IN THE COURT OF APPEALS FOR THE STATE OF NEW MEXICO CITIZEN ACTION NEW MEXICO, Appellant, v.

NEW MEXICO ENVIRONMENT DEPARTMENT, Appellee. APPELLANTS DOC ETIN! STATEMENT CIVIL APPEAL OF THE APPROVAL ISSUED "# THE NEW MEXICO ENVIRONMENT DEPARTMENT ON $ANUAR# %, &'(), OF THE MIXED WASTE LANDFILL LON!*TERM MONITORIN! AND MAINTENANCE PLAN. Pursuant to Rules 12208 and 12-601 of the Rules of Appellant Procedure, by and through its attorney Robert Mc eill, Appellant !iti"en Action this (atter) NATURE OF THE PROCEEDIN! *his is an appeal fro( the e# Me$ico +n,iron(ental %epart(ent e# Me$ico offers the follo#ing %oc&eting 'tate(ent in

-. M+%/0 1anuary 8, 2012, appro,al of the Mi$ed 3aste 4andfill -the .M34/0 4ong-*er( Monitoring and Maintenance Plan, March 2012, 'andia ational 4aboratories -.'andia/0, +PA 5% 6 M7880110718 93:-'andia-1200; -the .4*MMP/0< *he M+% appro,al that is the sub=ect of this

appeal is an action by an ad(inistrati,e entity #ithin the (eaning of Rule 12-601 MRA<

*he M34 consists of 2<6 acres of unlined pits and trenches abo,e Albu>uer>ue?s a>uifer that recei,ed radioacti,e and ha"ardous

che(ical #aste fro( 1878 to 1888<

*he M34 #astes are being released

into Albu>uer>ue?s ground#ater and pose an i((inent and substantial endanger(ent to public health and the en,iron(ent< -+$hibit 1, +ric uttall, Ph<%<, Affida,it0< @n May 26, 2007, a Ainal @rder -.Ainal @rder/0 #as signed by the 'ecretary of the *he Ainal @rder #as e# Me$ico +n,iron(ent %epart(ent -. M+%/0< by M+% in response to a Resource

issued

!onser,ation and Reco,ery Act -.R!RA/0, 22 B'! C 6801 et se><, per(it (odification for 'andia pursuant to the Act< e# Me$ico 9a"ardous 3aste

*he Ainal @rder addresses correcti,e (easures to be ta&en for

the M34 at 'andia, and includes fi,e .conditions/ that 'andia is re>uired to (eet< -+$hibit 20< *he adoption of the Ainal @rder

follo#ed a lengthy ad(inistrati,e hearing process in %ece(ber 2002 that included four -20 days of for(al public hearings before an ad(inistrati,e hearing officer resulting in transcripts totaling

nearly 1,118 pages< *he (ost significant condition included in the Ainal @rder is condition 7 -hereinafter .!ondition 7/0< :ecause of the e$tre(ely

to$ic and dangerous nuclear #eapon production #astes deposited in the M34, !ondition shall 7 of the a Ainal report @rder e,ery une>ui,ocally 7 years, re>uires that the

.'andia

prepare

re-e,aluating

feasibility of e$ca,ation and analy"ing the continued effecti,eness 2

of the selected re(edy</

-Ainal @rder P<7, D7<0

*he .selected

re(edy/ described and appro,ed in the Ainal @rder is .a ,egetati,e co,er #ith bio-intrusion barrier</ 5n fact, the described co,er is a

dirt co,er co(pacted o,er roc&s beneath the dirt co,er< *he Ainal @rder re>uires that 'andia .prepare a report e,ery 7 years, re-e,aluating the feasibility of e$ca,ation and analy"ing the continued effecti,eness of the selected re(edy,/ i<e<, #ill it be feasible to re(o,e the ha"ardous #astes and other conta(inants fro( the unlined pits and trenches, or and #ill the planned fro( dirt co,er the

effecti,ely

pre,ent

#ater

other

substances

entering

highly conta(inated pits and trenchesE

Arguably, the initial fi,e-

year report #as due on May 26, 2010, or fi,e years fro( the date of the Ainal @rder< Aurther, 'andia did not re>uest a delay in the o#, ho#e,er, al(ost

production of the initial fi,e-year report<

four years ha,e passed since the dirt co,er #as installed in 2008, and 'andia has still not prepared any report ree,aluating the

feasibility of e$ca,ation and analy"ing the effecti,eness of the dirt co,er< Allo#ing 'andia the broadest possible interpretation of the

deadline for the initial fi,e-year report and the supporting data, (odeling and analysis re>uired by the Ainal @rder, a fi,e-year report should be produced no later than May 2012< M+% has no#, by its 1anuary 8, 2012, appro,al of the M34 4*MMP dated March 2012, e$tended the deadline for the initial fi,e-year report for another fi,e years until the year 2018< 3 M+% has thus not

enforced !ondition 7 of the Ainal @rder, e,en gi,ing

M+% the benefit :y

of the doubt as to the due date of the initial fi,e-year report<

appro,ing the 4*MMP e$tending the due date for the initial fi,e-year report to the year 2018, M+% has also ,iolated federal la# and its

o#n Ainal @rder by (odifying the Ainal @rder #ithout co(plying #ith R!RA ha"ardous #aste per(it proceeding procedures, as re>uired both by R!RA and the Ainal @rder adopted pursuant to R!RA< Appellant !iti"en Action is an en,iron(ental organi"ation that participated in the per(it (odification proceedings that resulted in the Ainal @rder< DATE OF $UD!MENT AND TIMEL# APPEAL M+% entered the @rder fro( #hich Appellant appeals on 1anuary 8, 2012, and Appellant filed its 2012< states otice of Appeal on Aebruary F, Rule 12-601-:0 MRA

