hwbdocuments.env.nm.gov Alamos National Labs...Index of Comments Received through July 31, 2002 by...

I i

''"'~

... .... UBRARVCOPY "" "'I

,.,.

• ,Jill

""" ,,..

,.,.

""' STATE OF NEW MEXICO ... .. ENVIRONMENT DEPARTMENT '1

• RESPONSE TO COMMENTS

'"' DRAFT • ... LOS ALAMOS NATIONAL LABORATORY ORDER ,,..

,.,. NOVEMBER 26, 2002 ,.

VOLUMEl ,..,.

,,.

""' .. '""

'""

"'' 4ii

I

"" '" "!

'"' 11111111111111111111111111111111111

" 16122

"' ,,.

..

Index of Comments Received through July 31, 2002 by NMED on the Los Alamos National Laboratory (LANL) Draft Order

Unique No.

Date of Letter or

e-mail

Commenter - Association

Subject: Issue or Comment

1 05/02/2002 Glen Wurden, Citizen Violation Penalties 2 05/03/2002

06/11/2002

H. L. Daneman, Citizen (Letter to University of California)

Cleanup Program, CAB, Public Participation, Environmental Restoration Rating Schedule of Cleanup, Diversion of Cleanup Funds, CAB, Plutonium Pits, University of California, Accord Pueblos, Water Quality Task Force, Support

3 05/07/2002 Elizabeth Allen, Citizen Support, Compensation for Health Problems 4 05/08/2002

07/12/2002

07/30/2002

Lindsay A. Lovejoy, Jr., Assistant Attorney General, Attorney General of New Mexico

Use of Modeling Public Participation Public Participation, Accessibility of Information, TA-1; TA-3; TA-10, SWMUs 10-003(a) and 10-007; TA-15; TA-16, SWMU 16-003(o); TA-16, SWMU 16-008(a); TA-16, SWMU 16-108 (MDA P) and TA-16-387; TA-16, SWMUs 16-021(c) and 16-003(k); TA-18, SWMU 18-001(a,b,c); TA-21, SWMU 21-011(k); TA-21, SWMU 21-014 (MDA A); TA-21, SWMU 21-015 (MDA B); TA-21, SWMUs 21-106(a-c)(MDA T); TA-21, SWMUs 21-017(a-c) and 21-022(f) (MDA U); TA-21, SWMUs 21-013(b,g) and 21-108(a,b), MDA V); TA-21, SWMU 21-024(i); TA-32; TA-33; TA-35; TA-36; TA-39; TA-48; TA-49, SWMUs 49-001(a-g) and 49-003 and AOC C-49-008(d) (MDA AB, Areas 1, 3, 4, 11, 12); TA-49, SWMUs 49-005(a) and 49-006 and AOCs C-49-002, C-49-005(b), and C-49-008(a,b) (Areas 5, 6, 10); TA-50, SWMU 50-009 (MDA C); TA-53, SWMU 53-002(a,b); TA-54, SWMU 54-004 (MDA H); TA-54, SWMU 54-006 (MDA L); TA-54, SWMUs 54-013(b), 54-014(b-d),54-015(k), 54-017, 54-018, 54-019, and 54-020 (MDA G); TA-73, SWMUs 73-001(a-d) and 73-004(d) (Airport Landfill) (Drainages and Mesa Top); TA-73,

Index of Comments on the Los Alamos National Laboratory (LANL) Draft Order 11/26/02 Page 1 See associated table “NMED Response to Comments Received Through July 31, 2002 by NMED on the Los Alamos National Laboratory (LANL) Draft Order”


Unique No.

Date of Letter or



e-mail SWMU 73-002; Schedule of Deliverables by TA, Canyon, or Watershed

5 05/08/2002 John Bredehoeft, The Hydrodynamics Group Use of Modeling, Area G Performance Assessment 6 05/13/2002 Lydia Clark, Los Alamos Study Group Public Participation, Orders for Corrective Action, Cleanup

Standards, Cleanup Orders, Unpermitted Disposal Facilities, Letter of Intent

7 05/27/2002 Florence C. and Irwin R. Cromwell, Citizens Support 8 06/02/2002 James D. Dryer, Citizen Cleanup Methodology 9 06/06/2002 James R. Brannon, Northern New Mexico Citizens’

Advisory Board Support, Schedule of Cleanup, Working Relationships, ISE Determination, Previous Work at LANL, Accessibility of Information, Prioritization of Order, Duplication of Effort, DOE Resources, NMED Resources, Emphasis on Cleanup

10 06/07/2002 Donivan R. Porterfield, Citizen Accessibility of Information, Schedule for Document Review, MARLAP, Spelling, Correct Terminology, Gamma Spectroscopy, Variance Criteria, Chemical Analyses, Detection Limits, Laboratory QA/QC Requirements, QA, Control Limits

11 06/20/2002 Dorothy Hoard, Citizen Diversion of Cleanup Funds, ISE Determination, Previous Work at LANL, Transfer of Land, Compliance Schedule Tables, Reporting Requirements, NMED Resources

12 06/22/2002 Bonnie Bonneau, Citizen Support, ISE Determination, Radioactive Contamination, Independent Oversight

13 06/26/2002 Ditto Nowakoski, Citizen Radioactive Contamination 14 07/09/2002 Gareth Gallegos, Citizen Groundwater Cleanup, Post-Fire Concern, Schedule of

Cleanup, Cleanup Methodology 15 07/29/2002 Richard M. Weinstein, Citizen ISE Determination, Support, Past Non-Compliance,

Violation Penalties, Compliance Schedule Tables 16 07/30/2002 Fred Brueggerman, Deputy County Administrator, Los

Alamos County Support, SWMUs on Non-Federal Land, Schedule of Cleanup, Site Investigations, Newly Identified SWMUs or AOCs, Purposes, Voluntary Corrective Action Procedure, Document Review Schedule, Reporting Requirements,



Unique No.

Date of Letter or



e-mail Cleanup and Screening Levels, Drilling Methods, Voluntary Corrective Measures Plan/Report

17 07/30/2002 John Parker, Chief, DOE Oversight Bureau, State of New Mexico Environment Department

Reporting, Mortandad Canyon Watershed, Water Canyon/Canon de Valle Watershed, Pajarito Canyon Investigation, Sandia Canyon Investigation, Erosion Control and Monitoring, Section Reference

18 07/31/2002 Greg Mello, Los Alamos Study Group Los Alamos Study Group Press Advisory, May 8, 2002 May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid Los Alamos Study Group, July 8, 2002, “Very Informal Comments on the May 31,2002 Letter of Intent signed by NMED, EPA, and DOE Los Alamos Study Group, July 10, 2002, “New Mexico Environmental 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”

Administrative Record, Public Participation, Future Research, Closure Plans Cleanup Standards, Diversion of Cleanup Funds, Area G, Public Participation, NMED/DOE Collaboration Letter of Intent, Area G Letter of Intent, Accelerating Risk Reduction, Cleanup Program, National Security Mission, Long-Term Environmental Stewardship, Quick-to-WIPP, Watershed Aggregate Approach, Defining Regulatory Endpoint, Institutional Controls, Environmental Covenants Act, Use of Modeling, Public Participation, Protection of Workers, Innovative Cleanup Procedures, Performance Management Plan, Not provided ISE Determination, Previous Work at LANL, CAO, Public Participation, Letter of Intent, UC Lawsuit, Closure Plans, High Performance Teams, RCRA Operating Permit, Environmental Covenant Act, Area G Performance Assessment, Annual Unit Audit, Enforcement Actions,



Unique No.

Date of Letter or



e-mail Permit Modifications

19 07/31/2002 Dorelen F. Bunting, Albuquerque Center for Peace and Justice. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).

Letter of Intent, Area G

20 07/31/2002 Brian Shields, Amigos Bravos. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


21 07/31/2002 Dolores Herrera, Albuquerque San Jose Community Awareness Council. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


22 07/31/2002 Stephen Picha, The Center for Action and Contemplation. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


23 07/31/2002 Deborah Reade, Citizens for Alternatives to Radioactive Dumping. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


24 07/31/2002 John Horning, Forest Guardians. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


25 07/31/2002 Allison Moore, Green Party of Santa Fe. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


26 07/31/2002 Dan Piburn, Green Party of Santa Fe. May 28, 2002 Letter from 17 New Mexico environmental organizations




Unique No.

Date of Letter or



e-mail to Attorney General Patricia Madrid (submitted with LASG comments).

27 07/31/2002 Peter Neils, Native Forests Network. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


28 07/31/2002 Mark Sardella, Southwest Energy Institute. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


29 07/31/2002 Sam Hitt, Wild Watershed. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


30 07/31/2002 Harry Browne, Gila Resources Information Project. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


31 07/31/2002 David Bacon, Green Party. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


32 07/31/2002 Michael Guerrero, Southwest Organizing Project. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


33 07/31/2002 Jaime Chavez, Water Information Network. May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).


34 07/31/2002 Penelope McMullen, Sisters of Loretto Support, Compliance/Litigation, Public Participation,



Unique No.

Date of Letter or



e-mail May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).

Accessibility of Information Letter of Intent, Area G

35 07/31/2002 Geoffrey H. Fettus, Staff Attorney, and Christopher Paine, Senior Policy Analyst, Natural Resources Defense Council

Support; ISE Determination; Facility Investigation; Investigations for Other SWMUs and AOCs; On-Going Investigations; Compliance Schedule Tables; Immediate Remedial Action; Urgent Corrective Actions; Technical Area 50: MDA C; Area G; Technical Area 49: MDA AB, Areas 1, 3, 4, 11, and 12; SWMU-16-003(o); SWMU 16-008(a); SWMU 16-018 (MDA P) and TA-16-387; SWMU 16-021(c) and 16-003(k); Technical Area 54; Cleanup and Screening Levels; Cleanup Standards; Implementability; Risk-Based Variance from Cleanup Standards or Levels; Long-Term Stewardship; Long-Term Reliability and Effectiveness; Performance Management Plan; Special Technical Advisory Board, DOE Resources; NMED Resources; Reprisal Provision; Intent of Study Effort

36 07/31/2002 Jay Coghlan, Director, Nuclear Watch of New Mexico

ISE Determination, Diversion of Cleanup Funds, UC Lawsuit, Support, Orders for Corrective Action, Findings of Fact, Conclusions of Law, Purposes, Jurisdiction, Work Plans and Schedules, Availability of Information, Enforcement, Relationship to Work Completed, Integration with Permit, Facility Investigations, Groundwater Monitoring Plan, Background Investigation, Monitoring Wells and Piezometers, Springs, Sediment Investigation, Historical Investigation of Canyon Watersheds, Technical Area Investigations, Area G, TA-21 Historical Investigation, Technical Area 50 MDA C, Technical Area 49, Technical Area 10, Investigation for Other SWMUs and AOCs, Newly Discovered Releases from SWMUs or AOCs, Interim



Unique No.

