BEFORE THE SECRETARY OF THE ENVIRONMENT DEPARTMENT

IN THE MATTER OF THE MIXED WASTE LANDFILL (MWL)

SANDIA NATIONAL LABORATORIES (SANDIA)

APPLICATION FOR CORRECTIVE ACTION COMPLETE (CAC)

 

Facts and Conclusions of Law with Recommendations

Citizen Action New Mexico and Dr. Eric Nuttall, Ph.D.

Introduction

 

The Hearing Officer should recommend denial of the Corrective Action Complete (CAC) application, reopening of the RCRA Facility Investigation and excavation of the MWL. The New Mexico Environment Department (NMED), the Department of Energy (DOE) and Sandia National Laboratories (DOE/Sandia) are in violation of numerous state and federal laws in illegally establishing the Sandia Mixed Waste Landfill (MWL) as a shallow land waste repository for spent fuel, high level nuclear mixed waste and Transuranic (TRU) waste. The 2.6 acre MWL lies above Albuquerque, New Mexico’s drinking water aquifer. DOE/Sandia have applied for CAC after the installation of a dirt cover above the MWL radioactive and hazardous wastes. The approval of Corrective Action Complete for the installation of the dirt cover is not appropriate for the MWL because federal law requires deep geological disposal for spent fuel, High-level radioactive mixed waste and Transuranic (TRU) waste that are disposed of in the MWL. 

 

Public Concern

Colonias Development Council v. Rhino Environmental Services, 138 N.M. 133, 117 P.3d 939 (2005) held that public hearing requirements in environmental statutes implied the necessity of full consideration of the public’s concerns and that “social well-being” included considerations beyond technical requirements for granting a landfill permit. The Corrective Action Complete Permit Modification fails to consider the public concern for the long term threat to human health and safety and for future generations from the spent fuel, High Level Mixed Waste (HLMW), and Transuranic (TRU) waste disposed of in the MWL as well as the RCRA wastes that are already contaminating groundwater and the vadose zone.

There was no public support for Corrective Action Complete -- zero. The plea was made – “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.

The public that spoke at the MWL Corrective Action Complete (CAC) hearing stated the moral issue: Lockheed Martin/Sandia, as the world’s largest military-industrial weapons manufacturer, should not be allowed to reap enormous profits and then permanently leave the Albuquerque community with the world’s most dangerous wastes ever produced, leaking into their drinking water aquifer from unlined pits and trenches. The public spoke loud and long at the public hearing against the NMED policy of “wait and watch” while the soil and aquifer is increasingly poisoned by Sandia National Laboratories and Kirtland Air Force Base without remediation. The fact that the Waste Isolation Pilot Plant (WIPP), has leaked radiation to the environment from a half mile deep, after only 15 years, was brought out in comparison to the MWL that has shallow pits and trenches. 

The public has demanded excavation of the MWL beginning with the 2000-2003 Congressionally appointed WERC panel hearings, the 2004 public hearing and subsequent administrative comment periods. The public has rejected leaving the radioactive and hazardous waste through the entire administrative process of the Corrective Measures Study, Corrective Measures Implementation Plan, the Corrective Measures Report and the Long-term Maintenance and Monitoring Plan. Through all these administrative processes the NMED and DOE/Sandia have misrepresented and withheld crucial facts about: 1). the High level mixed waste contents of the MWL, so that the MWL is not a low level mixed waste site, 2). the defective groundwater monitoring network, and 3). the defective nature of the dirt cover.

The public has been continuously denied timely access to information and the right to meaningful participation in the various MWL RCRA decision making processes by NMED and Sandia withholding information critical of the MWL. This included: 1). withholding the 2006 TechLaw, Inc. report and an NMED lawsuit to prevent CANM from obtaining the document for three years, during which time the Fate and Transport Model was being written that required discussion with the public (CANM Ex. #9); 2). Withholding the information provided to the NMED from EPA Region 6 in 2007 about the defective groundwater monitoring network at the MWL, (CANM Ex. #10); 3). withholding information about the disposal of spent fuel, high level mixed waste and TRU waste in the MWL (CANM Ex. #1 and #2), and; 4). Failure to perform the five-year reevaluation of excavation as required by the 2005 Final Order and the denial of the public for opportunity to be involved prior to CAC consideration.

Information obtained that was critical of the MWL came only through the Freedom of Information Act and FOIA lawsuits. NMED has repeatedly failed to respond to requests from CANM at face to face meetings and by written letters to explore issues regarding RCRA violations for the groundwater monitoring network and the disposal of high level mixed waste at the MWL, despite production of substantial information by technical persons since 2007 that CANM provided to NMED. (CANM Ex. 1).

While DOE/Sandia play definitional games to circumvent the law’s intent to isolate for perpetuity the spent fuel, High Level Mixed Waste, and TRU waste, the public seeks to protect itself from the long-term radioactive and chemical poisons in the MWL that will threaten future generations for millennia. DOE/Sandia and NMED have embarked on a technical process to focus on only whether the dirt cover was properly constructed and to obscure the real issue – the dirt cover is not designed for protection from the spent fuel, TRU and high-level nuclear mixed waste disposed of in the MWL. The MWL is already releasing its witch’s brew of contamination. There is a release of chlorinated solvents from the MWL that have migrated 400 ft beneath the MWL. The RCRA corrective action remedy of a dirt cover for the MWL cannot be considered as protective of human health and the environment and to maintain protection over a 1,000 or 10,000 year time period.

 

FACTS

 

DOE/Sandia concealed the extreme danger and uniqueness of the 2.6 acre Mixed Waste Landfill (MWL) by misinforming the regulators and the public that the MWL is a low-level waste landfill. More than 5,000 Radioactive and Toxic Material Disposal sheets, Sandia management memoranda (CANM Ex 5 a-d), technical publications, materials database documents (CANM Ex. # 5 n and # 6) for the MWL, that all were obtained through the Freedom of Information Act (FOIA), clearly prove that spent fuel, high level nuclear mixed waste and Transuranic (TRU) waste were disposed of in the MWL. The Transuranic waste includes Plutonium-238, -239, Americium-241, Neptunium-237. All are produced in nuclear reactors and, because of the alpha-emitting isotopes with very long half-lives, for example, 2.1 × 10⁶ yr for ²³⁷Np, 24,400 yr for ²³⁹Pu, 458 yr for ²⁴¹Am. TRU waste is a major radioactive waste disposal concern under the federal law and requires deep geologic disposal.

The 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. The wastes were buried in trenches and pits that were dug to a depth of up to 25 feet below the ground surface. 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 strata, and to the groundwater. Although a dirt cover was installed above the MWL, the cover cannot prevent the vertical and horizontal entry of moisture into the MWL and 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.

Groundwater monitoring at the MWL was and remains defective and inadequate. (Dinwiddie Testimony ¶ 21-28):

Sandia was repeatedly informed by the NMED and EPA Region 6 in the 1990s that the MWL groundwater monitoring well network was inadequate for detection of groundwater contamination. The monitoring wells were improperly located to determine the groundwater flow direction and the hydraulic gradient. Other features prevented the monitoring wells from providing reliable sampling data. Corrosion was present and Bentonite clay was used in drilling the wells so that evidence of contamination was hidden.

The Long-term Maintenance and Monitoring Plan (LTMMP) uses unreliable monitoring wells that require replacement. (CANM Ex. # 12, Defective Groundwater Protection Practices at the Sandia National Laboratories’ Mixed Waste Landfill, Registered Geologist, Robert Gilkeson, p. 10-12 and Technical Testimony of Dr. Barcelona ¶ 15-19).

In 2007, EPA Region 6 informed NMED of the defective groundwater monitoring network at the MWL. (CANM Ex. #1 email from Mayer to Moats at the end of the exhibit.).

Infiltration of water into the MWL is only limited, not prevented by the cover. (Tr, p. 201). Horizontal flow of moisture was not addressed in the Fate and Transport Model. (Tr, p. 203, ll. 8-13). Mr. Ho was not familiar with the TechLaw Report for the Fate and Transport Model. He stated that if there was metal in the groundwater that would be consistent with contaminant transport to the groundwater. (Tr, p. 278). A tritium isopleth from the RCRA Facility Investigation showed that tritium had traveled outside the MWL boundaries and that tritium was 110-120 ft below the MWL and was a release of contamination from the MWL. (Tr, 279-80).

 

No monitoring is being conducted for Polychlorinated Biphenyls (PCB) that are toxic in parts per billion and Mr. Mitchell did not know how many gallons of PCB were represented by the 251 cu yds of PCB in the MWL. (Tr, 281-282). No engineered disposal was provided for the highly toxic and long-lived wastes disposed of in the MWL. The wastes are subject to human intrusion and accidents for present and future generations. No evidence was shown that a fence with signs was placed around the MWL. (Tr, p. 289). No specific emergency plan exists for the MWL. (Tr, p. 290). Although the wastes in the MWL must be monitored for perpetuity there is no plan for perpetuity since the RCRA permit must be reevaluated every ten years. (Tr, p.210, ll. 19-21). Nor will the MWL be available for industrial use as the site is now classified, but the site location is basically sacrificed indefinitely. (Tr, p. 203). Repeated questions by Dr. Eric Nuttall went unanswered by Sandia witnesses as to “what is it about the MWL that requires isolation of the wastes for perpetuity?” (Tr, p. 212).

 

Sandia witness Ms. Reiser opined that with respect to the contents of the MWL, more is known than for other hazardous disposal sites. The comparison of the MWL with the absence of knowledge about other hazardous waste disposal sites is not the standard for characterization of waste at the MWL contained in the RCRA regulations described in 40 CFR § 261 et seq. RCRA required interim facilities to fully characterize the hazardous waste received. 40 CFR 265.73 (b) requires:

1. A description and the quantity of each hazardous waste received, and the method(s) and date(s) of its treatment, storage, or disposal at the facility as required by Appendix I to part 265. This information must be maintained in the operating record until closure of the facility;
2. The location of each hazardous waste within the facility and the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste must be recorded on a map or diagram of each cell or disposal area.

 Sandia witness, Ms. Farnum, did not know what materials may have been disposed of in the MWL, but from her review of 10 disposal sheets she admitted that waste from the nuclear meltdown experiments had been disposed. (Tr, p. 214-16). Some waste from the Debris Bed test that she conducted went into the MWL. (Tr, p. 250, ll 17-21). The Debris Bed experiment loaded fresh, unirradiated fuel [enriched Uranium-235] and metallic sodium. Metallic sodium was used in amounts of 2 to 5 kg.

