SECTION V—REGULATORY NON-COMPLIANCE

Violations of environmental laws at the Sandia/DOE MWL dump have resulted from failure to enforce the April 29, 2004 Compliance Order on Consent (Consent Order) and regulations adopted under the Resource Conservation and Recovery Act (RCRA). The NMED HWB has not enforced the groundwater monitoring requirements in the April 29, 2004 Consent Order. RCRA regulations have not been accomplished for: provision of a closure/post-closure plan, characterization of the MWL wastes, and for the installation of a reliable monitoring well network at the Sandia MWL dump for protection of public health and the environment. DOE Orders for protection of the public and environment from radiation have not addressed the transuranic and other radioactive wastes in the MWL.

The Consent Order at Section III. Definitions – states that "Groundwater" means interstitial water which occurs in saturated earth material and which is capable of entering a well in sufficient amounts to be utilized as a water supply." That definition would apply to the Ancient Rio Grande (ARG) sediments that furnish water for Albuquerque's municipal wells. The Consent Order, Section VIII, p. 64 requires application of U.S. EPA, RCRA Groundwater Monitoring: Draft Technical Guidance, EPA/530-R-93-001, Nov. 1992 and, U.S. EPA, and the RCRA Groundwater Monitoring Technical Enforcement GuidanceDocument, OSWER-9950.1, Sept. 1986. http://www.nmenv.state.nm.us/hwb/SNL/Order_on_Consent/final/SNL_CONSENT_ORDER_A pril-29-2004_FINAL.pdf ) Collectively, these documents require installation of groundwater monitoring well networks that provide reliable and representative samples to detect contamination in the two distinct zones of saturation below and immediately surrounding the MWL dump:

1. at the water table in the fine-grained alluvial fan sediments and
2. in the productive Ancient Rio Grande Deposits (ARG Deposits).

The required reliable monitoring well networks are not installed in either zone. Only MWL-MW6 is was installed in the ARG but at a distance too great from the MWL dump. No monitoring wells are installed to the south of the MWL dump.

The Sandia September 2007 Long Term Monitoring and Maintenance Plan (LTMMP) which has not been approved by the NMED, blurs the distinction between the meaning of the ARG Deposits as an aquifer that requires monitoring and the fine-grained alluvial fan sediments that are not an aquifer. The LTMMP Section 2.1.2 states:

"Groundwater occurs approximately 500 feet bgs within Santa Fe Group deposits (basin fill), in either fine-grained alluvial fan deposits or coarse-grained Ancestral Rio Grande deposits."

This above LTMMP statement does not identify and apply the mandatory definition of "groundwater" which all parties agreed to in signing the Consent Order. Monitoring of the "Groundwater" that is by definition capable of supplying the municipal wells is required to be monitored. The LTMMP monitoring network does not provide a RCRA compliant well monitoring network for the Ancient Rio Grande strata that is solely capable of supplying the municipal wells.

The Continued Acceptance and Failure to Invalidate the Flawed Data from the Defective Monitoring Wells for NMED Decision Making Violate Both the Consent Order and RCRA. The monitoring well network at the Sandia MWL dump was/is not capable of providing reliable and representative water quality data. Both NMED and DOE/Sandia have a duty to verify whether information is incorrect and to promptly submit correct information. Nevertheless, there is an ongoing continuing pattern and practice of unreliable data submission by Sandia/DOE and acceptance of unreliable data for decision making by the NMED. The incorrect information has not been corrected by DOE/Sandia. (40 CFR 270.30 (l)(11) and 20.4.1.900 NMAC -- Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Director, it shall promptly submit such facts or information. Also, 270.41-270.43, 270.43(2) -- The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time).

NMED made a decision to place a soil cover over the MWL dump wastes based on the incorrect and unreliable data from a monitoring well network known to be defective. DOE/Sandia and NMED obtained a favorable outcome of the WERC investigation and the 2004 public hearing by omission and misrepresentation of relevant facts.