Accordingly, this appeal is ti(ely< that or GHdIirect officials appeals shall fro( be

orders<<<of<<<ad(inistrati,e by filing a notice of

agencies,

ta&en

appeal<<<#ithin thirty -F00 days fro( the date of the order<<<<G STATEMENT OF THE CASE *his appeal addresses the failure of M+% to adhere to and

enforce the Ainal @rder and then subse>uently (odifying the Ainal @rder in ,iolation M+%< of applicable R!RA ad(inistrati,e procedures

adopted by

*he Ainal @rder #as adopted as a !lass F (odification of 'andia ational 4aboratories? -.'andiaG0 9a"ardous 3aste Per(it Module 5J 4

pursuant to the ;2-2-1 et se><

e# Me$ico 9a"ardous 3aste Act, -the .9a"ardous 3aste Act/0,

M'A 18;8, 'ection the e# Me$ico

and

9a"ardous 3aste Manage(ent Regulations -20<2<1 20000 for 'andia?s Mi$ed 3aste 4andfill -M340< *he cited

MA!, Re,ised 1une 12, -+$hibit 2, p< 10<

e# Me$ico Ad(inistrati,e !ode regulations are adopted in *he 2012 4*MMP (odification of e# Me$ico 9a"ardous

co(pliance #ith R!RA re>uire(ents<

the Ainal @rder ,iolates R!RA as #ell as the 3aste Act and applicable *he 'tate of MA! regulations<

e# Me$ico recei,ed authori"ation on 1anuary 27,

1887, fro( the B<'< +n,iron(ental Protection Agency -the +PA0 to i(ple(ent recei,es its final ha"ardous #aste (anage(ent fro( the progra(< +PA under A state that

authori"ation

R!RA,

'ection

F006-b0, 22 B<'<!< 6826-b0, (ust (aintain a ha"ardous #aste progra( that is e>ui,alent to, consistent #ith, and no less stringent than the Aederal 9a"ardous 3aste Progra(< states (ust change their progra(s As the Aederal progra( changes, and as& +PA to authori"e the

changes< !hanging the ter(s and conditions for a Ainal @rder that is a part of a ha"ardous #aste per(it re>uires a for(al process for public notice, an opportunity to co((ent, and a public (eeting or hearing< 20 !AR C 2;0<21 re>uires) the per(ittee, the .5f a per(it (odification is re>uested by shall appro,e or deny the re>uest

%irector

according to the procedures of 20 !AR C 2;0<22</ the co(pliance deadline for the 5 perfor(ance of

*he e$tension of the Ainal @rder

!ondition

constituted

(aterial

and

substantial

alteration Per(it

re>uiring a le,el F per(it (odification of the Ainal @rder<

(odifications re>uire that the per(ittee -here, 'andia0 sub(it a #ritten (odification re>uest to the %irector -here, the 'ecretary of M+%0 and send a notice of the (odification re>uest to all persons on the facility (ailing list, publish the notice, and pro,ide a public (eeting for the (odification re>uest< #ere not perfor(ed< *he ,iolation of !ondition 7 of the Ainal @rder should 20 !AR 2;0<22< *hese actions

in,alidate the entire Ainal @rder because the Ainal @rder contains no se,erability clause and no sa,ings clause and #ould re>uire reopening the entire !lass F proceeding for the Ainal @rder for correcti,e action for the M34< Ph<%<, paragraph 1F0< %uring the period 2002-200F, !ongress funded the !onsortiu( for +n,iron(ental +ducation and *echnology %e,elop(ent -&no#n by the acrony( .3+R!/0 to conduct an independent study of the correcti,e action plan for the M34< *he Ainal 3+R! Report dated 1anuary F1, -+$hibit F, Affida,it of Robert %in#iddie,

200F, states) .*he Panel felt strongly that the uncertainty of the contents in the M34 could e,entually lead to the re>uire(ent -or choice0 of e$ca,ation follo#ed by subse>uent final disposal of the M34 contents</ -http)KK###<ieen(su<co(K#p-

contentKuploadsK2011K0;Kfinalreport<pdf p<i,0 After public hearings in %ece(ber 6 2002, the Ainal @rder

re>uire(ent for re,ie#s of the M34 .e,ery fi,e years/ arose fro( the 2007 9earing @fficer Report that #as adopted by the the Ainal @rder< *he 9earing @fficer stated) *#o things can assist in understanding #hat is happening in the landfill in the future) a co(prehensi,e (odel -discussed belo#0, and continued (onitoring and e,aluation< 5 reco((end that the 'ecretary re>uire 'andia to prepare a report eve+, ,ea+. re-e,aluating the feasibility of e$ca,ation and analy"ing the continued effecti,eness of the selected re(edy, as suggested by the Albu>uer>ue-:ernalillo !ounty Lround#ater Ad,isory :oard< *he report should be presented in a public foru(, and the public should ha,e an opportunity to e,aluate and co((ent on data presented< *he report need not be of the (agnitude of a full-scale RA5 or !M'M M+% staff should deter(ine #hat should be included, #ith input fro( 'andia and the public< -+(phasis added0< *he 9earing @fficer also #rote, at pages F8-F8 in the Report adopted by the M+% in the Ainal @rder, the follo#ing) 5n the process of presiding o,er this hearing, 5 #as i(pressed #ith the le,el of participation of the public and !iti"en Action H e# Me$icoI, #ith their technical &no#ledge and understanding, and their detailed study of the history of this landfill< *heir presence and participation resulted in a (ore thorough and co(prehensi,e re,ie# of the landfill and proposed per(it (odification< *he public and !iti"en Action H e# Me$icoI de(onstrated o,er and o,er that these issues are of passionate i(portance to the(, and they should be allo#ed to continue to participate in the process of re,ie# as the re(edy for the landfill is i(ple(ented< 5t is particularly i(portant for the public to be able to participate in identifying the triggers for future action, and -*,ea+ eval/at01n. 12 2ea.030l0t, 12 e45avat01n an6 51nt0n/e6 e22e5t0vene.. 12 t7e .ele5te6 +e8e6,< *his #ill 7 M+% 'ecretary in