Many experiments were done with mixed oxide fuels so that there is a Plutonium component built in. (Tr, p. 224-250). Dr. Nuttall stated that data sheets conclude that Uranium-235, Thorium and multiple fission products, saw cuttings, disposal sheets tie specifically to pins like the PNL pin and the experiments in which those pins were used. Mr. Strong confirmed that stating, “I don’t disagree with you on the disposal sheets.”

Mr. Strong reviewed CANM Ex. 5 n Item 15 C from a document entitled Excess Special Nuclear Materials that stated that it was not economically justified to perform the disassembly and to reclaim UO2 and/or [Uranium Carbide] from the AC-1 experiment that was a fuel pin with metallic sodium. List 15C indicated Sandia was “between a rock and a hard place not to be able to bury packages containing metallic sodium.” Mr. Strong agreed that Item 15C gave the impression that packages with that type of waste had been previously disposed of at the MWL.

Mr. Strong stated (Tr, p. 258-59).  

“Yeah. That would be speculative on my part, but it does give that impression, that “it is no longer possible to bury packages containing metallic sodium.”

Sandia witness Dr. Cochran agreed with Dr. Nuttall that there is a requirement for a low-level waste landfill to have a liner. (Tr, p. 240, ll. 6-9). Mr. Mitchell on the other hand claimed that the MWL is classified as a SWMU and that the term “MWL” is only historic and that the MWL is not a landfill proper. (Tr, p. 238). However, the NMED May 20, 2015 Notice for the public hearing describes the MWL as follows:

The MWL was opened as the “TA-3 low-level radioactive waste dump” in March 1959. Low-level radioactive waste and mixed waste from SNL research facilities and off-site generators were disposed in the landfill from March 1959 to December 1988.

 According to Sandia witness Ms. Reiser, a facility that received hazardous waste after July 26, 1982 is considered to be a “regulated unit.” (Tr, 243-44, ll 17-20). That is confirmed by the narrative testimony of Dr. Dinwiddie that regulated units are statutory and that the MWL is a regulated unit. (Tr, p. 933-34). Dr. Dinwiddie concluded:

Clean closure is required for the MWL as a regulated unit that lost interim status not once, but twice and is now known to have received High-Level Nuclear Mixed waste.

The Space Nuclear Auxiliary Program disposal of spent fuel rods was identified on the disposal sheets. (Tr, p. 259). But the SNAP fuel rods could not be identified in the Sandia Inventory list as being disposed of in Pit 18. (Tr, p. 261).

The quantitative amounts of Plutonium and Neptunium are not identified on the disposal sheets and collectively it is unknown how many grams of Plutonium are disposed of in the MWL. (Tr, p. 262-63, ll 14-17). Mr. Strong did not know the gram quantities of Plutonium in 119 barrels from the ITRI.

It was confirmed by Sandia that fuel element ends were disposed of in the MWL. (Tr, p. 268-69). 

The Nuclear Waste Policy Act is consistent with DOE Order 435.1. (Tr, p. 273, l. 2-7). Dr. Cochran stated that Sandia did not need to follow the definition of DOE Order 435.1. Dr. Cochran is simply wrong. Sandia has a contractual duty to comply with DOE Orders, and specifically with DOE O 435.1. The Sandia operating contract states as follows (2013 Annual Site Environmental Report SAND2014-15817R states (p. 1-2).

1.2.1 Operating Contract

 

Sandia complies with specific environmental regulations established by local, state, and federal agencies. The Prime Contract, DE-AC04-94AL85000, between Sandia and the DOE defines the primary contractual obligations for operating SNL/NM. This contract also drives Sandia Environment, Safety, and Health (ES&H) standards and requirements.

 

The Prime Contract states that Sandia must comply with DOE directives that establish specific requirements for environmental programs. The four primary DOE directives currently on the contract that pertain to environmental protection and management are listed below:

 DOE Order 231.1B, Change 1, Environment, Safety, and Health Reporting (DOE 2012),

 DOE Order 435.1, Change 1, Radioactive Waste Management (DOE 2001), DOE Order 435.1, Change 1, Radioactive Waste Management (DOE 2001),

 DOE Order 458.1, Change 3, Radiation Protection of the Public and the Environment (DOE 2013), and

 DOE Order 232.2, Occurrence Reporting and Processing of Operations Information (DOE 2011a).

 

High level waste includes highly radioactive materials produced as a byproduct of the reactions that occur inside nuclear reactors. (Tr, p. 274). The nuclear meltdown experiments were performed for the Nuclear Regulatory Commission at the Annular Core Research Reactor (ACRR). (Tr, p. 275). The ACRR is a nuclear reactor.

The testimony of Dr. Nuttall confirmed the presence of High level mixed waste in the MWL and that Sandia concealed that fact from the two Congressionally appointed WERC panels. Dr. Nuttall’s narrative testimony stated:

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. 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 used 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 Reactors (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 experiments.

Findings through FOIA documents and careful review of SAND reports showed that Sandia had extensively conducted nuclear reactor meltdown experiments. The disposal sheets were never shown to the panel and the conclusions of WERC would likely have been different, i.e. requiring Sandia to excavate the MWL. The disposal sheets were not shown to NMED and Roger Kennett for his report. NMED was unaware of the disposal sheets until April 2015. The different conclusion would have been made by the WERC panels because it would have been shown that the MWL contained Mixed High-Level Waste that would have contained metallic sodium intimately mixed with Enriched Uranium-235, and multiple fission products. A disposal sheet that I will show in the slide presentation refers to a fuel pin.

Dr. Nuttall cited the duty of the NMED to protect the public from the radioactive wastes under the Omnibus authority of NMED. Dr. Nuttall stated 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.

The written testimony of Dr. Dinwiddie, former administrator for the NMED Hazardous and Radioactive Materials Bureau, stated that the 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. Dinwiddie Technical Comments ¶ 10-13.  

Dr. Dinwiddie stated that closure of the MWL was required because the MWL lost interim status. (Tr, p. 974). Although a cover is correctly installed it still may not be protective of public health and safety especially if high level mixed nuclear waste is discovered in the dump. Dr. Dinwiddie considered that high level nuclear waste is in the MWL based on his review of the disposal sheets. (Tr, p. 976). 

With regard to whether a cover could last for perpetuity, Dr. Dinwiddie stated that of six reports he reviewed across the country that 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)

Dr. Michael Barcelona, an expert in hydrogeochemistry, currently a Chemistry Professor at Western Michigan University and a former Senior Research Scientist at the National Research Center - National Academy of Sciences, stated that:

The Radioactive and Hazardous Waste Disposal [RHWD] sheets reveal a history of substantial disposal of High-Level Nuclear Mixed waste (HLMW) in the MWL. The HLMW originated from nuclear meltdown tests performed in the 1970s and 80s in the Annular Core Research Reactor (ACRR) located in Technical Area V at Sandia. These high-level nuclear mixed wastes include U-235, U-238 and multiple fission products that must be isolated from human populations and the environment in deep geologic disposal. (Dr. Barcelona Technical Testimony, ¶ 5).

Dr. Barcelona stated that all covers eventually leak and corrode, just as all landfills eventually leak from below due to leachate formation. Dr. Barcelona described the MWL cover as inadequate because it lacked a liner beneath the cover to carry leachate to the sides of the MWL where it can be recovered before it enters the hazardous waste pits. The use of a cover without a liner beneath the cover and the wastes is completely worthless. Dr. Barcelona’s review of monitoring, borehole and soil gas data led him to conclude that nickel, chromium, nitrates, cadmium, perchloroethylene [PCE], and tetrachloroethylene [TCE] released from the landfill have already reached the groundwater and can be expected to increase over time as containers break down. Radioactive plutonium can travel to the groundwater in colloidal form. (Tr, p. 878).

Dr. Barcelona rejected the groundwater monitoring network as defective as a basis for relying on the long-term maintenance and monitoring program and citing the secrecy of the NMED in not revealing the defects to the public after being informed of the problems by the EPA Region 6 and the EPA Office of Inspector General. Dr. Barcelona rejected the newer groundwater monitoring wells as unreliable due to their 30 ft. length, dilution of samples and not monitoring at the water table. Dr. Barcelona criticized the lack of compliance with groundwater monitoring requirements for the MWL as a regulated unit and the lack of a closure plan and post-closure permit and stated,

“It is astounding that the monitoring approach at the MWL does not comply with the legal requirements of RCRA and is not in accord with established precedent.”

(Dr. Barcelona Technical Testimony of, ¶ 19-20).

Paul Robinson’s testimony discussed the new evidence of Volatile Organic Compound, TCE and PCE contamination found at 400 ft below ground surface. The VOCs are above the MDL.

Examples of waste disposal from the more than 5000 Radioactive and Toxic Material disposal sheets include: spent fuel ends, fuel rods, 119 drums of Plutonium and Americium contaminated waste, large quantities of multiple fission products (MFP), often along with beryllium, lithium, lead, liquid mercury (10 gallon metal drum 7 June 1971 buried in Pit 25), nickel-63, metallic sodium, Plutonium-238, -239, Americium 241, hundreds of tons of Depleted Uranium-238, Uranium 235 (2 September 1971- 85 kg buried in Trench 25), Thorium, Cesium-137, Strontium-90, Iodine-131,Tantalum, Vanadium isotope, Lead Azide (explosive), Gold-198, cadmium, tritium in liquid and solid form, barrels and containers of unknown quantities of toxic chemicals including chlorinated solvents such as PCB, PCE, TCE, toluene, organic resins.

The wastes disposed of in the MWL were generally from atomic bomb testing, nuclear reactor meltdown testing, laboratory experiments, other military sites, and a space nuclear rocket safety program. Large amounts of waste were disposed of in the Classified section of the MWL and the inventory was kept secret. Disposal sheets often only indicate that, for example, several polypropylene (“poly”) or plastic bags, wooden or cardboard boxes, cans, drums and barrels were disposed of in unspecified locations and without the identification of the contents. Many of the disposal sheets are redacted.

Federal and state law require deep geologic disposal for permanent isolation of spent fuel, TRU and high-level nuclear mixed waste.

Federal and state hazardous waste laws do not support DOE/Sandia and the NMED to allow the establishment of a high level waste repository and continuing illegal disposal of spent fuel, High Level Mixed Waste, and TRU waste in the shallow pits and trenches of the MWL. In State of New Mexico v. Watkins, 969 F.2d 1122, 1124 n.1 (D.C.Cir.1992) the New Mexico Supreme Court stated:

TRU waste remains radioactive for very long periods of time; its isolation from the human environment is essential to protect the public health and safety.