Date of Letter or



e-mail May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).

Measures, On-Going Investigations, Risk Analysis General, Conceptual Site Model, Risk Screening Levels, Cleanup Standards, Remedy Evaluation Criteria, Approval of Corrective Measures Evaluation Report, Relationship to Corrective Action Requirements, Corrective Measures Implementation Plan, Community Relations Plan, Cleanup and Screening Levels, Implementability, Risk-Based Variance from Cleanup Standards or Levels, Investigations and Sampling Methods and Procedures, Monitoring Well Construction Requirements, Reporting Requirements, Compliance Schedules Tables, Reprisal Provision, Comparison to Other States’ Orders, Projected Cost of Compliance, Waste Inventories, QA, NMED Resources, Letter of Intent Letter of Intent, Area G

37 08/01/2002 Joni Arends, Waste Programs Director, Concerned Citizens for Nuclear Safety May 28, 2002 Letter from 17 New Mexico environmental organizations to Attorney General Patricia Madrid (submitted with LASG comments).

Public Participation, Facility, Canyon Watershed Investigations Background, Compliance/Litigation, Definitions, Document Retention, Enforcement, General Facility Information, Background Investigation, Springs, Corrective Measures Evaluation Report, Pre-LANL Cleanup Levels, Risk Analysis General, Section Reference, Threshold Criteria, Remedy Completion Report, Document Retention Letter of Intent, Area G

38 07/31/2002 John C. Browne, Director, Los Alamos National Laboratory (LANL) (submittal included Attachments 1 0

ISE Determination, Regulatory Authority, FWPCA, HE Compounds/Military Munitions, PCBs, Fairness Principles,



Unique No.

Date of Letter or



e-mail 7, noted below) Attachment 1 – Letter from Beverly Ramsey, Division Director RRES (July 30, 2002) Attachment 2 – ISE Determination Attachment 3 – Letter from Fred Brueggeman, Deputy County Administrator for County of Los Alamos Attachment 4 –Supplemental Comments Attachment 5 – Supplemental Comments

Human Health Risk Assessment, AEA, Mixed Waste, Remedy Selection Risk Reduction, Environmental Stewardship General Inconsistencies Notification of Risk Facility Operations, Definitions, Groundwater Investigation, Springs, Sediment Investigation, Surface Water Investigation, Canyon Watershed Investigations, Technical Area 10 Drilling Explorations, Groundwater Radionuclide Reporting Levels, Soil Cleanup Levels, Soil Radionuclide Reporting Levels Background, General Facility Information, Groundwater Investigation, Objectives, Groundwater Monitoring Plan, Background Investigation, Regional Wells, Springs, Surface Water Investigation, Pueblo Canyon Alluvial Groundwater Well Installation, Pueblo Canyon Groundwater Monitoring, Los Alamos Canyon Alluvial Groundwater Well Installation, Los Alamos Canyon Intermediate Groundwater Well Installation, Los Alamos Canyon Regional Groundwater Well Installation, Los Alamos Canyon Groundwater Monitoring, Mortandad Canyon Alluvial Groundwater Well Installation, Mortandad Canyon Intermediate Groundwater Well Installation, Mortandad Canyon Regional Groundwater Well Installation, Mortandad Canyon Groundwater



Unique No.

Date of Letter or



e-mail

Monitoring, Water Canyon/Canon de Valle Alluvial Groundwater Well Installation, Water Canyon/Canon de Valle Regional Groundwater Well Installation, Water Canyon/Canon de Valle Groundwater Monitoring, Pajarito Canyon Alluvial Groundwater Well Installation, Pajarito Canyon Regional Groundwater Well Installation, Pajarito Canyon Groundwater Monitoring, Sandia Canyon Groundwater Well Installation, Sandia Canyon Groundwater Monitoring, Groundwater Well Installation for the Other Canyons, Groundwater Monitoring for the Other Canyons, MDA G Survey of Disposal Units, MDA G Drilling Explorations, MDA G Soil and Rock Sampling, MDA G Intermediate Groundwater Well Installation, MDA G Regional Groundwater Well Installation, MDA G Groundwater Monitoring, MDA L Survey of Disposal Units, MDA L Intermediate Groundwater Well Installation, MDA L Regional Groundwater Well Installation, MDA L Groundwater Monitoring, MDA A Intermediate Groundwater Well Installation, MDA A Groundwater Monitoring, MDA B Intermediate Groundwater Well Installation, MDA B Groundwater Monitoring, MDA T Groundwater Monitoring, MDA U Intermediate Groundwater Well Installation, MDA U Groundwater Monitoring, MDA V Investigation, MDA V Drilling Explorations, MDA V Soil and Rock Sampling, MDA V Intermediate Groundwater Well Installation, MDA V Groundwater Monitoring, MDA C Survey of Disposal Units, MDA C Soil and Rock Sampling, MDA C Regional Groundwater Well Installation, MDA C Groundwater Monitoring, Technical Area 49 Drilling Explorations, Technical Area 49 Intermediate Groundwater Well Installation, Technical Area 49 Groundwater Monitoring,



Unique No.

Date of Letter or



e-mail Attachment 6 – Supplemental Comments

Technical Area 10 Drilling Explorations, Technical Area 10 Soil and Rock Sampling, Technical Area 10 Groundwater Monitoring, SWMU 16-018 (MDA P) and TA-16-387 Continued Investigation, Remedy Completion Report, LANL Standard Operating Procedures, Field Exploration Activities, Subsurface Features/Utility Geophysical Surveys, Soil, Rock, and Sediment Sample Field Screening, Soil, Rock, and Sediment Sample Types, Sample Point and Structure Location Surveying, Subsurface Vapor-phase Monitoring and Sampling, Groundwater Levels, Groundwater and Surface Water Sampling, Groundwater and Surface Water Sample Types, Sample Handling, Chemical Analyses, Laboratory QA/QC Requirements, Quality Assurance Procedures, Equipment Calibration Procedures and Frequency, Laboratory QA/QC Samples, Laboratory Deliverables, Review of Field and Laboratory QA/QC Data, Field Duplicates, Method Reporting Limits, Comparability, Laboratory Reporting, Documentation, Data Reduction, and Corrective Action, Well Screen and Filter Pack Design, Reporting Requirements, General, Investigation Work Plan, Executive Summary (Abstract), Investigation Methods, Monitoring and Sampling Program, Investigation Report, Exploratory Drilling or Excavation Investigations, Exploratory and Monitoring Well Boring Geophysical Logging, Materials Testing Results, Conclusions, Recommendations, Appendices, Chemical Analytical Reports, Periodic Monitoring Report, Tables, Figures, Risk Assessment Report, Conceptual Site Model, Risk Screening Levels, Risk Assessment Results, Corrective Measures Evaluation, Compliance Schedule Table 1 Facility Operations, Entry and Inspection, General Facility



Unique No.

Date of Letter or



e-mail

Information, Groundwater Investigation, Objectives, Groundwater Monitoring Plan, Geophysical Investigations, Background Investigation, Sediment Investigation, Surface Water Investigation, Canyon Watershed Investigations, Historical Investigation, Pueblo Canyon Source Area Investigations, Pueblo Canyon Sediment Sampling, Pueblo Canyon Surface Water Monitoring, Pueblo Canyon Alluvial Groundwater Well Installation, Pueblo Canyon Regional Groundwater Well Installation, Pueblo Canyon Groundwater Monitoring, Mortandad Canyon Alluvial Groundwater Well Installation, Mortandad Canyon Regional Groundwater Well Installation, Technical Area Investigations, Technical Area 54, MDA G Investigation Work Plan, MDA G Drilling Explorations, MDA G Canyon Alluvial Sediment Sampling, MDA G Regional Groundwater Well Installation, MDA H Investigation, MDA H Drilling Explorations, MDA H Soil and Rock Sampling, MDA H Sediment Sampling, MDA H Vapor Monitoring, MDA H Groundwater Well Installation, MDA H Investigation Report, MDA L Drilling Explorations, MDA L Canyon Alluvium and Sediment Sampling, MDA B Investigation Work Plan, MDA B Survey of Disposal Units, MDA B Drilling Explorations, MDA B Soil and Rock Sampling, MDA B Vapor Monitoring, MDA T Drilling Explorations, MDA U Investigation Work Plan, MDA U Survey of Disposal Units, MDA U Drilling Explorations, MDA U Soil and Rock Sampling, MDA U Vapor Monitoring, MDA V Investigation Work Plan, MDA B Survey of Disposal Units, MDA V Drilling Explorations, Historical Background, MDA C Survey of Disposal Units, MDA C Drilling Explorations, MDA C Vapor Monitoring, Technical Area 49 Drilling Explorations, Technical Area 10 Investigation, Aggregate Areas, Newly Identified SWMUs



Unique No.