ensure that if the selected re(edy is not effecti,e, not properly i(ple(ented or (aintained, or if ne# or not-predicted conditions or issues arise, they #ill be brought to M+%?s attention and addressed< -+(phasis supplied0< -http)KK###<n(en,<state<n(<usK93:K'andiaKM34KAinalN%ec isionK9earingN@ffNRprtNAindingsNAactN!onclusionN4a#N-0 7-20-20070<pdf, p<F;0 !ondition 7 of the Ainal @rder une>ui,ocally re>uires 'andia to perfor( that #hich the 9earing @fficerOs Report noted #as essential to insuring the .<<<feasibility of e$ca,ation and HtheI continued effecti,eness of the selected re(edy Hthe P,egetati,e co,er #ith biointrusion<<,OI/ and the sub=ect of ongoing ree,aluation< of the Ainal @rder states) 'andia shall prepare a report e,ery 7 years, re-e,aluating the feasibility of e$ca,ation and analy"ing the continued effecti,eness of the selected re(edy< *he report shall include a re,ie# of the docu(ents, (onitoring reports and any other pertinent data, and anything additional re>uired by M+%< 5n each 7-year report, 'andia shall update the fate and transport (odel for the site #ith current data, and re-e,aluate any li&elihood of conta(inants reaching ground#ater< Addition- ally, the report shall detail all efforts to ensure any future releases or (o,e(ent of conta(inants are detected and addressed #ell before any effect on ground#ater or increased ris& to public health or the en,iron(ent< 'andia shall (a&e the report and supporting infor(ation readily a,ailable to the public, before it is appro,ed by M+%< M+% shall pro,ide a process #hereby (e(bers of the public (ay co((ent on the report and its conclusions, and shall respond to those co((ents in its final appro,al of the report< *he failure to enforce !ondition 7 #as contrary to prior 8 M+% !ondition 7

representations (ade to Appellant !iti"en Action and the public< May 2;, 2007, M+% Press Release -1ohn Loldstein,

M+% !o((unications

%irector0 entitled Environment Secretary Ron Curry Approves Remedy for Mixed Waste Landfill at Sandia National Laboratories .Ainally, 'andia (ust prepare a report e,ery fi,e stated) that

years

re,aluates the feasibility of e$ca,ations and analy"es the continued effecti,eness of the re(edy</ *hus, M+%, #hile publicly ta&ing

credit for and e(phasi"ing the i(portance of the e,ery fi,e-year ree,aluation re>uire(ent, has not enforced that ,ery re>uire(ent< After participating in the %ece(ber 2002 ad(inistrati,e public hearing, !iti"en Action challenged the re(edy decision of a dirt co,er to be placed o,er the M34 in the e# Me$ico !ourt of Appeals<

IN RE: Re uest for a Class ! "ermit Modification #or Corrective Measures for t$e Mixed Waste Landfill% Sandia National Laboratories% &ernalillo County% Ne' Mexico% E"A I( N)* NM+,-.//.+/,% !ourt of Appeals, o< 27,886, %ece(ber 18, 200;< 'ee) e# Me$ico

http)KK###<n(en,<state<n(<usK93:Kdocu(entsK!ourtNofNAppealsN12-18200;N@pinionNonN!iti"enNActionNAppeal<pdf pp< 2F-220< 5n the cited

decision, this !ourt appro,ed the Ainal @rder<

9o#e,er, in doing so,

this !ourt e(phasi"ed that the pro,isions of the Ainal @rder that are the sub=ect of this appeal #ere a necessary part of pro,iding for continued public in,ol,e(ent, stating, at page 22 of its ruling)

*he public has not been shut out of the decision9

(a&ingM nor ha,e public co((ents been (ade legally irrele,ant< 5nstead the 'ecretaryOs re(edy includes additional pro,isions .to ensure that the public #ill re(ain in,ol,ed in the future re(edy for the M34</ :y failing to ti(ely order the fi,e-year feasibility

ree,aluation re,ie# and (odifying the Ainal @rder in ,iolation of R!RA and the shutting process< u(erous representations #ere (ade by the M+% in responses to out e# Me$ico 9a"ardous 3aste Act, the public fro( in,ol,e(ent in M+% is effecti,ely the decision (a&ing

public co((ents for ,arious !orrecti,e Measures docu(ents that the M34 #ould be re,ie#ed for e$ca,ation and the effecti,eness of the co,er e,ery fi,e years< ; Aor e$a(ple)

. M+% 'ecretary to ree,aluate the perfor(ance of the 4andfill co,erKbio-intrusion barrier and the feasibility of e$ca,ation e,ery fi,e years</ http)KK###<n(en,<state<n(<usK93:K'andiaKM34KAinalN%ecisionKRespo nseNtoN!o((entsN-08-02-20070<pdf , !o((ent A response, p<18, 2F and 21

.*he final order signed by the 'ecretary re>uires that the effecti,eness of the co,er and the feasibility of e$ca,ation be ree,aluated e,ery fi,e yearsM the A*M HAate and *ransport ModelI is also to be updated</ -http)KK###<n(en,<state<n(<usK93:K'andiaKM34K5nterestedN!iti"enN 4etterN-NResponseN!o((entsN-11-21-20060<pdf , !o((ent :, p<F-20 10

.*he

M+% 'ecretaryOs Ainal @rder issued on May 26, 2007,

re>uires that 'andia update the Aate and *ransport Model e,ery fi,e years</ http)KK###<n(en,<state<n(<usK93:Kdocu(entsK5nde$NandNResponseNto N!o((entsN'andiaNM34N'JN'AP<pdf , p<6, Response R18< ; .*he fi,e-year re,ie#s ordered by the 'ecretary on May 26, 2007, pro,ide for periodic analysis of the future protecti,eness of the co,er</ http)KK###<n(en,<state<n(<usK93:Kdocu(entsKResponseNtoN!o((entsN 'andiaNM34N!M5NReportN7-2011-2<pdf !o((ent 1 Response by M+%<