Watkins (¶ 28) explains that in 1986 EPA published a notice on the extent to which state programs, to receive EPA approval, must assert authority over wastes contaminated with radiation. 51 Fed.Reg. 24,504 (July 3, 1986) (1986 Notice ). Watkins states that RCRA regulates TRU waste:

The waste stream from producing or utilizing special nuclear material may carry, in non-separable form, substances that both contain radioactive elements and are hazardous under RCRA. TRU waste fits that bill.

Transuranic (TRU) Waste defined

The dirt cover was allowed to be installed on the basis of the MWL being a Low Level Mixed Waste site, which it is not. A Low Level Waste (LLW) site is not suitable for the disposal of HLMW and TRU waste. Low Level Waste is defined as having (CANM Ex. 8, Appendix H J.1-1):

“Radioactive waste or debris not classified as high-level waste, transuranic waste, spent fuel, or byproduct materials such as uranium and thorium mill tailings.”

TRU waste is defined as:

“Transuranic Waste (TRU) – Waste or debris known or suspected of containing elements with atomic numbers greater than 92 and half lives greater than 20 years, in concentrations greater than 100 nCi/g of alpha emitting isotopes.”

71 cu yd. of TRU waste was disposed of in the MWL. Appendix H Table J-1 (CANM Ex. 8).

Standards for disposal of spent nuclear fuel or Transuranic wastes, are stated in regulations found at 40 CFR § 191 et seq. Key provisions of the rules are found at 40 CFR § 191.13(a) - Containment requirements that states:

“Disposal systems for spent nuclear fuel or high-level or transuranic radioactive wastes shall be designed to provide a reasonable expectation, based upon performance assessments, that the cumulative releases of radionuclides to the accessible environment for 10,000 years after disposal from all significant processes and events….”

During the WERC panel hearings, the RCRA Facility Investigation, the December 2004 RCRA proceedings and up to the present, Sandia’s failure to report the presence of spent fuel, High Level mixed and TRU waste in the MWL represents the omission of substantial and material facts in violation of RCRA. 40 CFR 270.43. DOE/Sandia did not provide the Radioactive and Toxic Material Disposal sheets for the RCRA Facility Investigation, but only provided a few pages for an Inventory list that falls far short for describing contents of the MWL by omitting spent fuel disposal, SNAP fuel rods, fuel elements, any disposal from nuclear reactor meltdown experiments, Mercury disposal. (CANM Ex. #11).

It is significant that not once in the DOE/Sandia inventory sheets for the MWL (CANM Ex. 11), provided in the Sandia 1996 RFI Report, is there a single instance that reveals that the mixed radioactive and hazardous wastes came from the various meltdown experiments. The information was concealed from the two WERC panels. (Nuttall Narrative, p. 3). The disposal sheets show the connection to the meltdown experiments by the use of acronyms for the experiments – DCC, D-10, DFR, EEOS, TRAN and Debris Bed.

The Classified and unclassified areas of the MWL were used to dispose of types and amounts of chemicals and radionuclides that DOE/Sandia still refuse to divulge, characterize and/or include on an inventory list. The most dangerous chemicals and radionuclides on the planet were indiscriminately dumped in the MWL in plastic bags, cardboard cartons, wooden boxes, and steel drums that decay and corrode.

During the period 1959 to December 1988, disposal of radioactive and hazardous commercial and military wastes took place in the MWL from:

• Nuclear weapons testing and development.

• Nuclear reactor meltdown experiments that Sandia conducted for the US Nuclear Regulatory Commission. Canisters containing inseparably melted metallic sodium and nuclear fuel pins were disposed in the Classified pits and the unclassified trench areas of the MWL from

• Nuclear fuel rods from a space nuclear reactor safety program were disposed of in the MWL.

• Spent fuel ends were disposed of in the MWL.

Nuclear weapons testing and development

Much of the waste disposed of in the MWL is debris from experiments performed on materials from atomic bombs tests at the Nevada Test Site (NTS). Included are wastes from atomic bomb tests of nuclear weapons such as the W-62 thermonuclear bomb, the W-67 and W-69 nuclear warheads. Wastes from atomic bomb tests disposed of in the MWL are 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 bomb test residues are in the MWL. NMED review of the wastes contained in the MWL does not address the fact of multiple fission products that have resulted in a unique and extremely dangerous dump on the borders of Albuquerque. Uranium-235 is listed on many of the disposal sheets that requires long-term protection.

TRU waste disposal from nuclear weapons test debris

The 1977 Energy Resource Development Authority (“ERDA”) report, SNL Assessment of Radioactive Waste Burial Ground Operation at Sandia Laboratories, Albuquerque, At pg. 10, the ERDA report states (CANM Ex 5 o):

“Currently, all radioactive waste generated at Sandia Laboratories Albuquerque [SLA] is buried at SLA.” (Emphasis supplied).

The 1977 ERDA report described the planning for the emplacement of radioactive waste into the Sandia Radioactive Waste Dump, later called the Mixed Waste Landfill. The ERDA report at page 9 states:

“The pit area is used to dispose of all radioactive devices with a security classification. In addition, it is used to dispose of radioactive sources greater than about 10 microcuries, i.e., any waste considered to be a significant health hazard.”

Ten microcuries per gram of radioactive sources would constitute a level of radiation 100,000 times greater than the TRU standard of 100 nanocuries per gram.

The 1977 ERDA report describes that TRU disposal of plutonium took place at the MWL, p.9:

“Before retrievable storage of TRU waste became an ERDA requirement, plutonium-contaminated nuclear–weapons-test debris was placed in the disposal area; this waste is not considered retrievable.”

Seventy-one (71) cu yd of TRU waste was disposed of in the MWL. Appendix H Table J-1 (CANM Ex. 8). How this was measured is not presented by DOE/Sandia.

DOE/Sandia disposed of 119 drums of waste from ITRI that contained Plutonium and Americium wastes.

TRU Disposal Sheets

Many of the disposal sheets (see below) indicate the disposal of Alpha and TRU contamination such as Plutonium-238, -239, Neptunium-237 and Radon-226, fuel rods from the Space Nuclear Auxiliary Power (SNAP- a space nuclear reactor safety program), nuclear reactor meltdown tests and weapons grade enriched Uranium-235. (Appendix H Table J-1 CANM Ex 8) shows the disposal of 71 cu yd of TRU waste in the MWL and also 251 cu yd of PCBs.

The dirt cover installed at the MWL cannot protect against the long-term threats posed by the High-level Mixed Waste (HLMW) and Transuranic (TRU) waste disposed of in the MWL unlined pits and trenches. It is ludicrous and irresponsible for DOE/Sandia/NMED to claim that the dirt cover will be protective, in perpetuity, for tens of thousands of years against the HLMW and TRU waste disposed of in the MWL. Even deep underground disposal 1000 ft below the surface and 1000 ft above groundwater at the Yucca Mountain site was deemed inadequate for the ten-thousand year period for spent fuel. The half-lives of many of the MWL radionuclides is on the order of tens of thousands to millions of years for which the dirt cover cannot be protective, let alone for 300 or 1,000 years and without engineered barriers.

Neptunium-237 (Np-237) has a half-life of over 2 million years, Plutonium-239 (Pu-239) a half-life of over 24,000 years. Citizen Action is providing examples of such Plutonium, Neptunium and alpha contamination from the Radioactive and Toxic Material Disposal sheets from (attached): 

• (Bates Stamped #00175) 1/6/1964, Np (Neptunium) foil #45

• (Bates Stamped #00176) 1/6/1964, Pu 30G, Np (very difficult to read)

• 1/27/1964 (Bates Stamped sheet #00150); Alpha and Transuranic (TRU contamination)

• 4/25/1964 – Disposal of Sealed tins of Plutonium (Pu) and Neptunium from Los Alamos National Laboratories

• 8/26/1964 (#00058) Alpha contamination

• 2/23/66 (date buried) Americium-241: source leaking, 2R (Rem) container in concrete

• 1/12/1967 Pu-238, 239 contamination

• 3/2/67 Papers, gloves, small pieces of equipment contaminated with Pu-238

• 5/11/67 Pu-238 contaminated waste 18 Poly bags, 30 cu ft

• 8/4/67 Pu-238 contaminated gloves, paper, Rags, etc., 6 poly bags

• 2/8/1968 Pu-239 and 238 debris. Radioactive Level H (High Level).

• 3/25/68 Scrap and cleaning material containing Pu-239, 50 cu ft

• 4/4/68 Contained Pu-238, 27 poly bags

• 4/8/68 Polonium-210, Pu-239

• 6/5/1968 Alpha Source Inventory. “The following Alpha sources are being physically transferred to you for disposal. They are all defective in that they are likely to shed radioactive material. All sources contain Pu-239.”

• 6/7/1968 5 gal container, Pu debris; from the Space Nuclear Safety Program [SNAP]; [NOTE: the Pu debris shows irradiation].

• 6/20/68 – Expenditure and Disposal of Plutonium-238 Oxide Microspheres, .1/.1 Pu-238 (gram)

• 6/20/68 Pu-238 particle dissolved; Radioactivity Level (HIGH)

• 7/2/1968 13 Poly bags, 20 cu ft, Pu

• The disposal of 119 drums of Plutonium and Americium contaminated wastes from the Inhalation and Toxicology Research Institute (ITRI) and other sources such as the meltdown experiments and the nuclear wastes from atomic bomb experiments conducted at Sandia.

• 10/1/68 Miscellaneous Waste—plutonium contaminated

• 12/10/68 Miscellaneous Pu Contaminated Waste, Poly bag

• 3/2/70 A Plutonium Arc Tunnel was buried containing 20 Plutonium spheres

• 1/3/69 Plutonium contaminated

• 3/12/69 B-60 and 868 annex, Po-210 and Pu-238

• 4/23/69 Pu Std sources S/N P50, P60, P85, P87, P61, P72, P83, P90, P24, P53, P94, P115, P43, P107, P116, P135

• 6/26/69 Pu and Po cleaning material

• 11/21/69 Items contaminated with Pu-238

• 3/2/70 Pu/Thoria Old Arc Tunnel

• 1/15/71 Pu 238

• 1/15/71 Fuel ends / spent SER fuel (no direct PU reference)

• 2/24/71 Pu Contaminated Glove Box

• 1/31/72 Cleaning waste 1 Poly Bag, 2 lbs Pu Hole# 25

• 2/10/72 Poly Bag, Pu

• 8/23/72 4 ea Vacuum Cleaner clogged and contaminated with, Tunnel dirt, (U238, Be, Pu-239 dust)

• 3/29/74 Pu 238

• 5/29/74 Pu 239

• 3/10/77 Sheet - Plutonium-238 disposal took place.

