April 13, 2015

Citizen Action New Mexico (CANM) is a 501 (C)(3) organization that has been a party to all proceedings for Sandia National Laboratories’ In the Matter of the Sandia National Laboratories’ Application for Corrective Action Complete for the Mixed Waste Landfill (SNL or Sandia) Mixed Waste Landfill (MWL) held before the New Mexico Environment Department (NMED). CANM is joined by Concerned Citizens for Nuclear Safety (CCNS), a 501 (C)(3) organization, and Registered Geologist Robert Gilkeson in this request for NMED to deny granting the status of Corrective Action Complete (CAC) to the MWL for numerous reasons that are described in the attachments to this writing. CANM, CCNS and Mr.Gilkeson also request that the Resource Conservation and Recovery Act (RCRA) Facility Investigation (RFI) be reopened. Citizen Action, CCNS and Mr. Gilkeson have submitted numerous previous comments regarding the MWL. Mr. Gilkeson is also submitting a separate set of comments for the MWL. Summarizing, the reasons for not granting CAC status include, but are not limited to:

1. The MWL is a high level nuclear mixed waste dump from nuclear meltdown experiments and nuclear weapons waste disposal. Sandia and the NMED reported for decades that only low-level mixed waste was present at the MWL. Corrective action cannot address the tens of thousands of years of danger posed by such High-Level Mixed Waste (HLMW) disposal and CAC application must be denied. Many thousands of pages of Radioactive and Toxic Disposal sheets obtained by Citizen Action New Mexico from a Freedom of Information request verify that numerous cans and canisters containing HLMW along with metallic sodium from nuclear meltdown testing in the ACRR reactor was disposed of in the unlined pits and trenches of the MWL. Moreover, large quantities of multiple fission products (MFP), often along with beryllium, lithium, liquid mercury (10 gallon metal drum 7 June 1971 buried in Pit 25), nickel, Plutonium-238, -239, Americium 241, 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 toxic chemicals including solvents such as PCE, toluene, organic resins, from atomic bomb testing and the meltdown testing were disposed of in the MWL. Such disposal requires deep underground disposal to protect public health and the environment from the HLMW.

2. The new information argues strongly not only the Corrective Action Complete application must be denied, but also that the Resource Conservation and Recovery Act (RCRA) Facility Investigation (RFI) of the MWL must be reopened and that an entire new risk assessment be ordered for the MWL along with performance of the five-year review of the feasibility of excavation contained in the 2005 Final Order. Defects in the groundwater monitoring network and defects for the design and monitoring argue against approval of the CAC application.

3. All of the containers in the MWL are subject to collapse and decay and release of their contents. Collapse of containers can be a source for subsidence of the dirt cover. Claims by NMED that high levels of Nickel found in groundwater monitoring well MW1 are due simply to well screen corrosion cannot withstand scrutiny because of Nickel disposals made in the MWL. Supposed laboratory sampling error in finding Toluene is likewise impugned because of Toluene disposal in the dump.

4. The inventory records for the MWL are incomplete and do not include many of the years of operation of the MWL from 1959 to closing in 1988. Especially missing are inventory records during the period 1985-1988 when canisters and containers of hazardous and nuclear wastes were hurriedly disposed of in the MWL according to Sandia personnel interviews. Pages from a microfiche record are missing. Where inventory records do exist, they are often incomplete with respect to types of radioactive and hazardous waste disposed of, and the location of the disposal. Often the disposal sheets contain long lists of only serial numbers so that it is impossible to know what radionuclides and RCRA hazardous waste was contained in the disposals.

5. Large amounts of waste were disposed of in a 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. Many of the disposal sheets are redacted.

6. Disposal sheets have acronyms for the Classification of waste: UNC, CFRD (Confidential, Formerly Restricted Data), CRD (Confidential, Restricted Data), SFRD (Secret, Formerly Restricted Data), SRD (Secret Restricted Data) and Other. Some acronyms are uncertain in meaning -- MID (Material Identification Document), MC (may mean Management Control), S/N (Serial Number), SS (perhaps shortened for Security & Safeguards for transportation). Many acronyms in the reports do not seem to be listed in Sandia’s Acronyms, Initialisms, and Abbreviations.