5n pertinent part, 'ection 6<F of the 200; 4*MMP--Application of 5nstitutional !ontrols H5!sI, pro,ided for the application of

institutional controls on a fi,e year basis) 5t is anticipated that the 'andiaK M 5! inspection and site #al&o,er #ill be conducted annually for the first fi,e years, then biannually for four years, and then progress to once e,ery fi,e years< *his fre>uency #ill be sub=ect to ad=ust(ent as needed< 'andia also recogni"ed the fi,e-year report re>uire(ent of the Ainal @rder in its e#s Releases -11K02K20080<

https)KKshare<'andia<go,Kne#sKresourcesKne#sNreleasesK'andiaannounces-co(pletion-of-(i$ed-#aste-landfill-co,er-constructionK -p<10) *he M+% regulates the correcti,e action of the M34 as #ell as the i(ple(entation of institutional controls and long-ter( (onitoring and (aintenance< 'andia and %@+ continue to 11

pro,ide >uarterly progress reports to the M+%< 5n addition, the final order re>uires co(pilation of a report that re-e,aluates the feasibility of e$ca,ation and analy"es the continued effecti,eness of the selected re(edy e,ery fi,e years< !onstruction of the M34 alternati,e co,er #ill be docu(ented in the !orrecti,e Measures 5(ple(entation Report #hich #ill be sub(itted to the M+% for appro,al< -+(phasis added0< A letter fro( the Albu>uer>ue :ernalillo !ounty 3ater Protection Ad,isory :oard -the .3PA:/0 to the M+% dated Aebruary 22, 2012,

recites its reco((endation fro( 2001 and 2007 for 7-year re,ie#s< *he 3PA: understanding is that the cloc& began tic&ing on May 26, 2007, for the fi,e year re,ie# to be perfor(ed and that the re,ie# is already three years late< *he 3PA: stated -see +$hibit 20)

'andia, %@+K 'A, and M+% apparently ha,e ta&en the position that the fi,e-year cloc& does not start on this re-e,aluation and reporting re>uire(ent until the 4*MMP has been finali"ed and appro,ed< 9o#e,er, gi,en the re(edy stipulated in the Ainal @rder, the potential for ground#ater conta(ination of a serious nature -lo# probability but high conse>uence0, and the agreed-upon need for continued ,igilance, (onitoring, (odeling, and periodic re-e,aluation, a legiti(ate case can be (ade that the cloc& on the fi,e-year reports should ha,e started #hen the Ainal @rder #as issued in 2007, #hich #ould ha,e re>uired the first fi,e-year report in 2010< 5n any case, nearly fi,e years ha,e no# passed since the co,er #as installed in 2008< It 0. t7e p1.0t01n 12 t7e WPA" t7at a 20ve*,ea+ +ep1+t, 0n5l/60n9 t7e ./pp1+t0n9 6ata 51lle5t01n, 816el0n9, an6 anal,.0., .71/l6 3e p+16/5e6 0n &'(). *he 3PA: urges the M+% to re>uire the %@+K'andia to co(plete this report by the end of this year< -:old face type in original0< 'andia first sub(itted a 4ong-*er( Monitoring and Maintenance Plan to M+% in 200; -the .200; 4*MMP/0 #hich contained no pro,ision 12

for delay of the re>uired !ondition 7 ree,aluation of the feasibility of e$ca,ation and analysis of the continued effecti,eness of the dirt co,er< 'ection 2<;<2 -Ai,e-Qear Ree,aluation Reports0 of the 200;

4*MMP #ould ha,e allo#ed the use of annual ground #ater (onitoring reports re,ie#< rather than long-ter( (onitoring data for the fi,e-year

'andia #ithdre# the 200; 4*MMP appro$i(ately four years

later on %ece(ber ;, 2011< http)KK###<n(en,<state<n(<usK93:Kdocu(entsK'andiaN12-;2011N200;M34N4*MMPN3ithdra#alN4etter<pdf 'andia then resub(itted a re,ised 4*MMP on March 2F, 2012< re>uire(ents of the Ainal @rder #ere changed by the 2012 *he 4*MMP

#ithout any (odification of the Ainal @rder, nor any public hearing regarding the proposed (odification as re>uired by R!RA and the Ainal @rder adopted pursuant to R!RA< M+% relies on 'ection 1<F of the

2012 4*MMP for its decision to allo# the perfor(ance of !ondition 7 of the Ainal @rder to be delayed for al(ost nine years beyond May 26, 2010, #hen the first !ondition 7 report #as arguably due, and

certainly at least fi,e years past the deadline for the initial report< *his is a self-ser,ing acco((odation by the M+% of its

failure to enforce its o#n directi,e clearly stated in the Ainal @rder, and the action is in ,iolation of federal and state la#<

*he

M+% appro,al of the 2012 4*MMP #ill endanger the public

health and safety and e$pose the public to health and en,iron(ental 13

dangers pre,ent<

that

the

fi,e-year

reports

#ere

e$pressly

intended

to

*he appro,al also e,ades the re>uire(ent that the public be

afforded an opportunity to co((ent regarding rele,ant public health and safety concerns related to per(it (odification< *he includes ha"ardous the #aste per(it issued by to the 'andia Ainal in this case Any

re>uire(ents

i(posed

@rder<

(odification of the Ainal @rder, and thereby the per(it, (ust first be re>uested in 'ritin0 by the Per(ittee -'andia0 fro( the appropriate public notification< M+% #ith

*he applicable procedures of 20 !AR

C 2;0<22 for !lass 1-F per(it (odifications include the necessity of public notice and opportunity for co((ent< 20 !AR C 2;0<21< 'andia

did not (a&e a #ritten re>uest for (odification of the per(it in accordance #ith the procedures re>uired by 20 !AR C 2;0<22 and MA!

20<1<2<801M thus, the public #as not infor(ed of 'andiaOs intent to (odify the Ainal @rder, nor #as the public infor(ed of M+%Os

consideration of the re>uested (odification, #hich consisted of the deadline @rder< Appellant !iti"en Action re>uested a public hearing regarding the re>uested (odification of the per(it that #ould be acco(plished by the 2012 4*MMP< o public hearing #as conducted, ho#e,er, and the e$tension for co(pliance #ith !ondition 7 of the Ainal

2012 4*MMP included a pro,ision in 'ection 1<F -discussed belo#0 e$tending the Ainal @rder fi,e-year ree,aluation report deadline, and thereby (odifying the 'andia 9a"ardous 3aste Per(it as #ell as the 14

Ainal @rder< 3hen correcti,e action is proceeding under a per(it, proposals to co(plete correcti,e (easures should adhere to the procedures

applicable to !lass F per(it (odifications, #hich include utili"ing the +$panded Public Participation Rule< 18870< -60 AR 6F21;, %ece(ber 11,

http)KK###<epa<go,Kos#Kha"ardKtsdKper(itKpubpartKchpNF<t$t

!lass 1-F (odifications of a Ainal @rder for a 9a"ardous 3aste Per(it re>uire public notice, and an opportunity for co((ent< Aor a

general per(it (odification that changes a schedule of co(pliance i<e<, an e$tension of a final co(pliance date, a !lass F (odification is re>uired< 20 !AR C 2;0<22 Appendi$ 5 A<7<b< A !lass F

