/Oct 2014, or 5 years after NMED-approval of the cover (i.e., approval of the CMI Report, still pending).
An email dated March 09, 2011, from William Moats of NMED to Mike Mitchell of Sandia commented:
One bullet concerns the 5-year report. I just wanted to clarify that I don't have a clear decision from management on when it's due (Sep/Oct 2014 or 5 years after the CMI Report is approved). I changed the summary bullet to reflect the two scenarios we discussed per your comment. We request "formal NMED clarification" in the relatively near future. Perhaps NMED could provide a "final determination" as part of the CMI Report approval process and let DOE/Sandia know in the next 90 days? Your point on the later scenario has merit - the cover construction is not "technically complete" until accepted by NMED. We will keep this issue on the list to "finalize" as we work to resolve the other remaining LTMMP issues (data and trigger level evaluation process, final monitoring and trigger levels, groundwater sampling frequency, etc.).
An email dated March 16, 2011, from Mike Mitchell of Sandia to William Moats and John Kieling of NMED stated:
Currently the list of issues for further discussion includes the data and trigger level evaluation process, final monitoring /sampling requirements, final trigger levels, and the due date for first 5-Year Re-Evaluation Report.
Section 1.3 of the 2012 LTMMP inserted the following to delay implementation of Condition 5:
The 2005 Class 3 Permit Modification also requires DOE/Sandia to prepare a report every five years, reevaluating the feasibility of excavating the MWL contents and analyzing the continued effectiveness of the MWL remedy. NMED determined the first five-year period will begin upon NMED approval of this LTMMP (Kieling October 2011). Additional information regarding the Five-Year Reevaluation reporting requirements is provided in Section 4.8.2.
Appellant Citizen Action was unaware of any modification in the five-year report due date until NMED issued the March, 23, 2012, LTMMP. The issuance of the LTMMP in March 2012 prompted the IPRA request on the part of Citizen Action.
The five-year reevaluation report requirement in the Final Order is consistent with the requirement of RCRA for land disposal facilities. 40 CFR § 270.50 (d) provides:
Each permit for a land disposal facility shall be reviewed by the Director five years after the date of permit issuance or reissuance and shall be modified as necessary, as provided in § 270.41.
The issues material to excavation of the MWL are different from those to be taken into account by the LTMMP and that should be considered independently of the LTMMP. The feasibility of excavation would consider factors such as whether the wastes can be safely removed, whether technology exists for removing the wastes, and what pathways exist for packaging, transporting and disposal. (Exhibit 1, Affidavit of Eric Nuttall, Ph.D.).
By delaying the five-year review period to the year 2019, NMED is violating its own Final Order and is also denying Citizen Action and the public from raising substantial and material technical issues that have arisen during the period since the Final Order was adopted in 2005. Substantial evidence indicates that the selected remedy of the dirt cover is not protective of the groundwater, the groundwater is contaminated and will become increasingly contaminated, the fate and transport model is incorrect and the groundwater monitoring network is defective and inadequate to detect contamination of the groundwater. Further, the groundwater monitoring network was known at all times to the present to be defective to make the remedy decision. (Exhibit 9, Affidavit of Robert Gilkeson, Registered Geologist.)
The LTMMP changed the number, location and depth of upgradient and downgradient wells of the groundwater monitoring network. These revisions also constituted a modification of the permit. (40 CFR 270.42 Appendix I C.1.a.) The point of compliance was changed for the well locations. The monitoring wells installed for the LTMMP were installed without complying with public participation requirements for review and comment. The order for the installation of new groundwater monitoring wells was a significant alteration of the permit for the MWL and should have been presented to the public as a Level 3 modification. There has been, and continues to be, persistent and significant public concern about the proposed modification to the groundwater monitoring network. Thus, it was especially important that the permit modification for the groundwater monitoring adhere to the procedures found in § 270.42(c) for Class 3 modifications. (See Exhibit 9, Gilkeson Affidavit).
Significantly, a 2006 TechLaw, Inc., report titled Technical Review of Appendix E, Probabilistic Performance-Assessment Modeling of the Mixed Waste Landfill at Sandia National Laboratories of the [November 2005] Mixed Waste Landfill Corrective Measures Implementation Plan dated January 31, 2006, (the “Techlaw Report”), revealed numerous deficiencies in the construction and monitoring of the dirt cover and the long-term protection of the groundwater, as well as the computer codes for the fate and transport model. On October 19, 2007, the New Mexico Environment Department unsuccessfully sued Appellant Citizen Action in an effort to withhold the TechLaw Report from Citizen Action which had requested the report in an IPRA request. (Exhibit 10 and Exhibit 9, Gilkeson Affidavit).
