Citizen Action New Mexico Comments for the Sandia National Laboratories’ Mixed Waste Landfill 5-Year Review and the Feasibility of Excavation and Offsite Disposal

July 23, 2019

By David McCoy, J.D., Executive Director

 

Sandia National Laboratories (“Sandia’s”) 5-Year Review proposes that planning and implementation for excavation and offsite disposal of radioactive and toxic chemical wastes in the Mixed Waste Landfill(“MWL” or “dump”)is feasible and is the preferred remedy. The process would begin by the NM Environment Department issuance to Sandia of an Order to produce a Corrective Measures Implementation Plan (“CMI Plan”).Sandia’s 5-Year Review provides the evidentiary basis for the NMED to go forward with an Order for excavation.  This letter calls for the NMED to issue anOrder for Sandia to proceed with a CMI Plan for the excavation and offsite disposal of the long-lived toxic and radioactive chemicals contained in the MWL.  A public hearing should also be provided by the NMED based on the continuing level of public interest and the 9 year lateness of the 5-Year Review.

Citizen Action New Mexico is supportive of Sandia’s recognition in the 5-Year Review that the best alternative for the MWL dump is excavation with offsite disposal.[1]The 2016 NMED Final Order (Flynn) required: “1) evaluation of excavation, removal and appropriate disposal of all waste in the MWL and; 2) construction and installation of a modern landfill, which shall at a minimum include a RCRA Subtitle C liner system, an ET cover with bio-intrusion barrier, and appropriate post-closure controls and monitoring.”[2]

 

The NMED Secretary’s 2016 Final Order specifies that the dirt cover “may not be the most appropriate long-term solution for the [MWL] site”:

While there is no evidence of groundwater contamination at the MWL, the final remedy selected in 2005 (ET cover with bio-intrusion barrier) may not be the most appropriate long-term solution for this site.  Absent complete excavation and off-site disposal, installation of a RCRA[3] Subtitle C liner system would be the most protective, modern design for a mixed waste landfill.

Sandia now states (Review Section 5.4) that the preferred alternative is excavation with offsite disposal as a remedy rather than the onsite disposal alternative.  According to the Sandia 5-Year Review: excavation with offsite disposal, as compared to onsite disposal, presents less cost, less risk to workers and the public, less time, a smaller footprint, less regulatory time and states that pathways currently exist offsite for the disposal of all the wastes along with available onsite processing facilities.  Excavation could allow the current site of the dump to become allowable for industrial use.  Excavation can be accomplished by conventional and remote controlled robotic equipment. Radionuclides such as Cobalt 60 and Tritium have decayed to levels that are acceptable.

 

Retrieval of the MWL wastes at this time makes sense before containers are completely disintegrated and releasing all contents.  Sandia should identify licensed facilities to where the wastes will be transported.

 

The 2016 and 2017 Albuquerque Bernalillo County Water Protection Advisory Board (WPAB) Annual Reports consider that the Sandia dump contains a mixture of toxic chemical and radioactive wastes in legacy unlined disposal pits. On February 24, 2014, the WPAB sent a letter to NMED Tom Blaine citing the history of its concerns for the MWL:

In keeping with the WPAB’s purpose, the WPAB has been following activities related to the management of Sandia National Laboratories’ Mixed Waste Landfill (MWL) located in the Sandia National Laboratories’ Technical Area III. In March 2001, after considerable deliberation, the WPAB (then called the Ground-Water Protection Advisory Board or GPAB) issued a resolution with set of six recommendations concerning the MWL, including the need for 5-year re-evaluations and reporting (see attached). In February 2013, consistent with input from members of the public, the WPAB reviewed the recommendations and added a seventh one regarding the need for transparency of process and data. In addition, in February 2013, at the request of Albuquerque City Councilor Rey Garduño and the Albuquerque-Bernalillo County Water Utility Authority, the WPAB hosted a forum for public comment on the Long Term Monitoring and Maintenance Plan (LTMMP) for the MWL. 

The WPAB letter stated further: “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.” The WPAB advised that the re-evaluation should be produced by the end of 2014.  NMED disregarded the WPAB recommendation. 

Citizen Action brought an unsuccessful lawsuit in 2015 for the Sandia failure to produce the 5-Year Review.[4]  The 5-Year Review was ordered to take place in 2019 by the 2016 Final Order for the MWL. The 5-Year Review for the dump was submitted 9 years after its 2010 due date in January 2019 to the Environment Department without public notice and was first obtained by a public records request by Citizen Action.  https://hwbdocuments.env.nm.gov/Sandia%20National%20Labs/2018-12-14%20MWL%205%20Year%20Report.pdf

The Environment Department Final Orders of 2005[5] and 2016 required study of the “feasibility of excavation” of the dump with either onsite or offsite waste disposal. Since Sandia/Department of Energy is subject to the 2005 and 2016 Final Orders for the MWL dump and admits excavation is feasible, Citizen Action considers that discretion must be exercised on the part of the NMED to issue an Order to Sandia to begin a Corrective Measures Implementation Plan (“CMI Plan”) for excavation with either offsite disposal or onsite disposal in a landfill that meets RCRA Subtitle C requirements. According to NMED, the MWL dump does not meet RCRA Subtitle C requirements for a liner system[6] and does not have a qualified RCRA “cap.” The groundwater monitoring network at the MWL is defective for finding evidence of contamination. (See discussion below). 

The MWL is anunlined dumpthat began operating in 1959with unlined shallow pits and trenchesleaking to Albuquerque’s drinking water aquifer.The MWL lies near Mesa del Sol's 35,000 home planned residential community, Isleta Pueblo to the south and the Sunport 5 miles north. The MWL is above Albuquerque's drinking water aquifer.The arbitrary decision to refer to the dump as a “landfill”was described as follows[7]:

The MWL was opened as the ‘TA-3Low-level radioactive waste dump‘ in March 1959. In a DOE environmental survey report dated April 1988, the TA-3 low-level radioactive dump was labeled a ‘mixed waste site’ and has since been referred to as the TA-3 ‘Mixed Waste Landfill.’

“All disposal records prior to 1964 were destroyed as part of a records purge.”[8] Unsolidified radioactive liquids whether containerized or not, were disposed of in the MWL up until 1975.[9]  Volatile organic compounds (VOCs) and semi-volatile organic compounds  (semi-VOCs) were disposed of  and included solvents such as TCE and carbon tetrachloride, organic acids, and scintillation cocktails(typically toluene based), many believed to be radioactively contaminated.[10] In 1967, approximately 270,000 gallons of coolant waste from the Sandia Engineering Reactor Facility were disposed of in Trench D.[11]  The MWL has plutonium wastes and metal wastes such as uranium, lead, barium, beryllium, and chromium.[12]Wastes were not sorted according to combustibility, biological content, or radionuclide.[13]Two fires have already occurred at the dump in July 1974 at Pit 28 from depleted uranium and in June 1975 in Trench B where 5,000 gallons of water were used in response.[14] Common waste packaging consisted of cardboard boxes, plastic bags, plastic-wrapped containers, crate, and steel or fiberboard drums.[15]

The MWLdid not have interim status (MWL was a non-reported unit) andnever filed an application forRCRA Part A and Part B fora permit.The MWL did not meet the permit requirement of the Resource Conservation and Recovery Act (“RCRA”) (42 U.S.C. § 6925(a))for facilities which treat, store, or dispose of hazardous waste.The dumpshould be considered a “regulated unit” by definition under 40 CFR 264.90(a)(2)[16]since it received hazardous waste after July 26, 1982. A regulated unit is considered a subcategory of a Solid Waste Management Unit (SWMU). The MWL has not been subject to the strict groundwater monitoring enforcement requirements of 40 CFR 264.90-100 for MWL as a regulated unit that should be imposed under the Corrective Action authority of the NMED.  NMED has incorrectly applied only the less stringent standard of 40 CFR 264.101.40 CFR § 270.1 (c) requires that owners and operators of landfills that received hazardous 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 which is currently leaving wastes in place.

When a hazardous waste site is in violation of any requirement of RCRA Subtitle C, EPA [or the authorized state enforcement agency NMED] can issue an order assessing a penalty of up to $37,500 per day per violation, for any past or current violation, requiring compliance immediately or within a specified time period, or both. NMED can use this authority to initiate a civil action.(42 U.S.C. § 6928(a)). Citizen suits are also authorized for RCRA violations.  (42 U.S. Code § 6972.Citizen suits).

If anonsite landfill were constructed it would have to meet specific landfill requirements for construction as well as post-closure care requirements found in 40 CFR part 264 or 265 Subpart N.The types of mixed chemical, metal and radioactive wastes currently in the MWL dump would be poor onsite disposal candidates for meeting Subtitle C goals for long-term maintenance, resisting the generation of leachate and emissions that could penetrate the liners, and containmentfor what would be perpetuity.[17]DOE Order 435.1 requires that the MWL would need at least one thousand (1,000) years of post-closure care to remain protective.

Citizen Action and the public have repeatedly demanded excavation of the MWL beginning with and continuing from:the 2000-2003 Congressionally appointed Department of Energy WERC panel hearings; the December 2004 public hearings;all administrative comment periods; the Public Comment Meeting sponsored by the ABC Water Utility Authority held on February 6, 2013[18]. Citizen Action and the public havecontinuously supported excavation and objected to leaving the radioactive and hazardous waste in place through the entire administrative history of the Corrective Measures Study, Corrective Measures Implementation Plan, Corrective Measures Report, Long-term Maintenance and Monitoring Plan, and the 2015 Corrective Action Complete hearing.[19]

Citizen Action beginning in 2000 (Sue Dayton, Exec. Dir.), numerous scientists, organizations and the public have recommended the remedy of excavation of the dump and offsite disposal.Excavation with offsite disposal was an alternative described in Appendix G and H of the MWL Corrective Measures Study. https://www.env.nm.gov/HWB/SNL/CMS/App_H_Eval_of_Near-Term_Excavation.pdf

See also,Technical Approach and Cost Estimate for Excavation of the Classified Area Using Robotics

https://www.env.nm.gov/HWB/SNL/CMS/App_G_Tech_Approach_&_Cost_Estimate.pdf

 

Duringprior administrative processes the NMED and DOE/Sandia have ignored, misrepresented and withheldcrucial facts that if fully considered must result in the conclusion that excavation and offsite disposal of the MWL is necessary and legally required:

1. Excavation is the only way to reduce long-term risk. Perpetual ongoing management of the dirt cover cannot be accomplished to protect against the release of long-lived radioactive and toxic wastes from disintegrating containers in pits and trenches at the current MWL location.
2. Corrective Action under the RCRA cannot address the tens of thousands of years of danger posed by thedump’s long-lived radionuclides (HLMW).
3. Contrary to DOE assertions, the MWL is not a low level mixed waste site. The removal and deep geologic disposal of Transuranic (“TRU”) and High Level Mixed Waste contents (“HLMW”) of the MWL is required by federal law. DOE Order 435.1 includes in its definition of HLW “other highly radioactive material that requires permanent isolation.”[20]
4. Perchloroethylene (PCE) and Trichloroethylene (TCE) are now at least 400 ft. beneath the MWL if not already in the groundwater. Increasing groundwater contamination from the dump is a strong probability.[21]Groundwater was not even considered as a pathway in the human health risk assessment for the MWL[22].
5. The MWL dirt cover does not meet RCRA requirements, is defective and unprotective for long-term use. [23]
6. The groundwater monitoring network is defective and inadequate.[24]The defective groundwater monitoring network was knowingly used to provide false data for the 2005 decision to select dirt coverinstallation instead of the excavation alternative in public hearings for the Corrective Measures Study (CMS).[25]
7. The dump contains incompatible ignitable waste such as metallic sodium, lithium and uranium that present an ongoing hazard of fire or explosion and release of radiologic and hazardous waste to the air and water pathway. Two depleted Uranium fires occurred in 1974 and 1975 at the MWL.
8. Given the millions of gallons of jet fuel and aviation gasoline released by Kirtland Air Force Base, the WAPB and NMED should not risk the release of long-lived radionuclides and chemicals to further contaminate Albuquerque’s drinking water aquifer.
9. A Freedom of Information Act (“FOIA”) request to the National Nuclear Safety Administration/DOE regarding metallic sodium disposal at the MWL has gone unanswered for more than two years.
10. Citizen Action notes that in October 2015 metallic sodium caused at least eleven explosions at a sister dump with mixed radioactive waste in Beatty, Nevada due to subsidence of the dirt cover and entry of rainfall into the wastes. Watch the explosions: https://www.youtube.com/watch?v=8VHylGDOvwUA radioactive cloud was sent over four states and Highway 95 was shut down for two days.  The Beatty landfill conditions are similar to the MWL -- an arid climate, a deep aquifer and dirt cover that could allow subsidence so that rainwater entered the wastes. The big difference is potential exposure to 800,000 people that live in Albuquerque with Kirtland AFB military personnel, hospitals, freeways, schools, a Sunport and little kids. 
11. Improper classification in violation of federal codes was made for the MWL as a Solid Waste Management Unit (SWMU). The dump received hazardous waste after July 26, 1982 until December 1988, thus requiring either clean closure or a closure plan and a post-closure permit as a “regulated unit” under 40 CFR § 264.90(a)(2) and 40 CFR 270.1(c). Because the dump lost interim status clean closure is required. 
12. Further federal code violations are present if we consider a long-term scenario where MWL wastes are left in place:
    61. Federal regulations clearly state that institutional controls cannot be assumed to last for over 100 years in 10 CFR 61.59(b).
    62. 40 CFR 264.111(a) requires closure in a way that “minimizes the need for further maintenance.” Leakage of waste at the MWL could continue for the next several thousands of years well beyond ability to continue institutional controls for maintenance.
    63. 40 CFR 264.310 (a)(2) and 265.310 (a)(2) require that the final cover of the landfill must be designed and constructed to “function with minimum maintenance.” 264.310 (a)(4) and 265.310 (a)(4) state the final cover must be designed and constructed to “accommodate settling and subsidence so that the cover’s integrity is maintained.” Substantial geological instability exists in the area of the MWL with four different fault zones.[26]
    64. 40 CFR 265.111(b) and 264.111(b) (closure must control, minimize or eliminate post-closure escape of hazardous waste to the ground, surface waters or atmosphere).
    65. 40 CFR 264.310 (a)(1) and 265.310 (a)(1) landfill cover must be designed and constructed “to provide long-term –minimization of migration of liquids through the closed landfill…”Climate change presents challenges of storm microbursts.
    66. 40 CFR 264.314 (f)(2) and 265.315 (g)(2) (must not be “risk of contamination of any underground source of drinking water” from placement of liquids in the landfill). The CMSdid not assess the risk that migration of water through the MWL will have on aquifers, human health and the environment.
    67. A vegetative cover is not sufficient to prevent accidental ignition or explosion of ignitable wastes in the MWL. 40 CFR 264.312 and 265.17 outline requirements for storage of ignitable waste.  Sections 265.17(b)(1) and 264.17(b)(1) require precautions to prevent  the generation of “extreme heat or pressure, fire or explosion, or violent reaction.

 

The 2.6.acre MWL was originally called the “Technical Area III Radioactive Waste Dump.” The MWL is actually not a landfill because it consists of pits and trenches that lack double liners and a leachate collection system.[27]Operating from 1959 to 1988[28], the wastes were buried in shallow trenches and pits that were dug to a depth of up to 25 feet below the ground surface. According to a Sandia Site Health and Safety Plan Form 92-27, Sandia was disposing of liquid waste in the MWL until 1975.Other landfills and areas at Sandiahave contaminated the groundwater -- such as the Chemical Waste Landfill, the Lurance Canyon Burn Site, Tijeras Arroyo Groundwater,and Technical Area 5. 

DOE/Sandia and NMED have previously focused only on corrective action as a technical process for whether the dirt cover was properly constructed. This obscured the real issue – the dirt cover is not designed for protection from the leaching of toxic metals, solvents, PCBs, spent fuel, Plutonium and Transuranic (TRU) waste.The radioactive and chemical wastes disposed of in the MWL were generally from nuclear weapon tests, nuclear reactor meltdown testing, laboratory experiments, other military sites, and a space rocket nuclear fuel safety program (SNAP). There has been no remediation for wastes that are already leaching from the dump and the flimsy containers that will deteriorate and release more toxic contents. No risk assessment exists for the release of all contaminants in the MWL over time and no groundwater pathway was considered.

NMED allowed DOE/Sandia to proceed with construction of the dirt cover in the absence of NMED approval for the CMI Plan ordered by the 2005 Final Order.The Dear Interested Citizen letter of November 21, 2006 assured citizens that deficiencies had to be corrected before implementation of CMI work, and specifically, before the construction of the subgrade. In or about February 2007 Citizen Action petitioned the Secretary of NMED to extend the period for public comment, provide a public hearing and issue a cease and desist order for construction of the soil cover because of the absence of a Soil-Vapor Sampling and Analysis Plan (SAP). The record shows that NMED was speaking out of both sides of its mouth in violation of the public trust. 

 

All of the trenches and pits at the MWL are unlined and do not contain any engineered features for the detection and/or capture of liquids or vapors to prevent the release from the pits or trenches to the underlying soil strata, and to the groundwater. Although a dirt cover, technically called an “Evapo-transpirative (ET) cover with bio-intrusion liner,” was installed above the MWL, the vegetative dirt cover cannot prevent the vertical and horizontal entry of moisture into the MWL pits and trenches and leaching of its long-lived radioactive and hazardous wastes. The dirt cover cannot protect against the ongoing corrosion, decay, collapse and breakage of containers of waste that is continuing to release chemicals and radionuclides that are traveling outside the pits and trenches toward the groundwater. The cover is subject to subsidence, cracking, geological changes, and erosion from wind, precipitation and watering to maintain the vegetative cover.  There is no liner beneath the cover to move leachate off to the side.

 

Regulators have been willing to accommodate Sandia/DOE and the military-industrial complex for political and financial reasons instead of protecting public health and safety. For decades, Sandia/DOE has misinformedand deceived:regulators, two Department of Energy appointed committees known as WERC, the U.S. Environmental Protection Agency and the public that only low level mixed waste was in this unique, extremely dangerous dump.  This was to convince the New Mexico Environment Department (NMED) in public hearings held in December 2004 and again in 2015 that installation of a dirt cover over the dump would allow the radionuclides and hazardous chemical wastes to be safely left in place.  Sandia’s documents from 1997-98 describe that their strategy was to take a path for “No Further Action” status andavoid: the costs of excavation, long term storage, placement in a deep geologic repository and avoiding the obligation for the dump to be on Sandia’s Site Treatment Plan.

As described below:1). The NMED sued Citizen Action to keep secret aJanuary 2006 TechLaw, Inc. report that pointed out defective construction,maintenance and monitoring problems for the dirt cover and a flawed computer model for fate and transport of the wastes.  2). An April 14, 2010 EPA Office of Inspector General Hotline Report described concerns for defective groundwater monitoring that the EPA Region 6 and NMED colluded to hide from Citizen Action and the public.  Defective groundwater monitoring samples were relied upon in 2004 for approving the dirt cover to be placed over the MWL instead of excavation.

Large amounts of radioactive mixed waste weredisposed of in the 2.0 acre Unclassified section and the 0.6 acre Classified section of the MWL from 1959 to December 1988.  The MWL disposal inventory was kept “Classified” for secrecy. Nearly 6000 disposal sheets were kept “Classified”, had many redactions, and did not become available until after Citizen Action filed a FOIAlawsuit to obtain them. The Radioactive and Toxic Material Disposal sheets, obtained under the FOIA, often only indicate that, for example, several polypropylene (“poly”) or plastic bags, wooden or cardboard boxes, cans, drums and barrels were disposed of -- without the complete identification of the contents. Sandia memoranda from 1997-98 indicate that there were canisters disposed of in “vertical, small diameter holes drilled in the bottom of trenches … in unknown locations.”  Packages of potentially explosive metallic sodium were buried in the dump.  Many of the types and amounts of the most dangerous wastes disposed in the Classified Area of the dump are still kept secret from the public. Sandia claimed in opposing the FOIA lawsuit in court filings that such wastes could make a dirty bomb.

The MWL is already releasing its witch’s brew of contamination.Solvents PCE and TCEthat can transport other contaminants have migrated at least 400 ft. beneath the MWL and are near to or in Albuquerque’s drinking water aquifer.Tritium, beryllium, cadmium and uranium have escaped from the trenches.

The MWL holds radioactive and toxic chemical wastes,including but not limited to, atomic bomb tests at the Nevada Test Site, the Marshall Islands, the nuclear reactor meltdown at Three Mile Island,irradiated spent fuel from other nuclear reactors around the world, 119 barrels of Plutonium and Americium contaminated wastes, Sandia Labs’ nuclear weapons research and development, and military experiments. 

The spent fuel and Transuranic (TRU) waste in the dump are of major concern under federal law, which requirestheir deep geologic disposal.10 CFR § 61.55(a)(2)(iv).Regulators, investigative committees and the public were misinformed by DOE/Sandia thatthe dump is merely a low-level waste landfill. In fact, the MWL contains High-Level Mixed Waste.  Some 6,000 Radioactive and Toxic Material Disposal sheets, Sandia management memoranda from 1997-98, technical publications, a 1984 Excess Special Nuclear Materials document[29]that were all obtained through the FOIA, identify that spent fuel, high level nuclear mixed waste and TRU waste were disposed of in the MWL. Citizen Action has identified at least 70 fuel pins or fuel elements. Sandia estimated 71 cu yd. of TRU waste was disposed of in the MWL.[30]The TRU waste includes Plutonium-238, -239, Americium-241, Neptunium-237. All are produced in nuclear reactors andhave very long half-lives,for example, 2.1 × 10⁶yr. for ²³⁷Np, 24,400 yr. for ²³⁹Pu, 458 yr. for ²⁴¹Am. DOE/Sandia disposed of 119 drums of waste that contained an unmeasured quantityof Plutonium and Americium wastesfrom the Inhalation Toxicology Research Institute (“ITRI”)that was used for testing on 144 luckless Beagle dogs.[31]Radioactive wastes such as Plutonium can travel to the groundwater in colloidal form.[32]

Wastes placed in the pitsand trenches included volatile organic chemical compounds, such as Perchloroethylene (“PCE”), and Tetrachloroethylene (“TCE”), and semi-volatile organic chemical compounds. A Sandia memorandum indicates that organic chemicals were disposed of in containers that could hold up to 1 cu ft. (7.5 gallons).[33]251 cu yd. of Polychlorinated Biphenyls (“PCBs”) were disposed of.  270,000 gallons of Sandia nuclear reactor waste water containing hexavalent chromiumwas dumped in Trench D.Heavy metals were disposed of in the MWL such as lead, cadmium, nickel, beryllium and potentially explosive lead azide, lithium and metallic sodium. In June 1975, 5000 gallons of water was used in Trench B to extinguish a Uranium fire. Storm waters entered pits and trenches for decades.  Protective berms around the MWL were breached by powerful storms in 2006-07 with pooling of water.

