July 31, 2002 Hand-delivered

Secretary Pete Maggiore
New Mexico Environment Department
Harold Runnels Building
1190 South St. Francis Drive
Santa Fe, NM 87502-6110

Re: Comments on the Draft Corrective Action Order (draft CAO, or simply CAO) Issued by the New Mexico Environment Department (NMED) on May 2, 2002 under the Authority of the New Mexico Hazardous Waste Act (and implicitly, the Resource Conservation and Recovery Act, or RCRA) regarding Los Alamos National Laboratory (LANL)

Dear Mr. Maggiore -

Thank you for the opportunity to comment on the draft CAO. We have been studying the CAO and closely-related documents being promulgated by the NMED since early May, and have both comments and questions.

The CAO is a fragment of a larger agency decision-making process, which is secret

It is not easy to understand the complex tableau of agency decisions now in process, some of which are open to public comment and some of which are not. We do not fully understand either the law or the facts, and yet we must comment, in this venue and others, with what knowledge we have, because of the momentous decisions your agency is making - or perhaps has already made.

The fragmentation of these decisions, and the uncertainty regarding which decisions have and have not been made, is itself a matter of serious concern. It appears to be contrary to both hazardous waste law - in which the facility permit is the integrative locus of obligations at permitted site, barring an emergency - and good administrative practice.

This fragmentation is analogous, we might say, to fragmentation of projects and environmental analyses under the National Environmental Policy Act (NEPA). The decisionmaker, whether in an agency, in the public, or at the facility, cannot fully understand the scope of the decisions to be made when those decisions are artificially fragmented into a multiplicity of processes and venues.

We therefore appreciate your careful consideration of these comments and questions. Given the opacity of the processes underway at NMED, we also request your prompt reply.

First, please incorporate the following attached comments to this letter by reference. It may appear that some of the comments are directed to other documents, but we believe that NMED is making agency decisions regarding the actual work that might be done pursuant to actions taken in the CAO in a number of parallel processes, which are only formally separate from the CAO itself, which are evidenced by these documents. Some of these comments can be found at <http://www.lasg.org>.

• Los Alamos Study Group Press Advisory, May 8, 2002, Johnson administration Environment Department fails again to require Los Alamos cleanup; sets course for cleanup failure.
  
  
• Joint May 28, 2002 letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid expressing concern about the "Letter of Intent" then under negotiation by your agency, which was later signed on or about May 30, 2002. (Includes June 3, 2002 addendum.)
  
  
• Los Alamos Study Group, July 8, 2002, "Very Informal Comments on the May 31, 2002 "Letter of Intent" Signed by the New Mexico Environment Department (NMED), the U.S. Environmental Protection Agency (EPA), and the Department of Energy (DOE): "Meeting Environmental Responsibilities at New Mexico DOE Facilities"
  
  
• Los Alamos Study Group, July 10, 2002, "New Mexico Environment Department Sells Out"
• Los Alamos Study Group, July 18, 2002, "Brief Notes to the Administrative and Legal Processes Underway which Affect the Continuing Disposal of Nuclear Waste at Los Alamos and the Prospects for Cleaning Up Contaminated Sites There."
• U.S. Senate, July 24, 2002, "Report to accompany S. 2784, Energy and Water Development Appropriation Bill, 2003," (relevant portions)
  

Another way of saying this is that we believe the Administrative Record (AR) prepared to support the CAO is incomplete. We believe it should include at least some of the documents referenced in the above comments, for reasons already stated, together with the negotiating record that has led to them. This would include the documents supporting or recording meetings concerning the "High-Performing Teams," any and all "Accelerated Cleanup" proposals in which your agency has taken part (a process condemned by the relevant committee of the U.S. Senate), the "Performance Management Plan(s)" and the "Letter of Intent," at a minimum. All these documents appear to be part and parcel of permit decisions which are being hidden from the public, not at random but in order to obtain particular permitting outcomes. It is for this reason that we have requested some of these documents from you, but we have received neither any of these documents nor any schedule under which we might expect to receive them.

It cannot be emphasized enough that these other documents, some of which carry the imprimatur of the NMED, purport to replace any and all the decisions, toward the making of which the research to be conducted under the CAO would, in theory, apply.

The CAO is a permit action, both procedurally and substantively

The content of the CAO comprises, from every point of view, a very significant modification of the LANL operating permit - assuming for the moment that long-expired, but administratively-continued, permits can be modified. (If an expired, but continued, permit cannot be so modified, then the content of the draft CAO should properly be a draft portion of a new draft permit.) In either case, the content of the CAO is a major permitting decision being taken by NMED. As such, calling what are, in fact, permit conditions a "CAO" avoids the due process otherwise available under law for both the facility and the public, which includes formal public hearings. These hearings function both as a fact-finding forum and as a formal record of the same. In addition, the public has standing to compel permit compliance, whereas it appears that the public has no rights whatever to bring enforcement action pursuant to the CAO.