Date of Letter or



e-mail Attachment 7 – Supplemental Comments

and AOCs, Site Investigations, SWMU 3-010(a), SWMU 3-010(a) Continued Investigation, SWMU 16-003(o), SWMU 16-008(a) Continued Investigation, SWMU 16-108 (MDA P) and TA-16-387, SWMU 16-018 (MDA P) and TA-16-387 Continued Investigation, SWMU 16-021(c) and 16-003(k) Continued Investigation, SWMU 21-024(i) Continued Investigation, TA-35 Continued Investigation, SWMUs 53-002(a and b), SWMUs 73-001(a-d) and 73-0004(d), SWMU 73-002 Continued Investigation, Erosion Control and Monitoring, Risk Screening Levels, Remedy Evaluation Criteria, Soil Cleanup Levels, Soil Radionuclide Reporting Levels, Investigation, Sampling, and Analyses Methods, General, Regulatory Criteria, Conclusions, Background, Table XII-2 Schedule of Deliverables by TA, Canyon, or Watershed, Table XII-3 Schedule of Deliverables by Calendar Year Facility, Facility Operations, Waste Management, Releases of Contaminants, Regulation of the Facility, Conclusions of Law, Definitions, Relationship to Work Completed, Background, General Facility Information, Surface Water Investigation, Pueblo Canyon Groundwater Monitoring, Mortandad Canyon Intermediate Groundwater Well Installation, Mortandad Canyon Groundwater Monitoring, Background, MDA V Investigation, Corrective Measures Evaluation Report, Groundwater Perchlorate Screening Levels, Soil Perchlorate Cleanup Levels, Surface Water Perchlorate Cleanup Levels, Tables


STATE OF NEW MEXICO

ENVIRONMENT DEPARTMENT

RESPONSE TO COMMENTS ON DRAFT ORDER UNDER THE NEW MEXICO

HAZARDOUS WASTE ACT §§ 74-4-10.1 and 74-4-13

LOS ALAMOS NATIONAL LABORATORY

NOVEMBER 26, 2002

VOLUME 1

RESPONSE TO COMMENTS LEGAL COMMENTS

Commenter: United States Department of Energy (“DOE”), and the Regents of the University of California (“UC”) (Commenter No. 38). Comment No. 1: DOE and UC state that to support the issuance of the Draft Order, the Environment Department placed the determination that there may be an imminent and substantial endangerment to health or the environment in an entirely separate document, “without precedent or authority in New Mexico administrative practice.” Comments at 18. Environment Department Response: The Environment Department’s action in preparing a separate determination that there may be an imminent and substantial endangerment to health or the environment at LANL (hereinafter “Endangerment Determination”) is not unprecedented. The Environment Department prepared a very similar document, finding that there may be an imminent and substantial endangerment, for the Sparton Technology facility in the North Valley of Albuquerque. The United States Environmental Protection Agency (“EPA”) also prepared a very similar document for the Sparton Technology facility. These documents were used to support three lawsuits filed in federal district court under sections 7002(a)(1)(B) and 7003 of the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6972(a)(1)(B) and 6973, consolidated as City of Albuquerque v. Sparton Technology, Inc., Nos. CIV-97-0206-LH, CIV-97-0208-JC, and CIV-97-0210-M (D.N.M. filed Feb. 19, 1997). See New Mexico Environment Department and New Mexico Office of the Natural Resources Trustee, Finding of Imminent and Substantial Endangerment, Sparton Technology, Inc. Facility (Feb. 14, 1997); U.S. Environmental Protection Agency Region VI, In the Matter of Sparton Technology, Inc., Determination of Imminent and Substantial Endangerment Pursuant to Section 7003 of RCRA and Section 1431 of the SDWA (Feb. 14, 1997). Nevertheless, the Environment Department agrees that it is probably simpler to include the Endangerment Determination, and all the findings that support it, in the Order. Accordingly, the Environment Department has revised the Order to include the Endangerment Determination, and is not issuing a separate document. Comment No. 2: DOE and UC state that the determination that there may be an imminent and substantial endangerment purports to be issued in final form without public comment. Comments at 18. Environment Department Response: New Mexico law does not require public comment on a determination that hazardous or solid waste may present an imminent and substantial endangerment to health or the environment. See NMSA 1978, § 74-4-13. Nor does New Mexico law require public comment on a determination that hazardous waste may present a substantial hazard to health or the environment. See NMSA § 74-4-

Los Alamos National Laboratory Draft Order November 26, 2002 Response to LANL Legal Comments

1

10.1.1 Nevertheless, many of the findings in the Endangerment Determination were included as findings of fact in the Draft Order. Thus, the public was given the opportunity to comment on the same findings as in the Endangerment Determination by commenting on the Draft Order. Moreover, the Environment Department is considering comments received from the public on the Endangerment Determination, and is revising the Endangerment Determination, now part of the final Order, largely in response to these comments. Comment No. 3: DOE and UC state that the Endangerment Determination is not supported by substantial evidence in the administrative record. Comments at 21. Environment Department Response: The Environment Department disagrees with this comment. The Endangerment Determination is supported by overwhelming evidence in the administrative record, as partially described in the facts set forth in Section II.A of the final Order, and the documents referenced therein.

Additionally, the Environment Department has concluded that the evidence necessary to support an order under section 74-4-13 is not significantly different from the evidence necessary to support corrective action requirements under section 74-4-4.2.B (or section 74-4-10.E). For the former, the Environment Department must find that the handling of any solid waste or hazardous waste “may present an imminent and substantial endangerment to health or the environment.” NMSA 1978, § 74-4-13.A. For the latter, the Environment Department must find that the corrective action is “necessary to protect human health and the environment.” See EPA, Corrective Action for Solid Waste Management Units at Hazardous Waste Management Facilities, 55 Fed. Reg. 30,798, 30,874 (proposed July 27, 1990) (was to be codified at 40 C.F.R. § 264.500(b))2; cf. NMSA 1978, § 74-4-10.E. The requisite finding is not substantially different. Interestingly, LANL seems to suggest that a corrective action order under section 74-4-10.E of the HWA would be supported by the evidence. See Comments at 123 (“NMED’s statements, the administrative record, and the content of the Draft Order itself indicate that, if anything, the Draft Order must be considered a Section 74-4-10.E corrective action compliance order”). Comment No. 4: DOE and UC state that section 74-4-13 of the HWA must be interpreted in accordance with federal judicial and administrative construction of sections 7002 and 7003 of RCRA, and that Price v. United States Navy, and Meghrig v. KFC Western, Inc. serve as the “twin guideposts” for such interpretation, and that courts have “increasingly scrutinized” endangerment cases in recent years. Comments at 21-22. Environment Department Response: The Environment Department generally agrees that section 74-4-13 of the HWA should be interpreted in accordance with judicial and 1 Nor do the corresponding federal laws, sections 3013 and 7003 of RCRA require public comment on such determinations. 42 U.S.C. §§ 6934 and 6973. 2 Although EPA never promulgated a final rule on corrective action for hazardous waste management facilities, it still considers the 1990 proposed rule, often referred to as “Subpart S,” to be useful guidance. 61 Fed. Reg. 19,432, 19434 (May 1, 1996)..


2

agency interpretation of sections 7003 and 7002(a)(1)(B) of RCRA, except perhaps where circumstances that are unique to New Mexico would warrant a different interpretation.

However, the Environment Department does not agree with the commenters’ characterization of the relevant judicial interpretations of those sections. In Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996) -- the only United States Supreme Court to address the imminent hazard provisions of RCRA -- the issue before the Court was not whether an endangerment existed at the KFC Western property. KFC Western had cleaned up the contamination on the property three years before it filed the lawsuit. Id. at 1253. Rather, the issue that the Court decided was whether KFC Western was entitled to recover its cleanup costs from the prior owners of the property as equitable restitution under section 7002(a)(1)(B) of RCRA. Id. Thus, the Court provided little guidance on what evidence is needed to prove that an endangerment may exist. In Price v. United States Navy, 39 F.3d 1011 (9th Cir. 1994), the issue was whether an endangerment still existed after the State of California had completed a cleanup action to address the endangerment. Id. at 1013. The cleanup was certified complete prior to the lawsuit, and the state’s witnesses testified that there was no longer an endangerment. Id. at 1020. The plaintiffs, relying on possible soil contamination beneath their house, did not conduct any testing of that soil. Id. at 1019. The court not surprisingly concluded that the plaintiff had “failed to produce sufficient evidence” to support the RCRA claim. Id. at 1018. These two cases, therefore, are not particularly useful “guideposts” for reviewing endangerment determinations, particularly for a facility such as LANL.

Nor does the Environment Department agree that courts have “increasingly scrutinized” endangerment claims in recent years. It is true that more cases have been brought under these provisions in recent years, and more of the cases have been brought by less sophisticated private plaintiffs, often in addition to more traditional nuisance or toxic tort claims. E.g., Singer v. Bulk Petroleum Corp., 9 F. Supp. 2d 916 (N.D. Ill. 1998). It does not follow, however, that recent decisions have scrutinized the claims any more carefully than older decisions. Comment No. 5: DOE and UC state that the Environment Department has the burden of proving that there may be an imminent and substantial endangerment to health or the environment. Comments at 22. Environment Department Response: The Environment Department agrees that it has the burden of proving that there may be an imminent and substantial endangerment to health or the environment. The Environment Department has met this burden, based on the facts set forth in Section II.A of the final Order. Comment No. 6: DOE and UC state that the Endangerment Determination is void and unenforceable because it is predicated on exempt activities, discharges, and contaminants. Comments at 20.


