Citizen Action recommends that the Secretary not accept the Permit
Modification proposed by the Hearing Officer because it is clearly
contrary to law to dispose of the transuranic (TRU) waste and
“greater than Class C” radioactive waste in the Mixed Waste
Landfill (MWL) at Sandia National Laboratories (SNL) using the
remedy the Hearing Officer recommends. Since it is uncontroverted
that TRU waste is in the MWL, the Secretary must require excavation
of such waste to insure compliance with existing applicable
regulations. Such an excavation option is supported by the record
and may be adopted by the Secretary in his Final Order. To not
adopt the excavation option would be contrary to law and regulation,
arbitrary and capricious.
1. Citizen Action hereby submits these Comments on the Hearing
Officers Proposed Final Order regarding the U. S Department of
Energy (DOE) and Sandia National Laboratories (SNL) request for a
Class 3 modification to their New Mexico Hazardous Waste Permit
EPA No. NM05890110518.
2. The Hearing Officers Proposed Final Order fails to address
uncontroverted evidence on the record regarding the burial of
transuranic wastes (TRU) and “greater than Class C” radioactive
wastes at the Mixed Waste Landfill (MWL) and the release of volatile
organic compounds and semi-volatile organic compounds, and metals
(hereinafter referred to as VOCs) from the MWL at SNL.
3. The evidence regarding the occurrence of TRU and “greater than
Class C” radioactive wastes among the wastes placed in the MWL was
established at the Hearing and identified in the Administrative
Record on this matter, is uncontroverted, and the Hearing Officer
failed to address this evidence in the proposed Final Order. The
evidence regarding releases of VOCs and metals from the MWL was
established at the Hearing and identified in the Administrative
Record on this matter, is uncontroverted, and the Hearing Officer
failed to address this evidence in the Proposed Final Order.
4. The Hearing Officers failure to acknowledge this uncontroverted
evidence and failure to incorporate this uncontroverted evidence
into the proposed Final Order is arbitrary and capricious and
contrary to law and regulation. Therefore, a decision that
incorporates the Permit Modification recommended in the Hearing
Officers Proposed Final Report would provide an appropriate basis
for an appeal if adopted by the Secretary.
5. Substantial portions of the evidence presented at the Hearing
and in the Administrative Record regarding both the occurrence of
TRU and “greater than Class C” radioactive waste at the MWL and the
release of VOCs from the MWL was identified in “Citizen Actions
Proposed Findings of Fact and Conclusions of Law” filed with the
Hearing Clerk on March 11, 2005.
6. No evidence related to the occurrence of TRU and “greater than
Class C” radioactive waste among the wastes placed in the MWL was
identified or referred to in the Hearing Officers Proposed Final
Order regarding this matter.
The Occurrence of Transuranic Waste at the MWL is Uncontroverted.
7. The MWL Corrective Measures Study Final Report (CMSFR) Appendix
J, titled “Waste Inventory and Distribution,” includes a
definition of Transuranic Waste (TRU) as “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 100nCi/g of alpha-emitting isotopes” (SNL CMSFR AR 03-035
Appendix J “Summary”).
8. The CMSFR Appendix J “Waste Inventory and Distribution” includes
a Table J.1.1. that identifies 21 cubic yards of TRU waste in the
unclassified area and 53 cubic yards of TRU waste in the classified
area of the MWL (SNL CMSFR 03-035, Appendix J Table J.1.1).
8. SNL witnesses testified that they know what transuranic waste is,
that transuranic waste is found at the MWL, but didnt know the
volume of TRU at the MWL (p. 319 323 - Fate and Miller).
9. SNL CMSFR calculated that 73 cubic yards of TRU are found at the
MWL (P. 324 327 - Peace and Miller).
10. SNLs cost estimate for management of plutonium-contaminated
material such as TRU wastes assumed “that the entire debris that
would have come out in this pit [where TRU waste was placed] is now
contaminated with plutonium and the associated costs of disposing
of that plutonium-contaminated debris” was provided in the CMSFR
(p. 328 - Fate).
