1.   The Corrective Measures Implementation Plan (CMIP) was part of the Resource Conservation and Recovery Act (RCRA) Corrective Action plan under 40 CFR 264.101 mandated for the Mixed Waste Landfill.

      2.   The Public Notice (May 4, 2006) stated, “… DOE and Sandia were required to submit to the NMED for approval a CMI Plan. The CMI Plan describes how the remedy will be implemented, including construction of the vegetative soil cover.”

      3.   Public Notice No. 06-10 (May 25, 2006) stated, “… [T]he NMED is seeking public comment on the CMI Work Plan prior to making a final decision on whether to approve the plan.”

      4.   The CMIP was issued a Notice of Disapproval (NOD) on 11/20/2006 by the NMED with a requirement for a Soil-Vapor Sampling and Analysis Plan (SAP).

      5.   On November 21, 2006. NMED sent out a “Dear Interested Citizen” cover letter to NMED Responses to Public Comments on the Mixed Waste Landfill. It states (last paragraph) that “NMED's review of the CMI Plan has revealed several deficiencies that must be corrected before implementation of the CMI work.” http://www.nmenv.state.nm.us/hwb/SNL/MWL/Interested_Citizen_Letter_-_Response_Comments_(11-21-2006).pdf

      6.   In the November 2006 Notice of Disapproval, NMED stated “… actual start time is dependent on when the CMI Plan is approved…" (NOD, Part 1, Paragraph 2). No approval has issued for the CMI Plan.

      7.   In the SAP, Appendix A at p. 8, paragraph 3.1, SNL admits that it has recently completed the subgrade and that added thickness will have to be accounted for at boring locations. http://www.nmenv.state.nm.us/hwb/SNL/CMIWP/SAP_for_VOCs,_Tritium,_Radon_at_MWL-Dec2006.pdf

      8.   The Dear Interested Citizen letter of November 21, 2006 assured citizens that deficiencies had to be corrected before implementation of CMI work, and specifically, before the construction of the subgrade. The record shows that NMED was speaking out of both sides of its mouth in violation of the public trust.

      9.   Without any NMED notice to citizens or posting on its internet website, Citizen Action discovered by means of a January 2007 Public Records Request that NMED secretly received a July 12, 2006 letter from Sandia National Laboratories. The letter notified NMED of “current and planned field work at the Mixed Waste Landfill (MWL).” The letter further stated: “Construction of the cover itself will not begin until formal approval of the MWL Corrective Measures Implementation (CMI) Plan is issued by the New Mexico Environment Department.”

    10.   The Corrective Measure Implementation Plan (CMIP) for the Mixed Waste Landfill (MWL) has not received final approval. Nevertheless, in the absence of CMIP approval, SNL proceeded with construction for an integral portion of the cover for the MWL.

    11.   Although the CMIP has not received final approval, NMED acquiesced in the construction of the subgrade along with other activities integral and related to the cover construction. In a September 18, 2006 letter, RE: Fence Removal and Subgrade Preparation at the Sandia National Laboratories Mixed Waste Landfill, NMED informed Sandia National Laboratories that the NMED had reviewed those portions of the MWL CMI Plan relating to removal of the fence and preparation of the subgrade cover. “Additionally, NMED has not received any public comment comments [sic] on this narrow aspect of the CMI Plan. NMED has determined that the Permittees may proceed with the removal of the fence at the MWL and apply the subgrade cover. This determination does not in any way affect the pending agency action on the MWL CMI Plan.”

    12.   Public comments were on record and under review by NMED at the time NMED was granting approval to SNL to install the subgrade while claiming that it had not “received any comments.” In fact, the “Dear Interested Citizen" letter of November 2006 was the cover letter for the NMED's Responses to Public Comments on the SNL. Numerous of those public comments directly related to the dirt cover remedy. NMED proceeded to allow construction integral to the cover with full knowledge that the entire remedy of putting a dirt cover in place at the MWL has been the subject of continuing written comments to NMED, media reports, intense public scrutiny, controversy and opposition to leaving hazardous and radioactive wastes in the MWL by placement of a dirt cover over the wastes.

    13.   NMED allowed the construction of a portion of the cover during review and prior to even furnishing its mandated Responses to Public Comments. The public was denied due process, full knowledge and participation in decisions surrounding this highly controversial action as required by the Resource Conservation and Recovery Act.

    14.   NMED allowed construction of the dirt cover to begin with full knowledge that the contents of containers containing radioactive and RCRA hazardous wastes could be released to the soil, air and groundwater from the deliberate compaction of the subgrade with heavy earth moving equipment as part of construction activities.

    15.   Upon information and belief, NMED knew when it approved the subgrade construction that it planned to issue a Notice Of Disapproval for the Corrective Measures Implementation Plan that would include the subgrade portion of the plan.