3

Environment Department Response: The Environment Department does not agree that the Endangerment Determination is based on exempt activities, discharges, and contaminants. The basis for the Environment Department’s position is explained in its responses to various comments below. Comment No. 7: DOE and UC state that the Endangerment Determination is based on the presence of soil and groundwater contamination alone, without a demonstration of exposure pathways, and that such basis is not adequate to support an endangerment finding. Comments at 22-25. Environment Department Response: The Environment Department does not agree that the presence of soil and groundwater contamination will not support an endangerment finding. The HWA refers to an “endangerment to health or the environment.” Both soil and groundwater are part of the environment. E.g., Raymond K. Hoxsie Real Estate Trust v. Exxon Educ. Found., 81 F. Supp. 2d 359, 367 (D.R.I. 2000) (“Groundwater, potable or not, and soil are a part of the environment”); Lincoln Props. Ltd. v. Higgins, 36 Env’t Rep. Cas. (BNA) 1228, 1240 (E.D. Cal. 1993) (although “RCRA does not define the term ‘environment,’ . . . it presumably encompasses the air, soil and water, including groundwater”).3

Thus, quite a number of courts have found that an imminent and substantial endangerment to the environment may exist from soil or ground water contamination. For example, in United States v. Northeastern Pharmaceutical and Chemical Co., 810 F.2d 726 (8th Cir. 1986), the court found an endangerment may exist based on high concentrations of dioxin, trichlorophenol, and toluene in water and soil samples. Id. at 730 and 745. In Lincoln Properties, the court was “not persuaded” by the defendants’ arguments that an endangerment must be “something more than ‘mere’ groundwater contamination.” 36 Env’t Rep. Cas. at 1241. The court noted that the “statute speaks of an endangerment to health or the environment,” and that the environment includes water. Id. (emphasis added). It concluded that “[n]either the statute nor the caselaw interposes an additional requirement that humans or other life forms be threatened.” Id. In Fairway Shoppes Joint Venture v. Dryclean U.S.A. of Florida, Inc., 27 Envtl. L. Rep. (ELI) 21,069 (S.D. Fla. 1996), the court identified, as an independent basis for its endangerment finding, “[t]he presence of excessive levels of perchloroethylene in the groundwater [which] also establishes an imminent and substantial endangerment to the environment, independent of whether the release of the dry cleaning chemicals may pose a threat to the public health.” Id. at 21,072. In Wilson v. Amoco Corp., 989 F. Supp. 1159 (D. Wyo. 1998), the court found that “[i]f left unabated migration of the contamination may impact what is currently uncontaminated, pristine groundwater.” Id. at 1176. The court concluded “[t]hat threat alone is a sufficient basis for the issuance of an injunction” under section 7003 of RCRA. Id. In Singer v. Bulk Petroleum Corp., 9 F. Supp. 2d 916 (N.D. Ill. 1998), the court denied a motion to dismiss based on allegations “that petroleum

3 The other federal law dealing with hazardous wastes, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), defines “environment” in section 101(8) as, among other things, “surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air.” 42 U.S.C. § 9601(8).


4

products have migrated through the soil, that petroleum contamination remains in the soil, and that such contamination requires a response.” Id. at 920. Such allegations, the court concluded, “are sufficient to plead that an ‘imminent and substantial endangerment’ exists.” Id. Likewise, in Marathon Oil Co. v. Texas City Terminal Railway Co., 164 F. Supp. 2d 914 (S.D. Tex. 2001), the court denied a motion to dismiss based on plaintiffs’ assertions of “uncontrollable migration or threatened migration of contaminants into the groundwater,” which “stated a prima facie claim under RCRA.” Id. at 920-21.

A threat to groundwater is particularly serious in New Mexico, an arid state that

relies heavily on its groundwater resources. Approximately 90 percent of New Mexico’s population uses groundwater for its drinking water. Alletta Belin, Consuela Bokum & Frank Titus, Taking Charge of Our Water Destiny: A Water Management Policy Guide for New Mexico in the 21st Century at 24 (2002). The State is growing and developing very rapidly, and thus consuming more groundwater each year. Between 1990 and 2000, New Mexico’s population grew by 20 percent, making it the twelfth fastest growing state in the nation. Id. at 1. According to the chief of the Environment Department’s Ground Water Quality Bureau, “[New Mexico’s] groundwater resources are essential to sustaining the state’s populace, its business and agriculture. They are essential to future growth and development. These resources must be preserved for both present and future generations.” Written Testimony of Marcy Leavitt, In re Application of Phelps Dodge Tyrone Inc. for a Supplemental Discharge Permit for Closure at the Tyrone Mine Facility, DP-1341, (Environment Department No. GWB 01-02) at 3 (May 17, 2002). Yet in many parts of the State, groundwater is being mined at rates that exceed the rate of aquifer recharge, and aquifers are declining. Belin, et al. at 25. A recent study of groundwater budgets in northern New Mexico estimated a net loss of groundwater storage in the Los Alamos sub-basin of 2,620 acre-feet per year. Duke Engineering & Services, Water Supply Study, Jemez y Sangre Water Planning Region, New Mexico at 146 (2001). According to another report, the water table level has declined from 10 to 100 feet at LANL between 1950 and 1993. DOE, Site-Wide Environmental Impact Statement For Continued Operation of the Los Alamos National Laboratory at 4-79 (Jan. 1999). The regional aquifer underlying the LANL facility supplies drinking water from the Guaje, Pajarito, and Otowi well fields to the communities of Los Alamos and White Rock, and to Bandelier National Monument. According to modeling conducted by LANL, the aquifer underlying LANL connects with the aquifer that serves the City of Santa Fe. A recent report shows that approximately 35 percent of the water pumped from the Buckman well field, which serves Santa Fe, is drawn from the west side of the Rio Grande. Although the water drawn from the west appears to recharge at higher elevations outside the LANL boundary, the water travels through the regional aquifer beneath LANL before reaching the Buckman well field. V. Vesselinov & E. Keating, Analysis of Capture Zones of the Buckman Wellfield and a Proposed Horizontal Collector Well North of the Otowi Bridge 27 (LA-UR-02-2750) (May 2000).

New Mexico law reflects the importance of the State’s groundwater resources.

The New Mexico Water Quality Act (“WQA”), enacted in 1967 and amended several times, is one of the strongest groundwater protection laws in the nation. The purpose of the WQA is, quite simply, “to abate and prevent water pollution.” Bokum Res. Corp. v.


5

N.M. Water Quality Control Comm’m, 93 N.M. 546, 555, 603 P.2d 285, 294 (1979). The WQA requires the State Water Quality Control Commission (“WQCC”) to “adopt water quality standards for surface and ground waters of the state” and to adopt regulations “to prevent or abate water pollution in the state.” NMSA 1978, § 74-6-4.C and D. In accordance with the WQA, the WQCC has adopted water quality standards and regulations requiring abatement of ground water contamination. 20.6.2 NMAC. Significantly, the express purpose of the WQCC Regulations is “to protect all ground water of the state of New Mexico which has an existing concentration of 10,000 milligrams per liter or less [total dissolve solids (“TDS”)], for present and potential future use as domestic and agricultural water supply.” 20.6.2.3101.A NMAC (emphasis added). The State policy reflected in these regulations is very important to the State’s endangerment analysis. As the court stated in Wilson v. Amoco Corp.:

Although Amoco notes there is little, if any, evidence that the groundwater is presently used for drinking purposes, that argument is relevant only with respect to threats to human receptors and ignores the position taken by the State of Wyoming that all groundwater in the State is important and should be protected for future consumptive uses.

989 F. Supp. at 1176; see also Hoxsie Real Estate Trust, 81 F. Supp. 2d at 366 (“Conformance with state environmental standards is relevant in determining whether contamination constitutes an imminent and substantial endangerment”). Comment No. 8: DOE and UC state that the Endangerment Determination does not state that contamination exists or threatens to exist in concentrations and through routes of exposure at such concentrations that pose a substantial hazard to humans or the environment. Comments at 23. Environment Department Response: The Environment Department does not agree that evidence of routes of human or ecological exposure to contaminants is necessary to support the Endangerment Determination. As explained in response to Comment No. 7, evidence of contaminants in soil or groundwater is adequate to support a finding of an endangerment to the environment, as soil and groundwater are part of the environment. Moreover, in finding that there may be an imminent and substantial endangerment, the Environment Department need not conclusively establish each link in the causal chain from release of a contaminant to actual harm. Courts have consistently held that it is not necessary to show actual harm to prove an "endangerment," only a risk of harm. E.g., Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir. 1991), rev'd in part on other grounds, 505 U.S. 557 (1992); United States v. Waste Indus, Inc., 734 F.2d 159, 165 (4th Cir.1984); United States v. Price, 688 F.2d 204, 211 (3d Cir. 1982).

4 The

4 Accord Maine People’s Alliance v. Holtrachem Mfg. Co., 211 F. Supp.2d 237, 246 (D. Me. 2002); Aiello v. Town of Brookhaven, 136 F. Supp. 2d 81, 115 (E.D.N.Y. 2001); Raymond K. Hoxsie Real Estate Trust v. Exxon Educ. Found., 81 F. Supp. 2d 359, 366 (D.R.I. 2000); United States v. Valentine, 856 F. Supp. 621, 626 (D. Wyo. 1994); Lincoln Properties, Ltd. v. Higgins, 36 Env't Rep. Cas. (BNA) 1228, 1240 (E.D. Cal. 1993); United States v. Ottati & Goss, Inc., 639 F. Supp. 1361, 1394 (D.N.H. 1985); United States v.


6

plaintiff, moreover, needs only to show that there may be an endangerment. RCRA § 7002(a)(1)(B), 42 U.S.C. § 6972(a)(1)(B); City of Burlington, 935 F.2d at 1355; Waste Indus., 734 F.2d at 165; United States v. Valentine, 856 F. Supp. 621, 626 (D. Wyo. 1994); Lincoln Properties, Ltd. v. Higgins, 36 Env't Rep. Cas. (BNA) 1228, 1240 (E.D. Cal. 1993). Thus, the statute "authorizes injunctive relief when there may be a risk of harm, not just when there is a risk of harm." United States v. Conservation Chem. Co, 619 F. Supp. 162, 193 (W.D. Mo. 1985)(emphasis in original). It is not necessary to "quantify" an endangerment (e.g., by showing excess cancer deaths will occur) to show that it is "substantial." Valentine, 856 F. Supp. at 626; Conservation Chem. Co., 619 F. Supp. at 175 and 194; Lincoln Properties, 36 Env't Rep. Cas. (BNA) at 1240. An inference of an endangerment may be based on circumstantial evidence. Valentine, 856 F. Supp. at 627. Congress has affirmed this interpretation. The Senate Report to the 1984 RCRA amendments, which made substantial amendments to section 7003, states that courts should recognize “that risk may be assessed from suspected, but not completely substantiated, relationships between facts, from trends among facts, from theoretical projections, from imperfect data, or from probative preliminary data not yet certifiable as ‘fact’” SEN. REP. NO. 284, 98th Cong., 1st Sess. 59 (Oct. 28, 1983) (internal quotes omitted), reprinted in 2 SEN. COMM. ON ENV’T & PUBLIC WORKS, A LEGISLATIVE HISTORY OF THE SOLID WASTE DISPOSAL ACT, AS AMENDED 2085 (1991) (hereinafter A LEGISLATIVE HISTORY OF RCRA). Moreover, the Environment Department included findings of routes of exposure to human and ecological receptors in the original Endangerment Determination, with references to supporting evidence in the record. In response to this comment, the Environment Department has expanded the section of the Endangerment Determination, now part of the final Order, that addresses “potential for exposure to contaminants.” See Order § II.A.8. It includes several references to contaminants that have been detected in soil or groundwater, many of them above standards. It also includes references to risks from exposure to ecological receptors. Such ecological receptors are part of the environment. See, e.g., Maine People’s Alliance v. Holtrachem Mfg. Co., 211 F. Supp. 2d 237, 248-251 (D. Me. 2002) (finding that an endangerment may exist based, in part, on ingestion of mercury by cormorants, ospreys, and eagles). Comment No. 9: DOE and UC state that studies conclude that there are no significant risks associated with contamination at the LANL facility. Comments at 23-24. DOE and LANL cite six studies in support of this comment. Comments at 24, n. 14. Environment Department Response: The Environment Department is aware of, and has considered, the studies that DOE and UC cite in support of this comment. However,

Conservation Chem. Co. 619 F. Supp. 162, 175 and 192 (W.D. Mo. 1984). See also Ethyl Corp. v. EPA, 541 F.2d 1, 13 (D.C. Cir. 1976) (en banc) (interpreting the term "endanger" in section 211(c)(1)(A) of the Clean Air Act, 42 U.S.C. § 7545(c)(1)(A)).