• 8/4/77 90 cu ft. of Plutonium-238 contaminated waste was disposed.

• 6/7/82 TRU waste Pu 239

• 6/9/82 TRU waste Pu 239

• 7/13/83 - Eleven 55 gallon drums of TRU/Alpha waste [possibly Plutonium] disposal.

• Plutonium-contaminated nuclear-weapons-test debris was placed in the MWL disposal area. (CANM Ex. 5-O at p. 9).

Estimates by Michael Mitchell testimony as to the amounts of Plutonium in the MWL is scientifically unsupported. Mr. Mitchell did not review the many disposal sheets for Plutonium disposal that do not show the gram weight or the curies for the Plutonium disposed of in the MWL so that he cannot conclude there is less than a gram of plutonium in the MWL.

Sandia nuclear reactor meltdown experiments

Numerous Sandia publications describe that “severe accident” nuclear fuel meltdown tests were conducted in the Annular Core Research Reactor during the 1970s and 80s, and several types of experiments used canisters that contained metallic sodium. That the nuclear meltdown experiments were performed in the ACRR and used metallic sodium is confirmed from reading the minutes of the ACRR Committee Meetings written during 1977 through 1987. (CANM Ex #1, #14).

Four canisters disposed of in Pits 35 and 36 from the meltdown experiments were believed to have contained metallic sodium in combination with the melted oxide fuels. Canisters were also buried and in other undisclosed locations in small-diameter vertical drilled holes. Sandia management memoranda from 1997-2001 along with Radioactive and Hazardous Waste Disposal sheets indicate that canisters containing sodium and high-level nuclear waste were processed in the Sandia Hot Cell Facility and disposed of in the Mixed Waste Landfill. (CANM Ex. 5 a-d). Sodium is a metal regulated under the Resource Conservation and Recovery Act (“RCRA”). Sodium is explosive in the presence of water. There is the potential that over time the canisters will corrode and the sodium, in contact with moisture, will explode or burn, breach the MWL’s dirt cover, and spread radiation from the canisters and other wastes into Albuquerque’s air and groundwater.

The experimental packages contained from 2 to 5 kg of metallic sodium. (Tr, p.253, ll. 1-6)

Sandia simulated the nuclear reactor meltdown experiments in the core of the Annular Core Research Reactor (ACRR) in Technical Area V. At Sandia’s Hot Cell Facility, post-irradiation examination could be performed after experiments to observe the condition of the fuel in the canisters. Some canisters were disassembled at the hot cell for post-irradiation destructive examination. During the post-irradiation examination of canisters in the hot cell, cross-contamination of the inner and outer canister used in the tests likely occurred. The disposal sheets substantiate that large quantities of waste were sent from the hot cell facility and the ACRR for disposal in the MWL, originally called the Technical Area III Radioactive Waste Dump.  

Space Nuclear Auxiliary Program (SNAP) – A Space Rocket Nuclear Reactor Safety Program

During the 1960s the Sandia Engineering Research Facility (SERF) conducted reactor transient behavior¹ that was for testing the safety of Space Nuclear Auxiliary Power (SNAP) fuel rods used in nuclear space rockets. Numerous SNAP fuel rods were disposed of in Hole #18 in the Classified Section of the MWL on 5/11/1967. The SNAP fuel rods consisted of 93% enriched U-235. There is no reporting record in the Sandia Inventory for the disposal of the SNAP fuel rods. The reactor transient testing performed by Sandia created High-Level Nuclear Waste that was placed in the MWL in Hole #18. (Report of Expended SS Material Nos. 273 and 274 dated 5/18/67). (Report of Expended SS Material Nos. 273 and 274 dated 5/18/67).

• Sheet 5/18/67 for #273 – Hole #18 Snap Fuel Rods; Fuel Rods; Cylinder C-7, 1 lot of SNAP-10A pieces, Cylinder 267-3, Snap Rods 820-9, 188-7; 256-1; Fuel Rods 266-5, 213-1, 213-3, 213-6; 10 Fuel Rods.

• Sheet 5/18/67 #274 -- 2 Rods (AIC-17); 5 Rods (AIC-18); 2 Rods (AIC-19); 25 discs. 

(CANM Rebuttal of Testimony of Michael Mitchell, p.1).

Fuel Element Ends/Rods/Pins are HLW disposal

1. Disposal sheets show that fuel elements (rods) of Uranium-235 and cuttings were routinely disposed of in the MWL. The Disposal sheets show MWL disposal of waste containing Plutonium and other transuranics from nuclear weapons experiments and atomic bomb waste. Over four hundred disposal sheets identify the wastes as a security code, “SS”, i.e., “Source and Special,” waste primarily from Sandia’s Technical Area I where secret military experiments were performed using nuclear material obtained from many atomic bomb tests. Sandia made statements regarding the meaning of the Acronym “SS” used on Radioactive and Toxic Material Disposal records. According to testimony of Mr. Strong, the category of SS means “Source and Special” nuclear material.

2. The disposal of SS material into the MWL required approval, AEA Form 458. No evidence of the definition for “SS” material, no legal description, no policy and procedures for how the determination was made were provided by Mr. Strong. There were no policies provided as to how ½ gram of TRU waste would be monitored.

The PNL fuel pin disposed in the MWL without the SS marking on the disposal sheet from Area V is evidence that SS was not applied to the nuclear meltdown experimental waste. There are over 400 disposal sheets that have the SS box checked. With very few exceptions the disposal sheets with the SS box checked are disposals from the operations for nuclear weapons at Technical Area I. The SS designation is apparently a security designation that is not applied to the disposals that came from Technical Area V.

DOE/Sandia could not explain how melted, vaporized material could be pulled out of the experimental packages, especially given the chemical reactions between the fuel and the cladding. The need for “mummification” of outer canisters suggests cross-contamination of the outer canister that would be HLW. The presence of metallic sodium in the canisters was a reason for not examining the canisters and the fuel melted with the metallic sodium. There is no accounting of the number of canisters and the actual disposal pathways and DOE/Sandia refused to provide that accounting. The Excess Materials Databases (CANM Ex. # 5 n and #6) only show materials on hand – not the total number of fuel pins received, put into packages, experimented on and then disposed of in the MWL or put into storage. There has been no real accounting, but the evidence of the four Sandia memoranda (CANM Ex. # 5 a-d) concern for piece by piece examination of a canister containing extremely reactive metallic sodium is consistent with the prior disposal of experimental “packages” cited in List 15 C (CANM Ex. # 5n), and the numerous disposal sheets showing disposal from the various experiments.

• Sheet 1/12/68 SER [Sandia Engineering Reactor] – SPR-II Miscellaneous Contaminated Waste + Ends from spent SER Fuel Elements, 15 plastic bags, Hole #18

• 7/14/69 16 Pins, enriched uranium, with debris from NTS (Nevada test site)

• Sheet 7/25/69 SER [Sandia Engineering Reactor] Ends of Fuel elements (Spent) Hole #15

• 6/5/70 SER - Fuel Processing for Shipment Fuel Element Ends – Cut-off prior to shipment Elements Nos. #47, 46, 21 and #7

• 7/17/70 SER-Fuel cutoff pool and lock #2; Ends from fuel elements #26, #29, #30 and #60

• 1/7/71 SER - Area V Bldg. 6580 Rm. 212. SER fuel element ends from cutting operation on F-6, F-27 & F-62 plus 4 previous elements processed last summer. Hole #25

• 1/15/71 Origin of waste 6580 Fuel ends from spent SER fuel. Buried in classified hole due to high activity.

• 1/21/71 SER - Ends from fuel elements – processed for shipment to CPP, Idaho. 6 sets of ends including those from F-52, F-53, F-56 and F-38 which was cut on 1/20/71. Reads ~2r/hr @ 2ft & rather than toss into trench “Delta” will deposit in Hole #25.

• 1/28/71 SER - 1) Experimental fuel element E-1. 2) Box ends from F-33, F-34, F-37 and F-40. Package reads ~2r/hr @ 2ft & should be buried in classified Hole #25

• 2/8/71 SER - Box ends cut from fuel elements F-61, F-57, F-44, F-51, prior to shipment to processing plant. Degree of radiation hazard is such that disposal in classified Hole #25 rather than in Trench is indicated.

• 6/1/71 W69 10-9 Flight Test Unit; SS material & Liquid Mercury Material in Bldg. 835. [One] 1 10 gallon metal drum.

(CANM Rebuttal of Testimony of Michael Mitchell, p. 2).

Volatile Organic Compound monitoring data

The current Sandia 2014 and 2015 analyses of Volatile Organic Compound monitoring data reveal that chlorinated solvents such as TCE and PCE have reached at least 400 ft below ground surface. Groundwater is at approximately 465 ft. Sandia personnel interview notes (CANM Ex 5 j) state that Trichlor [Trichloroethylene] and Carbon Tetrachloride were commonly used for decon [decontamination] and cleanup purposes and disposed of in quantities up to 1 cu ft (7.5 gallons per cu ft.) at any given time. Seven and one-half (7.5) gallons of TCE are sufficient to contaminate 2.2 billion gallons of water above the MCL drinking water limit.  

Polychlorinated Biphenyl (PCB) was disposed of in a quantity of 251 cu yd. (50,827 gallons) in the MWL. (CANM Ex 8, pp. J-8 and J-10). This amount of PCB could contaminate trillions of gallons of water alone. No effort has been made to comply with the Toxic Substances and Control Act (TSCA) regulations for the PCB disposal or remediation.  

Liquid waste disposal

The dirt cover will have no impact on the existence of the sources of contamination beneath the cover and the fact there has already been a release. The sources are not being removed and there is no liner beneath to stop the releases over time. Water enters the MWL and moves horizontally and vertically. The cover cannot last the period of time necessary to protect against release of HLW. The large volumes of potentially explosive metallic sodium contained in canisters that can corrode is highly dangerous over time. Low level mixed waste landfills require double liners and leachate collection. DOE/Sandia seek t avoid the requirement by saying the MWL is a Solid Waste Management Unit (SWMU). The classification is not relevant for the contents and the CAC application Notice is based on low level mixed waste.

The failure to conduct the five year reevaluation for excavation allows the further horizontal and vertical release and spreading of VOCs. There is no reason the NMED might not choose to extend the five-year review again. NMED already granted nine years extension ignoring the 2005 Final Order.