    16.   Sandia/DOE and NMED have violated RCRA by proceeding with a subgrade construction that is part of the dirt cover remedy prior to approval of the CMI Plan and despite a November 2006 Notice of Disapproval. http://www.nmenv.state.nm.us/hwb/SNL/MWL/SNL_NOD_11-20-2006_MWL_CMI_WP.pdf

    17.   The NOD specifically stated in Part 1, Comments on Landfill Construction Plans and Performance Modeling 2. Section 2.1–"Provide a more detailed schedule that, at a minimum, indicates completion times for the following cover and project elements: subgrade, bio-intrusion barrier, native soil layer, topsoil layer, seeding, fencing, overall completion of project and submittal of Corrective Measure Implementation (CMI) Report to NMED. As the actual start time is dependent on when the CMI Plan is approved, the completion times can be proposed as the number of days from the start time (assume the start time = 0 days.)"

    18.   The timing for construction of different activities in the NOD is an issue. Upon information and belief, NMED intends to allow and SNL intends to proceed with additional construction activities at the MWL prior to the approval of the CMI Plan. The December 15, 2006 DOE/Sandia Responses to NMED's Notice of Disapproval: Mixed Waste Landfill Corrective Measures Implementation Work Plan, November 2005 [sic] states (p.1 at 2)): “DOE/SNL complete the soil gas and tritium sampling activities by mid-January, and cover construction activities are initiated shortly thereafter, allowing the current MWL field crew and heavy equipment to be retained.” NMED should inform the public if construction activities are continuing at the MWL and whether the cover and soil monitoring have now been completed.

    19.   Upon information and belief, NMED intends to allow and SNL intends to proceed with accomplishment of all construction activities for the MWL cover prior to the approval of the CMI Plan. The December 15, 2006 DOE/Sandia Responses state (p.2, 3)): “The cover start time To assumes full NMED approval of the MWL cover design presented in the CMI Plan (SNL/NM November 2005), as well as approval of the DOE/SNL responses to the Part 1 NOD comments.” NMED should immediately inform the public whether DOE/Sandia have accomplished construction based on the “assumption” of NMED approval.

    20.   The issues raised by NMED's NOD were not resolved by NMED prior to the construction of the subgrade.

    21.   The monitoring for the flux of gases and “hotspots,”including, but not limited to, radon and tritium and other radionuclides, radioactive gases and volatile organic compounds released to the air pathway is an issue given the rupture of containers which may have occurred as a result of compaction.

    22.   The use of the SAP data in the Fate and Transport Model is an issue.

    23.   By allowing SNL to proceed with construction before resolving the issues set forth in the NOD, NMED has created public confusion and the public need for additional information and time to analyze the effects of the subgrade construction on the entire Soil-Vapor Sampling and Analysis Plan.

    24.   NMED, in Part 2 of the NOD, put forth a requirement for more soil gas monitoring out of concern for rupturing containers that could have passively occurred since the mid-90s. The use of heavy equipment during subgrade construction posed the active risk of destruction of the containers from compaction and release of hazardous radioactive and chemical compounds and gases to air and groundwater.

    25.   The public has not been informed as to whether there was an NMED or DOE approved Health and Safety Plan for monitoring for releases as a result of construction activities.

    26.   The public has not been informed as to whether there was/is active monitoring for releases which could be occurring now. Both RCRA and DOE Orders provide for a requirement to have approved Health and Safety or Risk Assessment Analyses in place prior to engaging in activities which can cause dangerous releases of radioactive and hazardous wastes to the environment.

    27.   The public has not been informed as to the extent of rupturing of containers from the compaction activities during subgrade preparation. The public is has not been informed whether NMED and Sandia had the capacity to even monitor for releases of contaminants as a result of compaction and construction of the cover.

    28.   The public has not been informed as to the effects of compaction on the movement of soil gases beneath the MWL and the number of monitors, type, depth and locations of monitoring which may now be necessary.

    29.   In Appendix A at p. 8, paragraph 3.1, SNL admits that it has recently completed the subgrade and that added thickness will have to be accounted for at boring locations. The public has had no opportunity for review of the changes in monitoring that may be necessary as a result of the added thickness. http://www.nmenv.state.nm.us/hwb/SNL/CMIWP/SAP_for_VOCs,_Tritium,_Radon_at_MWL-Dec2006.pdf" .

    30.   Sandia's construction of the subgrade may have resulted in an inability to get accurate information about poisonous gases at the dump including, radon, tritium, and volatile organic compounds. By going ahead with additional cover related construction activities prior to approval of the CMI Plan, Sandia is interfering with the knowledge of the dump's dangerous wastes and increasing the danger to the community.