11. NMEDs Project Manager stated that the MWL is not a repository
as understood in DOE Order 435-1.1 (NMED Exhibit 9, p. 7 8).
The occurrence of “greater than Class C” radioactive waste
associated with gamma radiation activity among the wastes in the MWL
is uncontroverted and such waste is not accounted for in the MWL
inventory.
12. Direct gamma radiation readings of pit contents (i.e., Pit 25)
do not match SNLs inventory of the MWL (p. 622 623 Resnikoff).
13. The term “multiple fission products” found in the SNL inventory
of waste placed in the MWL refers to materials produced as a result
of exposure of radioactive materials in nuclear reactor cores, and
while uncertainties remain among SNL witnesses as to whether the
materials found in records refer to fissionable or non-fissionable
material disposed of in the MWL, SNL witnesses agree that “multiple
fission products” were placed in the MWL (p. 213 216 Miller).
14. After being activated by neutron capture on exposure to a
nuclear reactor core four stainless steel canisters were disposed
of at the MWL in Pit 35 (one canister) and Pit 36 (three canisters)
by SNL personnel (p. 273 275, 367 369 Peace).
15. The canisters were mummified and dropped into plastic bags to
avoid spread of radiation after which they were disposed of in
unlined holes drilled in the bottom of unlined pits in the MWL
(p. 424 453 Peace).
16. The “activated canisters” in the MWL represent “greater than
Class C” radioactive waste and as such cannot be buried in shallow
landfills (p. 439 Peace, p. 624 Resnikoff).
Releases of Volatile Organic Compounds (VOCs) and Semi-Volatile Organic Compounds (SVOCs) from the MWL were documented more than a decade ago and have not been addressed by monitoring activities.
17. NMEDs Project Manager identified the Phase 1 RFI Report, which
relied on data from before its publication in September 1990, and
the Phase 2 RFI Report, which relied on data from before its
publication in September 1996, as the key documents that describe
the characterization of the MWL (NMED Exhibit 9, .p 12).
18. The Phase 2 RFI identified releases of hazardous and radioactive
materials at the MWL due to the detection of VOCs, SVOCs, cadmium
and other radioactive materials detected in subsurface soils and/or
soil gas surveys (NMED Exhibit 3, p. 3 of 13).
19. NMEDs Project Manager stated that VOCs were detected in a soil
gas survey at the MWL and the maximum concentration detected was
30.7 parts per million by volume (ppmv) (NMED Exhibit 9. p. 16)
20. Volatile organic compounds (VOCs) and/or semi-volatile organic
compounds (SVOCs) were detected in solid borings conducted during
RFI Phase 2 investigations (p. 72 73, Goering, SNL Slide Show
Exhibit - Slide 16, RFI Phase 2 Report - Exhibit 96-009).
21. The RFI Phase 2 soil gas surveys conducted in 1993 resulted in
the detection of twelve VOCs - tetrachloroethene (PCE),
trichloroethene; 1,1,1-trichlorethane (TCA), toluene, ethylbenzene,
xylene, 1,1,2-tri-chloro-trifluoroethane, dichloroethyne, acetone,
and to a lesser extent isopropyl ether, 1,1-dichloroethene and
styrene around trenches in the unclassified area and southern part
of the classified area of the MWL (NMED Exhibit 7, p. 8).
22. The RFI Phase 2 soil gas surveys in 1994 resulted in the
detection of eight VOCs TCE; 1,1,1-TCA; PCE,
dichloro-difluoromethane; trichloro-fluoromethane; 1,1,2-trichloro-
1,2,2-trifluoroethane; methylene chloride and chloroform in
borings 10 30 feet deep in which VOC concentrations were found to
generally increase with depth and VOC concentrations were highest
between trenches B and C, Trenches C and D NMED Exhibit 7,
p. 8 9).
23. The RFI Phase 2 soil gas surveys in 1994 resulted in the
detection of VOCs along the boundary fence west of the northern
part of the unclassified portion of the MWL and at the northwest
corner of the southern part of unclassified portion of the MWL. No
soil gas surveys capable of detecting VOCs were conducted outside
the MWL fence beyond either the fence on the west boundary of the
northern part of the unclassified area or at the northwest corner
of the southern part of unclassified area (NMED Exhibit 7, p. 8 9).