7

none of these studies contradicts the facts and conclusions set forth in the Order showing that an endangerment to health and the environment may exist.

Three of the five studies that DOE and UC cite in note 14 focused exclusively on the results of the Cerro Grande fire, and therefore did not consider comprehensive environmental risks from LANL waste disposal. These studies are short-term studies that did not address long-term fate and transport of contaminants. Moreover, these studies do not assess all potential pathways for contaminant migration or all potential receptors. For example, the LANL report Radiological and Nonradiological Effects After the Cerro Grande Fire, cited in note 14, looked at risks due to concentrations downstream of LANL to residents, fish consumers, crop irrigators, and produce consumers. However, in this LANL assessment, radionuclides were assessed based on annual radiation dose to the receptor, rather than on total lifetime excess risk of cancer. The results of that study are therefore not directly comparable to the criteria used to assess risk under RCRA. In addition, that report concluded that if individuals were exposed for long periods of time at some of the potential maximum concentrations calculated in the assessment, health effects could be possible. Id. at 1. The commenters also cite in note 14 “numerous conclusions” from the Agency for Toxic Substances and Disease Registry (“ATSDR”), without providing any further reference. ATSDR has done several health studies in the Los Alamos area (which are available on the ATSDR website). All but one of these studies addressed only risks from contamination that had migrated off the LANL facility in the surrounding pueblos and residential communities. These studies therefore were limited in scope and do not address risks on the LANL facility. ATSDR did one study on the facility in 1992 examining potential risks from exposure to radionuclides in Acid Canyon. Again, this study is limited in scope. Moreover, it was conducted in 1992 before additional sampling in Acid Canyon found much higher levels of contamination. The commenters also cite in note 14 two LANL reports, one addressing strontium-90 and one addressing tritium. These studies did not conform to regulatory quality control requirements, and have not been peer reviewed. The studies acknowledge the presence of both strontium-90 and tritium in the environment, but do not provide complete information on the extent of contamination or transport pathways. The studies are based on detected strontium-90 and tritium in the regional aquifer, but the studies do not provide information on the location of the data points within the contaminant plumes. Moreover, each study acknowledges that the level of the subject contaminant in water supply wells is likely to be diluted and that detections may be masked by the large dilution factor typical of production wells screened over large depth intervals that withdraw large quantities of groundwater. Comment No. 10: DOE and UC assert that tritium contamination at the LANL facility presents no substantial threat to health or the environment. Comments at 25-27. Environment Department Response: The Environment Department disagrees with this comment. Tritium has been detected in groundwater at the LANL facility, and in a


8

nearby drinking water supply well (Otowi-1) for Los Alamos County. LANL, Environmental Surveillance at Los Alamos During 2000 (Oct. 2000). However, the extent of tritium contamination at the LANL facility has not been fully investigated. Although the levels of tritium detected in drinking water supply wells is below EPA standards, it is likely to have been substantially diluted. The rate of groundwater withdrawal in municipal water supply wells often exceeds one thousand gallons per minute, and the screened interval is typically hundreds of vertical feet across multiple producing zones, resulting in a high degree of dilution of the sample. Detections may also have been masked by such dilution.

EPA has classified tritium as a known (Class A) human carcinogen. EPA, “April 2001 User’s Guide: Radionuclide Carcinogenicity for the HEAST Radionuclide Table” (2001). Tritium is considered a carcinogen based on its property of emitting ionizing radiation.

Moreover, although the detected tritium levels are below the drinking water standard for tritium, as the commenters point out, Comments at 26, that is not a purely health-based standard. Under the federal Safe Drinking Water Act (“SDWA”), 42 U.S.C.§§ 300f to 300j-26, EPA is required to set both maximum contaminant levels (“MCL’s”) and maximum contaminant level goals (“MCLG’s”) for drinking water contaminants. See SDWA § 1412(b), 42 U.S.C. § 300g-1(b). Section 1412(b)(4)(B) and (D) of the SDWA, requires that an MCL must be set “as close to the maximum contaminant level goal as is feasible . . . with the use of the technology, treatment techniques and other means [that are] available (taking cost into consideration).” 42 U.S.C. § 300g-1(b)(4)(B) and (D). Section 1412(b)(4(A) of the SDWA, requires that an MCLG must “be set at the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety.” 42 U.S.C. § 300g-1(b)(4)(A). EPA has set the MCL for beta particle and photon activity at 4 millirem per year (mrem/year) which, for tritium, is produced by an average annual concentration of 20,000 picocuries per liter (pCi/L). 40 C.F.R. § 141.66(d). EPA has set the MCLG for beta particle and photon activity, such as tritium, at zero. 40 C.F.R. § 141.55. EPA recently confirmed and retained the zero MCLG for beta particle and photon radioactivity. 65 Fed. Reg. 76,708, 76,722 (Dec. 7, 2000). Thus, although the tritium levels detected in these water supply levels are below the MCL, they are above the MCLG, a purely health-based standard that is more germane to an endangerment finding.

The Environment Department believes that this evidence is sufficient to support its finding that there may be an imminent and substantial endangerment to health and the environment from tritium contamination at the LANL facility. In addition, although the tritium levels detected in these water supply wells is below the MCL, the tritium contamination demonstrates an exposure pathway for contaminants detected at the LANL facility to reach human receptors. Comment No. 11: DOE and UC assert that perchlorate contamination at the LANL facility presents no endangerment to health. Comments at 28-31.


9

Environment Department Response: The Environment Department disagrees with this comment. Perchlorate has been detected above the EPA proposed drinking water equivalent level of 1 microgram per liter (“µg/L”) in groundwater at several locations beneath and surrounding the LANL facility. Perchlorate has been detected in Pueblo Canyon in regional aquifer wells, TW-1 at levels of 1.37 µg/L, and Otowi-1 at levels of 1.12 to 5.85 µg/L, and in intermediate groundwater in monitoring well POI-4 at levels of 1.73 µg/L. It has been detected in Mortandad Canyon in regional aquifer well TW-8 at 3.26 µg/L and alluvial wells MCO-3 at 33 to 280 µg/L, MCO-4B at157 µg/L, MCO-5 at156 to 252 µg/L, MCO-6 at 83.2 to 400 µg/L, MCO-7 at 69 to 282 µg/L, MCO-7.5 at252 µg/L, and CDBO-6 at2.38 µg/L. It has been detected in Los Alamos Canyon in regional aquifer well Otowi-4 at levels of 1.43 to 3.6 µg/L, and in alluvial well LAO-3A at levels of 1.17 to 1.28 µg/L. It has been detected in the Pajarito well field at wells PM-1 at 1.3 to 2.12 µg/L, PM-2 at 1.54 µg/L, PM-3 at 1.01 to 3.96 µg/L, PM-4 at 1.71 µg/L, and PM-5 at 1.05 to 2.42 µg/L. It has been detected in the Guaje well field at wells G-1A at levels of 2.9 µg/L, G-2A at 2.63 µg/L, G-3A at 2.64 µg/L, G-4A at 2.69 µg/L, and G-5A at 1.28 to 2.65 µg/L. Perchlorate has also been detected in Spring 4 at 2.35 to 8.49 µg/L, in Spring 4A at 12 µg/L, in Spring 4AA at 1.57 µg/L, in Spring 4B at 1 to 6.62 µg/L, at Spring 4C at 2.5 to 2.63 µg/L, in Spring 5 at 1.29 µg/L, in Basalt Spring at 1.3 µg/L, and in Sacred Spring at1.95 µg/L. LANL, “Water Quality Database,” Los Alamos National Laboratory, Los Alamos, New Mexico. (Oct. 2001). The extent of perchlorate contamination at the LANL facility has not been fully investigated. Moreover, the levels of perchlorate detected in drinking water supply wells is likely to have been substantially diluted. The rate of groundwater withdrawal in municipal water supply wells often exceeds one thousand gallons per minute, and the screened interval is typically hundreds of vertical feet across multiple producing zones, resulting in a high degree of dilution. Detections may also have been masked by such dilution. Perchlorate interferes with iodide uptake into the thyroid gland. Because iodide is an essential component of thyroid hormones, perchlorate disrupts the function of the thyroid. Changes in thyroid hormone levels may also result in thyroid gland tumors. Impairment of thyroid function in expectant mothers may impact the fetus and newborn and result in effects including changes in behavior, delayed development and decreased learning capability. EPA, Perchlorate Environmental Contamination: Toxicological Review and Risk Characterization. (Document NCEA-1-0503) (Jan. 16, 2002). EPA has proposed, in an external review draft of a toxicological assessment for perchlorate, a drinking water equivalent level for perchlorate of 1 µg/L. EPA, Perchlorate Environmental Contamination: Toxicological Review and Risk Characterization. (Document NCEA-1-0503) (Jan. 16, 2002) at pp. 7-23 to 7-24, discussed in more detail in response to comment No. 12 below. Other states have followed suit and issued advisories or action levels for perchlorate contamination in groundwater or drinking water. For example, the Commonwealth of Massachusetts has issued an advisory recommending that pregnant women, infants, and children not drink


10

water containing perchlorate concentrations exceeding 1 part per billion (ppb). Mass. Dep’t of Environmental Protection, Massachusetts Interim Drinking Water Advice for Perchlorate (Apr. 16, 2002). The State of California has reduced its action level for perchlorate from 18 to 4 µg/L. Cal. Dep’t of Health Services, Drinking Water Action Level for Perchlorate (Jan. 18, 2002). The State of Texas has likewise reduced its recommended interim drinking water action level for perchlorate from 22 to 4 ppb. Memorandum form Michael Honeycutt, Ph.D, Tex. Natural Resource Conservation Comm’n, to Margaret Hoffman, et al., TNRCC (Dec. 11, 2001).