 

In a written presentation given April 30, 2012 at the Albuquerque Peace and Justice Center, Registered Geologist Robert Gilkeson identified:

“The historical record shows that liquid wastes were disposed of at the Sandia MWL dump and very large amounts of water from precipitation and run-on of surface water were allowed entry to the poorly managed trenches and pits over a fifty year period.  The poor control of water entering the buried wastes at the MWL dump is illustrated by a memorandum dated November 20, 1996 from Sandia staff person Mr. Jerry Peace to DOE staff person Mr. John Gould.  The pertinent excerpt from the [Peace] memo follows:

“Pit caps in the classified area [of the MWL dump] are in serious need of repair.  Many concrete caps have collapsed under their own weight because they were not formed, reinforced, or finished when poured.  Plywood caps need immediate attention because they are rotting and slumping into the pits.  These collapsed pit caps act as funnels, channeling precipitation into buried waste.  These caps have collapsed because backfilled soils have settled over time, leaving a void directly beneath the concrete or plywood cap.” [Emphasis supplied] (p.2).

The MWL dirt cover is unprotective for the long-term.  According to the NMED 2016 Final Order, the existing dirt cover above the dump is not a Resource Conservation and Recovery Act (“RCRA”) Subtitle C cover.  Because the MWL continued operations without ever applying for a permit it did not have interim status. But after July 26, 1982 Subtitle C regulations were applicable, especially because the MWL kept receiving hazardous wastes until December 1988.[34]  40 CFR 264.228. The MWL does not meet any of the RCRA criteria for a landfill set forth in 40 CFR 264.301 for double liners, a leachate collection system “to prevent any migration of wastes out of the landfill to the adjacent subsurface soil or ground water or surface water at any time during the active life (including the closure period) of the landfill.”     Given the millennia necessary to protect the human environment from the MWL spent fuel, High-Level Mixed Waste and Transuranic (TRU) waste, the dirt cover is far from meeting the requirements of 40 CFR 264.228 to prevent migration of liquids through the wastes; minimize the movement of moisture through the wastes, either horizontally or vertically; prevent erosion of the cover; accommodate settling and subsidence; there is absence of a bottom liner; no leak detection system is present for the pits and trenches; there is no monitoring for moisture directly beneath the cover itself.Monitoring will not prevent migration of the dump’s wastes. 

In January 2006 TechLaw, Inc., a contractor for the NMED,provided a report[35] regarding the proposed dirt cover, the long term risk of leaks from the MWL, and the Fate and Transport Model for the MWL.  In February 2006 Citizen Action Director Dave McCoy filed a public records request for the report. NMED wanted to keep the TechLaw report secret.  The records request was denied by the NMED.The NM Attorney General’s Office informed NMED twice that the document was a public record.NMED then filed a baseless SLAPP lawsuit[36] against Citizen Actionasking for a judicial declaration to withhold the report based on “executive privilege”.[37] CitizenAction and the NM Attorney General countersued.  On October 7, 2008Judge Daniel Sanchez, ruled the TechLaw, Inc. report did not constitute “thought processes” and was a public document under the Right to Inspect Public Records Act. He also ruled that nondisclosure of the report wasn't justified by countervailing public policies or executive privilege.[38]

Due to appeals by NMED, the TechLaw, Inc. report could not be obtained until November 2008.  By that time NMED had procedurally delayed long enough so that the Corrective Measures Implementation Plan had been approved and the dirt cover was installed over the MWL.  NMED still has never posted the 2006 TechLaw, Inc. report on its website after spending taxpayer money on it and paying Citizen Action’s attorney fees.[39]

The January 2006 TechLaw, Inc. report[40]describedthe shortcomings of the dirt cover and the Fate and Transport Model (FTM). In May 2006, a public meeting was held by NMED for the Sandia Fate and Transport Model that had been required by the Final Order approving the dirt cover remedy for the MWL. NMED did not reveal the 2006 TechLaw document to Citizen Action or the public with the criticisms contained therein about the Sandia computer model. NMED also did not reveal the unresolved MWL monitoring network problems identified by the NMED 1998 NOD.Thus, the public could not use the TechLaw Report to question the technical merits of the Corrective Measures Implementation Plan (CMIP) to install the dirt cover. 

 

According to the TechLaw, Inc. report, the Fate and Transport Model (FTM) used by Ho, et al,[41] was based on Monte Carlo simulations and was no more than a “black box.” In November 2006 NMED issued responses to public comments for the CMIP that heavily relied on the FTM without any acknowledgement of the many deficiencies for the model and the dirt cover identified in the TechLaw Report, which Citizen Action could not obtain.  Ho’s model also relied onuseless data from a wholly defective groundwater monitoring network (discussed below).

 

TechLaw, Inc. critique of the dirt cover:

• Computer codes and software used for the Fate and Transport Model provided no assurance that further release of contamination would not reach the aquifer.
• It lacked liners. The dirt cover could not meet the requirements of 40 CFR 264.301 for a liner system.[42]
• Coverlackeddurability for maintenance free use for the1,000 year time period (DOE Order 435.1),
• There is the absence of moisture monitoring beneath the cover,
• The lack of a membrane beneath the cover to remove water to the sides of the cover, and
• The lack of leachate detection and collection capability.
• Criticized the neutron tube moisture detection as not providing early warning that water has breached the cover and is moving down through the buried waste. The neutron tubes are placed beneath the buried wastes.
• Criticized "The use of data trends for trigger evaluations" as not being the appropriate legal mechanism “to determining the statistical significance of each exceedance" in collected sampling data .

TechLaw also cited “inadequate accounting for the effects of subsidence in modeling of predicted cover behavior, and lack of consideration of any methods to minimize future settlement.”  Other TechLaw concerns under General Comments were:

• 2. Hydraulic conductivity of the cover, bathtub effect
• 3. Chemical characteristics of the soil to be used as the cover material;
• 4. Subsurface gas generation venting from the cover design;
• 5. Potential subsidence of the wastes in the MWL and disruption of the “monolithic” cover.  The assumption that the soil cover “…will accommodate differential subsidence …is a major leap in logic, unsupported by analysis or empirical evidence.”  “The Closure Plan should be revised to evaluate potential subsidence based on the actual wastes known to be present in the MWL, …minimizing subsidence, and procedures to reconstruct and repair the monolithic cover layer in response to future subsidence.”

 

The unsuitable soil gas monitoring at the MWL with neutron tube moisture detectionknown as FLUTe membrane sampling system was called to the attention of NMED by Citizen Action and Registered Geologist Robert Gilkeson on April 1, 2008.  (True and correct copy attached).  NMED ignored the issue for the MWL.

The problem was first identified by the NMED itself for MDA H at Los Alamos National Laboratories in a letter to the Department of Energy (DOE) dated February 26, 2008 "Status of Remedy Selection at MDA H." That letter brings attention to the fact that the FLUTe sampling membrane does not provide for collection of reliable and representative samples of soil gas for measurement of volatile organic compounds (VOCs).  The NMED letter makes the statement pasted below:

"NMED contacted the manufacturer who acknowledged that there were problems with VOC adsorption in FLUTe systems greater than 50 feet in length. NMED is concerned that the material used for the construction of the membrane may have absorbed some of [sic] VOCs or influenced contaminant detection in other ways."

DOE/SNL monitors the VOCs with FLUTe membranes installed to a depth of 400 feet below ground surface in three boreholes at locations surrounding the MWL.Citizen Action pointed to the admission by the manufacturer that "there were problems with VOC adsorption in FLUTe systems greater than 50 feet in length" as proof that the FLUTe membranes will prevent collection of reliable and representative soil gas samples for the proposed unsaturated zone monitoring wells at the SNL MWL.  Based on this new information, Citizen Action requested NMED to order revision for the Long Term Monitoring and Maintenance Plan by SNL.  Additionally, Citizen Action stated:

The three FLUTe wells will not place the MWL in compliance with §264.98 (a)(2) because the proposed wells are located outside the dump (LTMMP, p. B-9, Fig B-3.1-1) and also the FLUTe membranes will not produce reliable and representative soil gas samples because of the adsorption properties.  Compliance with §264.98 (a)(2) requires monitoring wells must by law be placed within the dump to detect “[t]he mobility, stability and persistence of waste constituents or their reaction products in the unsaturated zone beneath the waste management area.”

 

In his sworn Technical Testimony on the Sandia National Laboratories Mixed Waste Landfill in Opposition to Corrective Action Complete, Dr. Michael J. Barcelona, Ph.D., Professor and Past Chair, Department of Chemistry, Western Michigan University,[43]statedthat the MWL dirt cover is “completely worthless”:

The MWL dirt cover is experimental and inadequate because it lacks a liner beneath the cover to remove leachate to the sides of the MWL where moisture can be recovered before it enters the High Level Mixed Waste [HLMW] that is disposed of in shallow pits and trenches.  The cover will not last sufficient time considering the persistence for millennia of the HLMW in the MWL. The use of a dirt cover without a liner below the cover and the wastes makes the dirt cover completely worthless, especially for HLMW.

Dirt covers can increase the transport of chlorinated solvents, such as PCE, TCE and Polychlorinated Biphenyls (PCBs) contained in the MWL, to the groundwater.  The 2002 Corrective Measures Study Appendix H at Tables J-1 and J-2 shows a MWL PCB inventory of 251 cu yd, i.e., more than 50,000 gallons that could contaminate trillions of gallons of water in Albuquerque’s drinking water aquifer. The dirt cover cannot prevent the migration of PCE, TCE and PCBs to the groundwater.  PCB combines readily with other solvents.  Soil vapor data collected in 2014 at 400 ft below ground surface demonstrates that these solvents have been released from the MWL.  No corrective action has been taken to remove the source of the solvent contamination from the MWL pits and trenches.

Dr. Barcelona stated: “Excavation of the MWL with safe storage and deep geological disposal is the only corrective action that could protect the public from the HLMW in the MWL.”[44]

 

With regard to whether a dirt cover could last for perpetuity, Dr. Robert Dinwiddie, Ph.D., a former administrator for the NMED Hazardous and Radioactive Materials Bureau, stated at the 2015 public hearing for Corrective Action Complete that: “of six reports I reviewed across the country the average lifespan was 25 years before a cover had to be completely removed or replaced or closure by removal of the site.  The MWL has had releases more than 400 ft. below ground and it would be best to remove the offending waste and make sure that it doesn’t get worse.” (Tr, p. 989).

 

Among the some 6000 Radioactive and Toxic Disposal sheets for the MWL dump are sheets that indicate disposal of at least 70 spent fuel pins (also referred to as “rods” or “fuel element ends”) and toxic chemicals from nuclear reactor meltdown (severe accident) tests, testing of fuel for a nuclear rocket program (Space Nuclear Auxiliary Program or “SNAP”), military testing and disposal from nuclear weapons testing at the Nevada Test Site and Kwajalein Island. Internal Sandia/DOE memoranda (1997-98) indicate the disposal of “packages” of metallic sodium and canisters containing metallic sodium mixed with melted fuel pins.  Radioactive wastes from atomic bomb tests are disposed of in the MWL from nuclear weapon tests with names such as: Fin Foot, Diesel Train, Mighty Epic, Camphor, Cypress, Ming Blade, Hudson Moon, Hudson Seal, Midi Mist, Bagpipe, Chardonnay, Minute Stools, Diana Mist, Mint Leaf, Misty North, Husky Pup, Husky Ace, Dido Queen and Diamond Sculls.  Kwajalein Island and White Sands nuclear weapon test residues are in the MWL.

The DOE/Sandia “inventory list” for the MWL provided in the Sandia 1996 Phase 2 RCRA Facility Investigation Report (“RFI”) and provided to the WERC in 2000 differs markedly from what the more detailed Radioactive and Toxic Disposal sheetsshow that were later obtained from a Citizen Action FOIA lawsuit. The inventory listdid not reveal the mixed radioactive and hazardous wastes that came from the various nuclear reactor meltdown experiments.  The meltdown test information was not in the inventory list providedto the two WERC panels held in 2000-2002 that were appointed for review of the MWL.  However, in reviewing the disposal sheets the connection to the meltdown experiments became apparent from the use of acronyms for the experiments, such as, DCC, D-10, DFR, EEOS, TRAN and Debris Bed.