The close similarity in incorrect testimony between NMED and DOE/Sandia witnesses at the 2004 public hearing is indicative of a plan to omit and withhold relevant facts from the decision maker and the public to obtain the dirt cover remedy to leave the MWL dump wastes in place. NMED and DOE/Sandia had the knowledge that the MWL dump did not have a monitoring well network capable of detecting contamination. Despite this knowledge, NMED and DOE/Sandia witnesses provided incorrect testimony at the NMED December 2004 Public Hearing for the dirt cover remedy that there was a reliable monitoring well network and no evidence of contamination to the groundwater.

Additionally, the incorrect testimony and continuing failure to promptly submit relevant information and provide accurate information constitutes an ongoing violation of the public participation requirements of RCRA provide a meaningful opportunity for public comment and review. By furnishing misinformation and withholding relevant facts, the public is unable to exercise a request for modification, termination or reissuance of the permit. 40 CFR 124.5; 63 FR 56710 et seq.

The staff of NMED and DOE/Sandia provided incorrect testimony at the NMED December 2004 Public Hearing that the direction of groundwater flow at the water table was to the northwest. For example, the Testimony of NMED staff person Ms. Carolyn Cooper:

Currently, groundwater at the mixed waste landfill flows west, with a slight northwest component of flow (v. III, p. 918, l. 25, p. 919, l. 1-2) Downgradient monitoring wells MW-1 and MW-2 are located north of the landfill, and MW-3 is situated to the west of the landfill (v. III, p. 919, l. 11-13).

The Testimony of DOE/Sandia consultant Mr. Tim Goering was:

The groundwater flow direction at the site is towards the west, with a slight north component of flow (v. I, p. 93, l. 18-19). So, in summary, I can state that there is no evidence that there is ground-water contamination from the mixed waste landfill (v. I, p. 100, l. 22-24).

The 1994 EPA Region 6 NOD Report informed DOE/Sandia that the unreliable monitoring well network could not be used for the conclusion in the testimony of Mr. Goering that the MWL dump had not contaminated the groundwater. The pertinent excerpt from the 1994 EPA Region 6 NOD Report follows:

Based on the southwest gradient flow of groundwater, the MWL monitoring wells are located cross gradient instead of downgradient from the MWL; therefore, contaminants emanating from the MWL may not be detected in the monitoring wells [Emphasis supplied] (p. 6).

Two letters in 2007 from James Bearzi, the Chief of the NMED Hazardous Waste Bureau (HWB), acknowledge that groundwater flow is to the southwest by requiring a repositioning of the new background monitoring well MWL-BW2 and replacement for wells MW1 and MW3.

The crucial fact for correctly positioning the groundwater monitoring wells was that the flow of groundwater at the water table is to the southwest. This was realized after the placement of the groundwater monitoring wells based on an incorrect assumption that groundwater flow is to the northwest. Reports of the monitoring well placement error were identified beginning in 1991 and subsequently reported numerous times in the NMED Administrative Record. The August 26, 1991 RCRA Work Plan states:

"According to the regional water level contour maps, the hydraulic gradient at the MWL should be toward the west and northwest. However, current water level elevation information for the four MWL monitor wells (Appendix A) indicate that the hydraulic gradient is toward the southwest, approximately 40 degrees counter-clockwise to the regional gradient." (Emphasis supplied).

Thus, NMED, EPA and Sandia/DOE all knew: No background well existed and there were not three downgradient wells to monitor the groundwater because the wells were positioned with the assumption that the flow direction was to the northwest.

However, no steps have been taken to correct two decades of misinformation from monitoring wells that were not in appropriate locations, had corroding well screens, were drilled with drilling muds that hide knowledge of contamination and were incorrectly sampled.

The NMED admission that groundwater flow at the water table is to the southwest requires the installation of a reliable network of monitoring wells along the southern and western boundary of the MWL dump. (40 CFR 264.95). Monitoring along the southern boundary has not heretofore been provided at the MWL dump. The current network of the six contaminant detection monitoring wells MWL -MW4, -MW5, -MW6, -MW7, -MW8 and -MW9 is displayed on Figure 7. The purpose of the current network is monitoring groundwater contamination at the water table below and to the west of the MWL dump. However, the six contaminant detection monitoring wells on Figure 7 fail for this purpose. The NMED HWB has not enforced the requirement in the Consent Order for replacement of the six defective monitoring wells. Instead, the NMED HWB has issued an approval letter for the three new defective monitoring wells MWL-MW7, -MW8 and -MW9 and accepts the DOE/Sandia annual groundwater monitoring reports that use the unreliable groundwater quality data from the current network of seven defective monitoring wells.