(odification re>uires notice, opportunity for co((ent, and a public (eeting or public hearing if re>uested< 20 !AR C 2;0<22 -c0< *he

Ainal @rder !ondition 7 re>uire(ent for the feasibility report is e,ery fi,e years< *here is no language in the Ainal @rder that

authori"es a delay of the fi,e-year report deadline to a date after M+% appro,es the 4*MMP< *he Ainal @rder une>ui,ocally states that *his (andatory

.'andia shall prepare a report e,ery 7 years<<<</ language contains no pro,ision for delay< *he change of schedule for the co(pliance

date

for

the

feasibility report #as arbitrarily changed in an infor(al process li(ited to co((unications e$clusi,ely bet#een M+% and 'andia that

ignored the re>uire(ents of R!RA and !ode of Aederal Regulations -!AR0 per(it (odification procedures, including those re>uiring a 15

#ritten notice,

per(it a

(odification (eeting,

re>uest an

fro(

the for

per(ittee, co((ent,

public and the

public

opportunity

honoring of re>uests for a public hearing< re>uire(ents for public participation in

5n this instance, the the per(it (odification *his

process #ere ,iolated by the

M+%Os denial of a public hearing<

denial #as not#ithstanding a re>uest (ade by petitions containing (ore than 200 signatures recei,ed by concerning the 2012 4*MMP< *he decision to e$tend the fi,e-year re,ie# re>uire(ent #as (ade by M+% 9a"ardous 3aste :ureau !hief 1ohn Rieling in a letter dated M+% see&ing a public hearing

@ctober 12, 2011, addressed to %@+ and 'andia and titled . otice of Appro,alM Mi$ed 3aste 4andfill !orrecti,e Measures 5(ple(entation

Report, 1anuary 2010/ -the M34 !M5 Report0<

3ithout any notice or M+%

opportunity for !iti"en Action or the public to co((ent, the

-1ohn Rieling and 3illia( Moats0 agreed in (eetings and e-(ails #ith 'andia, and in .re,ised/ (inutes of one such (eeting, to (odify the Ainal @rder and its conditions to e$tend the period for the fi,e-year re,ie#< *he (inutes are titled .re,ised/ because they #ere issued *he

so(e nine (onths after the original (eeting (inutes #ere issued< (inutes and e(ails #ere not posted for public re,ie# by 'andia<

M+% or

!iti"en Action sub(itted an 5nspection of Public Records Act M+% on May 8, 2012, re>uesting all docu(ents upon for its interpretation that the fi,e-year

re>uest -5PRA0 to #hich the M+%

relied

re,ie# of the M34 #as to be perfor(ed fi,e years after the appro,al 16

of the 4*MMP<

M+% responded on May 22, 2012, stating .HnIo such

docu(ents e$ist, other than the May 26, 2007, Ainal @rder itself</ *his response is ob,iously contrary to the e$plicit #ording of the Ainal @rder, #hich says >uite e$actly the opposite< 5n its May 8, 2012, 5PRA re>uest, Appellant !iti"en Action also as&ed M+% to .HpIro,ide any letter of appro,al furnished to 'andia

for that interpretation He$tending the fi,e-year ree,aluation for an additional fi,e years after an 4*MMP appro,alI</ as follo#s) included in *he M+% responded

. M+%Os interpretation of the pro,ision at issue is the @ctober 12, 2011, letter appro,ing the M34 !M5

Report, #hich is enclosed</ and 'andia states)

*he referenced letter addressed to %@+

*he Per(ittees (ust sub(it a 4ong-*er( Monitoring and Maintenance Plan -4*MMP0 for the Mi$ed 3aste 4andfill #ithin 180 days of the date of this letter< Bpon M+% appro,al of the 4*MMP, the first fi,e-year period for re-e,aluating the feasibility of e$ca,ation and analy"ing the effecti,eness of the re(edy, re>uired under the 'ecretary?s Ainal @rder of May 26, 2007, #ill begin< *his #ill allo# for (onitoring data to be ac>uired under the 4*MMP to be a,ailable for the purpose of conducting the e,aluation< +$hibit 7< *he @ctober 12, 2011, respects< M+% letter is significant in se,eral

Airst, the letter had not been seen by anyone other than

M+%, %@+, and 'andia representati,es prior to the May 22, 2012, 5PRA response by M+%< 'econdly, the letter is a otice of Appro,al of

the Mi$ed 3aste 4andfill !orrecti,e Measure 5(ple(entation Report 17

-the !M5 Report0, and the !M5 Report did not include any state(ent or i(plication that !ondition 7 of the Ainal @rder #as being (odified< Ainally, neither Appellant !iti"en Action nor any other (e(ber of the public #as a#are of any intention on the part of !ondition Appellant 7 of the Ainal Action @rder< and the *hus, public M+% M+% to (odify denied for

effecti,ely

!iti"en

any

opportunity

participation and co((entary regarding #hat #as essentially a per(it (odification process, contrary to R!RA and applicable !AR regulations directly on point< ot#ithstanding the une>ui,ocal and clear language of !ondition 7 of the Ainal @rder, the M+% response to Appellant !iti"en Action?s

5PRA re>uest also (ade it e,ident that in Aebruary 2011, no consensus on the part of M+% and 'andia e$isted regarding the deadline for the Aor e$a(ple, in the .re,ised/

initial fi,e-year ree,aluation report< (inutes of the (eeting bet#een 2011,

M+% and 'andia held Aebruary 1;,

M+% stated they belie,e the first 7-year Re+,aluation Report is due 7 years after co(pletion of the co,er, #hich #ould be 'eptK@ct 2012, or 7 years after M+%-appro,al of the co,er -i<e<, appro,al of the !M5 Report, still pending0< +$hibit 6< An e(ail dated March 08, 2011, fro( 3illia( Moats of Mi&e Mitchell of 'andia co((ented) @ne bullet concerns the 7-year report< 5 =ust #anted to clarify that 5 don?t ha,e a clear decision fro( (anage(ent on #hen it?s due -'epK@ct 18 M+% to