24. The VOCs that were detected included acetone, methylene chloride
and 2-butanone, also 2-hexanone, toluene and PCE and the SVOCs
detected included phthalate, phenol and benzoic acid.
(p. 79 Goering, p. 235 - 7).
25. In 15 boreholes drilled to a target depth of 120 linear feet,
nine VOCs were detected including TCE, PCE and acetone - in all
but four boreholes and tritium was encountered in all boreholes
(NMED Exhibit 7, p. 9).
26. VOCs, such as TCE, detected in soil gas and soil borehole
surveys at the MWL have been detected in groundwater as a result
of releases from the SNL Chemical Waste Landfill at approximately
the ground water quality standard of 5ug/L (NMED Exhibit 9, p. 16).
27. VOCs and SVOCs are typically not detected in background samples
as they are not naturally occurring compounds
(p. 231 233 Goering).
28. Detection of VOCs and SVOCs reflect releases from the materials
placed in the MWL (p. 231 233 Goering).
29. VOCs and SVOCs detected at the MWL were presented in SNL Slide
Show Slide 16 that showed levels of PCE as high as 359.6 and 396.2
in units of nanograms per square meter per minute.
(p. 231 235 Goering and Fate).
30. VOCs and SVOCs were detected over the central and northwest
portions of the classified area and over several trenches in the
unclassified area of the MWL (p. 234 Goering).
31. The VOCs and SVOCs detection data presented at the hearing was
from a 19931994 investigation published in the 1996 RFI Phase 2
report and no additional sampling for VOCs and SVOCs has been
conducted since that time and only the 1996 data has been used in
the CMS, data which is out-of-date by almost a decade (p. 238).
32. The MWL Inventory cited by NMED and submitted by SNL as part of
“RFI Phase 2 Response to Request for Supplemental Information,” at
AR 98-020, neither identifies or estimates the volumes or amounts
of hazardous VOCs, SVOCs, metals, other hazardous constituents, and
radionuclides in individual disposal trenches or pits in the MWL.
(NMED Exhibit 16).
33. Likely sources of VOCs and SVOCs at the MWL include rags and
other materials that may have been contained in double layers of
polyethylene plastic film and may have been disposed of loose
according to SNL witnesses who have attested that they have seen
photographs of loose waste thrown in trenches (p. 233 235 Goering
and Fate).
The remedy for the Mixed Waste Landfill proposed by Citizen Action provides for compliance with RCRA standards incorporated in the HWMR for releases of hazardous constituents and regulations regarding TRU and “greater than Class C” radioactive wastes.
34. The remedy that Citizen Action seeks is excavation, treatment,
and redisposal of hazardous wastes in RCRA-compliant containment
systems as well as redisposal of transuranic wastes in a deep
geologic repository as disposal of transuranic wastes by shallow
burial, as is currently the case at the MWL, is prohibited by law.
(p. 834-5 Robinson).
35. The remedy of “excavation, treatment, and redisposal of
hazardous wastes in RCRA- compliant containment systems and
redisposal of TRU wastes in deep geologic systems” could be
incorporated in the permit modification if the corrective measure
called “Future Excavation (Alternative V.e)” is substituted for the
remedy recommended in the Hearing Officers Proposed Final Report
specified in the NMED draft permit (SNL CMSFR 03-035).
36. The remedy of “excavation, treatment, and redisposal of
hazardous wastes in RCRA-compliant containment systems and
redisposal of TRU wastes in deep geologic systems” would not be
incorporated in the permit modification if the recommendation
identified in the Hearing Officers Proposed Final Order is adopted
for the MWL by the Secretary of the New Mexico Environment
Department.