DOE/Sandia is violating its duty not to submit incorrect information (40 CFR 270.30(l) (11)) and is also failing to report its noncompliance with monitoring requirements under RCRA and the Consent Order (40 CFR 270.30(l)(10) ). NMED is violating its duty to verify the accuracy of information for monitoring data, verify the adequacy of sampling, monitoring and whether Sandia/DOE is properly developing such information. (40 CFR 270.15).

These still uncorrected violations report have been brought to the attention of NMED on numerous occasions by both Citizen Action New Mexico and Registered Geologist Robert H. Gilkeson and. (40 CFR 270.15 (b)(4)). NMED is failing to exercise control over Sandia/DOE groundwater monitoring at the MWL dump (40 CFR 271.22 (a)(2)(i) ); failing to comply with public participation requirements (40 CFR 271.22 (a)(2)(iii)); failing to act on violations of permits and other program requirements contained in the Consent Order and RCRA (40 CFR 271.22 (a)(3)(i) ), and; failing to inspect and monitor activities subject to regulation (40 CFR 271.22 (a)(3)(iii)).

The violation of public participation requirements. The work plans and the installation of the new groundwater monitoring wells MWL-BW2 and MWL-MW7, -MW8 and -MW9 as new upgradient and downgradient monitoring wells were not presented to the public prior to approval and installation. Public participation for work plans and monitoring well installation is required by RCRA public participation requirements. 40 CFR 270.42 and Appendix I – Classification of Permit Modification-- section C. Ground-Water Protection, sections 1-8 thereto, provides that "changes in the number, location, depth, or design of upgradient or downgradient wells of permitted groundwater monitoring systems," "changes in point of compliance" are Class 2 Modification. "Replacement of an existing well that has been damaged or rendered inoperable, without change to location, design or depth of well" is a Class 1 Modification requiring public notification, review and comment. The changes to the MWL well monitoring network also constitute Class 2 modifications. For Class 2 Modifications, the permittee must submit a Modification request to the Director, notify persons, provide a comment period, provide a public meeting and other requirements.

63 Federal Register 56710, 56720 (October 22, 1998) sets out the requirements for public comment throughout the cleanup process including site characterization: "For example, the affected community should be notified and given the opportunity to comment prior to the initiation of any activity to assess contamination." Public participation is to take place "very early in the process" and "prior to the initiation of any activity to assess contamination or prior to the implementation of any interim measure."

NMED violated public participation requirements by withholding and omitting information crucial to the decision making process for the remedy selection. NMED omitted information that showed the inadequacy of the defective groundwater monitoring wells. NMED failed to submit several major documents for public review and comment as required by the Final Order. NMED deliberately kept a key 2006 TechLaw, Inc. document secret for three years regarding fate and transport of contaminants beneath the dump.

NMED made an agreement with the technical staff at EPA Region 6 to not document conversations between NMED and EPA Region 6 regarding the MWL dump monitoring network. The agreement was made so that Citizen Action could not obtain documentation regarding the discussions. Concerns in the EPA Region 6 Oversight Report for the groundwater monitoring network were orally conveyed to NMED so that Citizen Action could not see the Oversight Report and know the EPA concerns. (http://www.epa.gov/oig/reports/2010/20100414- 10-P-0100.pdf, at p.3). Thus, EPA and NMED prevented public participation by withholding relevant facts from the public during the RCRA process for corrective measures. Withholding relevant facts and reports allowed NMED and DOE/Sandia to proceed with constructing the dirt cover without opposition from an informed public with full access to the facts.

The New Mexico Environment Department (NMED) described the defective and unreliable monitoring well network at the Sandia MWL dump as a reliable network of monitoring wells in the NMED November 2006 Moats Report. In November of 2006 the New Mexico Environment Department (NMED) Hazardous Waste Bureau (HWB) published the report titled Evaluation of the Representativeness and Reliability of Groundwater Monitoring Well Data, Mixed Waste Landfill, Sandia National Laboratories by William P. Moats, David L. Mayerson and Brian L. Salem (Moats et al., 2006).