NMED approved installation of the dirt cover without informing Appellant and the public of the concerns stated in the TechLaw Report and without addressing those concerns. The TechLaw Report rejected Sandia’s computer modeling for movement of the MWL waste as a “black box” that should not be used. The TechLaw Report also rejected the position of neutron tubes for monitoring for moisture underneath the pits and trenches of the MWL rather than underneath the dirt cover. Further, the TechLaw Report recommended the installation of a synthetic impermeable membrane below the dirt cover to channel water away from the waste buried in the MWL. That is standard industry practice. Nevertheless, a non-permeable membrane was not installed beneath the dirt cover. The TechLaw Report and even NMED criticized the lack of monitoring for moisture beneath the dirt cover. Water underneath the dirt cover could be entering the MWL and reaching the waste.
The Sandia MWL has never had a reliable network of groundwater monitoring wells. After the first four groundwater monitoring wells were installed at the MWL during 1989-1990 (wells MWL-MW1, -MW2, -MW3 and -BW1), it was discovered that the directional flow of the groundwater was to the southwest rather than to the northwest. The NMED, the EPA, scientists at the Los Alamos National Laboratory, the DOE/Sandia Oversight Bureau, and the DOE Tiger Team documented in reports issued over the years 1991 to 1998 that the groundwater monitoring wells were installed in the wrong locations, had corroded well screens and were contaminated with Bentonite clay that hides evidence of contamination. In 2000, two subsequent monitoring wells (wells MWL-MW5 and -MW6) were installed too deep and distant from the MWL to be of use. (Exhibit 9, Gilkeson Affidavit and Exhibit 3, Dinwiddie Affidavit).
In March 2007, Appellant Citizen Action and Registered Geologist Robert Gilkeson filed a complaint with EPA Region 6 alleging that the MWL monitoring well network was defective.An April 2010 audit costing $273,000 conducted by the EPA Office of Inspector General (the OIG) found that EPA Region 6 staffers had concerns about the landfill's effect on groundwater and the lack of effective groundwater monitoring at the MWL. (The OIG Audit Report). The Inspector General also found that an Oversight Report of the EPA staff’s MWL concerns was being withheld from the public, thereby limiting public involvement in the corrective measures process. Region 6 administrators stamped the Oversight Report “Confidential” in a self-serving action to justify withholding it from the public. http://www.epa.gov/oig/reports/2010/20100414-10-P-0100.pdf The OIG Audit Report, at Page 3, found:
Region 6 withheld information from the public regarding the MWL monitoring wells through ... discontinuation of record keeping, misleading communications, and inappropriate classi- fication.
EPA Region 6 also produced an “Oversight Report” in 2007 that was orally presented to the NMED by Region 6 to avoid production of documentation that the public could obtain regarding the defective
groundwater monitoring network. EPA Region 6 and the OIG thereafter withheld the oversight Report from Citizen Action and the public, a report that validated Citizen Action’s findings and concerns which Region 6 of EPA had found to be valid. http://www.epa.gov/oig/reports/2010/20100414-10-P-0100.pdf, pp.3-4.
The erroneous data from the defective groundwater monitoring network was relied upon in the 2005 Hearing Officer Report adopted by the NMED Secretary in the Final Order. (Exhibit 9).
The confidential Oversight Report and interviews by OIG staff of the EPA Region 6 staff were recently obtained after a FOIA lawsuit was filed by Citizen Action. Following is what an EPA Region 6 unidentified staff person told the Inspector General in an October 15, 2008 interview: [Note: “(b)(6)” as used in the document refers to the individual who is being interviewed].
(b)(6) stated that he did not have any prior connection with the site. In fact he does not report to (b)(6). He also stated that Region 6 had its results preconceived. Region 6 management did not want NMED doing anything wrong. Therefore, management created a structure to ensure the appropriate outcome would result. Furthermore, as the writing and draft comments progressed to a final letter, the team was pushed more and more to agree with NMED’s position. He also stated that the teams’ initial evaluation would have changed the solution at Sandia MWL [meaning the dirt cover would not have been the “selected remedy”.] NMED pushed extremely hard for EPA Region 6 not to even question the past results or the viability of past test results [regarding groundwater monitoring and sampling]. Finally, he stated that [Citizen Action] got shortchanged by Region 6.
The MWL has been improperly classified as a Solid Waste Management Unit for closure under Corrective Action; however, there is failure to provide a Post-Closure Plan as required by RCRA and 40 CFR § 264.118. The MWL is a “regulated unit” by definition because it operated to receive hazardous waste after July 26, 1982. (40 CFR § 264.90(a)). 40 CFR § 270.1 (c) requires that owners and operators of landfills that received waste after July 26, 1982, must have post-closure permits, unless they demonstrate closure by removal or decontamination or obtain an enforceable document in lieu of a post-closure permit. If a post-closure permit is required, the permit must address groundwater monitoring, unsaturated zone monitoring, corrective action and post closure care requirements. No post closure permit has been submitted for the MWL that is leaving wastes in place. (Exhibit 3, Dinwiddie Affidavit).