Comments regarding applicable law
1. Adoption of the Permit Modification recommended in the Hearing
Officers Proposed Final Order of “Vegetative Soil Cover with Bio
Intrusion Barrier” (Alternative III.c), or other remedies relying
on a soil cover without excavation or treatment the waste and
debris placed in the MWL, would result in NMEDs adoption of a remedy
that:
a). Has not been demonstrated on the record to control or have
potential to control escape of hazardous constituents such as VOCs
and SVOCs from the MWL as required by of 20 NMAC 4.1.500 and
40 CFR § 264.111 and
b). Fails to provide for disposal of transuranic waste and
“greater than class C” radioactive waste shown to be occur at the
MWL in a deep geologic repository as required by 40CFR § 191 et seq.
Therefore adoption of the Permit Modification recommended in the
Hearing Officers Proposed Final Order would be arbitrary and
capricious, contrary to law and regulation and based on the Hearing
Officers Proposed Final Order, Proposed Findings of Fact and
Conclusions of Law, and Report that fail to even address, much less
refer to or incorporate, substantial evidence on the record in this
matter.
2. Approval of a Permit Modification with the identified remedy of
“Future Excavation V.e” to be implemented in Item V.2 of NMED
Exhibit 2 “Draft Permit Modification” - would result in the
development of details on the design, operation, maintenance and
performance monitoring to:
a. Control current and future escape of hazardous constituents
such as VOCs and SVOCs as required by 20 NMAC 4.1.500 pursuant to
NMSA 1978 § 74-4-4;
b. Provide for lawful disposal of transuranic waste and “greater
than Class C” radioactive waste as required by 40CFR §191 et. seq.;
and
c. Provide for investigations sufficient to develop design and
operation details based on accurate determination of the amount and
current form of hazardous and radioactive wastes and debris at the
MWL through enforcement of requirements for Corrective Measures
Implementation (CMI) Plan, and CMI Report and a Long-term Monitoring
and Maintenance Plan.
3. Contrary to the requirements of 20 NMAC 4.1.500 and 40
CFR § 264.111, the Permit Modification incorporating a “Vegetative
Soil Cover with Biointrusion Barrier” recommended in the Hearing
Officers Proposed Final Order was not shown to have the capacity to:
“close the facility in a manner that … controls, minimizes or
eliminates post-closure escape of hazardous constituents or
hazardous waste decomposition products … to the atmosphere”
based on uncontroverted evidence of the escape of VOCs and SVOCs to
the atmosphere that has already occurred through the existing soil
cover at the MWL, and neither the vegetative soil cover or the
biointrusion barrier recommended in the Hearing Officers Proposed
Final Order provides a short-term or long-term barrier to protect
against releases of VOCs or SVOCs to the atmosphere. Therefore,
adoption of the remedy recommended in the Hearing Officers Proposed
Final Order would be arbitrary and capricious and contrary to law
and regulation and a decision that fails to consider uncontroverted
evidence on the record.
4. The Hearing Officers Final Report failed to address the
uncontroverted evidence on record that VOCs and SVOCs detected in
soil gas and borehole samples at and below the MWL in 1993 and 1994
that demonstrate the escape of “hazardous constituents … or
hazardous waste decomposition products… to the atmosphere” 20 NMAC
4.1.500 and 40 CFR § 264.111 from the MWL as:
a. the VOCs and SVOCs detected are not naturally occurring; and
b. are “hazardous constituents … or hazardous waste decomposition
products” that have “escaped … to the atmosphere.”
5. The Hearing Officers Proposed Final Report failed to address
uncontroverted evidence that the only corrective measure
alternative identified in the CMSFR AR 03-035 and in the record in
this matter that has the potential to meet the requirements of 20
NMAC 4.1.500 and 40 CFR § 264.111 to “close the facility in a
manner that … controls, minimizes or eliminates post-closure escape
of hazardous constituents or hazardous waste decomposition products
such as … to the atmosphere” is the remedy of “Future Excavation -
V.e” as that alternative is the only remedy which does not rely on
a soil cover that does not, and can not, prevent the escape of VOCs
and SVOCs.
6. Approval of a Permit Modification with a remedy of “Future
Excavation V.e” would provide a remedy that allows for the
excavation, treatment and disposal of the sources of releases of
VOCs and SVOCs already detected.
7. Approval of a Permit Modification other than that proposed by the
NMED or DOE/SNL is provided for based on the information provided in
“Citizen Actions Proposed Findings of Fact and Conclusions of Law”
in this matter.