In September 11, 1997, a Notice of Denial (“NOD”) for the MWL Phase 2 RCRA Facility Investigation was sent to Sandia under signature of Dr. Robert Dinwiddie, Chief of the NMED Hazardous& Radioactive Materials Bureau.In Comment #7, Dr. Dinwiddie recognized high surface level readings of radioactivity that exceeded background radiation levels by several times in Pits SP4, SP-35, and SP-36. The Bureau suggested removal of the radioactive/mixed waste to another location as follows in Comment 7:

 

During NMED decision making as to what regulatory status the MWL should comply with, four memoranda were written by Sandia/DOE between 1997 and 1998 of which NMED had no knowledge. DOE/Sandia did not inform the NMED that personnel suspectedthat thecanisters in Pits 35 and 36 contained melted fuel pins and metallic sodium. 

 

According to the Sandia memorandum of 2/20/1997 from Jerry Peace to Mark Jackson and John Gould, verbal reports from Sandia employees involved in the simulated reactor meltdown tests were thatcanisters from the experiments were disposed of in Pits 35 and 36 and may contain metallic sodium.  “[A]dditional canisters were disposed of at the landfill, usually in vertical, small diameter holes drilled in the bottom of trenches” andthat “there are no doubt additional cans in the landfill but their location is unknown.”

 

After NMED’s 1997 Notice of Denial for the RFI, in 1998 a DOE/Sandia memorandumproposed two major administrative goals for the MWL: 1). Keep the contents secret and avoid the high danger and high cost of removal by not examining canisters in Pits 35 and 36 and SP4 thought by personnel to contain irradiated fuel mixed with metallic sodium, and 2). Obtain status as a corrective action unit and get No Further Action status (“NFA”) for the dump by filling those pits with the canisters left in place.[45]

 

Sandia decided to bury the canisters to reduce the high radiation levels. Sandiamemoranda show that their employees knowledgeable about the reactor meltdown experiments described were very concerned about metallic sodium or melted spent fuel. The March 20, 1997 memorandum from W. B. Cox  to G. K. Laskarregarding “Disposition Options for High-Specific Activity Canisters Residing at the Mixed Waste Landfill“ stated as follows:

 

 

In Dr. Dinwiddie’s sworn Technical Testimony in Opposition to Corrective Action Complete (2015) he stated:

At the time of the issuance of the 9/1997 Notice of Denial, the NMED Hazardous & Radioactive Materials Bureau was completely unaware of four Sandia management memoranda written during the period February 1997 to April 1998. I have read the four internal Sandia management memos from the period February 20, 1997 to November 20, 1998. There is a pathway from Sandia’s receipt of fresh and spent fuel pins that were made into experimental packages, irradiated in the ACRR and with canisters containing metallic sodium and the melted or vaporized fuel being placed into pits 35 and 36.

 

The Memorandum from John Gould to Dick Fate, November 20, 1998 -- considering the NMED suggestion to remove the canisters -- led ultimately to the Sandia management decision in 1998 to leave the HLW in place, cover the landfill with dirt and close the MWL site through “risk assessment, long-term monitoring and institutional controls.” Sandia wanted to avoid the cost of excavation and keeping the MWL indefinitely on its Site Treatment Plan.

 

NMED (Dinwiddie) in April 17, 1998 asserted that:

“The Mixed Landfill received waste after the date for ‘relevant regulatory change’ [July 3, 1986 EPA Federal Register Notice that ‘Mixed Waste’ would now be regulated under RCRA] to establish interim status.  The Mixed Waste Landfill thus operated under RCRA and therefore should be closed under RCRA.  The HRMB RCRA Permits Management Program (RPMP) has taken the position that the site, although listed in the permit as a corrective action unit, should be closed as a RCRA regulated unit.  This is primarily due to the late date of waste disposal at the site (December 1988). (Administrative Record p. 009552).[46][47]

 

DOE/Sandia instead fought to maintain the regulatory status of the MWL as a Solid Waste Management Unit/corrective action unit given by the EPA in 1993.[48] The latter designation would allow DOE/Sandia to avoid examination of RCRA waste, excavation, safe storage costs, shielded storage containers, and without the MWL remaining indefinitely on the site treatment plan.[49]So Dr. Dinwiddie was removed and then replaced by a new NMED Bureau Chief, James Bearzi, who decided to allow the MWL to continue under the weaker regulations of corrective action that were contained in 40 CFR 264.101 for the regulatory status of the MWL as a Solid Waste Management Unit instead of being a regulated unit under 40 CFR 264.90-100 that had strict groundwater monitoring requirements, closure and post-closure requirements. Mr. Bearzi avoided the longstanding concerns for the defective groundwater monitoring well network dataand the TechLaw, Inc. report to gain approval for the Corrective Measures Implementation Plan for installation of the dirt cover.[50]

 

Addressing the defective groundwater monitoring network data used to leave MWL wastes under a dirt cover, Dr. Dinwiddie stated in his 2015 Technical Testimony in opposition to Corrective Action Complete:

27. 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.” Nevertheless, the unreliable, unrepresentative groundwater monitoring data from defective groundwater monitoring wells was used.  This was fabricated, result-oriented evidence that can now only be remedied by consideration of excavation of the MWL, safe storage or disposal of the High-Level Nuclear Mixed waste.

 

In 2000 and 2002, DOE sponsored two independent scientific panel (WERC, Waste Education Research Consortium) reviews of the MWL.Inquiry by WERC into whether groundwater well monitoring data was reliable and representative was not allowed. WERC didn’t know it was relying on bogus groundwater well monitoring data.[51]  Dr. Eric Nuttall, Ph.D., Emeritus, Chemical and Nuclear Engineering, Department of Chemical and Nuclear Engineering, University of New Mexico, was on the 2000 WERC panel that reviewed the MWL and generated the following report:   Final Report Independent Peer Review of the U.S. Department of Energy Sandia National Laboratories’ Mixed Waste Landfill (August 31, 2001).[52]

 

The sworn Technical Testimony of Dr. Nuttall in July 8, 2015 before the NMED regarding his Opposition to Corrective Action Complete described: “[T]he potential for High-Level Waste (HLW) disposal within the Sandia Mixed Waste Landfill (MWL).” Dr. Nuttall described the DOE withholding of documents that would have altered the WERC conclusions regarding “human health risk and the ecological risk screening assessment for the MWL”:

“Those conclusions would have been impacted and altered had Sandia disclosed the nuclear meltdown experiments and the related Radioactive and Toxic Waste Disposal sheets.  Those sheets were not released through the Freedom of Information Act [lawsuit] until after both WERC panels had completed their reports.

…

“If the WERC panel had known of the nature of the mixed High-level wastes and the capacity of Sandia for safe, remote, robotic excavation, the conclusions of the WERC would have been far different. 

…

“The Sandia risk assessment reports omitted key information that would have altered the conclusions of the WERC reviews.  Sandia only presented to WERC that the MWL was a mixed low-level waste site.  Sandia intentionally decided in FOIA documents not to excavate the MWL based on cost, too high a risk of excavation and worker exposure.  Sandia did not fully reveal to this day its robotic capability to safely excavate mixed high-level waste.  Appendix G of the Corrective Measures Study (November 2002) was not provided to the WERC panels.  Appendix G is part of SNL03:R5264-G.doc that is a restricted document that Sandia refuses to provide even today. 

…

“The issue of HWL waste within the MWL was of concern. Sandia National Laboratory denied ever having conducted experiments using uranium fuel pins. Sandia stated that the only fuel pins at SNL were in the ACRR (Annular Core Research Reactor) and those were regulated by the NRC [Nuclear Regulatory Commission].  In fact, NRC has not had regulatory authority over the ACRR.  Sandia’s statement of denial redirected the questioning of the WERC panel away from the issue of HLW disposal in the MWL.  Hence the topic was not further investigated by either WERC panel and misled the conclusions of the two panels. Sodium was listed in the inventory descriptions and was identified as metallic sodium, but Sandia refused to disclose how the metallic sodium had been or disposed of.  The refusal to state how the metallic sodium was used further misled the WERC panel review.  This appears to have been premeditated deception regarding the use of sodium in the meltdown experiments for studying the Liquid Metal Fast Breeder Reactor (LMFBR) in which sodium was used as a coolant.  The WERC panel was also deceived as to the risk assessment for the MWL.  In the Phase 2 RCRA Facility investigation, sodium was described only as an ‘Essential nutrient’ and it was not disclosed that it was mixed inseparably in the [nuclear reactor meltdown] experiments.”

Dr. Nuttall cited the duty of the NMED to protect the public from the radioactive wastes under the Omnibus authority of NMED.[53]  Dr. Nuttall testified that the MWL should be excavated. Dr. Nuttall discussed the failure of DOE/Sandia to provide a mass balance for the disposal of spent fuel, HLW and TRU waste. 

 

Roger Kennett of the NMED/DOE Oversight Bureau wrote a 6/30/03 report entitled Nuclear Fuel Assessment Project Summary (“Kennett report” or “KR”) regarding canisters placed in the MWL that were potentially “used to contain oxide nuclear fuels subjected to experiments in the Annular Core Research Reactor (“ACRR”) in Sandia’s Technical Area V.”  A report by Dr. Eric Nuttall, Ph.D., regarding the meltdown experiments preceded Kennett’s report and had been submitted to the NMED. Dr. Nuttall’s conclusions were never addressed or considered in Mr. Kennett’s report nor were any of the references from Dr. Nuttall’s report included in the Kennett report. The KR reached the unscientific conclusion that the duration of experiments conducted in the ACRR did not cause the fuel to become spent and thus was “not the focus of the Bureau’s effort.” 

 

Contrary to KR’s conclusion, fuel pins that were used in several experimental packages for the nuclear meltdown experiments already contained pre-irradiated spent fuel from different national and international nuclear reactors. The spent fuel in the canisters were inserted for the meltdown experiments in the Annular Core Research Reactor (ACRR) where the fuel was further irradiated and mixed inseparably with metallic sodium coolant.  Also, disposal sheets citing disposal of at least 70 fuel ends or pins indicated radiation levels of 5 rem/hrwere certainly indicative of spent fuel.

 

The hearing officer at the December 2004 public hearing for the Corrective Measures Study admitted she was “troubled” by the lack of knowledge in the small sampling of the Kilbury-Kennett study that would have taken months to study regarding the inventory of the MWL wastes (Tr. at page 41):

However, I was troubled by the Kilbury-Kennett study in July 2000, which acknowledged that only 3 hours were spent comparing and tracing 36 items in landfill records that otherwise would take months to study. From this small sampling of records, NMED concluded that the classified records were sound and Sandia knew how much of what went into the landfill over time. I was not convinced that enough was done in this area to verify these records and inventory, particularly given the significant amount of controversy surrounding the inventory raised by Citizen Action's witnesses, the WERC panel and the public.

 

At the July 8, 2015 public hearing for Corrective Action Complete, Dr. Dinwiddie, Ph.D., former administrator for the NMED Hazardous and Radioactive Materials Bureau, testified in his Technical Comments:

[T]he Sandia management memoranda showed the presence of high level mixed waste with metallic sodium in the MWL, [he] was not informed of the disposal, that such disposal is not permissible in shallow pits and trenches and instead requires deep geologic disposal, that the cover is irrelevant and completely ineffective and not a legitimate corrective action that is protective of public health. 