The NMED November 2006 Moats Report makes the incorrect conclusions that

1. all of the seven monitoring wells at the Sandia MWL dump that are displayed on Figure ES-2 provided reliable and representative water quality data and
2. there is no evidence of groundwater contamination from the wastes buried in the Sandia MWL dump.

The monitoring well network that was presented as a reliable and sufficient network in the NMED November 2006 Moats Report was the same network that was described as unreliable and not in compliance with RCRA in 1). the 1991 LANL report (Rea, 1991), 2). the 1993 NMED Report (Moats and Winn, 1993), 3). the 1994 EPA Region 6 Notice of Deficiency (NOD) Report (EPA 1994) and the 4). 1998 NMED HWB NOD Report (Garcia 1998).

The four reports listed above described the reasons that it was necessary to replace all of the seven defective monitoring wells that were described as a reliable network in the NMED November 2006 Moats Report. The methodology and conclusions of the NMED November 2006 Moats Report lack scientific basis, are known to be incorrect and the Moats Report requires retraction.

An important reason the NMED November 2006 Moats report should be retracted is that the evaluation methodology only studied the impact of the bentonite clay contamination from the mud-rotary drilling method and from mistakes in well construction on the ability of the four monitoring wells MWL-BW1, -MW2, -MW3 and -MW5 to produce reliable and representative water samples. The Moats Report ignored the effects of the corroded well screens. In addition, the incorrect locations for five of the seven monitoring wells was ignored. Of the four monitoring wells evaluated in the 2006 Moats Report, only well MWL-MW3 was at a location that could detect groundwater contamination from the MWL dump. NMED failed to submit the Moats report to the public for review and comment, as required by the Final Order for major documents, prior to its release for the purpose of putting out of sight the serious deficiencies of the groundwater monitoring network. The Moats report was repeatedly used in the NMED Responses to Public Comments to set aside technical concerns of Citizen Action and Mr. Gilkeson that new wells should be installed at the MWL dump. (See Response to R29, p. 35 described below in section 9.10).

Mr. Moats was the lead technical person for the review of the DOE/Sandia RFI Reports and for the issuance of the NMED 1998 NOD Report. Mr. Moats was the coauthor on the 1993 NMED Report that described the monitoring well network at the MWL dump as "inadequate." Mr. Moats was also the lead person for the April 29, 2004 NMED DOE/Sandia Consent Order.

It was a violation of RCRA for Mr. Moats to omit substantive and relevant information at the NMED December 2004 Public Hearing regarding the significant deficiencies that he knew existed in the Sandia MWL dump monitoring well network.

Concerns for the Fate and Transport Model (FTM) were dismissed in the NMED Responses to public comments. (New Mexico Environment Department, November 2006. New Mexico Environment Department November 2006 Response to Comments on the Sandia MWL Corrective Measures Implementation Plan. http://www.nmenv.state.nm.us/hwb/snlperm.html) The NMED Responses did not report the technical concerns contained in the TechLaw report that the Sandia computer model was a "black box" that NMED should not use. The Moats report nevertheless relied on the FTM and did not disclose the contrary conclusions in the TechLaw report.

The 2006 TechLaw, Inc. report was withheld from the public until late 2009 during the period when consideration of the Fate and Transport Model were under consideration. The TechLaw report contained information that cast further doubt on the NMED decision for the dirt cover remedy. The TechLaw Report identified issues with 1). the incorrect design of the dirt cover, 2). the poor long term viability of the dirt cover, and 3). the deficiencies in the DOE/Sandia computer model used for contaminant movement modeling. The Moats Report and the Responses to Public Comment withheld the information contained in the TechLaw report from the public.

NMED failed to provide either version 1 or version 2 of the DOE/Sandia 2007 FTM Report to the public for review and comment as required for major documents by the May 26, 2005 Final Order 46. The FTM Report was a major document because it was required by the Final Order. (See Sections 12.0 and 12.1 below).'

There are numerous, obvious inaccuracies and contradictions between the data and the textual conclusions contained in the 2008 Vadose Zone Report. The discrepancies further deny the public complete and accurate information for contamination beneath the MWL dump.

Sandia has failed to provide the 5-year assessment of the MWL dump as required by the Final Order.