8. Transuranic wastes, such as the 73 cubic yards of transuranic
waste defined as “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 100nCi/g of
alpha-emitting isotopes,” as identified in Appendix J of CMSFR AR
03-035, are properly regulated pursuant to 40 CFR § 191 et seq. and
cannot be lawfully disposed of in shallow pits and trenches such as
those found at the MWL.
9. The permit modification recommended in the Hearing Officers
Proposed Final Order does not provide a disposal system to the
extent required by 40 CFR § 191 et seq. for the transuranic waste
and “greater than Class C” radioactive waste identified at the MWL
and is therefore contrary to law and regulation.
10. Lawful disposal of transuranic waste as set forth in 40 CFR §
191.13(a) requires:
“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….” in which
“Disposal,” as defined in 40 CFR § 191.02 means, “permanent isolation of spent nuclear fuel or radioactive waste from the accessible environment with no intent of recovery, whether or not such isolation permits the recovery of such fuel or waste. For example, disposal of waste in a mined geologic repository occurs when all of the shafts to the repository are backfilled and sealed,” and
“Disposal system” in 40 CFR § 191.12 means, “any combination of engineered and natural barriers that isolate spent nuclear fuel or radioactive waste after disposal.”
11. The Permit Modification recommended in the Hearing Officers
Proposed Final Order does not provide for “permanent isolation of
spent nuclear fuel or radioactive waste [including TRU and “greater
than Class C” radioactive waste]” as required by 40 CFR § 191
et seq. Therefore, the Permit Modification recommended by the
Hearing Officer is contrary to law and regulation.
12. Unless modified to provide for future excavation and treatment
prior to disposal, the Permit Modification recommended in the
Hearing Officers Proposed Final Order would allow the TRU waste and
“greater than Class C” radioactive waste shown to occur at the MWL
to remain in place within 25 feet of the surface in a manner that
does not comply with 40 CFR § 191 et seq. requirement for a disposal
system that would result in “permanent isolation … from the
accessible environment…,” or a “combination of engineered and
natural barriers that isolate” the transuranic waste and “greater
than Class C” radioactive waste. The Permit Modification
recommended by the Hearing Officer is therefore contrary to law and
regulation.
13. The Permit Modification recommended in the Hearing Officers
Proposed Final Order does not “provide a reasonable expectation,
based upon performance assessments, that the cumulative releases
of radionuclides [found in transuranic waste and “greater than
Class C” radioactive waste in the MWL] to the accessible environment
for 10,000 years after disposal from all significant processes and
events…” required by 40 CFR § 191.13(a) as no such performance
assessment has been identified on the record and the CMSFR fails to
consider monitoring, surveillance, maintenance or access controls
beyond 100 years, as noted at CMSFR AR 03-035, p. 51. The Permit
Modification recommended by the hearing officer is therefore
contrary to law and regulation.
14. The only corrective measure alternative identified in the CMSFR
with the potential to meet the requirements of 20 NMAC 4.1.500 and
40 CFR § 264.111 to “close the facility in a manner that … controls,
minimizes or eliminates post-closure escape of hazardous
constituents or hazardous waste decomposition products … to the
atmosphere” and provide for compliance with 40 CFR §191 et seq.
standards for transuranic and “greater than Class C radioactive
waste is the remedy of “Future Excavation - V.e.”
15. Adoption of the Permit Modification recommended in the Hearing
Officers Proposed Final Order would result in the NMEDs approval of
disposal of transuranic waste and “greater than Class C” radioactive
waste in a manner contrary to 40 CFR § 191 et seq. and, as such,
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).