 

The defective MWL groundwater monitoring network did not justify leaving radioactive and toxic wastes in place at the MWL as a “final closure.”NMED in its own documentation beginning at least by 1991 knew that the groundwater monitoring well network was in the wrong location and would hide evidence of contamination. Nevertheless, the bogus water sampling data from the seven groundwater monitoring wells was used to assert at the December 2004 NMED public hearings for the Final Order that there was “no evidence of groundwater contamination” so that the dirt cover remedy would be accepted by the hearing officeras a corrective action measure.It was a blatant fraud upon the public that was later used to push throughapproval for the dirt cover, the Fate and Transport Model, the Long Term Maintenance and Monitoring Plan, and the Corrective Measures Implementation Plan that had not been approved as of 2007.For a full history regarding the defective MWL groundwater monitoring wells, see, http://www.radfreenm.org/images/PDF/MWL/MWL_exec_rpt_1-2011.pdf: An excerpt is provided:

2.0. The defective monitoring wells at the Sandia MWL dump were described in many expert reports in the NMED Administrative Record. A series of reports written over the years 1991 through 1998 described the reasons the seven monitoring wells on Figure 6 were defective and required replacement. The seven defective monitoring wells were presented as reliable at the NMED December 2004 Public Hearing and in many DOE/Sandia and NMED reports up to the present time. The seven defective monitoring wells were used to collect unreliable groundwater samples over the 18-year period from 1990 through 2007. The seven defective monitoring wells had many features to prevent the detection of groundwater contamination from the wastes buried in the MWL dump. Section 5 presents the summaries for six of the expert reports written previous to the NMED May 26, 2005 Final Order to install the dirt cover over the wastes buried in unlined pits and trenches at the MWL dump. The reports are in the NMED Administrative Record (“AR”). The reports about the defective monitoring wells at the Sandia MWL dump were written from 1991 to 1998 by 1). the DOE Tiger Team[54] (report #1 in Section 5), 2). the Los Alamos National Laboratory (LANL) (report #2 in Section 5), 3). the NMED Hazardous Waste Bureau (HWB) (reports #3 & #6 in Section 5), 4). the NMED DOE Oversight Bureau[55] (report #4 in Section 5) and 5). the Region 6 of the Environmental Protection Agency (EPA) (report #5 in Section 5)[56]. The six reports summarized in Section 5 described the reasons it was necessary to replace all of the seven defective monitoring wells at the Sandia MWL dump that are displayed on Figure 6. The seven monitoring wells were installed for the intended purpose to monitor groundwater contamination at the water table below and hydraulically downgradient of the MWL dump but all of the seven wells were unreliable for this purpose. However, none of the defective monitoring wells were replaced until 2008. The reasons it was necessary to replace all seven monitoring wells immediately after they were installed or within a few years after installation are summarized below.

One may find it difficult to understand why the most dangerous wastes on the planet received the accommodation of the weakest regulatory and groundwater monitoring requirements.Sandia and NMED tried to squirm out of the strict RCRA Subpart F groundwater monitoring requirements (40 CFR 264.90-100) by claiming the MWL had never had a RCRA permit and misclassifying the MWL as a Solid Waste Management Unit (SWMU).[57]The fact that the MWL was not put on the SNL RCRA Part A or Part B permit only means that the MWL was a non-reporting unit that illegally avoided the RCRA permitting process.  That argument also fails to explain why a Solid Waste Management Unit under corrective action would be able to sidestep the groundwater monitoring requirement of 40 CFR 264.90-264.100 “in lieu of 264.101” where the MWL received hazardous waste after July 26, 1982 and was thus a “regulated unit”.[58]

The groundwater monitoring well investigations and Notices of Deficiency (NOD) throughout the 1990s established that groundwater monitoring wells at the MWL had many features to prevent accurate knowledge of contamination beneath the MWL.  The MWL groundwater monitoring wells were a) inadequate in number, b) improperly located given the west-southwest direction of the flow of groundwater, c) contaminated with bentonite clay, and d) stainless steel well screens were corroded,  all of which hides evidence of contamination in groundwater.

 

On March 1, 2007, Citizen Action and Registered Geologist Robert Gilkeson filed a complaint with Carl Edlund, Director of Multi-Media and Permitting Division at Environmental Protection Agency Region 6,about the lack of a compliant RCRA groundwater monitoring network at the MWL and that the defective groundwater monitoring network did not furnish reliable and representative groundwater sampling data.  (In July 2006 these concerns had been provided earlier to NMED James Bearzi by Mr. Gilkeson.) The complaint to EPA Region 6 also requested that the EPA Kerr Lab in Ada, Oklahoma review the November 6, 2006 report written by Mr. William Moats and others of the New Mexico Environment Department (NMED) entitled "Evaluation of the Representativeness and Reliability of Ground Water Monitoring Well Data" (“Moats Evaluation”).  Moats had to contradict himselfto try to discard his 1993 and 1998 NOD concerns, concerns of Mr. Gilkeson and others that the seven monitoring wells at the MWL never produced reliable and representative water samples.[59]

Moats claimed he based his analysis on similar reports, called Well Screen Analysis Reports (WSAR) written for Los Alamos National Laboratory. However, those Well Screen Analysis Reports were rejected by both the EPA Kerr Laboratory (2005, February 10 and 16, 2006, and March 30, 2009) and the National Academy of Sciences (2007). EPA Region 6 did not send the Moats report to the EPA Kerr Laboratory for review because of the many defects that were identified in the MWL groundwater monitoring well network. The March 2009 EPA Kerr Laboratory was a rejection of the NMED approved version of the WSAR.  The Moats Evaluation provides no scientific basis that well monitoring data from the dump is correct. 

The 2006 NMED Response to public comments for the Corrective Measures Implementation Plan cites the Moats Evaluation many times to reject public comments. The 2005 Sandia Fate and Transport Model is also repeatedly used by NMED to reject public comments.

The March 1, 2007 CANM/Gilkeson EPA complaint identified that a RCRA compliant groundwater monitoring system had never been in place at the MWL and that the system cannot provide reliable and representable water samples for numerous reasons: 

• improper well locations with no appropriate placed background well,
• the wells do not measure the two flow systems present at the MW -- the deeper Ancient Rio Grande strata and the shallower upper flow system the water table in the fine-grained alluvial fan (AF) sediments,
• failure to monitor the Ancient Rio Grande (ARG) strata,
• corroded stainless steel well screens,
• water levels too low for monitoring, going dry,
• several of the 7 wells were drilled with mud-rotary drilling methods and/or contaminated with bentonite grout that adsorbed contaminants of concern,
• two well screens are across different strata causing cross-contamination of the aquifer,
• inappropriate analysis of the groundwater flow rate based on a flawed statistical analysis of wells which have their screens in differing strata.
• underestimated flow velocities for groundwater,
• wrong flow direction to the north instead of west and southwest,
• levels of chromium and nickel exceeding MCL and incorrectly attributed to well-screen corrosion, [nickel and chromium were both disposed of in the dump]
• need for a different method for monitoring tritium,
• problems with purge to dry sampling in monitoring wells.

 

Numerous documents were sent to Region 6.  Frequent conversations took place between Citizen Action Director Dave McCoy, Robert Gilkeson and Region 6 Richard Mayer. Mr. Mayer informed us that a report was being written by histechnical team at Region 6.  Months went by and Mr. Mayer informed us that the legal department was reviewing their technical report. Unbeknown to Citizen Action, Mr. Mayer had already sent the report to William Moats at NMED as an attachment to an August 10, 2007 email.[60]

On 11/26/2007, McCoy spoke with Attorney Ashley Phillips at EPA Region 6 by telephone inquiring about the status of the legal review of the technical report. Ms. Phillips informed McCoy that “no report” by EPA staff technicians existed. Citizen Action was misled (lied to) by EPA Region 6 to believe that no technical report existed.

On December 13, 2007, after Citizen Action gained the assistance of Senator Jeff Bingaman, Region 6 sent us a letter. The EPA Region 6 letter did not provide any technical team report or comments that addressed the specific technical groundwater well monitoring concerns in the 3/1/2007 Citizen Action/Gilkeson complaint. The Region 6 December 13, 2007 letter did not discuss the request for EPA Kerr Laboratory review of the Moats report. The December 2007 EPA letter also refused to consider the 2006 TechLaw, Inc. report, which Citizen Action still had not received, because Region 6 “considers this an issue of State law and we are confident that this matter will be appropriately resolved through the State judicial process.”  On 12/20/2007, McCoy again contacted EPA Region 6 Attorney Ashley Phillips and was again informed (lied to) that no technical report regarding the groundwater monitoring wells existed. Without any supporting documentation, the Region 6 December 13 letterconcluded:

Based on our review, we have determined that NMED’s overall actions and decisions for administration of the authorized program have been technically sound and consistent with applicable RCRA requirements.

That Region 6 conclusion was far different from a later conclusion reached three years later in 2010 by the USEPA Office of Inspector General(“OIG”).

 

On April 14, 2010, as a result of a Citizen Action complaint to the OIG in May 2007 and after a four day meeting with three inspector general auditors, the OIG issued a $272,846 Hotline Report entitled Region 6 Needs to Improve Oversight Practices.https://www.epa.gov/sites/production/files/2015-10/documents/20100414-10-p-0100.pdfCitizen Action only finally learned of the existence and name of the technical report that Citizen Action had tried to obtain from Region 6 given in the OIG Hotline Report:

The Region 6 team’s findings were summarized in a draft document titled “Sandia Mixed Waste Landfill Groundwater Monitoring Well System and Program Oversight Review” (Oversight Review).

 

The EPA OIG 2010 Hotline Report identified the lack of documentation for the Region 6 conclusion about the MWL groundwater monitoring wells and stated:

Specifically, Region 6 staff (1) took inappropriate steps to keep the details of the MWL monitoring wells assessment from the public, (2) decided not to provide documentation or sometimes not to document their concerns about the MWL monitoring wells, (3) provided a letter to CANM that did not note the specific details of the assessment, or (4) improperly placed a national security marking (Confidential) on the assessment. The Region’s actions are a violation of EPA’s Public Involvement Policy and EPA’s Records Management Policy.

 

We recommend that the Regional Administrator, Region 6, comply with EPA’s national security, public involvement, and records management policies, including removing the national security marking from the December 2007 Oversight Review. As part of this recommendation, the Regional Administrator should ensure that the opinions of technical and nontechnical staff are documented to support EPA’s oversight decisions, and develop or update oversight standard operating procedures to ensure compliance with these policies.

 

The OIG found Region 6 had even gone to the extent of wrongfully stamping the Oversight Review as “Confidential,” a national security designation so that Citizen Action could not obtain the review.  EPA Region 6 deliberately did not documentits discussions with NMED to keep Citizen Action from obtaining information (Hotline Report, p.3):

During an interview with the OIG, the Project Engineer for Sandia informed us that her section had discontinued record keeping of phone calls and discussions between the Region and NMED because of CANM’s requests for documentation regarding the MWL, including extensive requests for information under the Freedom of Information Act. According to EPA’s Records Management Policy, the Federal Records Act of 1950, as amended, requires all federal agencies to make and preserve records containing adequate and proper documentation of their organization, function, policies, decisions, procedures, and essential transactions.

 

Despite the April 2010 OIG Hotline Report, in a June 10, 2010 letter sent to Senator Jeff Bingaman, EPA Region 6 Administrator Armendezstated that it had responded to the request for review of the Moat’s report and had written to Mr. McCoy in 2007 that it “had conducted a review of the overall mixed waste groundwater monitoring system, ‘consulted’ with [the Kerr Laboratory], and determined that NMED’s overall actions and decisions were technically sound and consistent with applicable RCRA requirements.” The Moats report was not sent for review.