7. Records obtained by Citizen Action New Mexico were formerly marked SECRET but are now stamped as UNCLASSIFIED mostly in 2001.

8. Much waste disposed of in the MWL is from experiments performed on materials from testing atomic bombs 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 tests with names such as Camphor, Cypress, Ming Blade, Hudson Moon, Hudson Seal, Diana Mist, Mint Leaf, Misty North, Husky Pup, 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 are high level nuclear waste and have resulted in a unique and extremely dangerous dump in the middle of Albuquerque.

9. The Sandia application for Corrective Action Complete status for the MWL is improper because Sandia has not fully disclosed the nature and toxicity of high level mixed nuclear waste containing metallic sodium that was disposed of in the MWL. Thus, the application for CAC status does not address the full inventory of what was actually disposed of at the MWL so that the dirt cover cannot be considered as adequate to protect public health and safety and the environment.

10. The thousands of pages of documents regarding nuclear meltdown experiments performed for the U.S. Nuclear Regulatory Commission during the 1970s and 80s at the Sandia ACRR nuclear reactor and the thousands of pages of documents regarding nuclear weapons testing waste disposal were not disclosed were not disclosed and provided to:

• the WERC committee in 1991-93,

• the 2004 hearing officer for the MWL public hearings, and

• there has been no disclosure of the experiments and high level nuclear mixed wastes generated and disposed of in the MWL in the Fact Sheet issued to the public for the CAC application.

11. 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. 40 CFR § 61.3 -- License required.

12. 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.”

13. 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 270.1) 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. The MWL operated illegally because it lost interim status. (42 USC 6928 (d)(2)(A) ).

14. 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.

15. 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)). 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 plan or a post-closure application to meet the requirements of 20 NMAC 4.1, Subpart VI, 40 CFR § 265.110-120 and § 265.310.

16. Sandia did not remove wastes from the MWL.Because Sandia disposed of mixed waste containing hazardous waste until 1988, it is required by the terms of 40 CFR 270.1 (c) to obtain a post closure permit.

17. RCRA requirements for closure and post-closure plans have been ignored.

18. 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).

19. “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)¹. “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).

20. 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 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).

21. 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).

22. 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.

23. 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).”

24. 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.

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

26. 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.

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

28. 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.

29. 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 as a regulated unit.

30. In addition to the hazardous waste, the types of radioactive wastes disposed of in the MWL include mixed waste (radioactive waste that contains a component of hazardous waste), low-level radioactive waste, high level radioactive waste mixed with metallic sodium, multiple fission products, source material, transuranic radioactive waste, and greater than class C radioactive waste. The wastes were buried in trenches and pits that were dug to a depth of up to 30 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 that are released from the pits or trenches to the underlying strata, and to the groundwater.

31. 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.

32. The dirt cover cannot protect against the continuing 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.

33. 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 without engineered protections;

34. In reviewing well monitoring, borehole and soil gas data for the MWL, it is apparent that contaminants, nickel, chromium, nitrates, cadmium and PCE, released from the MWL, have already reached the groundwater. This evidence of release can be expected to increase over time making it necessary to consider timely excavation of the MWL wastes. Radioactive wastes such as plutonium can travel to the groundwater in colloidal form.

35. The disarray in DOE for environmental stewardship and the permanent danger of the toxic wastes that are located in the major population center of New Mexico requires that the waste in the MWL be excavated for safe disposal elsewhere. A report by the National Academy of Sciences (NAS) brings attention to the fallacy of the DOE Environmental Stewardship to assure long-term surveillance of the toxic waste in shallow burial at the MWL. The NAS report describes much of the buried “legacy wastes” at the MWL as a danger to public health and the environment for tens of thousands of years. Some of the buried wastes are a danger for an indefinite period of longer than one hundred thousand years. The NAS report found that DOE has no strategy for balancing its objective of accelerated cleanup with the objective of protection from future risks, and that long-term stewardship continues to be an afterthought of the Department. [Source: NAS Report – “Long-Term Stewardship of DOE Legacy Waste Sites: A Status Report”, April 30, 2003].

