MISSION: Southwest Research and Information Center is a multi-cultural organization working to promote the health of people and communities, protect natural resources, ensure citizen participation, and secure environmental and social justice now and for future generations

What is the New Mexico Environment Department Hiding?

On October 19, 2007 the New Mexico Environment Department (NMED) filed suit in New Mexico District Court against the public interest group Citizen Action. The lawsuit is to prevent Citizen Action from obtaining a 2006 TechLaw report regarding nuclear and hazardous wastes buried and possibly leaking into Albuquerque’s drinking water at Sandia National Laboratories’ Mixed Waste Landfill (MWL). The New Mexico Attorney General’s Office determined the TechLaw document “fits squarely within the public records act” and that NMED must provide the report to Citizen Action.

NMED claims the report should be withheld under “executive privilege.” The Albuquerque Journal editors (10/25/07) snorted, “Instead of ‘executive privilege,’ this smacks of executive coverup.”

Citizen Action filed a counter lawsuit in the New Mexico Court of Appeals against the New Mexico Environment Department (NMED) charging that the state violated the Public Information Act and Open Meetings Act by failing to provide the TechLaw reports. The lawsuit also asks the Court to order a public hearing after the reports are provided.

The TechLaw report was received by NMED after its decision to place a soil cover over the dump’s radioactive and hazardous wastes and leave them in place. Tannis Fox, an attorney for the Environment Department, told the Associated Press, that “the TechLaw report evaluated a Sandia study on the long-term risk of landfill leaks and was one of the foundations for the department’s decision on the landfill.”

Nancy Simmons, attorney for Citizen Action said, “Now that the Attorney General has ordered NMED to provide heretofore secret documents to Citizen Action about what they're doing or not doing to clean up the hazardous and radioactive waste dump at Sandia Labs, the Department has turned around and sued Citizen Action.”

One may question if the TechLaw report is good news about the dump, why isn’t the report being released to the public? Citizen Action filed a lawsuit (still pending) against the 2005 decision made by the NMED to place a dirt cover over the dump’s wastes. Citizen Action gained access through discovery to 20,000+ pages of administrative records. In reviewing the records, Citizen Action has documented a lengthy history of noncompliance with the Resource Conservation and Recovery Act (RCRA) for permitting requirements and a failed well monitoring network at the dump.

Those records revealed the U.S. Environmental Protection Agency (USEPA) Comprehensive Environmental Assessment and Response Program (CEARP) in 1987 estimated the amount of radioactive and hazardous waste in the dump at more than 700,000 cubic feet, rather than just the 100,000 cubic feet of radioactive waste claimed by Sandia at the public hearing in 2004.

The dump’s wastes, left over from nuclear weapons production, lie in unlined pits and trenches without leak detection and could not be placed there by today’s strict standards. Those records indicated other significant problems. For example, Sandia Comment Responses to USEPA Notice of Deficiency (November 1994) stated: “The actual concentrations and quantities of hazardous wastes disposed of at the MWL are unknown, and may never be known. Unfortunately, many of the records on the wastes disposed of at the landfill have been purged, and the existing records contain limited information on the quantities, concentrations, and location(s) of hazardous constituents disposed of at the MWL.” Martyne Kieling, NMED EM Oversight Bureau, interviewed Jerry Peace, who stated, “Documentation of what actually went into the MWL is very scarce.” (September 16, 1994, Memorandum, p. 2). Sandia Memo from Phelan to Knowlton 1/30/1991: “… the disposal records generally would not have identified hazardous wastes separate from the radioactive constituents.” USEPA’s CEARP: “positive finding for RCRA regulated wastes at the MWL with a high potential for migration of wastes from the site.”

During public hearings in 2004 regarding the soil cover decision, NMED and Sandia did not inform the public that the well monitoring system is not capable of detecting contamination beneath the dump. NMED and Sandia kept the well monitoring network problems hidden, proclaiming there was no evidence of contamination in the groundwater. The data was from wells in the wrong location, with wells screens contaminated with drilling fluids and muds, corrosion on well screens, and well screens installed across unimportant strata for monitoring.

Extensive records show that NMED, Sandia, and the Environmental Protection Agency knew, from 1991 on, that the monitoring well network “was inadequate.” DOE’s own internal investigators, known as the Tiger Team, stated that “the number and placement of wells at the mixed waste landfill is not sufficient to characterize the effect of the mixed waste landfill on groundwater.”

In 1992, the Environmental Protection Agency stated: “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.” NMED, Moats et al. (March 1993) stated: “The detection monitoring system that currently exists at the MWL is inadequate because the direction and gradient of ground-water flow can not be determined with reasonable certainty.”

Robert Gilkeson, hydrologist and former lead consultant at Los Alamos National Laboratory said, “Sandia’s proposed monitoring plan for the dump will not guarantee protection of the groundwater at the present time or over the long-term.” Moreover, the NMED is not paying attention to warnings of other experts such as the National Academy of Sciences (NAS).

In 2000, the NAS released Long-Term Institutional Management of U.S. Department of Energy Legacy Waste Sites that warned against the combination of computer models and cheap dirt covers providing for long term protection of people and the environment. That NAS report raised serious concerns about the Department of Energy (DOE) program “because DOE's preferred solutions—reliance on engineered barriers and institutional controls—are inherently failure prone.” The report also states: “No plan developed today is likely to remain protective for the duration of the hazards.”

The TechLaw reports were used by NMED to examine Sandia’s computer modeling showing that radioactive and hazardous wastes will leak into the groundwater at the dump. The study conducted by Sandia, known as a “fate and transport” model, predicts that contamination from the dump will reach Albuquerque’s drinking water aquifer as early as the year 2010.

In September 2007, a coalition of activist groups and individuals filed a formal complaint to the EPA about the shutout of the public from decision making for Sandia’s dump. An “incomplete” Sandia long term monitoring plan is being presented on an “accelerated basis” that Sandia claims was ordered by the NMED. NMED denies they requested the acceleration of the Plan but, nevertheless scheduled the incomplete Plan for public comment. However, the “acceleration” in the schedule first requires a modification of the dump’s permit. NMED is not providing the public its right to a hearing on permit modification. NMED even made changes to well monitoring requirements at the MWL that are different from what is presented in the incomplete monitoring plan.

In order for the public to be able to comment on the monitoring plan the public also needs access to the TechLaw reports. NMED and Sandia are violating legal procedures to make an end run on public rights for participation in the decision making process.

On the basis of the complaints made by Mr. Gilkeson and Citizen Action, the NMED has recently ordered the replacement of three monitoring wells at the dump. The NMED so far is refusing provide public hearings for the replacement plan or reopen the dirt cover decision.

– David McCoy
Executive Director, Citizen Action

Citizen Action New Mexico was formed with a goal to protect the health and well-being of Albuquerque communities from the release of radioactive and chemical contamination at the Mixed Waste Landfill, a Cold War waste dump located at Sandia National Laboratories, Albuquerque, NM. These goals are accomplished through public awareness and outreach to stakeholder communities, and advocacy for social and environmental justice. Citizen Action is a project under the New Mexico Community Foundation. For more information contact: www.radfreenm.org