The Environment Department believes that this evidence is sufficient to support its finding that there may be an imminent and substantial endangerment to health and the environment from perchlorate contamination at the LANL facility. Comment No. 12: DOE and UC state that the Environment Department “fundamentally mischaraterize[d] the significance of the 1 µg/l” proposed drinking water equivalent level for perchlorate. Comments at 29-31. Environment Department Response: The Environment Department does not agree that it has mischaracterized the significance of EPA’s 1 µg/l proposed drinking water equivalent level for perchlorate. However, the Environment Department recognizes that EPA’s action is tentative.

On January 16, 2002, EPA released the external review draft Perchlorate Environmental Contamination: Toxicological Review and Risk Characterization. (Document NCEA-1-0503) (Jan. 16, 2002). In this draft assessment, EPA presents a “proposed RfD” (reference dose) for perchlorate of 0.00003 milligrams per kilogram per day. Id. at p. 7-23 (emphasis added). The RfD is the total amount of perchlorate that can be ingested daily without adverse health effects. The draft assessment converts the RfD into a drinking water equivalent (“DWEL”). Id. at p. 7-24. The DWEL is the concentration in water that would result in person of the standard weight (70 kilograms) ingesting the standard amount of water (2 liters per day) receiving the reference dose of perchlorate per day. A DWEL is the concentration that would eventually be the health basis for a federal drinking water standard – a maximum contaminant level (“MCL”) – under the Safe Drinking Water Act if such a standard is promulgated. However, adoption of MCL’s includes a consideration of other factors: available treatment technology, the limits of analytical methods for detection, and costs. Nevertheless, given that the DWEL is the health-based level, it is an appropriate level upon which to base a determination that an imminent and substantial endangerment may exist. Comment No. 13: DOE and UC state that strontium-90 contamination detected in Los Alamos County wells is aberrant and unrepeatable and should not be a basis for an endangerment determination. Comments at 31-33. Environment Department Response: The Environment Department disagrees with this comment. The Environment Department has not received any evidence to indicate that the detections of strontium-90 in Los Alamos County wells are due to laboratory error.


11

Without any reports of sampling or laboratory errors, the Environment Department considers the analytical results to be accurate.

With respect to the interpretation of analytical results of radionuclide monitoring under the Safe Drinking Water Act, EPA has stated that “the analytical result is the number that the laboratory reports, not including (i.e. not adding or subtracting) the standard deviation.” 65 Fed. Reg. 76,727 (Dec. 7, 2000). LANL routinely applies standard deviations to its analytical results of groundwater monitoring. In its groundwater monitoring reports, LANL defines detections as “values exceeding both the analytical method detection limit (where available) and three times the individual measurement uncertainty.” E.g., LANL, Environmental Surveillance at Los Alamos During 2000 (LA-13861-ENV) 222 (Oct. 2001). While the Environment Department disagrees with this restrictive definition of “detection,” the strontium-90 analytical results for the Otowi-1 and Guaje-2 municipal drinking water supply wells meet the definition. The June 20, 2000 results for the first sample from Guaje-2 was 0.17 pCi/L, with an uncertainty value of 0.04 pCi/L, and a minimum detectable activity (“MDA”) of 0.13 pCi/L. The June 20, 2000 results for the duplicate sample from Otowi-1 was 0.19 pCi/L, with an uncertainty value of 0.05 pCi/L, and an MDA of 0.15 pCi/L. The August 3, 2000 results for Otowi-1 was of 0.23 pCi/L, with an uncertainty value of 0.14 pCi/L, and an MDA of 0.23 pCi/L. The Environment Department believes these are valid detections of strontium-90, and they meet even LANL’s restrictive definition of “detection.”

The commenters state that the collection of more than one sample increases the

probability of a false positive. Comments at 32. However, that is not always the case. The probability of false positive for one sample should be 5 percent. The probability for false positive detection in each sampling event increases proportionally to the number of samples. Thus:

The probability of false positive in one sample out of the total number of samples = (5 percent) x (number of samples)

However, every situation must be evaluated statistically based on available information. For example, for the detections of strontium-90 in the Otowi-1 in the year 2000, the probability for false positives in two consecutive sampling events, where the first sampling event consisted of three samples and the second sampling event of six samples, drops dramatically from 15 percent for the first event and 30 percent for the second event, to 4.5 percent for both events taken together. Thus, although the probability of false positive increases with the number of samples taken per sampling event, as more positive detections occur, the probability of false positives becomes increasingly unlikely. The probability of obtaining two false positive results from two consecutive sampling events is very low. According to the EPA guidance, the solution to false positive probabilities is the collection and analysis of a second independent sample, not reanalysis as is the usual LANL practice. EPA, Statistical Analysis of Ground-water Monitoring Data at RCRA Facilities, Addendum to Interim Final Guidance (1992). Moreover, the probability for a false negative is also 5 percent per sample. Thus, if two samples are taken and the analytical results show one detection and one with no detection, there is a 5 percent


12

chance that the “non-detect” is a false negative, as well as a 5 percent chance that the “detect” is a false positive.

The extent of strontium-90 contamination at the LANL facility has not been fully investigated. Moreover, the levels of strontium-90 detected in drinking water supply wells is likely to have been substantially diluted. The rate of groundwater withdrawal in municipal water supply wells often exceeds one thousand gallons per minute, and the screened interval is typically hundreds of vertical feet across multiple producing zones, resulting in a high degree of dilution. Detections may also have been masked by such dilution.

The Environment Department believes that this evidence is sufficient to support

its finding that there may be an imminent and substantial endangerment to health and the environment from strontium-90 contamination at the LANL facility. Comment No. 14: DOE and UC assert that nitrate contamination in Los Alamos County water supply wells is below the MCL and the WQCC water quality standard for nitrate and does not support an endangerment determination. Comments at 33. Environment Department Response: The Environment Department disagrees with this comment. Nitrate has been detected in groundwater at the LANL facility, and in nearby drinking water supply wells for Los Alamos County. LANL, Environmental Surveillance at Los Alamos During 2000 (LA-13861-ENV) at 337-342 (Oct. 2001). However, the extent of nitrate contamination at the LANL facility has not been fully investigated. Moreover, although the levels of nitrate detected in drinking water supply wells are below EPA standards, it is likely to have been substantially diluted. The rate of groundwater withdrawal in municipal water supply wells often exceeds one thousand gallons per minute, and the screened interval is typically hundreds of vertical feet across multiple producing zones, resulting in a high degree of dilution. Exposure to nitrate can cause methmoglobinemia resulting in cyanosis (“blue baby syndrome”) in infants under three months of age. EPA, Integrated Risk Information database (2002).

The Environment Department believes that this evidence is sufficient to support its finding that there may be an imminent and substantial endangerment to health and the environment from nitrate contamination at the LANL facility. Comment No. 15: DOE and UC state that the 2000 Environmental Surveillance Report does not support the Environment Department’s finding that “The Pueblo of San Ildefonso operates water supply wells to the east and downgradient of the Facility. The wells draw water from the regional and alluvial aquifers.” Comments at 33-34. Environment Department Response: The San Ildefonso Pueblo is located to the east and southeast of portions of the LANL facility. The direction of groundwater flow on the Pajarito Plateau is generally east or southeast. Therefore, any water supply wells


13

operated by San Ildefonso Pueblo are downgradient of at least a portion of the facility. In addition, regional aquifer contamination has been detected from the Guaje Well field located northeast of TA-10 and TA-74 to regional monitoring well R-31 located at TA-39 in the southeast portion of the facility. Wells in the Pueblo of San Ildefonso draw groundwater from regional and alluvial aquifers. E.g., LANL, Environmental Surveillance at Los Alamos During 1994 (LA-13047-ENV) 257 (July 1996). Comment No. 16: DOE and UC state that the 2000 Environmental Surveillance Report does not support the Environment Department’s finding that “The public water supply well for the City of White Rock, PM-1, is located on the east side of the Facility in Sandia Canyon. The well draws water from the regional aquifer.” Comments at 34. Environment Department Response: Water supply well PM-1 is located in Sandia Canyon on the east side of the facility and supplies water to the City of White Rock. It is a production well that draws water from the regional aquifer. LANL, Water Supply at Los Alamos: Current Status of Wells and Future Water Supply (LA-11332-MS) (1988). Comment No. 17: DOE and UC state that the RFI Work Plan for Operable Unit 1144 does not support The Environment Department’s endangerment finding, and concludes that there is no imminent threat, a relatively low potential for migration, and no pathways or receptors of short-term concern. Comments at 34. Environment Department Response: The Environment Department does not agree with the conclusions of this report, which was prepared by LANL. The Environment Department referenced certain data in the report in support of the Endangerment Determination. In doing so, the Environment Department does not accept LANL’s conclusions as to that data. Comment No. 18: DOE and UC state that the report of the Environmental Status of Technical Area 49, cited by the Environment Department, concludes that sediment samples showed no plutonium contamination. Comments at 34-35. Environment Department Response: The referenced document shows that four accidental releases of contaminants occurred in Areas 2 and 2B resulting in contamination of the ground surface. Consequently, LANL closed and capped Area 2 in 1961. Surface monitoring indicated contamination as high as 800,000 curies per million (cpm). Surface monitoring station A3, located in a drainage leading to Water Canyon directly adjacent to Areas 2, 2A and 2B, has shown plutonium-239 ranging from 0.01 to 17 pCi/g in sediments leaving the site. LANL, Environmental Status of Technical Area 49, Los Alamos, New Mexico (LA-11135-MS) (Nov. 1987).

