November 19, 2012 Attorney Scott Fuqua Re: NMED Violation of Open Meetings Act Scott, here is a brief

summary of the facts. In December 2004 an administrative hearing was held to make a Class 3 modification to the hazardous waste permit for the Sandia National Laboratories (Sandia) Mixed Waste Landfill (MWL) dump. A May 26, 2005 Final Order permit decision was made to allow a dirt cover to be installed over the MWL dump. The May 26, 2005 Final Order for the cover was issued as a result of the hearing and was signed by former New Mexico Environmental Department Secretary Ron Curry. A condition of the Final Order required Sandia to make a review every five years of the feasibility of excavation of the dump and the effectiveness of the cover. Updating the Fate and Transport Model was also required as part of the 5-year review. The Final Order itself makes no provision for the delay of the 5-year review that should have been submitted by May 26, 2010. NMED modified the Final Order 5-year review requirement through secret meetings and emails with Sandia that are described below. The Final Order was adopted as part of a modification of Module IV for Sandia National Laboratories (SNL") pursuant to the New Mexico Hazardous Waste Act, NMSA 1978 Section 74-4-1 et seq., and the New Mexico Hazardous Waste Management Regulations (20.4.1 NMAC) for SNL's Mixed Waste Landfill (MWL or landfill). Those regulations are adopted to comply with the Resource Conservation and Recovery Act (RCRA) 42 USC 6901 et seq. For general permit modification that change a schedule of compliance i.e., extension of a final compliance date, a Class 3 modification is required. 40 CFR

270.42 Appendix I A.5.b. A Class 3 modification requires notice, opportunity for comment and a public hearing if requested. 40 CFR 270.42 (c). The decision to extend the 5-year review requirement was made by Hazardous Waste Bureau Chief John Kieling. Without any notice or opportunity for the Citizen Action or the public to comment, the NMED (Kieling and Moats) agreed in secret meetings and e-mails with Sandia to modify the Final Order and its conditions so as to extend the period for the 5 year review. The minutes and emails were not posted. Then after the meetings and emails, NMED made an October 14, 2011 approval for the Corrective Measures Implementation Report (CMI Report). In its approval, NMED modified the 5 year review requirement so that it would come 5 years after the NMED approved a Long-Term Monitoring and Maintenance Plan (LTMMP).1 The extension of the 5-year review period was never brought up in the CMI Report. The public knew nothing and had no opportunity to comment on the extension during the CMI Report comment period. The 5-year review is now 2 years late. Citizen Action made an inspection of public records request on May 9, 2012 asking NMED to provide all documents upon which the NMED relied for its interpretation that the 5-year review of the MWL dump was to be performed 5 years after the approval of the LTMMP. NMED responded that No such documents exist, other than the May 26, 2005 Final Order itself.

The 10/14/2011 approval letter stated:

The Permittees must submit a Long-Term Monitoring and Maintenance Plan (LTMMP) for the
Mixed Waste Landfill within 180 days of the date of this letter. Upon NMED approval of the LTMMP, the first five-year period for re-evaluating the feasibility of excavation and analyzing the effectiveness of the remedy, required under the Secretary's Final Order of May 26,2005, will begin. This will allow for monitoring data to be acquired under the LTMMP to be available for the purpose of conducting the evaluation.

NMED provided documents showing that the 5-year review had been discussed between Sandia representatives and NMED Will Moats and John Kieling, Chief Hazardous Waste Bureau on February 17, 2011 (minutes revised as of 11/08/2011). There was not a consensus at that point even about when the 5-year review was due.: NMED stated they believe the first 5-year Re-Evaluation Report is due 5 years after completion of the cover, which would be Sept/Oct 2014, or 5 years after NMED-approval of the cover (i.e., approval of the CMI Report, still pending).
The 5-Year Re-Evaluation Report will need to involve running the CMIP fate and transport model with updated data, an evaluation of the "full excavation alternative" presented in the MWl CMS Report, and presenting cover performance monitoring results per the LTMMP monitoring program. Monitoring data may be very limited for the first 5-Year Report pending the timing of LTMMP final approval. Would like to better define the scope and content of the S-Year Report via a "Proposal" send by email and discussion with NMED.