2012 or 7 years after the !M5 Report is appro,ed0< 5 changed the su((ary bullet to reflect the t#o scenarios #e discussed per your co((ent< 3e re>uest Gfor(al M+% clarificationG in the relati,ely near future< Perhaps M+% could pro,ide a Gfinal deter(inationG as part of the !M5 Report appro,al process and let %@+K'andia &no# in the ne$t 80 daysE Qour point on the later scenario has (erit - the co,er construction is not Gtechnically co(pleteG until accepted by M+%< 3e #ill &eep this issue on the list to Gfinali"eG as #e #or& to resol,e the other re(aining 4*MMP issues -data and trigger le,el e,aluation process, final (onitoring and trigger le,els, ground#ater sa(pling fre>uency, etc<0< +$hibit ;< An e(ail dated March 16, 2011, fro( Mi&e Mitchell of 'andia to 3illia( Moats and 1ohn Rieling of M+% stated)

!urrently the list of issues for further discussion includes the data and trigger le,el e,aluation process, final (onitoring Ksa(pling re>uire(ents, final trigger le,els, and the due date for first 7-Qear Re-+,aluation Report< +$hibit ;< 'ection 1<F of the 2012 4*MMP inserted the follo#ing to delay i(ple(entation of !ondition 7) *he 2007 !lass F Per(it Modification also re>uires %@+K'andia to prepare a report e,ery fi,e years, ree,aluating the feasibility of e$ca,ating the M34 contents and analy"ing the continued effecti,eness of the M34 re(edy< M+% deter(ined the first fi,e-year period #ill begin upon M+% appro,al of this 4*MMP -Rieling @ctober 20110< Additional infor(ation regarding the Ai,e-Qear Ree,aluation reporting re>uire(ents is pro,ided in 'ection 2<8<2< http)KK###<n(en,<state<n(<usK93:Kdocu(entsK' 4NF-2F2012NM34N4*MM PNAinalNMarchN2012<pdf 19 -+$hibit 80<

Appellant !iti"en Action #as una#are of any (odification in the fi,e-year report due date until 4*MMP< M+% issued the March, 2F, 2012,

*he issuance of the 4*MMP in March 2012 pro(pted the 5PRA

re>uest on the part of !iti"en Action< *he fi,e-year ree,aluation report re>uire(ent in the Ainal @rder is consistent #ith the re>uire(ent of R!RA for land disposal

facilities<

20 !AR C 2;0<70 -d0 pro,ides)

+ach per(it for a land disposal facility shall be re,ie#ed by the %irector fi,e years after the date of per(it issuance or reissuance and shall be (odified as necessary, as pro,ided in C 2;0<21< *he issues (aterial to e$ca,ation of the M34 are different fro( those to be ta&en into account by the 4*MMP and that should be considered independently of the 4*MMP< *he feasibility of e$ca,ation

#ould consider factors such as #hether the #astes can be safely re(o,ed, #hether technology e$ists for re(o,ing the #astes, and #hat path#ays e$ist for pac&aging, transporting and disposal< Affida,it of +ric uttall, Ph<%<0< M+% -+$hibit 1,

:y delaying the fi,e-year re,ie# period to the year 2018,

is ,iolating its o#n Ainal @rder and is also denying !iti"en Action and the public fro( raising substantial and (aterial technical issues that ha,e arisen during the period since the Ainal @rder #as adopted in 2007< 'ubstantial e,idence indicates that the selected re(edy of

the dirt co,er is not protecti,e of the ground#ater, the ground#ater is conta(inated and #ill beco(e increasingly conta(inated, the fate 20

and

transport

(odel

is

incorrect

and

the

ground#ater

(onitoring

net#or& is defecti,e and inade>uate to detect conta(ination of the ground#ater< Aurther, the ground#ater (onitoring net#or& #as &no#n

at all ti(es to the present to be defecti,e to (a&e the re(edy decision< Leologist<0 *he 4*MMP changed the nu(ber, location and depth of upgradient and do#ngradient #ells of the ground#ater (onitoring net#or&< re,isions also constituted a (odification of the per(it< 2;0<22 Appendi$ 5 !<1<a<0 the #ell locations< #ere installed *hese -+$hibit 8, Affida,it of Robert Lil&eson, Registered

-20 !AR

*he point of co(pliance #as changed for

*he (onitoring #ells installed for the 4*MMP co(plying #ith public participation

#ithout

re>uire(ents for re,ie# and co((ent<

*he order for the installation

of ne# ground#ater (onitoring #ells #as a significant alteration of the per(it for the M34 and should ha,e been presented to the public as a 4e,el F (odification< persistent and significant *here has been, and continues to be, public concern about the proposed

(odification to the ground#ater (onitoring net#or&<

*hus, it #as

especially i(portant that the per(it (odification for the ground#ater (onitoring adhere to the procedures found in C 2;0<22-c0 for !lass F (odifications< -'ee +$hibit 8, Lil&eson Affida,it0<

'ignificantly, a 2006 *ech4a#, 5nc<, report titled 1ec$nical Revie' of Appendix E% "robabilistic "erformance2Assessment Modelin0 of t$e Mixed Waste Landfill at Sandia National Laboratories of t$e 21

H o,e(ber

2007I

Mixed

Waste

Landfill

Corrective

Measures

Implementation "lan dated 1anuary F1, 2006, -the .*echla# Report/0, re,ealed nu(erous deficiencies in the construction and (onitoring of the dirt co,er and the long-ter( protection of the ground#ater, as #ell as the co(puter codes for the fate and transport (odel< @ctober 18, 200;, the e# Me$ico +n,iron(ent @n

%epart(ent

unsuccessfully sued Appellant !iti"en Action in an effort to #ithhold the *ech4a# Report fro( !iti"en Action #hich had re>uested the report in an 5PRA re>uest< -+$hibit 10 and +$hibit 8, Lil&eson Affida,it0<

M+% appro,ed installation of the dirt co,er #ithout infor(ing Appellant and the public of the concerns stated in the *ech4a# Report and #ithout addressing those concerns< *he *ech4a# Report re=ected