 

Even after issuance of the 4/14/2010 Hotline Report, and the fact that the OIG stated Oversight Review had been improperly stamped “Confidential,” neither the NMED, EPA Region 6, or the OIG would furnish Citizen Action with the Oversight Review.After many Citizen Action FOIA requests to Region 6 and the OIG and administrative appeals of denials to furnish the Oversight Review, Citizen Action filed a federal FOIA lawsuit on August 11, 2011 against Region 6 and the OIG.[61]  Finally in late 2012 we obtained some 20 different versions of the oversight review, five years after the initial 2007 complaint about the defective ground water monitoring well network at the MWL! 

Although EPA and NMED told Citizen Action in December 2007 that there was no technical report, an email from Region 6 Richard Maher to NMED William Moats, obtained in 2014 afterfinal settlement of the FOIA lawsuit, showed that the Region 6 technical comments were received by NMED William Moats on August 10, 2007 without “major changes” expected:

The 12/13/2007 EPA Region 6 letter to Citizen Action ignored the TechLaw report and the existence of its own Oversight Review and instead urged Citizen Action to raise its concerns “during the comment period for the LTMMP and addressed through the appropriate channels of the NMED’s authorized RCRA program” -- even though both NMED and Region 6 knew the Oversight Review agreed with several of Citizen Action/Gilkeson’s concerns. EPA and NMED did not acknowledge the contents of the Region 6 Oversight Review to Citizen Action or the public during any of the proceedings that followed the 2005 Final Order, such as the Fate and Transport Model and the Long Term Monitoring and Maintenance Plan.

Many of the deficiencies of the MWL dump’s groundwater monitoring network identified by Citizen Action/Gilkeson were confirmed in the EPA Region technical team analysis.  Below are snapshots of some excerptsfrom one of the manyiterations of the EPA Region 6 technical team’s evaluations of the background well (BW1)and groundwater monitoring wells MW1 through MW6,including the redacted parts, from the 96 page FOIA document that the Federal Court ordered Region 6 and the OIG to provide to Citizen Action as part of a settlement agreement (space between M4 and MW5 below due to snipping):

 

EPA Inspector General auditor interviewsof Region 6 technical staff for the Hotline Report indicated the team’s initial analysis of the MWL groundwater monitoring network would not have supported the “solution” [of a dirt cover].  According to one Region 6 technical staff person, as the Region 6 drafts reviews were rewritten, NMED pushed “extremely hard” on EPA Region 6 not to question the past results of groundwater monitoring and not to review the decision for the dirt cover “solution”of leaving hazardous wastes in place at the MWL.  Over 20 drafts of the Region 6 Oversight Review were written to make changes that wouldmake itappear that groundwater monitoring and decision making for the MWL had been properly made by NMED.  Below is a snipped excerpt from the OIG Procedure Standard Report taken on October 15, 2008 by OIG Auditor Edward Baldinger (different colors and font sizes are EPA OIG):

A second EPA Region 6 hydrologist, name redacted, was interviewed by the OIG on July 9, 2007, as part of the team to review CANM’s 22 technical questions submitted to Region 6 through Senator Bingaman. The hydrologist stated that

 

 “Many of the issues CANM raised had been known for ten years. NMED and EPA Region 6 chose to ignore the issues of well construction and sampling procedures.”

 

He stated that

 

 “Downgradient wells were in the wrong position by 90 degrees.”

 

He stated that

 

“Several of the wells have cross contamination because the stainless steel wells screens are in two different stratas; therefore the wells are [not] functioning as intended because the wells should only be in one strata.” 

 

He stated that

 

 “Replacing the stainless steel well screens with plastic screens and tahen [sic] taking a new round of samples will provide information if the elevated of levels [of nickel] were from the stainless steel well screens or another source [Emphasis supplied – see the first bulleted comment below].”  

 

He stated that

 

 “Moreover, MWL does not have any wells in the deeper strata [e.g., the RCRA uppermost aquifer] to analyze if contamination has filtered down

 

The 12/12/2007 EPA Region 6 Program Oversight Review 12 page letter stamped “Confidential” contained significant technical paragraphs that were deleted from the 3 page 12/13/2007 letter that was sent to Citizen Action. One deleted paragraph stated:

The decision to cover the MWL was made to reduce the potential for erosion, water infiltration, and animal intrusion; it is not ‘Final Closure’ with a permanent RCRA ‘cap.’  … The potential exists for future excavation if deemed necessary.  (Emphasis supplied).

The Probabilistic Performance-Assessment Modeling of the Mixed Waste Landfill(MWL) at Sandia National Laboratories (Sandia) (2d Edition) (Ho et al. January 2007)(“Fate and Transport Model” or “FTM”) was a major document used for the Long Term Monitoring and Maintenance Plan (LTMMP). The Ho FTM was not presented to the public for review and comment prior to approval by the NMED, despite Citizen Action requests.  Hodid not take into account the facts that the groundwater monitoring wells were defective as was known to NMED from at least 1993. NMED also knew by the time the Ho FTM was written that their groundwater monitoring wells were defective:  There was the January 2006 TechLaw report, the Gilkeson presentation to NMED in July 2006, the Citizen Action March 1, 2007 complaint to EPA Region 6 and the EPA Region 6 technical team Oversight Review sent to NMED Moatsfrom Rich Mayer on August 10, 2007.

Citizen Action commented in 2012[62]on the LTMMP that The TechLaw, Inc. report needed to be provided and that the Ho FTM was based on groundwater monitoring data that the NMED knew was not reliable and representative;that NMED should not approve the LTMMP based on the Moat’s Evaluation and the Ho FTM.  NMED had claimed in a July 17, 2007 letterthat it “welcomes the review by EPA”, but NMED could have but did not at any time request the review of the Moats report from EPA.NMEDadmitted the groundwater well monitoring problems in section 3.5.1 of the LTMMP.  The evaluation of the fate and transport of contaminants of concern[63] at the Mixed Waste Landfill could not have been reliable because of the defective groundwater well monitoring network. But the NMED used the probability assessment and the Moats report anyway as a basis of approval for the LTMMP on January 8, 2014 without holding a public hearing.

 

Because of the 2007 Citizen Action/Gilkeson complaint, EPA Region 6 put pressure on NMED to order new wells.  Region 6 made technical recommendations for replacing wells BW1, MW1, MW3 and installing at least one additional groundwater monitoring well to the north or northeast and a groundwater monitoring well on the south side.Other technical team observations included:MW2 was cross gradient and unlikely to observe releases from the landfill with westerly groundwater flow;  MW4 was recommended for plugging due to the two aquifers mixing because its two well screens were across both the AF and ARG;  MW5 had a well screen that was supposed to monitor the alluvial fan strata but instead extended into the ARG and was contaminated with grout and bentonite clay;  MW6 was 500 ft to the west northwest and could only be used for measuring water level in the ARG strata.  

A new background well BW2 was installed to the east along with MW7, MW8 and MW9 to the west of the dump.[64]  NMED did not follow the suggestions contained in the EPA Region 6 Oversight Review’stechnical analyses for a new monitoring well to the north and one located on the southern boundary. There is an acid disposal pitin the southern 0.6 acre Classified section of the dump that should be monitored.

The new monitoring wells MW7, MW8 and MW9 were not properly installed and worthless for early detection of contamination at the water table, according to a technical paper presented by Mr. Gilkeson to the 2013 Water Protection Advisory Board (WPAB) public comment forum. Mr. Gilkeson identified several factors:

• Monitoring screens were too long at 30 ft causing (1) dilution of the contamination in the groundwater at the water table and (2) inaccurate and anomalously deep water levels that do not represent the elevation of the water table.
• The NMED issued a Notice of Disapproval (NOD) Letter dated June 19, 2007[65] that stated the 30-ft long well screens would cause measurement of an anomalously deeper water level than the elevation of the water table
• Because of the 30-ft screen, the NOD (page 2) required the depth to the water table to be determined during the drilling of the borehole for well MWL-BW2.
• A review of the field logs shows that DOE/Sandia did not comply with the NMED requirement to log the depth to the water table in the borehole for well MWL-BW2 during drilling or for any of the four new monitoring wells. The elevation of the water table at the location of well MWL-BW2 and the other three wells was based on the elevation of the water level measured in the installed well, not on the observed water table level observed in MW3 in 2007.
• The water levels measured in the four new wells and especially the levels measured in wells MWL-MW7, -MW8 and –MW9 do not represent the elevation of the water table. The measured water levels are anomalously deep because of the 30-ft long well screens.

Mr. Gilkeson provided Figure 11 to show that MW7, MW8 and MW9 did not measure the level at the water table in the fine-grained sediments:

Figure 11.  Hydrograph of the elevation of the water table below the Sandia MWL dump measured in monitoring well MWL-MW3 over the period from 1991 through 2001. The water table declined at an average annual rate of 0.62 feet per year.

Mr. Gilkeson concluded:

The three new wells MWL-MW7, -MW8, and  -MW9 do not monitor at the water table and require replacement.The large drop in water levels measured in the three new wells in October 2008 compared to the water table elevation measured in well MWL-MW3 in April 2007 is evidence the three new wells do not measure the elevation of the water table. The long-term historical record shows the water table in October 2008 had not declined by more than ~ 1 ft below the elevation measured in well MWL-MW3 in April 2007.

The water level data and discussion presented in Figure 11 are proof the anomalously deep water levels measured in the three new wells MWL-MW7, -MW8 and -MW9 cannot be used to generate reliable maps for the direction and speed of travel for groundwater at the water table below the SNL MWL dump. (Emphasis supplied).

Citizen Action’s November 2012 Comments for the Long Term Monitoring and Maintenance Plan stated:

A full public hearing is also requested because, as described below, the information provided to the public by NMED and DOE/SNL has been knowingly incorrect.  Significant information has also been withheld from the public that has led to a false record being provided to the public for review.

 

CONCLUSION

The 5-year review process should result in an NMED Order for excavation and offsite removal for protection of public health and safety and while public resources are available for the excavation and cleanup. The Mixed Waste Landfill represents a permanent threat to the safety of the Albuquerque community. It will need to be monitored for tens of thousands of years if not for a million years. During that time the Mixed Waste Landfill will need to be monitored, guarded and will represent unused land located functionally in the center of Albuquerque.

Given the knowledge of the contamination of groundwater, soil and air, the costs and inability for long-term dirt cover maintenance it would seem an abuse of discretion for the NMED not to issuance an Order for excavation. This wouldalso begin anend to what has beenreprehensible denial of the public’s right to meaningful participation in RCRA decision making (40 CFR parts 124 and 270), a politically accommodative,secretive, inappropriate, unprotective and illegal regulatory posturegranted toSandia for the MWL that included:

• Erroneous waste characterization of the MWL: Ignoring the disposal in the MWL of High-Level Mixed Waste and Transuranic waste (TRU) from atomic bomb tests, nuclear meltdown experiments, spent fuel, and melted fuel pins inseparably combined with metallic sodium,laboratory experiments and a space nuclear reactor program that disposed of fuel rods;
• burial for the HLMW and TRU in the MWL;
• Ignoring the disposal of mercury and explosive metallic sodium in the MWL;
• Avoidance of opening and inspection of canisters or other containers known or believed to contain explosive metallic sodium mixed with spent fuel from nuclear meltdown experiments conducted in the Annular Core Research Reactor (ACRR).
• Allowing the escape from the MWL of heavy metals, tritium, radon, and volatile organic compounds without ordering any remediation whatsoever;
• Escape from RCRA requirements for landfill design, closure and post-closure plans and future inability to provide institutional control;
• Regulation of the MWL as a Solid Waste Management Unit, instead of as a “regulated unit” defined by 40 CFR 264.90(a)(2) where the MWL received hazardous waste after July 26, 1982; failure to implement the groundwater monitoring network requirements of 40 CFR 264.90-100 for the MWL;
• Allowing a defective groundwater monitoring network to provide incorrect data for making the dirt cover decision in the first place;
• Violation of public participation requirements of RCRA by withholding crucial information from the public regarding the MWL past and present defective groundwater monitoring network and defects in the dirt cover.That resulted in false foundations forNMED approval of the Long-Term Maintenance and Monitoring Plan and Corrective Action Complete.
• Allowing a nine-year delay to enforce the Final Order’s 5-year reevaluation for feasibility of excavation and the suitability of the remedy.
• Downplaying the significance of the migration of TCE and the fact that the dirt cover doesn’t protect the groundwater from the release of chlorinated solvents and other MWL contaminants.Settingcontaminant trigger levels and a vapor monitoring network that cannot provide protection from long-term release of MWL contaminants.