Mr. Mitchell’s testimony incorrectly reports that all liquid waste was solidified with the lone exception of reactor coolant water. Numerous disposal sheets and interviews of Sandia employees and events demonstrate that was not the situation. (CANM Rebuttal to Mitchell Testimony, p. 9-11). 

According to a Sandia Site Health and Safety Plan Form 92-27, Sandia was disposing of liquid waste until 1975 (CANM Ex. 5 L):

“After 1975, SNL required liquid wastes to be solidified prior to disposal. Before this time, unsolidified radioactive liquids, whether containerized or not, were disposed of in the MWL.”

RCRA emphasizes the overall ability of the disposal unit to isolate wastes completely for all time, regardless of form, from any contact with the environment. Liquid disposal took place in the MWL mixing and spreading radioactive and hazardous chemicals with soil and water:

The entry of liquid and disposal of liquid waste into the MWL was common:

• the disposal of 270,000 gallons of reactor waste water dumped in Trench D (CANM Ex. 5 k), (Mr. Mitchell states 204,000 gallons),

• the use of 5,000 gallons of water to extinguish a uranium fire in Trench B (Ex. 5 k), Note: An entire fire truck was disposed of in Pit 13 on 2/2/65 measuring 1800 Ci of radiation.

• the filling of a trench with 5 ft of water and transfer of that water to another trench (Ex. 5 k),

• the inflow of storm water and annual precipitation of 8 inches a year into pits and trenches for decades
  

• Protective berms around the MWL were breached by powerful storms in 2006-07 with pooling of water. CITATION.

• Concrete caps on the pits in the Classified area were broken allowing water to enter the pits.

• liquid wastes in the form of volatile organic compounds, oil, nuclear reactor resins, heavy water (deuterium), scintillation vials, 251 cu yd of Polychlorinated Biphenyls (PCB);

• mercury disposal 

Mercury Disposal is not shown in the Sandia Inventory

Mercury is listed as a RCRA metal as D009.  Mercury was disposed of in the MWL that is shown in the Radioactive Material Disposal sheets but is not shown as being disposed of in the Sandia Inventory. Mercury is a liquid metal and was not included in the liquid inventory for the MWL. Examples from disposal sheets:

• 8/8/68 Mercury contaminated with Uranium. Plastic bag. 1 cubic ft. Less than [illegible] curie

• 6/1/71 SS Material & Liquid Mercury Material in Bldg. 835 – 1 ea 10 gal drum, 1 ea Heavy duty cardboard box. 7.4 X 10E-3. Disposed in Hole 25.

CANM Note: one gal of mercury weighs 113.4 pounds per gallon (US) so that a 10 gal drum could weigh 1134 pounds.

• 7/24/1974 a unit heavily contaminated with Mercury waste was buried in Hole Number 28.

Flawed risk assessment RCRA Facility Investigation (RFI)

The purpose of the RFI is to obtain information to fully characterize the nature, extent and rate of migration of releases of hazardous waste or constituents and to interpret this information to determine whether interim corrective measures and/or a Corrective Measures Study may be necessary. (p. i)

Sandia provided an incomplete Inventory of items disposed of in the pits and trenches. (CANM Ex #11). The Inventory does not present the level of detail provided by the thousands of Radioactive and Toxic Material Disposal sheets. The RFI did not characterize the full nature of the wastes disposed of in the MWL due to the omission of the spent fuel, high level mixed waste and TRU waste contained in the MWL.

DOE did not quantify the amounts of uranium as fuel pins coming into Sandia national laboratory versus where the products were stored or disposed of on a mass weight basis.

The same is somewhat true with the chlorinated solvents such as PCE and TCE. Sandia simply doesn't know the mass or quantity of hazardous and toxic material that they disposed of in the mixed waste landfill. We have shown through the data sheets that the quantity is potentially quite large. There is certainly high-level waste and hazardous material such as sodium in the mixed waste landfill. That's not to mention all of the other metals such as plutonium, Beryllium, Lithium, Mercury, etc.

The thousands of pages of waste disposal sheets were never provided to the WERC review committee panels or for the RFI. The reactor meltdown experiments were never disclosed. Nor was the waste that was generated by the experiments and the ultimate disposal in the mixed waste landfill. The disposal sheets for the weapons waste were not provided. In total there is a huge gap in the information that was provided by Sandia during the original RFI.

The risk assessment presented for the Phase 2 RFI claimed that groundwater was an unlikely pathway for contaminant transport in the future. The fact is that the MWL is already leaking to the groundwater just as the other sites at Sandia have done. These include the Chemical Waste Landfill, the Tijeras Arroyo Groundwater, Technical Area V, the Lurance Canyon burn site and the Kirtland Air Force Base jet fuel spill.  

The Hearing officer should recommend that the RCRA Facility Investigation and risk assessment should be reopened.

Denial of meaningful public participation

The public was excluded at all times from meaningful participation in the 2004 and 2015 public hearing by the lack of information about the true nature of the mixed high level waste disposed of in the MWL and the failure to update the information based on the disposal sheets and known reactor meltdown experiments and waste produced. DOE/Sandia made no effort to locate or quantify since the 2004 public hearing. The DOE/Sandia CAC application did not acknowledge the disposal in the MWL of the Space Nuclear Auxiliary Power (SNAP) fuel rods, the nuclear reactor melt down experiments, the use of fresh and irradiated fuel pins, the melted fuel pins, the presence of metallic sodium inseparably combined with the melted fuel pins, disposal of melted fuel pins in canisters in the MWL, and the cutting operations for fuel pins and debris disposal.

Violation of state and federal laws

Use of the RCRA CAC procedure to violate other federal waste disposal laws violates the purpose and public policy of RCRA.

RCRA provides at 42 USC § 6902:

(a)

(4) assuring that hazardous waste management practices are conducted in a manner which protects human health and the environment;

(5) requiring that hazardous waste be properly managed in the first instance thereby reducing the need for corrective action at a future date;

RCRA imposes the duty on NMED to protect human health and safety from HLMW. That cannot be achieved when there is not proper management of the HLMW. Irrespective of whether the NMED can regulate radioactive waste or not pursuant to the Atomic Energy Act, the NMED does not have the authority to allow DOE/Sandia to mischaracterize the radioactive mixed waste disposed of in the MWL so as to allow DOE/Sandia to achieve the status of Corrective Action Complete and dispose of HLMW and TRU waste. RCRA requires the correction of the record at any time for incorrect information, omissions and failure to provide substantive information. Any inaccuracies in the submitted information may be grounds for EPA (NMED) to terminate, revoke and reissue, or modify this permit in accordance with 40 CFR §§ 270.41, 270.42 and 270.43; and for enforcement action. By the same token, DOE/Sandia have a duty to provide any relevant information to determine whether there is cause to modify, revoke and reissue, or terminate the permit, or to determine if the permit is in compliance.

The inventory of wastes provided by DOE/Sandia over 10 years ago is so deficient and inaccurate when compared to the more than 5,000 actual Radioactive and Toxic Material Disposal sheets, that the Hearing Officer should recommend that the RCRA Facility Investigation be reopened along with the Corrective Measures Study and a risk assessment for the MWL. The recommendation of excavation as a remedy should be made and implemented because HLMW requires deep geologic disposal.

• DOE/Sandia must be required to divulge the actual disposals of radioactive and toxic waste that is hidden on the disposal sheets by an array of acronyms and serial numbers.

• More than four thousand of the disposal sheets were declassified, but the information on the sheets cannot be understood due to the extensive number of acronyms and serial numbers. The acronyms and identification for what the serial numbers represent must be provided.

DOE/Sandia argue that while uncertainty existed for the wastes that were disposed of in the MWL, the Hearing Officer in 2005 nevertheless decided on the dirt cover remedy. Any uncertainty about what was disposed of in the MWL was solely caused by DOE/Sandia and there should be no benefit derived from DOE/Sandia’s poor record keeping, destruction of records, and deliberate withholding of disposal records. The “approved uncertainty” argument has no validity for the present proceeding because it is now known with certainty from actual review of the disposal records that spent fuel, HLMW and TRU waste were disposed of from nuclear weapons experiments, SNAP, and atomic weapons tests and that these wastes are not legally suitable for disposal in shallow pits and trenches. The 2004 Hearing Officer clearly expressed concerns about the contents from the disposal of the canisters in Pits 35 and 36. The inseparable combination of metallic sodium in canisters with fuel rods melted down inside the core of the ACRR nuclear reactor is HLMW and also TRU waste.

The Hearing Officer should recommend denial for the Mixed Waste Landfill Corrective Action Complete for the dirt cover. The dirt cover cannot provide protection of human health and safety and the environment for the term necessary given the presence of HLMW and TRU waste.

The Hearing Officer should recommend that DOE/Sandia order a Documented Safety Analysis for the MWL. There is no Documented Safety Analysis for the MWL as a nonnuclear reactor facility that has the potential for explosive accidents and fires due to the disposal of Uranium-235 and metallic sodium in pits and trenches. Under the definitions of 40 CFR § 830, a “facility” includes “radioactive waste disposal systems and burial grounds” and a documented safety analysis would be applicable to the MWL as a burial ground. The Hearing Officer should order that such analysis is required to be performed by 40 CFR § 830.

The intent of both the NWPA and DOE Order 435.1 is to protect human health and the environment from highly radioactive material that requires permanent isolation.

SAND2010-6335 Legal and Regulatory Framework for High-Level Waste Disposition in the

United States U.S. Department of Energy Orders Self-Study Program, discusses the now court expanded meaning of HLW (Section 2.5.1 at p. 52):

The current classification would generally require that all such reprocessing waste be disposed of in a deep geologic repository regardless of their risk. Traditionally, the NRC and DOE has used the first aqueous extraction as the point of generation of HLW. However, the Natural Resources Defense Council lawsuit which resulted in § 3116 of the 2005 National Defense Authorization Act has prompted a re-evaluation. The court's ruling focused on the word “including” which means an example and cannot be read to be limiting. In other words, HLW waste is any "highly radioactive material resulting from reprocessing" and is not limited to material derived from the liquid waste of extraction.

DOE Order 435.1 includes in its definition “other highly radioactive material that requires permanent isolation. As stated above the NWPA is consistent with DOE O 435.1 and DOE/Sandia have a contractual duty to adhere to the provisions of DOE O 435.1. (See supra p. 4).

DOE O 435.1 RADIOACTIVE WASTE MANAGEMENT, ALBUQUERQUE OPERATIONS OFFICE, p. 3 states:

SECTION 1 – HIGH-LEVEL WASTE REQUIREMENTS

DEFINITION OF HIGH-LEVEL WASTE

High-level waste is the highly radioactive waste material resulting from the reprocessing of spent nuclear fuel. High-level waste includes

• liquid waste produced directly in reprocessing;

• any solid material derived from such liquid waste that contains fission products;

• and other highly radioactive material that requires permanent isolation. (Emphasis provided.)