36. Granting CAC status is improper because the groundwater monitoring has been defective at all times. Substantial deficiencies in the groundwater detection monitoring program and the deficiencies of the groundwater monitoring wells at the MWL to meet the requirements of RCRA § 264 Subpart F for monitoring the groundwater beneath the MWL have been described by Registered Geologist Robert Gilkeson, EPA Region 6 technical staff (2007) and NMED and EPA NODs issued during the 1990s.

37. The Fate and Transport Model performed by Ho, et al, in 2005 and updated in 2008 did not take into account the fact that contaminants from the MWL had already reached the groundwater nor that the groundwater monitoring wells were defective. The 2008 Fate and Transport Model (“FTM” by Goering et al) is based on unreliable data from the defective groundwater well monitoring network at the MWL. The fate and transport model by Ho, et al, was based on Monte Carlo simulations that relied onuseless data from a wholly defective groundwater monitoring network.

38. Reports in the administrative record for the MWL document that DOE/Sandia and NMED recognize that the three new monitoring wells installed in 2008 (MW7, MW8, and MW9) are useless to detect contamination from the dump because:

A. The well screens are too long at 30 ft;

B. The water levels measured in wells are 20 ft too deep to detect groundwater contamination at the water table, and;

C. The wells MW8 and MW9 are at water levels too low for collecting reliable and representative water samples. An additional feature that prevents the three new wells from detecting contamination is that the wells are pumped to dryness with water samples collected later from aerated water that destroys detection of volatile organic compounds and other contaminants.

39. The EPA Region 6 technical report sent by email to NMED William Moats in May 2007 described the need for additional monitoring wells to be placed both to the north and southern boundaries of the MWL.

40. Two uranium fires have occurred in the MWL and SNL has failed to implement protection against such future fires and possible explosions; the potential consequences for atmospheric releases of radiation from MWL explosions and fires has not been considered;

41. Institutional controls (ICs) will be necessary to be maintained for thousands of years at the MWL. However, according to federal regulations, for the purpose of risk assessments, ICs may only be assumed for 100 years. (10 CFR 61.59(b)) Once IC’s are removed, residents or industry could drill for construction or wells could strike depleted uranium, causing explosions and fires that would disperse radioactive materials. The long-term hazard does not justify issuance of CAC status.

42. A closure plan, not a corrective measures study, should have been performed by Sandia;

43. The risk assessment in the Corrective Measures Study (CMS) is inadequate and fails to consider long term risk to the public and environment;

44. Failure to properly inventory wastes disposed of in the MWL and recognize the amounts and toxicity of the wastes including their longevity; A complete waste inventory is necessary to evaluate the risks at the MWL; Sandia has not disclosed high level mixed waste with metallic sodium that was disposed of in the pits and trenches of the MWL making the risk assessment for the MWL wholly deficient;

45. A vegetation layer is not an appropriate closure action; A vegetation layer appears to be a violation of federal regulations and will allow migration of waste constituents and potential exposure of the local population; the vegetation layer will do nothing to prevent water already present in the landfill from continually leaching into soil below and has required additional water to be placed over the wastes; the vegetative layer will not prevent microorganisms and burrowing animals from reaching the waste and spreading it;

46. Excavation of the most dangerous and long-lived wastes is needed to reduce risks to human health.

47. The MWL groundwater monitoring network has been defective at all times to the present for the detection of groundwater contamination;

48. NMED and the US Environmental Protection Agency deliberately withheld documents by (EPA) Region 6 demonstrating the failure of the MWL groundwater monitoring network to provide reliable and representative groundwater samples.  