Citizen Action thanks the NMED for its prior and current involvement and efforts with respect to the MWL.

Respectfully submitted, July 23, 2019

David B. McCoy, J.D., Executive Director

Citizen Action New Mexico

This email address is being protected from spambots. You need JavaScript enabled to view it.

818 448-9981

 

 

[1] “The complete excavation alternative ranks high for long-term reliability and effectiveness.5-Year Review, 5.3.1.

Complete excavation with offsite and onsite disposal alternatives are both remedial alternatives that could be implemented if necessary for the protection of human health and the environment. 5.3.6. The Planning & Permitting phase would begin with an SNL/NM procurement process for a turn-key design-build contract to allow for the most time-efficient project execution. In accordance with the regulatory process applicable to the MWL, the implementation of excavation would require the development of a CMI Plan which requires NMED approval (for the purpose of this Chapter, the CMI Plan is hereafter referred to as a CMIP).”

[2]  2016 Final Order, p. 9. https://hwbdocuments.env.nm.gov/Sandia%20National%20Labs/2016-02-12%20Final%20Order%20-%20MWL.pdf

[3]Resource Conservation and Recovery Act (RCRA) 42 U.S.C. § 6901et seq.  Re hazardous waste see: https://www.epa.gov/hw/defining-hazardous-waste-listed-characteristic-and-mixed-radiological-wastes#mixed

[4]IPRA documents received by Citizen Action on May 24, 2012 show that negotiations to delay the 5-year review report were held between NMED, SNL and DOE without the required public participation. On February 17, 2011 NMED and DOE/Sandia held a secret meeting arguably in violation of the New Mexico Open Meetings Act in which a modification to the May 26, 2005 Final Order began to provide a delay for completion of the 5-year review requirement. No minutes of the 2/17/2011 meeting were made until 11/08/2011 and the minutes were not posted for public review.  The meeting dealt with significant issues of concern to Citizen Action and the public that had participated in proceedings that resulted in the Final Order regarding the MWL dump. The February 17, 2011 meeting was closed to the public. The 2/17/2012 meeting affected public policy for the management of hazardous wastes at the MWL dump. The 5 year review was discussed in subsequent emails from DOE/Sandia to NMED William Moats on March 9, March 16 and November 8, 2011.  On October 14, 2011 NMED issued a Notice of Approval for the MWL Corrective Measures Implementation Report (CMI Report) allowing the first five year period for re-evaluating the feasibility of excavation and analyzing the effectiveness of the remedy to begin five years after the approval of the LTMMP. The minutes were written after an October 14, 2011 approval of the CMI Report. The issue of delay for the 5-year review was not presented in the CMI Report for the public to be able to review and comment. Citizen Action and other members of the public filed comments for the CMI Report, but were denied an opportunity to comment on any revision to the Final Order for the 5 year review period.  Thus, the public was denied its right to participate in the decision making process under RCRA (40 CFR 124) and under the Open Meetings Act.

[5] 2005 Final Order Condition #5 states as follows:“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 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.”

[6] 2006 NMED Final Order (Flynn).  For RCRA Subtitle C requirements, see 40 CFR 264.228 Closure and Post Closure Care.  See also, Guidelines for Evaluating the Post-Closure Care Period for Hazardous Waste Disposal Facilities under Subtitle C of RCRA (EPA, December 15, 2016)  See, Guidelines for Evaluating the Post-Closure Care Period for Hazardous Waste Disposal Facilities under Subtitle C of RCRA (EPA, December 15, 2016)  https://www.epa.gov/sites/production/files/2017-01/documents/pcc_guidance_508_withdateandletterhead.pdf

[7] DOE MWL Corrective Measures Study Final Report, p. 17(May 2003)

[8] US Energy Research and Development Administration, p. 11, September 8, 1977 (FOIA #50)

[9] SNL Project Document # Plan 92-27 (FOIA #115)

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16]See Testimony of former NMED Hazardous Waste Bureau Chief Dr.  Robert Dinwiddie, Tr. p.24, l.6 – p.25, l.16. PUBLIC COMMENT MEETING PUBLIC FORUM ON THE PROPOSED LONG-TERM MONITORING AND MAINTENANCE PLAN FOR SANDIA LABORATORIES MIXED WASTE LANDFILL  (Sponsored by the ABC Water Utility Authority, February 6, 2013).

[17]https://www.epa.gov/sites/production/files/2017-01/documents/pcc_guidance_508_withdateandletterhead.pdf

[18]http://www.radfreenm.org/images/PDF/MWL/feb_2013_MWL_forum_transcript.pdf  Public Forum Transcript

[19]There was zero public support in 2015 for Corrective Action Complete approval. Public comments included:  “Don’t leave it, like it was left for us.” The cozy relationship between NMED and DOE/Sandia was condemned as a “toxic sham” for how not to deal with hazardous waste. The lack of environmental justice for surrounding poor community of South Valley, lack of Sandia outreach to community, contamination of the only drinking water aquifer, continuing degradation of the environment by the nuclear industry, the spreading of the wastes in air, soil and water, colloidal movement of Plutonium, Tritium releases, a nature park two miles to the west and risk, absence of an emergency plan, failure to excavate the wastes, the threat to nearby military personnel, communities and schools, the absence of liners, breakdown of containers, explosive metallic sodium combined with high level waste, no authority to leave high level wastes in shallow pits and trenches, deep geologic disposal necessary, the “willy-nilly” manner of dumping the waste, lack of knowledge for the inventory, improper groundwater sampling, lack of a five year review for feasibility of excavation, transport by small animals, were public concerns. The lack of credibility was a frequent topic, citing lies, omission of information, misinformation, only concern for money not public health and safety, hiding behind lawyers, and the duty to correct the record, ignoring public concerns and pressure on the Hearing Officer to conclude in favor of NMED and DOE/Sandia.

[20]Under the Nuclear Waste Policy Act of 1982 (NWPA), Spent Fuel is defined as follows (42 U.S.C. § 10101(23) (http://www.epw.senate.gov/nwpa82.pdf ): (23)  The  term  ‘‘spent  nuclear  fuel’’  means  fuel  that  has been  withdrawn  from  a  nuclear  reactor  following  irradiation, the  constituent  elements  of  which  have  not  been  separated  by reprocessing.

The NWPA defines, in (12)(B), high-level waste as being more than only reprocessed spent nuclear fuel as follows:

(12) The term ‘‘high-level radioactive waste’’ means—

(A)  the highly  radioactive  material  resulting  from  the reprocessing  of  spent  nuclear  fuel,  including  liquid  waste produced directly  in  reprocessing  and  any  solid  material derived from  such  liquid  waste  that  contains  fission  products in sufficient concentrations; and

(B) other highly radioactive material that the Commission,  consistent  with  existing  law,  determines  by  rule  requires permanent isolation.  (Emphasis supplied).

[21]NMED December 2004 Public Hearing by NMED considered groundwater to be an “incomplete exposure pathway.” (Transcript, v. III, p. 1039, l. 1-7).

[22] The Corrective Measures Study admits that its risk assessment “does not consider risk posed by organic, inorganic, radiological constituents present in the MWL inventory that have not been released into the environment.” (CMS, p. I-11).   In May 2003 a Risk Assessment for the MWL was issued by Sandia.  Appendix I Section I.1 MWL Groundwater Data states, “Because concentrations of constituents in groundwater beneath the MWL are at background levels and do not indicate contamination, and because depth to groundwater at the MWL makes groundwater an unlikely pathway for contaminant transport in the future, groundwater data are not evaluated in this risk assessment.” 

[23]http://www.radfreenm.org/images/PDF/MWL/2006MWL_techlaw_report.pdf

[24]http://www.radfreenm.org/images/PDF/MWL/MWL_exec_rpt_1-2011.pdf

[25]https://www.newmexicopbs.org/productions/newmexicoinfocus/wp-content/uploads/2014/12/EPA-Region-6.-shortchanged-Citizen-Action.Procedures-Interviews-B.4.PS_.B.4.1-through-B.4.PS_.B.4.4-inclusive.pdf

[26]https://www.env.nm.gov/HWB/SNL/MWL/Preliminary_Human_Health_Risk_Assess_MWL_by_Johnson(1-1995).pdf p. 52.

[27] See https://www.law.cornell.edu/cfr/text/40/270.21 Landfill requirements

[28] The 1996 RCRA Facility Investigation Report (RFI) states that, “There is currently temporary, above ground storage of containerized, low-level radioactive and mixed wastes at the landfill.” (AR 008196). This contradicts SNL/DOE’s contention that the MWL was closed in 1988. 

[29] FOIA #38- List 15c stated: “However, I believe it is no longer possible to bury packages of metallic sodium.  (Hence, we are between a rock and a hard place).”

[30]https://www.env.nm.gov/HWB/SNL/CMS/App_H_Eval_of_Near-Term_Excavation.pdf See, Appendix H Tables J-1 and J-2).

[31]https://www.jstor.org/stable/3578993?seq=1#page_scan_tab_contents see Abstract

[32]https://www.scientificamerican.com/article/colloids-in-russia-have-p/Colloids in Russia: Have Plutonium, Will Travel, Scientific American, David Biello(10/26/2006)

[33] FOIA #58 Interview (1984) with Frank Stazula, Area V.

[34]45 Fed. Reg. 33154 (May 19, 1980), 40 C.F.R. pt. 265, ELR STAT. & REG. 47335. Section 3005 of RCRA specifies that if the owner or operator of a facility in existence on November 19, 1980 notifies EPA (as required by § 3010 of RCRA, ELR STAT. & REG. 41912) and properly applies for a permit, the facility owner or operator is to "be treated as having been issued such permit." Such an owner or operator has "interim status" and is subject to the "interim status standards" until he is issued a permit.  MWL was a non-notifier.  

[35] “Technical Review of the [Sandia] Probabilistic Performance Assessment Modeling of the Mixed Waste Landfill at the Sandia national Laboratories, of the  Mixed Waste Landfill Corrective Measures Implementation Plan, Dated November 2005” (TechLaw Report).

[36]SLAPP = Strategic Lawsuit Against Public Participation

[37]https://www.abqjournal.com/scitech/596965nm09-24-07.htmhttps://www.abqjournal.com/news/state/604899nm10-24-07.htmAn Albuquerque Journal editorial  labeled it “executive cover-up.”

[38]N.M. judge agrees report on Sandia landfill is public record, Associated Press (October 9, 2008)

[39]As a further result of the lawsuit, NMED had to release some 13,000 pages of TechLaw, Inc .and AQS documents concealed in a special section of its library for up to a decade and that cost the taxpayers millions of dollars. The technical documents are relevant to widespread toxic contamination and/or permitting actions throughout New Mexico at Sandia Labs, Los Alamos National Laboratories, Triassic Park, Safety-Kleen Systems, military bases at Kirtland AFB, Fort Wingate, Holloman AFB, Ft. Bliss, White Sands Test Facility and oil company refineries Western Refining SW (Gallup), Bloomfield Refinery (Farmington), Navajo Refining Co . (Artesia).