The EPA has a major regulatory role that must be observed as a matter of law. The Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. §§ 10101-10270 (2000), 42 U.S.C. §§ 10101 et seq. provides that EPA,

pursuant to authority under other provisions of law, shall, by rule, promulgate generally applicable standards for protection of the general environment from offsite releases from radioactive material in repositories.

42 U.S.C. § 10141(a) (emphasis added).

Under the NWPA, Spent Fuel is defined as follows (42 U.S.C. § 10101(23):

(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 byreprocessing.

The NWPA defines low level waste as follows:

(16) The term ‘‘low-level radioactive waste’’ means radio-active material that—

(A) is not high-level radioactive waste, spent nuclear fuel, transuranic waste, or by-product material as defined in section 11e(2) 1 of the Atomic Energy Act of 1954 (42 U.S.C. 2014(e)(2)); and

(B) the Commission, consistent with existing law, classifies as low-level radioactive waste.

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).

The NWPA defines a “disposal” as follows:

(9) The term ‘‘disposal’’ means the emplacement in a repository of high-level radioactive waste, spent nuclear fuel, or other highly radioactive material with no foreseeable intent of recovery, whether or not such emplacement permits the recovery of such waste.

Leaving spent fuel, High Level Nuclear Mixed Waste and Transuranic (TRU) waste in a shallow burial ground such as the MWL violates the Resources Conservation Recovery Act (RCRA), the Nuclear Waste Policy Act, the Atomic Energy Act and DOE Orders. The Radioactive and Toxic Material Disposal sheets disposal sheets are evidence that the MWL cannot properly be characterized as a low level waste site as DOE/Sandia have deliberately and incorrectly informed the public and regulators. The application for Corrective Action Complete for the Mixed Waste Landfill excluded information regarding the disposal of spent fuel, High Level Nuclear Mixed Waste and Transuranic (TRU) waste in the MWL’s shallow, unlined pits and trenches above Albuquerque’s drinking water aquifer.

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). The Hearing Officer should recommend application of the Omnibus Clause to protect the public from the HLW in the MWL.

Sandia knowingly and willfully misrepresented and concealed material facts about the spent fuel, High Level Mixed Waste, and TRU waste in the MWL in their NMED application for the 2004 Class 3 Permit Modification and for the 2014 Class Certificate of Completion for Corrective Action in violation of NMSA 1978 § 74-4-4.2.D(1). DOE/Sandia failed to provide full information about the disposal in the MWL of high level waste and mixed waste in the form of spent fuel, fuel pins, fuel rods from nuclear meltdown tests, the Space Nuclear Auxiliary Program (SNAP), military nuclear weapon experiments, and laboratory experiments performed in the 1960s through 1980s. Sandia failed to provide the information about the meltdown tests and the wastes from those test disposed of in the MWL to the Congressionally appointed WERC consortium during 2001-03. DOE/Sandia failed to acknowledge or address uncontroverted evidence in the record regarding both the occurrence of TRU and “greater than Class C” radioactive waste at the MWL and the release of VOCs, SVOCs and metals from locations where they were placed in the MWL, that is therefore contrary to law. These issues must be addressed, in order to protect human health and the environment, as required by applicable state and federal law.

Approval of the 2014 Class 3 Permit Modification application would result in the NMED’s approval of disposal of spent fuel, high-level mixed waste, transuranic waste and “greater than Class C” radioactive waste in a manner contrary to the Nuclear Policy Waste Act (1985) 40 CFR § 191 et seq. Approval of the CAC would constitute “willful disregard for environmental laws of any state or the United States” by NMED and SNL/DOE contrary to NMSA 1978 § 74-4-4.2(4). NMED and Sandia cannot simply disregard and circumvent EPA promulgated standards for the disposal of HLW that is now being attempted through use of the RCRA CAC proceeding.

The general containment requirements, 40 C.F.R. § 191.13, require that nuclear waste disposal systems be designed to provide a reasonable expectation, based on performance assessment, that the cumulative releases of radiation to anywhere in the "accessible environment," for 10,000 years after disposal, shall not exceed certain designated levels.

EPA expects treatment to be used to address the principal threats posed by a site whenever practicable and cost-effective. Contamination that represents principal threats for which treatment is most likely to be appropriate includes contamination that is highly toxic, highly mobile, or cannot be reliably contained, and that would present a significant risk to human health and the environment should exposure occur.

p.1, FACT SHEET #2 -- EXPECTATIONS FOR FINAL REMEDIES AT RCRA CORRECTIVE ACTION FACILITIES

No Environmental Impact Statement (EIS) has been prepared as a major federal action affecting the environment for the MWL to be used as a repository for the disposal of spent fuel, high-level waste, and TRU in as is required for such waste under the NWPA Section 114 (f). The Sandia EIS was last issued in 1999 and is several years out of date. 76 Fed.Reg. 37100, 37101 (June 24, 2011).  

Knowing violations of law to dispose of spent fuel, High Level Nuclear Mixed Waste and Transuranic waste in MWL shallow pits and trenches, are demonstrated as follows:

1. Sandia/DOE do not meet the Nuclear Regulatory Commission license requirements for radioactive waste disposal. The MWL operated illegally without obtaining a permit for disposal of HLMW. Sandia failed to make an application to the Nuclear Regulatory Commission to obtain a either an exemption or a license for the disposal of the radioactive waste at the MWL as a land disposal facility. 10 CFR § 61.3 reads:

License required.

(a) DOE shall not receive or possess source, special nuclear, or byproduct material at a geologic repository operations area except as authorized by a license issued by the Commission pursuant to this part.

(b) DOE shall not commence construction of a geologic repository operations area unless it has filed an application with the Commission and has obtained construction authorization as provided in this part. Failure to comply with this requirement shall be grounds for denial of a license.

2. The MWL does not meet any of the containment criteria for spent fuel and high-level waste in 40 CFR 191.13 nor the criteria set forth for a geologic repository in 40 CFR 197.13.

3. The MWL operated illegally without obtaining a Resource Conservation and Recovery Act (RCRA) permit for disposal of hazardous wastes. The RCRA requires permitted operations for hazardous waste treatment, storage, and disposal (TSD) facilities. 40 CFR 270.1. The MWL received RCRA wastes until December 1988 and had no RCRA permit. Sandia failed to obtain a Part A and Part B for the MWL during the period of its operation for receiving hazardous mixed waste. Under 40 CFR 270.1(c) “... landfills ... that received waste after July 26, 1982 ... must have post-closure permits, unless they demonstrate closure by removal or decontamination as provided under section 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.”

4. 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;

5. The MWL operated illegally because it lost interim status. (42 USC 6928 (d)(2)(A) ).

6. DOE/Sandia failed to comply with RCRA duties under DOE Order 5820.2A. In 1986, the EPA published a notice that the hazardous component of mixed waste was subject to RCRA. In 1987, the Department of Energy (DOE) published a notice that declared the hazardous component of mixed waste was subject to RCRA regulation. DOE Order 5820.2A for Radioactive Waste Management (September 26,1988), in effect before the closure date (December 6, 1988) of the MWL, also set forth the policies, guidelines and requirements that facilities conducting the management of radioactive and mixed wastes be in conformance with RCRA or CERCLA.

7. The MWL was and is not qualified or eligible to receive Corrective Action Complete status because it is a “regulated unit.” By legal definition under RCRA, owners and operators of landfills that received waste after July 26, 1982 are regulated units. (40 CFR § 264.90(a)(2)). Sandia does not have a groundwater monitoring network at the MWL in compliance with 40 CFR 264.90-100. As a regulated unit, Sandia is required to obtain a post-closure permit for the MWL facility, unless closure by removal of the wastes was demonstrated. (20 NMAC 4.1, Subpart IX, 40 CFR § 270.1(c). Sandia did not submit a closure permit or a post-closure permit application to meet the requirements of 20 NMAC 4.1, Subpart VI, 40 CFR § 265.110-120 and § 265.310.

8. Sandia did not remove wastes from the MWL. Because Sandia disposed of mixed waste containing hazardous waste until December 1988, it is required by the terms of 40 CFR 270.1 (c) to obtain a closure and a post closure plan. RCRA requirements for closure and post-closure plans have not been complied with.

9. DOE/Sandia failure to provide a full waste characterization of the MWL is in violation of 40 CFR 265.73, an “Operating record” (40 CFR 265.74), Availability, retention and disposition of records (40 CFR 265.74), “a description and the quantity of each waste received” (40 CFR 265.73(b)(1); “the location of each hazardous waste within the facility and the quantity at each location.” (40 CFR 265.73(b)(2).

10. “A 1987 U.S. Environmental Protection Agency (EPA) RCRA Facility Assessment report of operations of solid waste management units (SWMUs) at SNL listed the MWL as containing RCRA regulated wastes. (USEPA).” (AR for the Final Order 003476)². “The MWL could have received hazardous waste not contaminated with low-level radioactive wastes after November 1980 (effective date of RCRA), placing the MWL under the permitting and closure requirements of RCRA.” (AR 003915). The 270,000 gallons of reactor coolant water disposed in trench D contained cadmium-115, chromium-51, and silver-110, which are hazardous constituents regulated under RCRA. RCRA-regulated heavy metals have been disposed of in the unclassified area. (AR006341, 006344, 006345- Barium). “The CEARP [Comprehensive Environmental Assessment and Response Program] Phase 1 Installation Assessment had a positive finding for RCRA regulated wastes at the MWL with a high potential for migration of wastes from the site.” (AR 003466). “The records for 1980 through 1989 indicate that many MC components and test units, which today would be considered to have RCRA waste characteristics (D-list) were buried.” “On the basis of my brief examination of the records it is probable that materials which are [buried] would be classified as strictly RCRA-regulated hazardous waste was buried in this landfill. Therefore, it may be appropriate to classify that landfill as a RCRA Closure site.” (AR 003744- citing lithium, beryllium, lead, contaminated solvents and acutely toxic materials).

11. In an August 1997 NMED Notice of Deficiency (NOD) Report of the Mixed Waste Landfill Phase 2 RCRA Facility Investigation Sandia National Laboratories Request for Additional Information, the NMED position was that: “... the Mixed Waste Landfill is required to close under the Closure Plan requirements of ... 40 CFR 265, Subpart G, Closure and Post Closure, and Subpart N, Landfills. (AR 009166). In September 1997 NMED RCRA Permits Management Manager Dr. Robert Dinwiddie reiterated the closure plan and stand-alone post-closure permit application requirements and stated that the documents “must be received within 180 calendar days after the receipt of this Letter of Denial.” (Administrative Record 009183-009184). DoE/Sandia did not comply.