49. In 1996 and 1998, the Hazardous and Radioactive Waste Bureau (now called the Hazardous Waste Bureau) respectively issued a Letter of Denial and a Notice of Deficiencies for Sandia’s RCRA Phase 2 Facility Investigation. Records of the types and amounts of waste disposed of at the MWL were never complete. Groundwater monitoring was wholly inadequate. Because the site characterization was inadequate, the results of the risk assessment might not be valid and institutional controls would be required. Pits SP-4, SP-35, and SP-36 showed high surface level readings of radioactivity that exceeded background radiation levels by nearly three times. There is a very large amount of radioactivity at the MWL including annual releases of tritium and radon gas to the air. PCBs, and solvents such as Toluene, PCE, and TCE are present in the MWL. RCRA metals were disposed of in the MWL including cadmium, copper, vanadium, cobalt, zinc, and beryllium and are hazardous constituents for groundwater. 20 NMAC 4.1. Thallium and thorium was detected. High detections of nitrate were in the groundwater. Nickel was detected in MW1 and later exceeded EPA maximum contaminant limit for drinking water. 119 barrels of Plutonium contaminated waste is in the MWL.

50. Failure to obtain a RCRA Part A and Part B permit for the MWL which received hazardous wastes;

51. Contamination has escaped from the unlined pits and trenches at the MWL and traveled at least 400 ft beneath the MWL and entered groundwater;

52. The installation of a defective dirt cover cap that cannot be protective of human health and the environment;

53. Installation of a dirt cover that does not meet the requirements of the Resource Conservation and Recovery Act (RCRA) for such caps;

54. Failure to perform adequate risk assessment for the MWL and especially for the groundwater pathway;

55. Failure to provide adequate groundwater monitoring of the vadose zone;

56. Failure to conduct the 5-year reviews for the feasibility of excavation of the MWL as required by Condition 5 of the 2005 Final Order. the Albuquerque Bernalillo County Water Protection Advisory Board has requested the performance of the 5-year reviews as past due;

57. Failure to adequately protect the MWL from the flooding of storm waters into the MWL and the disposal of 270,000 gallons of reactor waste water into the MWL; protective berms around the MWL were breached by heavy storms in 2006; rainwater washed into pits and trenches for decades;

58. The absence of any engineered barriers beneath the MWL and the absence of any engineered method to collect moisture beneath the dirt cover and absence of any system for the recovery of leachate beneath the cap or the pits and trenches of the MWL;

59. Analyses of the dirt cover have failed to consider the horizontal movement of water into the MWL.

60. The failure to impose the equivalent conditions under CAC for closure that are required by RCRA and were included in the NMED decision of 1998 (Dinwiddie) and that are required because the MWL failed to obtain a RCRA Part A and Part B permit and lost interim status.

61. Although the MWL is described as a “landfill” it meets none of the requirements of law to be considered as conventional landfill for closure —it is without any liner or leachate collection and contamination has been releasing from the unlined pits and trenches for over 50 years.

62. Subsurface processes of subsidence, rainfall percolation creating a bathtub effect, relation to climate changes, vapor phase transport are not adequately considered for the dirt cover.

63. The MWL is required to have a closure plan that meets the performance standard of 40 CFR § 264.111. 40 CFR § 264.112. The MWL cannot meet the closure performance standard for the MWL that is contained in 40 CFR § 264.111.

§ 264.111 Closure performance standard.

The owner or operator must close the facility in a manner that:

(a) Minimizes the need for further maintenance; and

(b) Controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated run-off, or hazardous waste decomposition products to the ground or surface waters or to the atmosphere; and

(c) Complies with the closure requirements of this part, including, but not limited to, the requirements of §§ 264.178, 264.197, 264.228, 264.258, 264.280, 264.310, 264.351, 264.601 through 264.603, and 264.1102.