16. The Permit Modification recommended in the Hearing Officers
Proposed Final Order relies on institutional controls (ICs),
including long-term monitoring, long-term surveillance and
maintenance, and long-term access controls, associated with a
vegetative soil cover that are assumed to be maintained for only the
next 100 years, the longest period of time that active ICs can be
relied upon for purposes of conducting performance assessments per
NRC 10 CFR § 61 (CMSFR AR 03-035, p. 51). Therefore, the Permit
Modification recommended in the Hearing Officers Proposed Final
Order is not based on a performance assessment that complies with
the requirements of 40 CFR § 191.13(a) that assesses “the
cumulative releases of radionuclides [such as the TRU and “greater
than Class C” radioactive waste placed in the MWL] to the
accessible environment for 10,000 years after disposal from all
significant processes and events…” and is therefore arbitrary and
capricious and otherwise contrary to law and regulation.
17. 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).
18. The Hearing Officers Proposed Final Order fails 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, and is therefore, contrary to law,
arbitrary and capricious, and fails to consider substantial evidence
on the record.
19. Among other omissions, the failure to address evidence on the
record regarding these issues violates NMSA 1978, § 74-4-4.2(C) and
20 NMAC 4.1.900 incorporating 40 C.F.R. § 270.32(b)(2), as
promulgated pursuant to the Resource Conservation and Recovery Act,
42 U.S.C. § 6901, et seq. Specifically, these issues must be
addressed, in order to protect human health and the environment, as
required by applicable state and federal law. For example, “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.” State of New Mexico v. Watkins 969 F.2d
1122, 1124 n.1 (D.C.Cir. 1992). Similarly, “[g]round level ozone,
. . . which forms through the reaction of volatile organic compounds
and oxides of nitrogen in the presence of heat and sunlight, is very
harmful to human health.” 1000 Friends of Maryland v. Browner,
265 F.3d 216, 220 n.2 (4th Cir. 2001)”
19. Based on the failure to address uncontroverted evidence in the
record and applicable law and regulation, the Permit Modification
recommended in the Hearing Officers Proposed Final Order is
arbitrary and capricious and contrary to law and regulation.
20. As the Permit Modification recommended in the Hearing Officers
Proposed Final Order is arbitrary and capricious contrary to law
and regulation, and the Hearing Officers Proposed Final Order fails
to address uncontroverted evidence in the record, a decision that
incorporates the Permit Modification recommended in the Hearing
Officers Proposed Final Order would provide a proper basis for appeal
and appeal can be anticipated.
Respectfully submitted,
CITIZEN ACTION
__<signed>____________________
Paul Robinson
Representative of Citizen Action NM
c/o
Southwest Research and Information Center
P.O. Box 4524
105 Stanford SE
Albuquerque, New Mexico 87106
Phone 505-262-1862
Fax 505-262-1864
Email: sricpaul@earthlink.net
Certificate of Service
I certify that a copy of the foregoing pleading was emailed on
May 5, 2005 to:
... Tannis Fox, Deputy General Counsel, Office of General Counsel,
P.O. Box 26110, Santa Fe, New Mexico 87502, "Tannis Fox"
tannis_fox@nmenv.state.nm.us;
... Louis Rose, Montgomery & Andrews, P.A., P.O. Box 2307, Santa Fe,
New Mexico 87504-2307, "Louis Rose" lrose@montand.com;
... Amy J. Blumberg, Sandia Corporation, P.O. Box 5800,
Albuquerque, New Mexico 87185-0141, "Amy J. Blumberg Esq."
ajblumb@sandia.gov;
... Michele A. Reynolds, United States Department of Energy,
National Nuclear Security Administration, Sandia Site Office, P.O.
Box 5400, Albuquerque, New Mexico 87185-0184, "Michele A. Reynolds
Esq." mreynolds@doeal.gov;
... Susan Dayton, Director, Citizen Action New Mexico, P.O. Box
262, Sandia Park, New Mexico 87047, "Susan Dayton" sdayton@swcp.com;
... Abbas Ghassemi, Ph.D., Executive Director, WERC, P.O. Box
30001 MSC WERC, Las Cruces, New Mexico 88003-8001, “Abbas
Ghassemi Ph. D." aghassem@nmsu.edu; and
... H. Eric Nuttall, Ph.D., 1445 Honeysuckle Drive, NE,
Albuquerque, New Mexico 87122, "H Eric Nuttall" nuttall@unm.edu.
________________________________
Paul Robinson
Representative of Citizen Action
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