12. The NOD further states that “Under ... 40 CFR 270.1(c), owners and operators of landfills that received waste after July 26, 1982 are required to obtain a post-closure permit for the facility, unless closure by removal is demonstrated. For facilities that did not receive an operating permit, and close under interim status standards, this post closure permit serves to impose several critical statutory and regulatory requirements, including the requirements for corrective action (61 FR 19438, May 1, 1996).” (AR 009166).

13. A March 17, 1988 letter to Zamorski from NMED (AR 009513) granted a time extension of 180 days for submission of a closure plan and post closure care permit to be submitted by September 13, 1998.

14. In an April 17, 1998 Memorandum (AR 009552-009554), the DOE acknowledged that, “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).”

15. The DOE/Sandia has not sought a post-closure permit for the MWL. The EPA and/or NMED have failed to require that a post-closure permit be obtained for the MWL. Neither the NMED nor the EPA have entered into the procedures for an equivalency demonstration under 270.1 (c)(5) and (6) closure by removal or decontamination.

16. Corrective Action Complete does not meet the criteria required for closure and post-closure of the MWL contained in 40 CFR 264.111-112

17. Corrective action is not appropriate for the presence of High-Level Nuclear Mixed Waste in the MWL. High level mixed nuclear waste (HLMW) combined with metallic sodium has been disposed of in the MWL and can cause explosions and fires; canisters containing melted spent nuclear fuel residuals were buried at the MWL. Some of the material originated from tests of fresh and damaged fuel that were conducted at the Annular Core Research Reactor (ACRR) at Sandia prior to and after the accident at Three Mile Island in 1979. HLMW from nuclear weapons testing is present in the MWL. HLMW from nuclear bomb explosions conducted at the Nevada Test Site (NTS) were disposed of in the MWL.

18. The inventory of waste in the MWL is unknown and incomplete to a large extent and presents the prospect for unanticipated accident and releases;

19. Without legal justification, NMED mischaracterized and transferred the MWL to the Corrective Action Program when in fact the MWL is a RCRA regulated unit requiring post-closure and closure under 40 CFR 270.1.

20. NMED has failed to impose groundwater monitoring requirements for the MWL as a “regulated unit” that are required of the disposal of hazardous waste after July 26, 1982; 40 CFR 264.90 (2) states in pertinent part that “A ...landfill that receives hazardous waste after July 26, 1982 (hereinafter referred to as a “regulated unit”) must comply with the requirements of Sections 264.91 through 264.100 in lieu of section 264.101 for purposes of detecting, characterizing and responding to releases to the uppermost aquifer...” (Emphasis added). Therefore, as a matter of law, the requirements of 40 CFR 264.91- .100 were applicable to the MWL, not the requirements of 40 CFR 264.101. The Long-Term Monitoring and Maintenance (LTMMP) Plan for the MWL fails to impose the groundwater monitoring requirements for the MWL as a regulated unit.

21. Continuing to misrepresent the MWL as a Low Level Mixed waste site by nondisclosure of the true contents of spent fuel, High Level Nuclear Mixed Waste and Transuranic waste inseparably combined with RCRA hazardous chemicals and metals. DOE/Sandia have failed to correct the disposal record as required by RCRA.

22. Making the false claim that the dirt cover would be protective of human health and safety for perpetuity; there is no evidence whatsoever that the dirt cover could provide perpetual protection;

23. DOE/Sandia knowingly and intentionally withheld information from the WERC (Dr. Nuttall testimony), the NMED regulator (Dinwiddie testimony) and the public about the disposal of canisters in the MWL containing high level wastes inseparably combined with extremely reactive metallic sodium from nuclear meltdown experiments. Radioactive and Toxic Material Disposal sheets were withheld from the two Congressional appointed WERC panels that showed the use of the fuel pins, the use of metallic sodium, and the disposal of the melted irradiated pins and metallic sodium in the MWL. The WERC panels were deceived by DOE/Sandia that Sandia never had access to fuel pins. The WERC was not informed about: the nuclear reactor meltdown experiments, the Radioactive and Toxic Material Disposal sheets, the disposal of canisters containing metallic sodium inseparably combined with irradiated fuel pins, the disposal of the debris from the Hot Cell Facility, and disposal of spent fuel;

24. Sandia’s deliberate omission of facts about the location, nature and extent of the high level mixed waste contained in canisters identified as being present in small diameter vertical holes drilled in the MWL(CANM Ex 5a);

25. Failure to provide information about the fuel rods disposed from the Space Nuclear Auxiliary Program (“SNAP”, rockets powered by nuclear reactors) in the MWL and failure to include the fuel rod disposal in the Sandia inventory for the MWL;

26. The meltdown experiments were conducted after receiving fresh and pre-irradiated fuel pins from around the world; the fresh and pre-irradiated fuel pins were irradiated further in the Annular Core Research Reactor (ACRR); subsequent disposal of some of the canisters containing the melted fuel and metallic sodium in Pits 35 and 36 and other unknown locations; disposal in the MWL of meltdown experimental debris from cutting and post-mortem examination of the canisters conducted in the Hot Cell Facility.

27. As shown by CANM Ex __ disposal in the MWL of canisters containing metallic sodium melted inseparably with fuel pins from nuclear meltdown experiments was a common practice. The FOIA documents show that DOE/Sandia recognized that it was not economical to recover the fuel separately from the metallic sodium and recommended burial. Without further use of the MWL for such disposal, Sandia was “between a rock and a hard place.” Cross examination of Mr. Strong confirmed that Item 15 C showed the practice of disposal of canisters contained metallic sodium and irradiated fuel pins.

28. Ignoring the presence of metallic sodium that was used in the TRAN, PBE, DCC and EEOS experiments.

29. Sandia memoranda (CNAM Ex 5 a, b, c, and d) show the plan to avoid inspection of the canisters containing sodium and the plan to save money by not having to excavate the MWL, to keep the MWL off of the Site Treatment Plan, to avoid the cost and necessity to design and construct special containers for the HLWM waste, and to avoid the 90 day removal period for RCRA wastes after characterization of the canisters in Pits 35 and 36;

30. The CAC process is being used to gain the illegal disposal of radionuclides inseparably mixed with hazardous chemicals and metals that must be permanently isolated from the environment in a deep geologic repository. Such long-lasting radionuclides include Plutonium-239 (half-life 24,000 years), Neptunium-237 (half-life 2,000,000 years), Uranium-235 (half-life 704,000,000 years), Technetium-99 (half-life 211,000 years), and Americium-241 (half-life 432.7 years).

31. The use of a RCRA proceeding to gain no further action by omission of substantive facts and knowingly providing incorrect and incomplete characterization and information about the amounts of spent fuel, high-level and TRU waste disposed of during the administrative hearings for the MWL in 2004 and 2015;

32. Continuing and intentional non-disclosure of facts and incomplete information about the amounts of spent fuel, high-level and TRU waste disposed of in the MWL during: the RCRA Facility Investigation Phase 1 and Phase 2, the Corrective Measures Study, the Corrective Measures Evaluation, the Corrective Measures Implementation Plan, the Corrective Measures Implementation Report, the Long-term Maintenance and Monitoring Plan and the application for Corrective Action Complete.

33. Failure to allow public participation in the RCRA proceedings based on complete and accurate information and failure to correct the administrative record.

34. Classification of the MWL as a Solid Waste Management Unit without applying the groundwater monitoring requirements for the MWL as a “regulated unit” that received hazardous waste after July 26, 1982.

35. Continued knowing and willful land disposal of high level mixed hazardous waste after 1984 to December 1988 in violation of the RCRA ban on land disposal contained in 40 CFR Part 268.

36. Ignoring requirements of 40 CFR § 830 for a Documented Safety Analysis for the MWL. The RCRA Facility Investigation is badly flawed and more than a decade out of date.

37. Intentionally excluding from the inventory for the MWL the amounts of TCE, PCE, PCB and mercury, fuel pins and canisters contaminated with HLW. No disposal of mercury was ever disclosed in the Sandia Inventory although the disposal sheets show such disposal.

38. Downplaying the movement of TCE as not meeting trigger levels, allowing the release of TCE to the environment and failure to remediate the TCE;

39. Continuing failure to update and correct the disposal record for the MWL as required by RCRA;

40. The deliberate destruction as part of a records purge for MWL disposal for the years prior to 1964; 1977 ERDA p.11.

41. The failure to keep an accurate inventory for the high level waste from nuclear meltdown experiments disposed of in the MWL;

42. Intentionally did not disclose the critical information about the defective groundwater monitoring that would have changed the decision making process for the MWL. Nondisclosure about the defective groundwater monitoring network identified by EPA Region 6 staff used for making the dirt cover decision. Defective monitoring wells identified continue to be used as part of the long-term maintenance and monitoring plan;

43. Withholding 2006 TechLaw, Inc. documents regarding the defective dirt cover construction, monitoring and computer codes during the period of development of a Fate and Transport Model for the MWL;

44. Disposing high level waste with a defective groundwater monitoring network and beneath a dirt cover that cannot be protective for 1,000 years let alone 10,000 years;

45. Allowing the escape of tritium, nickel, cadmium, beryllium, TCE, PCE and nitrates from the pits and trenches to the vadose zone and the groundwater and taking no remedial action;

46. The failure to perform the May 26, 2005 Final Order requirement for an excavation review every five years. DOE/Sandia failed to perform the 5-year reevaluation in 2010 and again in 2015.

47. DOE/Sandia are circumventing the intent of law to isolate high-level waste for perpetuity.

48. Sandia misrepresents that the MWL will be available for industrial use, that is completely unrealistic. 

At every regulatory turn, the least protective, most accommodative and inappropriate regulatory postures have been taken toward the MWL:

• Erroneous characterization of the MWL. Ignoring the disposal in the MWL of HLMW and TRU from atomic bomb tests, nuclear meltdown experiments, laboratory experiments and a space nuclear reactor program that disposed of fuel rods, spent fuel, and melted fuel pins inseparably combined with metallic sodium;

• Improper designation of the MWL as a Solid Waste Management Unit and allowing an invalid corrective measure for the HLMW and TRU in the MWL;

• Ignoring the disposal of mercury and metallic sodium in the MWL;

• Avoidance of opening and inspection of canisters or other containers known or believed to contain 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;

• Failure to require a RCRA Part A and B permit allowing escape from all RCRA requirements for landfill design, closure and post-closure plans;

• Allowing an experimental dirt cover design that does not meet RCRA requirements for double liners and leachate collection;

• Regulation of the MWL as a Solid Waste Management Unit, ignoring requirements for SWMUs as “Regulated Units” in 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;

• Withholding crucial information secret from the public regarding the MWL past and present defective groundwater monitoring network, and defects in the dirt cover that both translate to a Long-Term Maintenance and Monitoring Plan that is worthless.

