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September 18, 2007 Richard Greene Regional Administrator Environmental Protection Agency Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 Carl Edlund, P.E. Director, Multi-Media Planning and Permitting Division Environmental Protection Agency Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 Ms. Laurie King Enforcement Chief for Federal Facilities Environmental Protection Agency Region 6 1445 Ross Avenue, Suite 1200 Dallas, TX 75202-2733 RE: Denial of the Public Right for Review and Comment under Resource Conservation and Recovery Act (RCRA), the HSWA Permit Modification requirements, and the Final Order of the Secretary of New Mexico Environment Department (NMED) (2005). Dear Mssrs. Greene and Edlund, Ms. King, This letter is a formal complaint by the undersigned organizations and individuals for the failure of the New Mexico Environment Department (NMED) and the Sandia National Laboratories (Sandia or SNL) to include the public in the opportunity for review and comment and response by NMED for the Mixed Waste Landfill (MWL) under terms of the Resource Conservation and Recovery Act (RCRA), the HSWA Permit Modification requirements, and the Final Order of the NMED Secretary (2005). NMED and Sandia are engaged in the ongoing development of a piecemeal long-term monitoring plan which involves numerous documents and including planned construction prior to the public’s opportunity for review and comment of the several plans. The NMED Secretary’s Final Order for the RCRA Modification to Module IV of the HSWA Permit for the Mixed Waste Landfill requires that “Sandia submit a long-term monitoring and maintenance plan to NMED for approval” (p. 3, para 23 f). The order also provides that: “3. NMED and Sandia shall provide a convenient method for the public to review Sandia’s Corrective Measures Implementation Plan, Corrective Measures Implementation Report, progress reports, long-term monitoring and maintenance plan, and any other major documents developed by NMED or Sandia for the MWL (“the documents”), including but not limited to, posting the documents on a publicly-accessible website. “4. NMED and Sandia shall provide a method and schedule that allows interested members of the public to review and comment on the documents, and NMED shall review, consider and respond to these public comments prior to approving any of these documents (with the exception of any documents, such as progress reports, that NMED does not approve except in the normal course of permit review and oversight).” The language of Section V of the Modification of the HSWA Permit include similar, if not identical language to those above in paragraphs 6, 7, and 8. Further, RCRA requires public participation for post-closure of facilities with respect to long-term monitoring well networks. As stated by 63 FR 56720, the law requires “early, open and continuous involvement of the public when alternate authorities are used at a facility in lieu of post-closure permits, similar to the public involvement provided by the permitting process.” On July 23, 2007, Citizens for Alternatives to Radioactive Dumping, Citizen Action, and Registered Geologist Robert Gilkeson sent a request to Secretary Ron Curry requesting a public comment and review period for immediate and long term well monitoring review at SNL’s MWL. In pertinent part the letter stated: “The Final Order requires that Sandia “submit a long-term monitoring and maintenance plan to NMED for approval.” Ordering well replacement at MWL by the 3/23/2007 letter is a form of long-term monitoring planning and identification of “any changes and future threats at the landfill.” There needs to be opportunity for public comment for what is the ongoing de facto development of a long-term monitoring program.
NMED has not provided timely posting or allowed public participation for review and comment on activities for site characterization, long term monitoring and maintenance plans and other major documents developed by and under consideration by NMED and SNL. The NMED approval of partial construction of the soil cover without public comment is an example. The most recent examples of failure to allow public review of documents prior to approval are the August 3, 2007 letter and August 10, 2007 letter from DOE/SNL to NMED. The August 3, 2007 letter states that “…we have scheduled the replacement of monitoring well MWL-BW1 for August to coincide with other field work scheduled for August.” An August 10, 2007 letter from Sandia similarly states that DOE plans to schedule the work for replacement of monitoring wells MWL-MW1 and MWL-MW3 for late summer. Collectively, the replacement of 3 of the 7 wells at the MWL represents 42% of the current monitoring network and these plans constitute a major portion of the long-term well monitoring network. The public is being excluded from review and comment if the work can simply be set forth by Sandia in this piecemeal approach and then accomplished on their time table. NMED should, but has not, informed Sandia that the terms of the Final Order and the Modification language of the HSWA Permit require public review and comment for participation in the development of the long-term monitoring plan which is proceeding. Concerns over locations of new monitoring wells at the MWL. The water samples produced from wells MWL-MW1 and MWL-MW3 in April 2006 exceeded the EPA MCL for chromium as they have on occasion from 1992. Water samples in April 2007 for well MW1 exceeded the EPA MCL for chromium by a factor of four. Now, NMED is