[40]http://www.radfreenm.org/images/PDF/MWL/2006MWL_techlaw_report.pdf

[41]Probabilistic Performance-Assessment Modeling of the Mixed Waste Landfill(MWL) at Sandia National Laboratories (Sandia) (2d Edition) (Ho et al. January 2007)(“Fate and Transport Model” or “FTM”)https://www.env.nm.gov/HWB/SNL/MWL/MWL_Prob_Model_NOD_revision.pdf

[42]https://www.law.cornell.edu/cfr/text/40/264.301

[43] Dr. Barcelona contributed heavily to writing EPA RCRA groundwater monitoring regulations.

[44] Dr. Barcelona cited undetermined future risks from Technecium99: “There are numerous disposal records for Technitium-99 (Tc-99) having been disposed of in the MWL.  Tc-99 has a half-life of 211,000 years and is a contaminant that is present as a daughter product along with depleted uranium, which has been disposed of in large quantities in the MWL. The contaminant mass and distribution for Tc-99 to project future risks has not been determined.”

 

[45] April 1, 1997 Memorandum of W.B. Cox to G.K. Laskar

[46]40 CFR 264.90(a)(2) defines a regulated unit and provides special groundwater monitoring requirements under 40 CFR 264.90-100 that differ from those for a SWMU.

[47]40 CFR 270.1(c) Owners and operators of surface impoundments, landfills, land treatment units, and waste pile units that received waste after July 26, 1982, or that certified closure (according to §265.115 of this chapter) after January 26, 1983, must have post-closure permits, unless they demonstrate closure by removal or decontamination as provided under §270.1(c)(5)and (6), or obtain an enforceable document in lieu of a post-closure permit, as provided under paragraph (c)(7) of this section.

[48] March 11, 1998 DOE RE: Denial: Report of the Mixed Waste Landfill Phase 2 RCRA Facility Investigation Sandia National Laboratories, stated that: “Dr. Stu Dinwiddie’s letter dated September 11, 1997, denied our request for No Further Action regarding the Mixed Waste Landfill at Sandia National Laboratories and established a response time of 180 days.  We are hereby requesting a 180 day extension to this response time frame.”(AR009354).

[49]Memorandum from John Gould to Dick Fate, November 20, 1998.

[50] (NMED Responses to Public Comments on the Sandia National Laboratories’ Mixed Waste Landfill Corrective Measures Implementation Plan, p. 44, (November 21, 2006) stated: “Although the regulatory requirements of 20.4.1.500 NMAC incorporating 40 CFR 264 Subpart F can be used as guidance, nearly all of the requirements of Subpart F do not apply to the MWL because it is not a permitted unit.  Instead the landfill is regulated as a Solid Waste Management Unit subject to corrective action pursuant to 20.4.1.500 NMAC incorporating 40 CFR 264.101.” 

[51]Rep. Heather Wilson, R-NM, arranged a $25,000 appropriation for WERC, an environmental research group based at New Mexico State University, to do a study.  “The [WERC] group will not take additional soil, air or water samples … but will rely on existing data.” (AR 013357).

[52]https://www.newmexicopbs.org/productions/newmexicoinfocus/wp-content/uploads/2014/12/August-31-2001-WERC-Report-Inventory.pdf  Also, See Appendix B Inventory of Disposed Materials by Pit and Trench that does not include the information contained in the ~6000 Radioactive and Toxic Waste Disposal sheets that were only provided later after the WERC studies were completed. 

[53]The permit and the permit modification must contain terms and conditions as necessary to protect human health and the environment. NMSA 1978 § 74-4-4.2.C. and 20 NMAC 4.1.900 incorporating 40 CFR 270.32(b)(2) and (3).  RCRA covers mixed radioactive wastes.  Effective July 1990, New Mexico received EPA's authorization to regulate mixed radioactive waste. Sandia failed to obtain a RCRA permit for the MWL.  Sandia failed to submit a Part A within the required 6 month period following NMED authorization. 40 CFR 270.10(e)(1).  40 CFR 270.73(d).DOE/Sandia failed to submit a RCRA Part A permit application within six months after the publication of regulations that rendered the MWL subject to 40 CFR 265 standards, or 30 days after the MWL first became subject to the standards.  (40 CFR 270.10(e)(1).  40 CFR 270.73(d).)  No RCRA Part B application was submitted for the MWL within one year of the effective date of the NMED’s authorization date (July 25, 1990) for radioactive mixed wastes.  Clean closure was required because of the loss of interim status. Sandia failed to provide clean closure, a closure plan and a post closure plan following loss of interim status;The MWL operated illegally because it lost interim status. (42 USC 6928 (d)(2)(A) ).

 

 

[54] DOE/SNL knew in May 1991 from the Tiger Team Assessment of SNL ((p. 3-59) that “The number and placement of wells at the mixed waste landfill is not sufficient to characterize the effect of the mixed waste landfill on groundwater.” 

[55]A May 16, 1995 Memorandum from Lloyd Aker, NMED DOE Oversight Bureau Site POC to Benito Garcia, Chief HRMB that reviewed the MWL Phase 2 RCRA Facility Investigation Work Plan, Comment Responses to USEPA NOD SNL, November 1994 stated:

“The groundwater system beneath the Mixed Waste Landfill was previously reviewed by Moats and Winn (1993, citation omitted).  As discussed in that review, the NMED DOE OB [Oversight Bureau] is concerned that the present monitoring well network at the Mixed Waste Landfill (MWL) does not adequately characterize the vertical and horizontal flow, rate of flow, or groundwater quality of the aquifer.

“Based on water levels measured in MWL-MW3 the possibility exists that the monitoring well network is cross gradient to the local groundwater flow direction.  In addition to this, the flatness of the potentiometric surface, coupled with deviations in the verticality of the monitoring wells, further limit the understanding of the groundwater system beneath the MWL. 

“More detailed hydrogeologic information is needed to determine with reasonable certainty the direction and gradient of groundwater flow.”

[56]EPA issued a September 1994 Notice of Deficiency for the RFI Work Plan. The Final Mixed Waste Landfill RFI Work Plan Summary Report submitted to Ms. Rena McClurg EPA Region 6 by A.T. Kearney, Inc., September 1994 (“Kearney Report” AR006365-006381,) described numerous deficiencies in the groundwater monitoring network.  For example Comment 11. “Based on the southwest gradient flow of groundwater, the MWL monitoring wells are located cross gradient instead of downgradient from the MWL; therefore, contaminants emanating from the MWL may not be detected in the monitoring wells.”

[57]December 2002 SAND REPORT Mixed Waste Landfill Groundwater Report 1990 through 2001, Goering, et al., summarizes groundwater analytical results and aquifer test data collected at SNL’s MWL.  Under Regulatory Requirements for Groundwater Monitoring  it states (p.2-1) (AR 017299):

“The monitoring well network was designed to be consistent with groundwater monitoring requirements for interim status landfills (20.4.1.600 New Mexico Administrative Code, 40 CFR Part 265, Subpart F (40 CFR 265).  These requirements pertain to detecting releases of hazardous wastes to groundwater.”

The views of NMED and SNL are now expressed that because the MWL was classified as a SWMU for Corrective Action under 40 CFR 264.101 and that because the MWL lacked interim status or a RCRA permit that therefore the requirements of Subpart F do not apply to the well monitoring network; that the existing monitoring system cannot be held to the standards contained in Subpart F:

“Although the regulatory requirements of 20.4.1.500 NMAC incorporating 40 CFR 264 Subpart F can be used as guidance, nearly all of the requirements of Subpart F do not apply to the MWL because it is not a permitted unit.  Instead the landfill is regulated as a Solid Waste Management Unit subject to corrective action pursuant to 20.4.1.500 NMAC incorporating 40 CFR 264.101.”  (NMED Responses to Public Comments on the Sandia National Laboratories’ Mixed Waste Landfill Corrective Measures Implementation Plan, p. 44, (November 21, 2006).

[58]40 CFR 264.90 (2) All solid waste management units must comply with the requirements in § 264.101. A surface impoundment, waste pile, and land treatment unit or landfill that receives hazardous waste after July 26, 1982 (hereinafter referred to as a “regulated unit”) must comply with the requirements of §§264.91 through 264.100 in lieu of § 264.101 for purposes of detecting, characterizing and responding to releases to the uppermost aquifer.

[59]In November 2008, Mr. Gilkeson filed a 33 page report with NMED entitled “The Factors That Require the New Mexico Environment Department to Retract the Report- Evaluation of the Representativeness and Reliability of Groundwater Monitoring Well Data, Mixed Waste Landfill, Sandia National Laboratories - With No Opportunity For Revision.” Mr. Gilkeson began his multi-factored analysis with the use of bentonite clay:

The author provided comments to NMED that proved the groundwater protection program at the MWL dump never produced the knowledge required for the decision to leave the large inventory of very toxic hazardous and radioactive waste below a dirt cover.  Specifically, the Moats report was written to discard the concerns of the author and others that four of the seven monitoring wells at the MWL never produced reliable and representative water samples because the sampling zones (i.e., the screened intervals) in the four wells were contaminated with bentonite clay.  Three of the wells (BW1, MW2 and MW3) were drilled with mud-rotary drilling methods that invaded the screened intervals with bentonite clay drilling muds and organic additives.  The screened interval in the fourth well (MW5) was invaded with bentonite clay/cement grout because of a mistake in well construction.  This report describes why the assessment scheme in the Moats report could not prove that the four monitoring wells impacted by bentonite clay drilling muds and grout ever produced reliable and representative water samples.

Citing sections 3 and 4 of the 2005 Final Order, Mr. Gilkeson addressed the lack of any scientific peer review for the Moats Report and the failure to provide the public with any opportunity to comment on what was a major document with its purpose to quiet public concerns.  “NMED imposed the Moats report onto the public as a response to the public comments on the Corrective Measures Implementation Plan (CMIP).”

 

[60] The email was obtained several years later from the Citizen Action FOIA lawsuit against EPA Region 6 and the EPA Inspector General.

[61]Citizen Action v. U.S. EPA, 1:11-cv-00695-RHS-KBM.  http://www.radfreenm.org/old_web/pages/Legal/20110808FoiaEpaLawsuitFiling.pdf

[62]https://www.env.nm.gov/HWB/documents/11-26-2007_Citizen_Action_Comments.pdf  Comment #11

https://www.env.nm.gov/HWB/documents/1-31-2008_Citizen_Action_Comments.pdf Comment #61

[63] The proposed point of compliance for Uranium reaching the groundwater was at the downgradient monitoring wells. The only downgradient well MW3 had a corroded well screen, was too far from the dump, and nearly dry.

[64]Changes for the network of groundwater monitoring wells required notice and opportunity for comment previous to the issuance of the LTMMP.  The new monitoring wells MWL-BW2, MWL-MW7, –MW8, and -MW9 that were ordered for installation at the MWL dump required a Class 2 and Class 3 permit modification before the monitoring wells could be installed and made a part of the LTMMP.  40 CFR 270.1 Appendix I, C.1.a, C.4. and C.5.a.  The public did not receive its opportunity to review and comment on the wells that were ordered for the MWL. Those groundwater monitoring wells constitute a significant portion of the long-term monitoring plan for the MWL. Changes for the network of groundwater monitoring wells required notice and opportunity for comment previous to the issuance of the LTMMP.  (October 26, 2012 CANM letter to John Kieling, Program Manager at #10).

 

[65]https://www.env.nm.gov/HWB/documents/6-19-2007_NMED_NOD_Monitoring_Well_PandA_Plan_and_Replacement_Well_Construction_Plan_for_BW-.pdf