• Allowing a fourteen-year delay and failure to enforce the Final Order’s 5-year reevaluation for feasibility of excavation and the suitability of the remedy. Corrective action cannot be considered fulfilled without completion of the 5-year reevaluation requirement.

• 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 from the MWL and that the trigger monitoring vapor monitoring network is not a remedy.

 

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.” Wastes such as tritium, beryllium, TCE, PCE have already begun migrating away from the MWL unlined pits and trenches. The so-called “trigger level” monitoring does nothing to prevent such migration as is required by RCRA.

Given the millennia necessary to protect the MWL spent fuel, HLMW and 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.

The MWL is nothing more than an unlined “dump” that is already releasing contamination from the bottom of the pits and trenches. A member of the public referred to the MWL as a “nuclear cesspool.” The evidence presented by Citizen Action, Dr. Barcelona, Dr. Dinwiddie, and Dr. Eric Nuttall shows that the MWL contains HLMW and TRU waste, was improperly classified as a Low-level Mixed Waste site, and is not appropriate for leaving the long-lived wastes under the dirt cover. The summary inventory prepared by DOE/Sandia over a decade ago, amounting to a few pages, does not reveal the amounts of HLMW and TRU waste disposed of in the MWL. A Low level mixed waste site is not suitable for receiving TRU waste.

Volatile organic solvents are already 400 ft below the MWL within only 27 years of the time the MWL stopped receiving hazardous waste. What the Radioactive and Toxic Material Disposal sheets do not provide is information for the quantity of chlorinated solvents that were disposed of in the MWL and can leak from containers.

• HLMW and TRU waste are required to be disposed of in deep geologic repositories.

• The MWL is releasing RCRA regulated volatile organic compounds and heavy metals that are now hundreds of feet below the bottom of the trenches and pits as evidence that over time radionuclides will contaminate the groundwater as occurred at other sites at Sandia.

• There are no engineering controls for containment of the mixed high-level poisons before reaching the groundwater.

• There is no planned removal for the source of HLMW and VOC contamination.

• The containers thrown in the MWL are decaying and corroding so that more HLMW, with unknown quantities, will be released over time.

Summary of Issues That Demonstrate CAC Should Be Denied

1. There is a more complete understanding from more detailed information contained in the Sandia management memoranda, the disposal sheets and technical documents regarding nuclear reactor meltdown experiments and SNAP fuel rod disposal showing that spent fuel, High-level Nuclear Mixed Waste (HLMW) and TRU waste was disposed of in the MWL.

1. In its CAC application, Sandia did not include information about the spent fuel, HLMW and TRU waste disposed of in the MWL. 40 CFR 270.43 (a)(2). Information that was previously ignored or not understood in a complete context, but that would lead to new conclusions is new information. It is not adequate under RCRA for DOE/Sandia and NMED to say that the disposal records existed in 2004 for the MWL, that were not examined, that the Hearing Officer ignored for their content, or did not fully consider, do not constitute new information. RCRA requires an updating process and records that were not examined previously, but that now reveal spent fuel, high level waste and TRU waste, must now be considered in relation to the dirt cover. Human health and the environment require protection from the disposal of HLMW in the MWL in keeping with the legal requirement for deep geologic disposal. Due to the long-lived toxicity of High-level radionuclides, a dirt cover cannot be deemed protective.

2. There is the arbitrary and unreasonable failure by Sandia to perform two cycles of the five-year reevaluation of the feasibility of excavation for the MWL contained in Condition #5 of the May 26, 2005 Final Order with further delay until 2019.

3. Information regarding the disposal of HLMW at the MWL is seen from the following evidence:

   1. The disposal of fuel rods from the Space Nuclear Auxiliary Program (SNAP) in the MWL.

   2. The more complete correlation of nuclear meltdown experiments performed in the Annular Core Research Reactor (ACRR) to:

      1. fuel pins (rods) obtained from “reactors around the world,”

      2. the Radioactive and Toxic Waste Material Disposal records,

      3. Sandia management memoranda describing disposal of canisters in Pits 35 and 36, including the presence of metallic sodium,

      4. Disposal in vertical holes drilled into trenches at the MWL, and

      5. Debris disposed of in the MWL from post mortem examination of experiments in the Hot Cell Facility.

   3. The series of ACRR experiments that used metallic sodium – TRAN, PBE and the D series.

   4. The presence of metallic sodium in the MWL with the potential for explosion or fire.

   5. The evidence of the disposal of the ends of spent fuel rods from the Sandia Engineering Reactor in the MWL.

   6. Disposal of Transuranic Waste (TRU) – Waste or debris known or suspected of containing elements with atomic numbers greater than 92 and half lives greater than 20 years, in concentrations greater than 100 nCi/g of alpha emitting isotopes. The concentrations of plutonium in irradiated fuel pins would be higher than 100 nanocuries per gram so that Transuranic waste (TRU) must be disposed of in a deep geologic repository. The irradiated fuel pins are also spent fuel. CANM Exhibit __ Appendix H Table J.1.1 MWL Alternative V.b – Waste Debris Volume identifies that TRU waste totaling 21 cu yd was disposed of in the MWL unclassified area and 52 cu yd was disposed of in the classified area.

4. U-235 with a half-life of 704 million years was disposed of in the MWL in substantial quantities that must be permanently isolated from the environment.

5. There is new evidence from soil vapor monitoring that there is a release from the MWL for PCE and TCE that has reached a depth of at least 400 ft below ground surface that is close to the groundwater.

6. There is new evidence for the past and continuing defectiveness of the Long-term Maintenance and Monitoring Plan groundwater well monitoring network.

7. Existing evidence from the Phase 2 RCRA Facility Investigation (RFI) for the analysis of the borehole core drilled for groundwater monitoring well MWL-MW4 shows that Plutonium-238 and -239 reached the groundwater at 500 ft. This portrays an uncertainty as to how Plutonium could be found in all samples of the borehole all the way to the groundwater and then not at all. 

2. Technical deficiencies of the dirt cover. Why the dirt cover is not protective of human health and the environment. 

1. According to Sandia and the NMED the MWL is a Low Level Mixed Waste Landfill. However, the requirements for a LLMW landfill are not met as described by EPA/NRC requirements. Low level waste is defined by the absence of spent fuel, HLW and TRU.

2. The 2006 TechLaw, Inc. document that reviewed the Fate and Transport Model was critical of the dirt cover durability for the necessary time period, lack of liners, the absence of moisture monitoring beneath the cover, the lack of a membrane to remove water to the sides of the cover, lack of leachate collection capability and unusable computer codes. The 2006 TechLaw, Inc. report came after the 2005 Final Order and revealed problems with the dirt cover. http://www.radfreenm.org/old_web/pages/Legal/lg-2008oct08a.pdf.

3. The dirt cover cannot contain and protect against the release of volatile organic compounds (VOCs) contamination that is already in the MWL. VOCs from the MWL have migrated outside the unlined pits and trenches and are now present at a depth of 400 ft beneath the MWL.

4. The soil gas monitoring for VOCs by only three FLUTE wells is too sparse across the horizontal cross-section of the MWL to provide adequate information about the migration of VOCs from the MWL.

5. According to information obtained by former NMED Hazardous Waste Bureau Chief from discussion with the manufacturer of the FLUTE wells that are used for monitoring chlorinated solvent migration beneath the MWL, the FLUTE wells are ineffectual for monitoring at depths below 50 ft because of absorption of the VOCs in the manufacturing material of the FLUTE well. Levels of VOCs could be higher than what is indicated at present.

6. Beginning in the 1990s, defective groundwater monitoring at the MWL was identified by reports and Notices of Denial (NODs) of the DOE Tiger Team, NMED, NMED Oversight Bureau, the US EPA Region 6 (2007), the EPA Office of Inspector General (2010), and registered Geologist Robert Gilkeson. The MWL groundwater monitoring network was and is not competent to provide reliable and representative groundwater samples for the LTMMP and determining trigger levels for further corrective action. The sampling method of purge to dryness destroys evidence of VOCs and levels of VOCs could be higher than sampling indicates.

7. Production of Freedom of Information Act (FOIA) documents for the 2006 TechLaw, Inc. report, the EPA Region 6 email letter, the Hotline Report and interview records of the EPA Office of Inspector General show the cover up of a defective groundwater monitoring network at the MWL.

8. The classification of the MWL as a SWMU has provided no real requirements for monitoring or clean up.

 

3. The Hearing Officer should find that the CAC should be denied because:

 

• Violation of state and federal laws for radioactive and hazardous waste disposal;

• the MWL is not a low-level mixed waste landfill;

• the MWL dirt cover is not protective for long-lived spent fuel, HLMW and TRU and chemicals such as TCE and PCE that are 400 ft below the MWL.

• The inventory for the MWL must be completely updated to include spent fuel, HLMW and TRU waste;

• the MWL contains highly radioactive waste material inseparably combined with RCRA hazardous waste that requires permanent isolation; deep geologic disposal is required

• The LTMMP is inadequate based on a defective groundwater monitoring network;

• The majority of the thousands of RTMD sheets do not fully describe the wastes that were contained in the plastic bags, poly bags, plastic bottles, cardboard boxes, wooden pallets, cardboard drums, steel drums, canisters and cans. All the containers are subject to rust and decay and release of their contents.

• the MWL contains and is not appropriate for the disposal of spent fuel, HLMW and TRU waste, and

• The emplacement of the volatile organic compounds, spent fuel, high-level waste, and TRU in the MWL constitutes an illegal disposal of such wastes in a facility with no engineered barriers to prevent migration to the human population and environment.

• No five-year review of the feasibility of excavation has been performed.

 

Respectfully submitted,

August 8, 2015

 

_________________________

David B. McCoy

Executive Director

Citizen Action New Mexico

POB 4276

Albuquerque, NM 87196-4276

505 262-1862

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

 

 

__________________________

Dr. Eric Nuttall, Ph.D.

1445 Honeysuckle Drive NE,

Albuquerque, NM 87122

505 269-7840