ordering the wells with high measures of chromium contamination to be plugged and abandoned with the two new wells to be located a point distant to the present location. Monitoring well MW1, that is now on the northern boundary of the MWL is being moved a distance greater than 500 feet to the southwest corner of the MWL. The replacement well for MW3 is being moved 100 feet to a southwest location. The speculation by NMED and DOE/SNL that the chromium and nickel contamination is from only the corrosion of the well screens is not proven. Even if the measured contamination was from the well screens, then the wells containing corrosion at the MWL were inadequate as monitoring wells. In September 30, 1992, the NMED Response to Public Comments on DOE/SNL Proposed Closure Plan for the Chemical Waste Landfill (CWL), Comment #10, the NMED states, “Any monitoring well that has chromium contamination is inadequate to monitor the Chemical Waste Landfill. The chromium is assumed to originate in the Chemical Waste Landfill unless it is demonstrated that another source caused the chromium contamination.” (Emphasis supplied). By the same rationale, monitoring wells BW1, MW1, MW2, and MW3 were inadequate from 1992 to monitor the MWL.More recently, in 2007, the NMED ordered replacement of wells at LANL where high levels of chromium were measured. DOE/LANL claimed that the chromium levels were due to well screen corrosion. However, NMED stated that was speculation and ordered new wells to be installed near the locations where high levels of chromium were measured. NMED should likewise order new wells to be installed near the present location of MWL-MW1 and MWL-MW3. The July 2, 2007 NMED letter informed Sandia that the direction of groundwater flow is to the southwest. Thus, downgradient monitoring wells are required along the western and southern boundaries of the MWL, and including along the southern boundary of the classified area. Groundwater contamination has never been examined for the large inventory of hazardous and mixed waste buried in the acid waste pit, located in the southeastern portion of the classified area of the MWL. The NMED is not only excluding the public from commenting on the replacement of wells MW1 and MW3 that are part of the long-term monitoring network plan, but NMED is allowing the chromium contamination to remain unexamined, contrary to the requirements of RCRA for Compliance Monitoring under 40 CFR 264.99. The background monitoring well is being moved to the east of the MWL at a location that is upgradient of only the southernmost portion of the MWL unclassified area. The well does not measure background water quality further to the northern area of the dump where the largest inventory of wastes are buried in both the classified area and the northern quadrant of the unclassified area. NMED is thus excluding public review and comment for the location of the upgradient background water monitoring well. Taken together, the replacement of the three wells represents a significant portion of the future long-term well monitoring network without implementing the public review process. We request that EPA Region 6 use its RCRA oversight authority to review the NMED duty to provide public review and comment previous to approval of well replacement plans that constitute, in fact, a considerable portion of the long-term monitoring network required under RCRA. We would appreciate your informing us in writing of what action will be taken with respect to preserving the RCRA and permit public review process. Please inform us of any need for further documentation of this complaint and call us if you have any questions. Thank you. Sincerely, David B. McCoy, Executive Director Citizen Action New Mexico POB 4276 Albuquerque, NM 87196-4276 505 262-1862 dave@radfreenm.org Robert H. Gilkeson, Registered Geologist POB 670 Los Alamos, NM 87544 505 412-1930 rhgilkeson@aol.com Representative Gail Chasey, House District 18 1206 Las Lomas Rd. NE Albuquerque, NM 87106 505 986-4844 Jim Baca (Former Mayor of Albuquerque and NM State Land Commissioner) 2309 Via Madrid NW Albuquerque, NM 87104 jbaca16@comcast.net Douglas Meiklejohn, Executive Director New Mexico Environmental Law Center 1405 Luisa Street, Ste 5 Santa Fe, NM 87505 505 989-9022 dmeiklejohn@nmelc.org Lorenzo Garcia, Board President Julie Stephens, Director Rio Grande Community Development Corporation 318 Isleta SW Albuquerque, NM 87105 505 452-8525 Janet Greenwald, Director Citizens for Alternatives to Radioactive Dumping (CARD) 144 Harvard S.E. Albuquerque, NM 87106 USA contactus@cardnm.org Richard Moore, Executive Director Southwest Network for Environmental and Economic Justice (SNEEJ) PO Box 7399 Albuquerque, NM 87194 505-242-0416 Ley Au 202 Harvard SE Albuquerque, NM 87106 242-5511 Bob Anderson Stop the War Machine citizen@concast.net Martha J. Mitchell Gray Panthers 2955 Hyder SE Albuquerque, NM 87106 The Raging Grannies 202 Harvard Southeast Albuquerque, NM 87106 505-323-2386 Nancy Simmons, Attorney 120 Girard Albuquerque, NM 87196 505 232-2575 nsllaw@swcp.com Willard Hunter Citizen Action Steering Committee 9125 Copper NE #203 Albuquerque, NM 87123 willardhunter@comcast.net Ellen R. Robinson 202 Harvard SE Albuquerque, NM 87106 ellen2736@aol.com Sue Dayton Former Director Citizen Action PO BOX 44 Saxapahaw, NC 27340 (336) 525-2003 sdayton@swcp.com Tiska Blankenship, Former Director UNM Jonson Gallery Tiska@unm.edu Dr. Maurice Weisberg, M.D. Physicians for Social Responsibility 1677 Cerro Gordo Santa Fe, NM 87501 |
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