'andiaOs co(puter (odeling for (o,e(ent of the M34 #aste as a .blac& bo$/ that should not be used< *he *ech4a# Report also re=ected the

position of neutron tubes for (onitoring for (oisture underneath the pits and trenches of the M34 rather than underneath the dirt co,er< Aurther, the *ech4a# Report reco((ended the installation of a

synthetic i(per(eable (e(brane belo# the dirt co,er to channel #ater a#ay fro( the #aste buried in the M34< practice< *hat is standard industry

e,ertheless, a non-per(eable (e(brane #as not installed *he *ech4a# Report and e,en M+% critici"ed 3ater

beneath the dirt co,er<

the lac& of (onitoring for (oisture beneath the dirt co,er<

underneath the dirt co,er could be entering the M34 and reaching the #aste< 22

*he 'andia M34 has ne,er had a reliable net#or& of ground#ater (onitoring #ells< After the first four ground#ater (onitoring #ells

#ere installed at the M34 during 1888-1880 -#ells M34-M31, -M32, -M3F and -:310, it #as disco,ered that the directional flo# of the *he

ground#ater #as to the south#est rather than to the north#est< M+%, the +PA, scientists at the 4os Ala(os

ational 4aboratory, the

%@+K'andia @,ersight :ureau, and the %@+ *iger *ea( docu(ented in reports issued o,er the years 1881 to 1888 that the ground#ater (onitoring #ells #ere installed in the #rong locations% had corroded #ell screens and #ere conta(inated #ith :entonite clay that hides e,idence of conta(ination< 5n 2000, t#o subse>uent (onitoring #ells

-#ells M34-M37 and -M360 #ere installed too deep and distant fro( the M34 to be of use< %in#iddie Affida,it0< 5n March 200;, Appellant !iti"en Action and Registered Leologist Robert Lil&eson filed a co(plaint #ith +PA Region 6 alleging that the M34 (onitoring #ell net#or& #as defecti,e< An April 2010 audit -+$hibit 8, Lil&eson Affida,it and +$hibit F,

costing S2;F,000 conducted by the +PA @ffice of 5nspector Leneral -the @5L0 found that +PA Region 6 staffers had concerns about the landfill?s effect on ground#ater and the lac& of effecti,e *he

ground#ater (onitoring at the M34<

-*he @5L Audit Report0<

5nspector Leneral also found that an @,ersight Report of the +PA staffOs M34 concerns #as being #ithheld fro( the public, thereby li(iting public in,ol,e(ent in the 23 correcti,e (easures process<

Region 6 ad(inistrators sta(ped the @,ersight Report .!onfidential/ in a self-ser,ing action to =ustify #ithholding it fro( the public< http)KK###<epa<go,KoigKreportsK2010K20100212-10-P-0100<pdf Audit Report, at Page F, found) Region 6 #ithheld infor(ation fro( the public regarding the M34 (onitoring #ells through <<< discontinuation of record &eeping, (isleading co((unications, and inappropriate classification< +PA Region 6 also produced an .@,ersight Report/ in 200; that #as orally presented to the M+% by Region 6 to a,oid production of *he @5L

docu(entation that the public could obtain regarding the defecti,e ground#ater (onitoring net#or&< +PA Region 6 and the @5L thereafter

#ithheld the o,ersight Report fro( !iti"en Action and the public, a report that ,alidated !iti"en ActionOs findings and concerns #hich Region 6 of +PA had found to be ,alid< http)KK###<epa<go,KoigKreportsK2010K20100212-10-P-0100<pdf, pp<F-2< *he erroneous data fro( the defecti,e ground#ater (onitoring net#or& #as relied upon in the 2007 9earing @fficer Report adopted by the M+% 'ecretary in the Ainal @rder< -+$hibit 80<

*he confidential @,ersight Report and inter,ie#s by @5L staff of the +PA Region 6 staff #ere recently obtained after a A@5A la#suit #as filed by !iti"en Action< Aollo#ing is #hat an +PA Region 6

unidentified staff person told the 5nspector Leneral in an @ctober 17, 2008 inter,ie#) H ote) .-b0-60/ as used in the docu(ent refers

to the indi,idual #ho is being inter,ie#edI< 24

-b0-60 stated that he did not ha,e any prior connection #ith the site< 5n fact he does not report to -b0-60< 9e also stated that Region 6 had its results preconcei,ed< Region 6 (anage(ent did not #ant M+% doing anything #rong< *herefore, (anage(ent created a structure to ensure the appropriate outco(e #ould result< Aurther(ore, as the #riting and draft co((ents progressed to a final letter, the tea( #as pushed (ore and (ore to agree #ith M+%Os position< 9e also stated that the tea(sO initial e,aluation #ould ha,e changed the solution at 'andia M34 H(eaning the dirt co,er #ould not ha,e been the .selected re(edy/<I M+% pushed e$tre(ely hard for +PA Region 6 not to e,en >uestion the past results or the ,iability of past test results Hregarding ground#ater (onitoring and sa(plingI< Ainally, he stated that H!iti"en ActionI got shortchanged by Region 6< *he M34 has been i(properly classified as a 'olid 3aste

Manage(ent Bnit for closure under !orrecti,e ActionM ho#e,er, there is failure to pro,ide a Post-!losure Plan as re>uired by R!RA and 20 !AR C 262<118< *he M34 is a .regulated unit/ by definition because -20 !AR

it operated to recei,e ha"ardous #aste after 1uly 26, 1882< C 262<80-a00<

20 !AR C 2;0<1 -c0 re>uires that o#ners and operators

of landfills that recei,ed #aste after 1uly 26, 1882, (ust ha,e postclosure per(its, unless they de(onstrate closure by re(o,al or

deconta(ination or obtain an closure per(it< (ust address

enforceable docu(ent in lieu of a post-

5f a post-closure per(it is re>uired, the per(it (onitoring, closure unsaturated care "one (onitoring, o post

ground#ater and

correcti,e

action

post

re>uire(ents<

closure per(it has been sub(itted for the M34 that is lea,ing #astes in place< -+$hibit F, %in#iddie Affida,it0< 25