A March 09, 2011 email from William Moats to Mike Mitchell stated:
1. One bullet concems the 5-year report. I just wanted to clarify that I don't have a clear decision from management on when it's due (Sep/Oct 2014 or 5 years after the CMI Report is approved). I changed the summary bullet to reflect the two scenarios we discussed per your comment. We request "formal NMED clarification" in the relatively near future. Perhaps NMED could provide a "final determination" as part of the CMI Report approval process and let DOE/Sandia know in the next -90 days? Your point on the later scenario has merit - the cover construction is not "technically complete" until accepted by NMED. We will keep this issue on the list to "finalize" as we work to resolve the other remaining LTMMP issues (data and trigger level evaluation process, final monitoring and trigger levels, groundwater sampling frequency, etc.).

A March 16, 2011 email from Mike Mitchell to William Moats and John Kieling RE: MWL LTMMP Meeting-Feb 17 stated: Currently the list of issues for further discussion includes the data and trigger level evaluation process, final monitoring /sampling requirements, final trigger levels, and the due date for first 5-Year Re-Evaluation Report. In a November 08, 2011 email from Mike Mitchell, Sandia to William Moats, NMENV re MWL LTMMP Information, Sandia stated:

We would like to better define the scope and content of the 5-year Report in the revised LTMMP.

The Final Order requirement for reviews every five years arose from the Hearing Officer Report (p.37).2 Citizen Action was a participant in the public hearings in December 2004 from which the decision arose to require a review on the MWL every five years.3 Condition #3 of the Final Order required a Long Term Monitoring and Maintenance Plan (LTMMP) to be made for the Mixed Waste Landfill. In the LTMMP it
2

The Hearing Officer stated (p.37): Two things can assist in understanding what is happening in the landfill in the future: a comprehensive model (discussed below), and continued monitoring and evaluation. I recommend that the Secretary require Sandia to prepare a report every 5 years reevaluating the feasibility of excavation and analyzing the continued effectiveness of the selected remedy, as suggested by the AlbuquerqueBernalillo County Groundwater Advisory Board. The report should be presented in a public forum, and the public should have an opportunity to evaluate and comment on data presented. The report need not be of the magnitude of a full-scale RFI or CMS; NMED staff should determine what should be included, with input from Sandia and the public. (Emphasis supplied).

The Hearing Officer additionally stated (p. 38-39): In the process of presiding over this hearing, I was impressed with the level of participation of the public and Citizen Action, with their technical knowledge and understanding, and their detailed study of the history of this landfill. Their presence and participation resulted in a more thorough and comprehensive review of the landfill and proposed permit modification. The public and Citizen Action demonstrated over and over that these issues are of passionate importance to them, and they should be allowed to continue to participate in the process of review as the remedy for the landfill is implemented. It is particularly important for the public to be able to participate in identifying the triggers for future action, and 5-year evaluations of feasibility of excavation and continued effectiveness of the selected remedy. This will ensure that if the selected remedy is not effective, not properly implemented or maintained, or if new or not-predicted conditions or issues arise, they will be brought to NMED's attention and addressed.

http://www.nmenv.state.nm.us/HWB/SNL/MWL/Final_Decision/Hearing_Off_Rprt_Findings_Fact_Concl usion_Law_(05-20-2005).pdf

was announced that Sandia would not have to provide the 5-year review until 5 years after the NMED approval of the LTMMP. Citizen Action, Concerned Citizens for Nuclear Safety, and Registered Geologist Robert Gilkeson sent an October 24, 2012 letter to the NMED objecting to the delay in the 5-year review. It is attached. NMED has not responded to the letter.

Attachment A October 24, 2012 David Martin, Secretary New Mexico Environment Department John Kieling, Chief New Mexico Environment Department Hazardous Waste Bureau Re: Objection to Sandia National Laboratories (SNL) Mixed Waste Landfill (MWL) Delay of the Five Year Review Required by the May 26, 2005 Final Order (Curry May 2005) and Class 3 Permit Modification for the MWL (NMED August 2005). Dear Secretary Martin and Chief Kieling: Citizen Action New Mexico, Concerned Citizens for Nuclear Safety and Registered Geologist Robert Gilkeson respectfully request that the New Mexico Environment Department (NMED) immediately enforce the 2005 Final Order condition #5 requirement that Sandia perform a 5-year review for 1) the feasibility of excavation of the MWL, 2) the effectiveness of the dirt cover for the dumps radioactive and hazardous wastes, 3) update of the fate and transport model for the site with current data, 4) reevaluation of any likelihood of contaminants reaching groundwater, and 5) detail of all efforts to ensure any future releases or movement of contaminants are detected and addressed well before any effect on groundwater or increased risk to public health or the environment is determined. 1. We object to the use of the Long-Term Monitoring and Maintenance Plan (LTMMP) to modify and delay the 2005 Final Order requirement that Sandia perform the 5-year review. The LTMMP is not an appropriate vehicle for modification of the 2005 Final Order. 2. The requirement for producing the LTMMP arose from a Level 3 permit modification for corrective measures for the MWL provided for in the 2005 Final Order (Curry). The 2005 Final Order resulted after a multi-year process that included four days of public hearings in December 2004. Modification of the 5-year review requirement requires a level 3 modification of the permit.