    31.   The release of liquid contaminants to the groundwater by the compaction activities for the subgrade construction and additional construction activities for the cover, which upon information and belief are now proceeding, need to be monitored by a 40 CFR 264.101 Subpart F compliant well monitoring system. No adequate well monitoring system compliant with 40 CFR 264.90-100 currently exists at the MWL. Although the MWL is regulated as a Solid Waste Management Unit (SWMU), “The groundwater monitoring requirements for SWMUs should mirror the requirements for regulated units under Subpart F.”
(Richard Mayer, Environmental Protection Agency (EPA) Region 6, 2/20/07, E-mail to Joni Arends, Concerned Citizens for Nuclear Safety).

    32.   The November 2006 NMED Responses to Public Comments are in conflict with the EPA view that Subpart F is applicable to a SWMU and are further evidence that no adequate well monitoring network exists at the MWL. “Although the regulatory requirements of 20.4.1.500 NMAC incorporating 40 CFR 264 Subpart F can be used as guidance, nearly all of the requirements of Subpart F do not apply to the MWL because it is not a permitted unit. Instead the landfill is regulated as a Solid Waste Management Unit subject to corrective action pursuant to 20.4.1.500 NMAC incorporating 40 CFR 264.101.” (NMED Responses to Public Comments on the Sandia National Laboratories' Mixed Waste Landfill Corrective Measures Implementation Plan, p. 44, (November 21, 2006).

    33.   The public has not been informed as to the impacts of the construction activities on soil gas monitoring, the lack of a well monitoring network and the relation to the Fate and Transport Model.

    34.   The SAP prepared for soil-gas sampling does not provide for a sufficient scope of testing to identify a soil-gas profile for all the areas where volatile organic compounds (VOCs) and radioactive gases have been detected at the MWL. VOCs do not naturally occur in the environment and detections of VOCs in the 1990s-era sampling should be considered along with the rupture of containers from recent cover construction activities at the MWL.

    35.   Attached Figure 4.2-5 1993 Tritium Flux (0729/96) indicates a major tritium hotspot (100,000 pCi/m2/hr) which the current SAP monitoring does not monitor.

    36.    Figure 2-1 showing Proposed 2007 Soil Gas VOC, Tritium and Radon Sampling locations, Mixed Waste Landfill, does not show the locations of the proposed sampling locations in relation to the pits and trenches at the MWL.

    37.   Pits and trenches may have been impacted by recent construction activities for the MWL cover. The construction of the cover or any portion thereof prior to soil gas testing was not contemplated by the SAP. Concern for contaminants from crushed containers has increased. The effect of the construction, compaction, container rupture in relation to specifications for such activities has not been provided. The effect of such construction activities, compaction and ruptures needs to be monitored more thoroughly than the current SAP provides.

    38.   The SAP is too narrowly focused on the peak levels detected at a too limited number of locations where soil gas testing was conducted in the 1990s.

    39.   Citizen Action recommends that the NMED require a modification of the proposed plan. Soil-gases should be collected from boreholes that are located on a grid across the entire 2.6 acres of the MWL that are now covered by the subgrade. The recommended spacing for the grid would be at horizontal intervals of 50 ft. A biased sample grid should be constructed across the trenches in the Unclassified Section of the MWL at a spacing of every 25 ft centered on the long dimension of each trench. In addition, a biased soil gas measurement should be made at the center above each pit in the Classified Section of the MWL. Each borehole for the grid sampling and biased sampling should be drilled to collect soil gases at a depth of 1 ft. below the contact of the subgrade with the original soil cover. For a minimum distance of 100 ft around the perimeter of the subgrade, soil gas measurements should be collected on a griad spacing of every 50 ft. with the passive EMFLUX^R cannisters deployed on the land surface.

    40.   Based on any hot spots discovered from the 1990s grid or from the new grid, monitoring should be conducted at a minimum of 15 locations from surface to depths beginning at 10 ft, 30 ft, 60 ft, 90 ft, 120 ft, 150 ft continuing at 30 ft intervals until contaminants are no longer detected.

    41.   The Fate and Transport Model has not had adequate data to determine its accuracy. Neither the well monitoring network at the MWL that is RCRA non-compliant, nor the soil-gas sampling have provided adequate information for evaluation of the F & T Model. A fatal flaw with the F & T Model is the prediction that the heavy metal wastes buried in the MWL would not reach the groundwater for the next 10,000 years when in fact, nickel wastes from the MWL have already created a plume in the groundwater at a level two times greater than the New Mexico drinking water standard.

Respectfully submitted,

David B. McCoy, Executive Director
Citizen Action New Mexico
POB 4276
Albuquerque, NM 87196
505 262-1862 dave@radfreenm.org

Cc:  Attorney Nancy Simmons;
Richard Mayer, EPA Region 6, mayer.richard@epa.gov
Cindy Padilla, NMED, cindy.padilla@state.nm.us
Ines Triay, DOE, ines.triay@em.doe.gov