STATEMENT OF THE ISSUES
1. Has NMED violated the Final Order by approving the LTMMP extension of the deadline for the preparation of the initial five-year report reevaluating the feasibility of excavation and analyzing the continued effective of the selected remedy (the dirt cover)?
2. Does the Final Order, requiring Sandia to “prepare a report every 5 years re-evaluating the feasibility of excavation and analyzing the continued effectiveness of the selected remedy,” require a distinction between the deadline for the initial five-year report regarding “the feasibility of excavation” and the deadline for “analyzing the continued effectiveness of the selected remedy,” i.e., are these two distinct activities governed by the same deadline? What possible justified existed for delaying the reevaluation of the feasibility of excavation prior to the installation of the dirt cover?
3. What event commences the running of the initial five-year period from the date of the Final Order issued May 26, 2005, for which Sandia is required to prepare the first five-year report?
4. Did the extension to the year 2019 for the initial five-year report as provided in the January 8, 2014, approval of the LTMMP constitute a modification of the requirement that Sandia prepare a report every five years as stated in the Final Order dated May 26, 2005?
5. Is Sandia required to submit a written request to the NMED for modification of the conditions of the Final Order?
6. Is NMED required to request a written notification from Sandia of its intent to modify the Final Order and then give notice and opportunity to the public for comment and review prior to approving the LTMMP?
7. Was NMED required to provide public notice and an opportunity for a public hearing prior to modifying the Final Order Condition 5 before approving the 2012 LTMMP?
8. Did NMED give appropriate notice to the public of the modification of Final Order Condition 5 with the October 14, 2011, Notice of Approval for the CMI Report where the CMI Report did not contain mention of the modification?
9. Did the NMED have a duty to give notice and opportunity to the public for changes to the groundwater monitoring network prior to approving the LTMMP?
10. Was the action of NMED, in modifying Final Order Condition 5 by its approval of the LTMMP, arbitrary, capricious, or an abuse of discretion, in the context of statements to the contrary on the part of the Administrative Hearing Officer, NMED, Sandia, the ABC WPAB, and the decision of this Court in approving the Final Order?
11. Should the NMED be estopped from modifying the Final Order Condition 5 after its representations to the public that the five-year review would occur “every 5 years,” absent language in the Final Order authorizing such delay and modification?
12. Was the modification by NMED of its Final Order five-year reporting requirement consistent with federal and state law (RCRA and the New Mexico Hazardous Waste Act)?
13. Is the NMED continuing decision not to enforce Condition 5 of the Final Order and to delay compliance with Condition 5 until 2019 consistent with the clear wording of the Final Order?
14. Does substantial evidence support a finding that the groundwater monitoring network at the MWL can detect contamination?
15. Does substantial evidence support a finding that the dirt cover will be sufficiently protective to prevent hazardous waste escaping from the MWL to the groundwater?
16. Does substantial evidence support the NMED decision that Final Order Condition 5 does not impose a requirement that “Sandia shall prepare a report every 5 years, re-evaluating the feasibility of excavation and analyzing the continued effectiveness of the selected remedy” so as to protect the public health, safety, and the environment?
17. Aside from the NMED approval of the LTMMP on January 8, 2014, does Sandia have a duty pursuant to Final Order Condition 5 to prepare the initial five-year reevaluation report at the present time?
18. Is the MWL a “regulated unit” as defined by 40 CFR 264.90 (a)(2)?
19. Is the MWL subject to the requirement of providing a Closure Plan and Post Closure Plan as part of the Sandia Hazardous Waste Permit?
20. Has hazardous waste escaped from the MWL, thus requiring remedial action on the part of Sandia in accordance with RCRA and the New Mexico Hazardous Waste Act?
LIST OF AUTHORITIES WHICH SUPPORT
THE CONTENTIONS OF THE APPELLANT
The Final Order.
The Resource Conservation and Recovery Act (“RCRA”), 42 USC
§ 6901 et seq.
Code of Federal Regulations; 40 CFR § 264.118, 40 CFR §
264.90, 40 CFR § 270.1, 40 CFR § 270.41, 40 CFR § 270.42,
40 CFR § 270.50.
The New Mexico Hazardous Waste Act, NMSA 1978, Section
74-4-1 et seq.
New Mexico Hazardous Waste Management Regulations (20.4.1
NMAC, Revised June 14, 2000)
IN RE: Request for a Class 3 Permit Modification
For Corrective Measures for the Mixed Waste Landfill,
Sandia National Laboratories, Bernalillo County, New
Mexico, EPA ID NO. NM5890110518, New Mexico Court of
Appeals, No. 25,896, December 19, 2007.
The Expanded Public Participation Rule, 60 Federal
Register 63417, December 11, 1995.
Attorney for Appellant
Citizen Action New Mexico
1400 Central Avenue, SE, Suite 2000
Albuquerque, NM 87106