3. Condition #5 of the 2005 Final Order stated as follows:

Sandia shall prepare a report every 5 years, re-evaluating the feasibility of excavation and analyzing the continued effectiveness of the selected remedy. The report shall include a review of the documents, monitoring reports and any other pertinent data, and anything additional required by NMED. In each 5-year report, Sandia shall update the fate and transport model for the site with current data, and re-evaluate any likelihood of contaminants reaching groundwater. Additionally, the report shall detail all efforts to ensure any future releases or movement of contaminants are detected and addressed well before any effect on groundwater or increased risk to public health or the environment. Sandia shall make the report and supporting information readily available to the public, before it is approved by NMED. NMED shall provide a process whereby members of the public may comment on the report and its conclusions, and shall respond to those comments in its final approval of the report.

4. By allowing the possibility of a greater than 7-year delay in providing the first 5-year review report to the public, NMED is violating the requirements of the 2005 Final Order and 40 CFR 270.42 Appendix I for permit modifications and public notice and hearing requirements. 5. Nowhere in condition #5 or in the entire 2005 Final Order is there any language that would give legal justification or give the implication that the NMED or DOE/SNL can delay compliance with condition #5, i.e., that the first 5-year review report will not be provided before November 2017, as planned with the LTMMP, and more than 7 years later than the date of May 26, 2010 required by the 2005 Final Order. 6. Sandia failed to comply with the explicit and mandatory language of condition #5 of the 2005 Final Order. The language that says Sandia shall prepare places the duty squarely upon Sandia to prepare the 5-year evaluation in a timely fashion, by May 26, 2010. That is mandatory language without provision for delays. 7. The additional extension of 5 years, beyond the 7 years that have already passed since the 2005 Final Order, constitutes a modification of the general permit condition for reporting required in the 2005 Final Order. 270.42 Appendix I A.4.b. 8. The 7 year extension of time to provide the 5-year evaluation report is an impermissible modification of the 2005 Final Order for Corrective Action for the MWL dump. The Modification of Module IV of Sandias permit was accomplished by the 2005 Final Order. A change to the 2005 Final Order as a part of the SNL Permit requires a permit modification request from Sandia to NMED for modification of the 2005 Final Order. It would then be noticed for the public with opportunity for comment and a possible public hearing upon request. Extension of a final compliance date requires a Class 3 modification. 270.42 Appendix I A. 5.b 9. The DOE/SNL should have at least made a Level 2 modification request for an extension of the time period to provide the 5-year report to the NMED. No such modification request has been made. 10. NMED determined out of thin air and without regulatory basis that the first five-year period will begin upon NMED approval of the LTMMP (Kieling October 2011).

11. On May 9, 2012 Citizen Action made a public records request to NMED for the 5year review extension as follows: Provide all documents upon which the New Mexico Environment Department relies for its interpretation that the May 26 2005 Final Order provides for the Sandia National Laboratories (SNL) to perform a 5-year review of the MWL dump after approval of the Long-term Monitoring and Maintenance Plan. Provide any requests by SNL for that interpretation of paragraph 5, p. 5 of the Final Order. Provide any letter of approval furnished to SNL for that interpretation. Provide any notice furnished to the public for that interpretation previous to NMED approval. 12. NMED response to the public records request was to state that there were no documents. Conclusion Citizen Action requests that NMED do the following: 1). Immediately enforce the 5-year review requirement of condition #5 of the Final Order; 2). Stay the LTMMP until such time as the 5-year review has been completed and the review has been made available to the public as provided for in Condition #5; 3).Order the LTMMP extension language for the five-year review be withdrawn from the LTMMP, and; 4). NMED strictly enforce Condition #5 at all times in the future. Sincerely, David B. McCoy, Esq. Executive Director Citizen Action New Mexico POB 4276 Albuquerque, NM 87196-4276 505 262-1862 dave@radfreenm.org Joni Arends, Executive Director Concerned Citizens for Nuclear Safety 107 Cienega Street Santa Fe, New Mexico 87501

Tel (505) 986-1973 Fax (505) 986-0997 www.nuclearactive.org Robert Gilkeson, Registered Geologist 7220 Central Ave. SE #1043 Albuquerque87108 rhgilkeson@aol.com