STATEMENT OF THE ISSUES 1< 9as M+% ,iolated the Ainal @rder by appro,ing the 4*MMP

e$tension of the deadline for the preparation of the initial fi,eyear report ree,aluating the feasibility of e$ca,ation and analy"ing the continued effecti,e of the selected re(edy -the dirt co,er0E 2< e,ery 7 %oes the Ainal @rder, re>uiring 'andia to .prepare a report years the re-e,aluating continued the feasibility of the of e$ca,ation and

analy"ing

effecti,eness

selected

re(edy,/

re>uire a distinction bet#een the deadline for the initial fi,e-year report regarding .the feasibility of e$ca,ation/ and the deadline for .analy"ing the continued effecti,eness of the selected re(edy,/ i<e<, are these t#o distinct acti,ities go,erned by the sa(e deadlineE 3hat possible =ustified e$isted for delaying the ree,aluation of the feasibility co,erE F< 3hat e,ent co((ences the running of the initial fi,e-year of e$ca,ation prior to the installation of the dirt

period fro( the date of the Ainal @rder issued May 26, 2007, for #hich 'andia is re>uired to prepare the first fi,e-year reportE 2< %id the e$tension to the year 2018 for the initial fi,e-year

report as pro,ided in the 1anuary 8, 2012, appro,al of the 4*MMP constitute a (odification of the re>uire(ent that 'andia prepare a report e,ery fi,e years as stated in the Ainal @rder dated May 26, 2007E 7< 5s 'andia re>uired to sub(it a #ritten re>uest to the 26 M+%

for (odification of the conditions of the Ainal @rderE 6< 5s M+% re>uired to re>uest a #ritten notification fro(

'andia of its intent to (odify the Ainal @rder and then gi,e notice and opportunity to the public for co((ent and re,ie# prior to

appro,ing the 4*MMPE ;< 3as M+% re>uired to pro,ide public notice and an

opportunity for a public hearing prior to (odifying the Ainal @rder !ondition 7 before appro,ing the 2012 4*MMPE 8< %id M+% gi,e appropriate notice to the public of the

(odification of Ainal @rder !ondition 7 #ith the @ctober 12, 2011, otice of Appro,al for the !M5 Report #here the !M5 Report did not contain (ention of the (odificationE 8< %id the M+% ha,e a duty to gi,e notice and opportunity to

the public for changes to the ground#ater (onitoring net#or& prior to appro,ing the 4*MMPE 10< 3as the action of M+%, in (odifying Ainal @rder !ondition

7 by its appro,al of the 4*MMP, arbitrary, capricious, or an abuse of discretion, in the conte$t of state(ents to the contrary on the part of the Ad(inistrati,e 9earing @fficer, M+%, 'andia, the A:! 3PA:,

and the decision of this !ourt in appro,ing the Ainal @rderE 11< 'hould the M+% be estopped fro( (odifying the Ainal @rder

!ondition 7 after its representations to the public that the fi,eyear re,ie# #ould occur .e,ery 7 years,/ absent language in the Ainal @rder authori"ing such delay and (odificationE 27

12<

3as the (odification by

M+% of its Ainal @rder fi,e-year

reporting re>uire(ent consistent #ith federal and state la# -R!RA and the e# Me$ico 9a"ardous 3aste Act0E 1F< 5s the M+% continuing decision not to enforce !ondition 7

of the Ainal @rder and to delay co(pliance #ith !ondition 7 until 2018 consistent #ith the clear #ording of the Ainal @rderE 12< %oes substantial e,idence support a finding that the

ground#ater (onitoring net#or& at the M34 can detect conta(inationE 17< %oes substantial e,idence support a finding that the dirt

co,er #ill be sufficiently protecti,e to pre,ent ha"ardous #aste escaping fro( the M34 to the ground#aterE 16< %oes substantial e,idence support the M+% decision that

Ainal @rder !ondition 7 does not i(pose a re>uire(ent that .'andia shall prepare a report e,ery 7 years, re-e,aluating the feasibility of e$ca,ation and analy"ing the continued effecti,eness of the

selected re(edy/ so as to protect the public health, safety, and the en,iron(entE 1;< Aside fro( the M+% appro,al of the 4*MMP on 1anuary 8,

2012, does 'andia ha,e a duty pursuant to Ainal @rder !ondition 7 to prepare the initial fi,e-year ree,aluation report at the present ti(eE 18< -a0-20E 18< 5s the M34 sub=ect to the re>uire(ent of pro,iding a 28 5s the M34 a .regulated unit/ as defined by 20 !AR 262<80

!losure Plan and Post !losure Plan as part of the 'andia 9a"ardous 3aste Per(itE 20< 9as ha"ardous #aste escaped fro( the M34, thus re>uiring

re(edial action on the part of 'andia in accordance #ith R!RA and the e# Me$ico 9a"ardous 3aste ActE

LIST OF AUTHORITIES WHICH SUPPORT THE CONTENTIONS OF THE APPELLANT 1. *he Ainal @rder< 2. *he Resource !onser,ation and Reco,ery Act -.R!RA/0, 22 B'! C 6801 et se>< 3. !ode of Aederal RegulationsM 20 !AR C 262<118, 20 !AR C 262<80, 20 !AR C 2;0<1, 20 !AR C 2;0<21, 20 !AR C 2;0<22, 20 !AR C 2;0<70< 4. *he 5. e# Me$ico 9a"ardous 3aste Act, ;2-2-1 et se>< M'A 18;8, 'ection

e# Me$ico 9a"ardous 3aste Manage(ent Regulations -20<2<1 MA!, Re,ised 1une 12, 20000

6. IN RE: Re uest for a Class ! "ermit Modification #or Corrective Measures for t$e Mixed Waste Landfill% Sandia National Laboratories% &ernalillo County% Ne' Mexico% E"A I( N)* NM+,-.//.+/,% e# Me$ico !ourt of Appeals, o< 27,886, %ece(ber 18, 200;< 7. *he +$panded Public Participation Rule, 60 Aederal Register 6F21;, %ece(ber 11, 1887<

29

Respectfully sub(itted,

NNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNN RO"ERT M5NEILL Att1+ne, 21+ Appellant C0t0:en A5t01n Ne; Me4051 ()'' Cent+al Aven/e, SE, S/0te &''' Al3/</e+</e, NM %=('> ?-'-@ &)=*)))'

30

-315 certify that copies of the foregoing doc&eting state(ent #ere ser,ed by (ail on the e# Me$ico +n,iron(ent %epart(ent and the e# Me$ico Attorney Leneral this 7th day of March, 2012<

R@:+R* Mc +544