Date: September 24, 2008

Contact: Dave McCoy, Director Citizen Action New Mexico

(505) 262-1862


Citizen Group Wins Mixed Waste Landfill

Open Meetings Act Victory


Citizen Action, an Albuquerque-based public interest group, on Tuesday (September 23, 2008) won a significant decision in the Santa Fe First District Court allowing it to proceed to trial against the New Mexico Environment Department (NMED) for violation of the Open Meetings Act. Judge Daniel Sanchez denied the NMED motion to dismiss Citizen Action’s claim.


Citizen Action is asking that a public hearing be reopened for the Mixed Waste Landfill (MWL) at Sandia National Laboratories because NMED secretly allowed construction to begin on a dirt cover at the MWL. The construction took place before final approval issued for a work plan known as the Corrective Measures Implementation Plan. A Notice of Disapproval (NOD) for the plan was also issued to Sandia Labs by the NMED. The public received no opportunity to review or comment on the final work plan modifications.


Citizen Action Attorney David Meilleur argued that construction and other actions taken by NMED changed the terms and conditions of the MWL permit so that NMED should have held a prior public hearing.


The NMED disapproval of the dirt cover plan for the MWL dump was based on a 2006 TechLaw, Inc report. When Citizen Action tried to obtain the TechLaw report in 2007, NMED sued Citizen Action. Citizen Action then filed a countersuit claiming that NMED had violated the New Mexico Inspection of Public Records Act and the Open Meetings Act. The New Mexico Attorney General Office has intervened in the case to also ask the Court to order release of the TechLaw report.


In a May 2006 letter not available to the public at the time, NMED told Sandia Labs that there was “no public concern” about the cover construction during the period when NMED still had not completed answers to public comments that directly addressed the dirt cover issue. In November 2006, NMED issued a Notice of Disapproval (NOD) for the work plan because there was not sufficient soil gas monitoring data. A NMED “Dear Citizens” letter issued simultaneously with the NOD assured the public that deficiencies at the MWL dump had to be corrected before construction could proceed. But NMED knew it had already allowed construction to begin.


Dave McCoy, Director of Citizen Action stated, “NMED has betrayed the public trust with misinformation, denial of public records by keeping hundreds of reports secret in a ‘confidential area’ of its library and, refusing the public to receive due process in decision making. NMED administrative records show that both groundwater monitoring and soil gas monitoring data at the MWL dump was worthless for making the decision to leave these dangerous wastes in place above Albuquerque’s drinking water. In 2008 NMED found that the identical dirt cover proposed for use at the MWL would be useless to protect groundwater at a much smaller dump at Los Alamos National Laboratories. The public needs fairness and consistency in enforcement and protection of our water supplies.”


Registered geologist Robert Gilkeson stated in a court affidavit that NMED and Sandia knew that heavy compaction equipment used for the soil cover construction risked rupture of containers of radioactive and hazardous waste placed in shallow unlined pits and trenches at the dump. The construction could also make soil gas and groundwater monitoring at the dump more difficult.


Last week, (September 19, 2008), the Attorney General’s Office stated in a hearing last week that the public is “entitled to know what the government is doing and why.” Deputy Attorney General Scott Fuqua argued that the TechLaw report is not protected by “executive privilege” as NMED claims. Judge Sanchez has not yet ruled on that portion of the lawsuit.



For more information contact Citizen Action New Mexico: (505) 262-1862 or visit the Citizen Action website at www.radfreenm.org.


Citizen Action is a project of the New Mexico Community Foundation.