Other documents in the record show lead and beryllium also have been detected in surface samples at concentrations greater than calculated background concentrations. LANL, RFI Work Plan for Operable Unit 1144 (LA-UR-92-900) (May 1992). The highest radionuclide concentration measured in a surface sample was approximately 1660 pCi/g of plutonium 239/240 for an individual sample at Area 2. Id. Beryllium was found


14

in the drainage in the northeast side of Area 2 in 1987. LANL, Stabilization Plan for Implementing Interim Measures and Best Management Practices at PRSs 49-001(b, c, d, and g) (LA-UR-98-1534 (1998). Comment No. 19: DOE and UC state that although the Endangerment Determination identifies specific isotopes used in containment studies and down-hole studies at TA-49, the references cited in the Endangerment Determination do not mention those specific isotopes. Comments at 35. Environment Department Response: The referenced documents show that LANL detonated HE and conducted nuclear device safety and related tests in underground shafts at TA-49. TA-49 contains Areas 1, 2, 2A, 2B, 3, 4, 5, 6, 11 and 12. These operations used conventional explosives and small amounts of fissile material. The tests resulted in releases of HE, barium, uranium, plutonium-239, americium-241, tritium, cesium-137, lead, and beryllium, in addition to other radioactive tracers used in the tests. The majority of the releases are in shafts at depths ranging from approximately 31 to 108 feet below the ground surface. Estimates of some of the contaminants in the subsurface include 90,000 kg of lead, 11 kg of beryllium, 93 kg of enriched uranium, 169 kg of depleted uranium, and 40 kg of plutonium. LANL, RFI Work Plan for Operable Unit 1144 (LA-UR-92-900) (May 1992); LANL, Stabilization Plan for Implementing Interim Measures and Best Management Practices at PRSs 49-001(b, c, d, and g) (LA-UR-98-1534 (1998). Groundwater was periodically observed in monitoring well, CH-2 (now plugged and abandoned) located at Area 2. Groundwater found in CH-2 during 1977 and 1978 contained 1.7 to 3.1 pCi/L of plutonium-239 and samples collected in 1979 and 1980 contained 0.1 and 5.5 pCi/L plutonium-239. Plutonium-239 and uranium were also detected in samples obtained in 1991 indicating subsurface contaminant migration that was not anticipated by historic site hydrogeology studies. Id. Comment No. 20: DOE and UC state that the Environment Department has made statements contrary to the Endangerment Determination. Comments at 36-37. Environment Department Response: The “contrary statements” that DOE and UC references do not in any way contradict the Endangerment Determination. Most of these “statements” are actually the absence of any statement on the issue. The fact that the Environment Department said nothing about an endangerment in its public statements during the months prior to issuing the Endangerment Determination has no bearing on whether an endangerment exists as a legal matter.

The only actual Environment Department “statements” DOE and UC rely on in this comment, taken from newspaper articles in the Santa Fe New Mexican and the Los Alamos Monitor, merely summarize in layman’s terms the holdings of several relevant federal judicial decisions. See, e.g., Dague v. City of Burlington, 935 F.2d 1343, 1355 (2d Cir. 1991), rev'd in part on other grounds, 505 U.S. 557 (1992) (it is necessary only to show that there may be an endangerment); Craig Lyle Ltd. P’ship v. Land O’Lakes, Inc., 877 F. Supp. 476, 482 (D. Minn. 1995) (an endangerment does not mean actual harm, only threatened or potential harm); United States v. Valentine, 856 F. Supp. 621,


15

626 (D. Wyo. 1994) (an endangerment can be imminent even though the harm may not be realized for years). Comment No. 21: DOE and UC argue that if an endangerment exists, the Environment Department should not have issued the Order in draft form and received public comment, but should have acted more expeditiously and prepared a directive that compelled similar prompt action. Comments at 38. Environment Department Response: The Environment Department is moving forward with the order as expeditiously as it believes is practicable. Given the complexity of the LANL facility, and therefore of the order, and given the intense public interest in this matter, the Environment Department determined that it would be most expedient to allow public comment on a draft of the order. By deciding to accept and address comments from the public, including DOE and UC, the Environment Department has sought to eliminate issues that might otherwise result in lengthy litigation of the Order and delay, for a much longer time, its implementation.

Finding that there may be an imminent and substantial endangerment to health and the environment is not tantamount to finding that there is an emergency. United States v. Valentine, 856 F. Supp. 621, 626 (D. Wyo. 1994); United States v. Waste Indust., Inc., 734 F.2d 159, 168 (4th Cir. 1984). Comment No. 22: DOE and UC argue that the “imminent and substantial endangerment order is in reality a corrective action order,” to “deprive the Laboratory of the statutory protections it is statutorily guaranteed for a corrective action order.” Comments at 38-39; 123-124. Environment Department Response: The Environment Department has broad discretion to use the available procedural and legal authority it deems to be most effective to protect health and the environment. A primary consideration in deciding to issue an order under section 74-4-13 of the HWA is that it allows the Environment Department to require the investigation and cleanup of both hazardous waste and solid waste. The other available authority,5 corrective action requirements in a permit issued pursuant to section 74-4-4.2.B of the HWA, would allow the Environment Department to require the investigation and cleanup only of “hazardous waste or constituents.” The terms “hazardous waste” and “hazardous constituents” are generally interpreted more narrowly than the term “solid waste.” Hazardous waste is a subset of solid waste. See, e.g., 40 C.F.R. § 261.3(a) (a solid waste is a hazardous waste if it meets certain enumerated criteria). Thus, for example, United States Environmental Protection Agency Guidance on the Use of Section 7003 of RCRA (Oct. 1997) advises, at page 4, that the EPA 5 DOE and UC assert the order “is in reality a corrective action order under HWA Section 74-4-10.H.” Comments at 38. That subsection does not authorize corrective action orders, but provides for public hearings for “any order issued pursuant to this section,” including compliance orders. The Environment Department assumes that the intended reference was to section 74-4-10.E. However, a corrective action order under section 74-4-10.E of the HWA applies only interim status facilities authorized to operate under section 74-4-9. Because LANL is, at least in part, a permitted facility, the authority of that provision is of limited effectiveness.


16

Regional offices should “consider using the tools available under Section 7003” instead of corrective action permit authorities if “these permit authorities are inadequate (for example, because they do not allow EPA to address the particular material present at the site or facility), cannot be used to address the potential endangerment in a timely manner, or are otherwise inappropriate for the potential endangerment at issue.” The guidance further advises, at page 8, that the EPA Regional offices “may consider using RCRA § 7003 instead of RCRA § 3008(h) in order to [a]ddress potential endangerments caused by ‘solid waste’ that meets the definition of the term under Section 1004(27) of RCRA, but which does not meet the definition of ‘hazardous waste’ under RCRA § 1004(5) and is not a hazardous constituent.” This is precisely the situation that the Environment Department faces in addressing investigation and cleanup of the LANL facility. A wide range of contaminants -- including radionuclides, mixed wastes, high explosives, polychlorinated biphenyls, and perchlorate, to name a few – are present at the LANL facility. Most of these contaminants meet the definition of solid waste, but fewer of them are hazardous wastes or hazardous constituents. Moreover, DOE and UC have argued that many of these contaminants are exempt from regulation as hazardous waste. Thus, the Environment Department chose to use the broader authority. Further, the Environment Department believed, and continues to believe, that a final order under section 74-4-13 could be issued more expeditiously than a final permit under section 74-4-4.2. Comment No. 23: DOE and UC note that the Endangerment Determination failed to cite section 74-4-13 of the HWA. Comments at 39-40. Environment Department Response: The Environment Department agrees that the Endangerment Determination failed to cite section 74-4-13 of the HWA. This omission was due to a clerical error. The statute is correctly cited in the final Order. Comment No. 24: DOE and UC apparently maintain that the Environment Department is not authorized to issue an endangerment determination without simultaneously also issuing an order or filing a judicial action. Comments at 40-41. Environment Department Response: The Environment Department disagrees with this comment. Nothing in section 74-4-13 of the HWA suggests that an endangerment determination cannot be made independently of an enforcement action, or that the two actions must be taken simultaneously. In the Sparton Technology matter, discussed above, both the Environment Department and EPA issued an endangerment determination, in a separate document, before filing a judicial action. Nonetheless, this comment is now effectively moot, as the Environment Department has issued the final Order which includes a revised endangerment determination. Comment No. 25: DOE and UC state that the Environment Department failed to notify local government agencies, specifically Los Alamos County, of the Endangerment Determination as required by section 74-4-13.B of the HWA. Comments at 41.


17

Environment Department Response: The Environment Department notified Los Alamos County of the Endangerment Determination by letter from Peter Maggiore, Cabinet Secretary, New Mexico Environment Department, to Ms. Mary McErny, Administrator, Los Alamos County, dated May 2, 2002, the same day the Environment Department issued the determination. Comment No. 26: DOE and UC state that the Endangerment Determination and the order seek to regulate source, special nuclear, and byproduct material, as defined in the Atomic Energy Act of 1954, which are exempt from regulation under RCRA and the HWA. Environment Department Response: The Environment Department agrees that “source, special nuclear, and byproduct material” is exempt from the definition of solid waste under RCRA and the HWA. RCRA § 1003(27), 42 U.S.C. § 6903(27); NMSA 1978, § 74-4-3.O. However, as explained below, the Environment Department can require monitoring and reporting of radionuclides that are source, special nuclear, or byproduct material to the extent necessary to properly regulate solid and hazardous wastes. The Environment Department can also regulate radionuclides that are not source, special nuclear, or byproduct material and are solid wastes, such as accelerator produced radioactive wastes.