64. The radionuclides in the MWL such as Plutonium-239 and Americium-241 are long-lived and the public will require protection for thousands of years. One of the requirements for corrective action is that it “must be initiated and completed within a reasonable period of time considering the extent of contamination” (40 CFR 264.100(e)(3)). One of the requirements for corrective action in these sections is that it “must be initiated and completed within a reasonable period of time considering the extent of contamination” (40 CFR 264.100(e)(3)). Considering that ICs must be maintained for thousands of years for a vegetation layer, the “correction action” will essentially never be completed.

65. Hazardous wastes are already escaping from the MWL and no corrective measures have been taken to prevent the releases. NMED strategy is to allow Sandia to take ineffectual steps that do not provide public and environmental protection and then simply wait for the worst to happen. So called “trigger levels” provide no prevention of releases or the potential for accidents. As stated by TechLaw,

“[T]rigger evaluation is not typically performed and not usually negotiated as an option to

determining the statistical significance of each exceedance. The transition from compliance

monitoring to detection monitoring can be based on a single exceedance, according to

regulations and federal EPA guidance. In addition. a single exceedance can be used to initiate

an interim corrective action. SNL, however, proposes waiting for an indeterminate time prior

to determining that an exceedance requires initiation of further action. TechLaw is concerned

that this may be a de facto assumption of regulatory authority.”

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

67. No Level 3 RCRA permit modification request and proceeding in accord with 40 CFR § 270.41-42 has been submitted by Sandia and issued by NMED for public comment, response and a public hearing before the approval issued to modify Final Order Condition 5. The violation of Condition 5 of the Final Order would invalidate the entire Final Order because the Final Order contains no severability clause and no savings clause and would require reopening the entire Class 3 proceeding for the Final Order for corrective action for the MWL.

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

69. There has been significant public concern regarding the MWL for well over a decade. The complex nature of changing the five-year compliance schedule of the Final Order, especially given new technical information for the MWL, requires the more extensive procedures of a Level (Class) 3 modification. 40 CFR § 270.42(b). A public hearing is also required, not discretionary, for the CAC request.

70. The fact that many contaminants have already been released from the boundaries of the pits and trenches is sufficient to require that additional correction action be taken to clean up and prevent further releases. The NMED has instead chosen 1). to not recognize the releases, and 2). require nothing in the way of remediation and cleanup.

71. The MWL has remained in place since 1959 with no plan to excavate the MWL since 1988, a nearly 30 year period. NMED has refused to follow its own 2005 Final Order requiring reviews every five years for the feasibility of excavation.

72. The dirt cover was installed in 2009 that is not a RCRA compliant cover. The cover offers no real protection for the period of time necessary to protect against erosion due to run-on/run-off to maintain its integrity.

73. There are no design or long-term maintenance provisions to protect the dirt cover from complete erosion.

74. There is no liner beneath the dirt cover to carry leachate off to the sides of the MWL where leachate can then be collected. Inadequate monitoring is in place to determine loss of cover integrity and for penetration of water into the dirt cover, entry into the MWL wastes and leaching of those wastes.

75. Compliance monitoring should be imposed at present due to releases from the MWL and exceedances of EPA of MCLs for soil gas and heavy metals. These and other concerns were raised by a 2006 TechLaw, Inc. report. The TechLaw report was wrongfully withheld from CANM until 2009. CANM hereby incorporates all concerns for the dirt cover contained in the TechLaw report.

76. Sandia claimed that high-level radiation detected at the MWL was primarily from irradiation of Cobalt in stainless steel . The use of stainless steel containing cobalt has long been disallowed in nuclear environments such as reactors, piping and other structures. The high levels of radiation detected at the MWL are due to the irradiation of experimental packages used for nuclear meltdown tests performed for the US NRC.

77. The failure of Sandia to disclose the nuclear meltdown experiments and the waste therefrom represent a conspiracy to dispose of HLMW containing metallic sodium in shallow pits and trenches with no liners, inadequate containment and the intent to never perform excavation of the MWL. High level wastes are required to be disposed of in deep geologic repositories.

For the above reasons and information previously submitted to the NMED by Citizen Action and Concerned Citizens for Nuclear Safety, the CAC should be denied by the NMED.

Respectfully submitted,