In effect, NMED is using the ruse of the "CAO" to insulate itself and LANL from meaningful public and agency participation in at least four direct ways, which correspond to four different time periods:

1) (After proposed, but prior to final, agency action) NMED is apparently promulgating the CAO with a public participation process which appears to be entirely voluntary on NMED's part, with no statutory or regulatory requirements, as opposed to the strict requirements that would apply if this were admittedly a permitting decision;

2) (Just after final agency action) NMED, by choosing to base the CAO not on permitting statutes and regulations but, inappropriately, on an investigative section of the Hazardous Waste Act (HWA, § 74-4-10.1), NMED has removed, or so it appears at this reading, any specific statutory or regulatory right of appeal for the final agency action;

3) (After final action, during the compliance phase) NMED, by placing the CAO and therefore most of the "cleanup" work to be done at the site outside the permitting process, has apparently also removed that work from the citizen enforcement provisions afforded under RCRA and the HWA, in which citizens have explicit standing at law to compel compliance with permit conditions; and finally

4) (Prior even to the proposed action) NMED, by setting virtually at nought the entire history of efforts by citizens and government alike to compel cleanup at LANL in favor of yet another de novo investigation, has also in effect wiped out some 17 years of joint compliance efforts, including literally hundreds of public meetings from 1989 to the present, at many of which specific cleanup proposals were discussed and debated. In addition, the Study Group alone has participated, over the past 12 years, in dozens of meetings with NMED officials at which technical considerations for cleanup have been discussed, often with considerable preparation. Through NMED's de novo approach, this and other prior expert public participation is also being, in effect, consigned to oblivion. NMED, in its CAO, is not advancing cleanup, but - deliberately, as it appears - retarding it.

What underlies especially this fourth abridgement of due process is not only legal and procedural, but also technical and substantive.

After careful budgetary reconstruction, the Study Group has determined that the facility has spent $701 million in its cleanup ("environmental restoration") program so far - attempting, however inadequately, to address the contamination present at the site. This work has produced a great number of field studies and analyses, with which your staff is reasonably familiar. They fill a small room. Likewise, Study Group employees and interns have also reviewed much of this material, over a period of many years.

Much, therefore, is known about this facility, more than is known at most - maybe all - hazardous waste sites in New Mexico. Much is known about every aspect of the site, about the contamination present, and even about what to do about it.

In particular, the approximate relative risks posed by various contaminated sites are, in general, known, as are some of the possible remedies at various sites. The absolute risks are, by contrast, neither known nor even knowable, and it is this road that the CAO chooses.

In many or even most cases, more detailed knowledge will be very costly, will be itself intrinsically fragmentary due to site heterogeneity. It will create "holes" that may be conduits for contamination at the site, and it will be, in most cases, largely irrelevant to remedy selection. The attempt to adequately characterize the complex geohydrology at LANL - adequately, that is, for defensible predictions of waste constituent migration over long distances from a given location - will simply fail. The range of potential risk at some of the important sites, like Area G for example, is so dominated by events which will or may take place at the surface, for which investigations along the lines chosen in the CAO are largely irrelevant.

In our view, it is past time to proceed with comparison of remediation strategies at the most problematic, largest sites, and to proceed directly to corrective action at most of the smaller sites. Some of the investigations proposed in the CAO will no doubt cost more than removal of the contamination.

What is more, it is often most cost-effective to combine investigation and removal or other remediation, particularly in the case of shallow aquifers and sediments.

To sum up this general point, the CAO has abridged statutory due process in favor of conducting further research that is in many cases logically and scientifically fallacious, and largely irrelevant from an engineering (i.e. risk reduction) perspective. NMED is ignoring the law because it is also ignoring the science. To say it another way, NMED is trying to duck good law in order to do bad science and bad engineering. This is not in the public interest and we believe it is not in the interest of the facility, either.

Thus we believe that the University of California (UC) is correct, in its suit filed against NMED on Jun 2, 2002, in its fourth and fifth claims for relief (paragraphs 45 through 55 in its complaint) when it avers that its procedural (fourth claim) and substantive (fifth claim) due process rights have been violated.

In fact you, Greg Lewis, Paul Ritzma, and Carl Will told us, on July 5, 2002 that the work required in the CAO would, in effect, take the place of an enforceable closure plan for areas G, H, and L of TA-54 in the forthcoming draft LANL permit. These closure plans are legally-required permit obligations - and are the subject of requests made to you by more than 2,000 people and 27 organizations, as well as by the Attorney General of New Mexico (this is an example of #4 above, ignoring prior public, expert, and agency input).

The present informal comment period is no substitute for what is legally required:

No ruling shall be made on permit issuance, major modification, suspension or revocation without an opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. (HWA §74-4-4.2 (H))

Detailed technical comments must await greater agency interest and clarification
of what decision-making processes NMED is actually following

Last year, we offered comments to you regarding the general nature of the anticipated CAO. We knew little about the proposed content, of course, and were ignorant as well about the law you might base such an order upon. We assumed the CAO would be oriented toward cleanup, and be based on existing permitting requirements. (We were wrong.)

Our cardinal point, in any case, was that NMED should not ask for investigations in any CAO, there being ample other regulatory means for this. What NMED has done is exactly the opposite of what we requested, which was supported by what we believed to be ample reasons given at the time.

We are flummoxed. We don't know how you are making decisions, or whether - unlike any time in the past year or more - you will include our input in your decisions. A detailed technical review of the CAO is an expensive proposition, and we simply can't afford to waste time and our supporters' funds if our analysis is not welcomed and valued. Every indication you have provided says it is not.

Sincerely,

Greg Mello,
Executive Director