LANL has the burden of showing that it is entitled to the exemption for source, special nuclear, or byproduct material. LANL has not provided any information to demonstrate that the origin of the radionuclide contamination at the facility is source, special nuclear, or byproduct material. The Environment Department has added a new paragraph in Section I (Introduction) of the final Order to clarify this issue, largely in response to this and similar comments. Order at 2. Comment No. 27: DOE and UC state that the Endangerment Determination is “based primarily” on the alleged presence, impacts, and dangers of source, special nuclear, and byproduct material generated by LANL, and that these materials are the “dominant driver” of the order’s requirements. Comments at 46-49. Environment Department Response: The Environment Department disagrees with this comment. While the Endangerment Determination is based, in part, on radionuclide contaminants, it is based in much greater part on other contaminants. For example, the commenters cite Paragraphs 27 through 52 of the original Endangerment Determination, which describes waste management practices at various parts of the LANL facility. Comments at 46. These findings are also based on generation and disposal of “solid wastes,” “hazardous wastes,” “hazardous constituents,” “mixed wastes,” “chemicals,” “organic chemicals, “volatile organic compounds,” “solvents,” “electroplating wastes,” “acid,” “acid solutions,” “caustic solutions,” “corrosive gases,” high explosives, “lithium hydride,” “iodide waste,” “esthers,” “perchlorate,” “ammonia,” “ammonium bifluoride,” “PCB’s,” “acetone,” “cyanide solutions,” “barium,” “beryllium,” “chromium,” “lead,”


18

and “nickel.” Moreover, the findings in the next section of the original Endangerment Determination (Paragraphs 53-111), which extensively describe releases of contaminants at the LANL facility, are based primarily on releases of contaminants other than radionuclides. See Section III of the original Endangerment Determination. The commenters also cite Paragraphs 112-119, the next section, of the original Endangerment Determination, which describes contaminants found in drinking water wells. Comments at 47. These findings are significant to show a pathway for migration of contamination from LANL to drinking water supply wells, regardless whether the individual contaminants that have been detected are shown to be exempt.

Moreover, many of the radioactive wastes described in the Endangerment Determination are not source, special nuclear, or byproduct material. Some of these radioactive wastes are produced from particle accelerators, and are not covered by the exemption. Some of these radioactive wastes may include exempt and non-exempt radionuclides, but they have been commingled so as to be inseparable.

Nevertheless, in response to this comment, the Environment Department is enhancing the references to chemical contaminants. See Order § II.A. Comment No. 28: DOE and UC state that the Order would require “investigative, monitoring and corrective tasks addressed to radionuclides, including source, special nuclear and byproduct materials.” Comments at 47-49, 63-64. Environment Department Response: The Environment Department agrees that the Order requires monitoring and reporting of radionuclides that may be source, special nuclear, and byproduct material, as well as radionuclides that do not fall into these categories. The Environment Department has authority to require such monitoring and reporting.

In the final Order, the Environment Department is requiring monitoring and reporting of radionuclides that may be source, special nuclear, or byproduct material to the extent that such monitoring and reporting is incidental to regulation of solid and hazardous waste. Although the Order requires an investigation of groundwater, surface water, and soil contamination that is directed to contaminants from solid and hazardous wastes and hazardous constituents, monitoring and reporting of radionuclide contamination is very important for several reasons.

First, monitoring and reporting of radionuclides is necessary because detection of radionuclide can provide an indication of how other, hazardous contaminants are behaving. For example, tritium is a radionuclide that tends to migrate quickly in groundwater, and to precede other forms of contamination. In this way, tritium contamination can indicate the presence of ground water contamination moving toward a given monitoring well. It can establish the existence of a pathway for exposure to hazardous or solid waste constituents. Likewise, at any given solid waste management unit or other disposal area, one or another radionuclide may move more quickly than the hazardous constituents at that disposal area. The relative speeds of these constituents,


19

moreover, may be affected by myriad other factors, such as pH, soil porosity, or soil chemistry. Data on radionuclide contamination, while not the focus of the investigation, can nevertheless often provide valuable and important information to the persons conducting and reviewing the investigation.

Second, monitoring and reporting of radionuclides is necessary to ensure that samples and investigation derived wastes are handled properly. For example, if the Environment Department decides to take a split sample from a particular well, it needs to know if significant radionuclide contamination has been detected in that well previously, in order to handle and dispose of the sample properly. Radioactive samples are subject to special packaging and labeling requirements under Department of Transportation regulations. 49 C.F.R. pts. 171 to 179. Some laboratories may not accept radioactive samples for analysis, or may charge an additional fee for handling radioactive samples. See, e.g., New Mexico Environment Dep’t Professional Services Price Agreement Labaoratory Analytical Services at 35.

Third, monitoring and reporting of radionuclides is necessary for the Environment Department to determine appropriate cleanup levels for contaminants from solid and hazardous wastes and hazardous constituents. All radionuclides are classified as Class A carcinogens by the EPA, as described in the April 2001 User’s Guide: Radionuclide Carcinogenicity for the HEAST Radionuclide Table from the EPA Office of Radiation and Indoor Air Radiation Protection. Radionuclides are considered carcinogens based on their property of emitting ionizing radiation and on the extensive weight of evidence provided by epidemiological studies. Radionuclides have been assigned HEAST slope factors for carcinogenicity and are evaluated by the same methods used for chemical carcinogens. Under RCRA, the Environment Department screens all media at sites against its target goal of 10-5 total excess risk of cancer for the site. Therefore, the individual screening level for each carcinogen can be divided by the number of carcinogens known to be present at the site to generate the screening level for that site for each individual carcinogen. Alternatively, the concentration of each carcinogen present can be divided by its screening level and multiplied by 10-5; these contributions are summed to generate the total carcinogenic risk from the site. Either method requires knowledge of the total number of carcinogens, including radionuclides present at the site. This information is used to set risk-based cleanup levels for non-radioactive contaminants at the site. The total risk goal is delineated in section 1.2.3 (Target Risk and Hazard) of the Environment Department guidance, Technical Background Document for Development of Soil Screening Levels (NMED-00-008). As EPA states in the proposed Subpart S rule, “All other factors being the same, the media cleanup standard for a constituent present in a medium that is contaminated with many other constituents posing significant risks may be established at a lower concentration than if that constituent were the sole contaminant in the medium.” 55 Fed. Reg. 30,798, 30,827 (July 27, 1990).

Such requirements for monitoring and reporting of radionuclides incidental to regulation of solid and hazardous wastes was upheld by the federal district court and by the Tenth Circuit in United States v. New Mexico, 35 Env’t Rep. Cas. (BNA) 1693


20

(D.N.M. 1992), aff’d 32 F.3d 494 (10th Cir. 1994). Indeed, the original permit, Module VIII, issued by EPA under RCRA, included very similar requirements for monitoring and reporting of radionuclides. See LANL Hazardous Waste Facility Permit, Module VIII, Special Conditions Pursuant to the 1984 Hazardous and Solid Waste Amendments to RCRA for the Los Alamos National Laboratory, at 8, 10, 18, 42, 46, 51, 52, and 53.

Moreover, the Atomic Energy Act of 1954 (“AEA”), 42 U.S.C. §§ 2011 to 2297g-

4, does not provide for such monitoring and reporting for purposes of environmental cleanup. The AEA does not address protection of the environment, and it does not provide for investigation and cleanup of environmental contamination. Thus, the AEA does not preempt the field of environmental cleanup. United States v. Kentucky, 252 F.3d 816, 821 (6th Cir. 2001), upon which the commenters rely, does not hold otherwise. The state law found to be preempted in Kentucky was not a cleanup requirement. Rather, it was permit requirement for disposal of radionuclides in a solid waste landfill. 252 F.3d at 820.

The Order also requires monitoring and reporting of radionuclide contaminants that are not clearly source, special nuclear, or byproduct material. Many of the radionuclide contaminants at LANL are non-exempt accelerator produced radioactive material (ARM), which are not regulated under the Atomic Energy Act and which the Environment Department has authority to regulate. See Response to Comment No. 40 below. Thus, the Order requires monitoring and reporting of tritium. Tritium can be produced in a nuclear reactor, in which case it is byproduct material, or it can be produced in a particle accelerator, in which case it is neither source, nor special nuclear, nor byproduct material and therefore, once discarded, meets the definition of solid waste. See Gassie v. SMH Swiss Corp., 1999 WL 539489 at *2 (E.D. La. 1999) (“If tritium is produced in a nuclear reactor, it is ‘byproduct material’ within the meaning of” the AEA; though “not all tritium is byproduct material”). Other examples of radionuclides that are commonly produced in accelerators, include cobalt-60, sodium-22, krypton-81. See, e.g., DOE, Integrated Data Base Report – 1996: U.S. Spent Nuclear Fuel and Radioactive Waste Inventories, Projections, and Characteristics at 7-8 (Revision 13 Dec. 1997). LANL has operated several particle accelerators at the facility, including four accelerators operated during World War II; a high-energy Van de Graaff located at TA-3, Building 16; a cyclotron located in the Physics Building at TA-3; a Low-Energy Demonstration Accelerator located at TA-53, Building 365, which operated from approximately 1998 until 2001; and a proton linear accelerator at the Los Alamos Neutron Science Center in TA-53, which began operating in 1972. Letter from Ralph E. Erickson, DOE and James L. Holt, LANL to James Bearzi, Environment Department (Sept. 20, 2002). These accelerators produced radioactive waste that has been disposed at LANL. For example, accelerator produced radioactive waste, including cobalt-60, sodium-22, strontium-90, and tritium have been disposed in lagoons at TA-53. LANL, Interim Action Plan for Potential Release Site 53-002(a) (LA-UR-01-5535) at A-4 to A-8 (Nov. 2001).

Contrary to the assertions of DOE and UC, the Order does not require any cleanup measures to specifically address radionuclides. However, the Environment


21

Department may require cleanup of radionuclides that are not source, special nuclear, or byproduct material Comment No. 29: DOE and UC state that the Order requires “immediate corrective action relating to many SWMUs containing radionuclides.” In particular, the commenters refer to the Order’s requirement for soil and tuff removal or site stabilization at the site of the former radioactive liquid waste disposal plant at TA-21. Comments at 48. Environment Department Response: The Environment Department does not disagree with the factual statement of this comment. While the Order requires corrective action for certain solid waste management units, these units contain solid or hazardous wastes or hazardous constituents. Indeed, the fact that these units have been designated “solid waste management units” indicates that they have received solid wastes. While these units also contain radionuclides, that fact is incidental. For example, the former radioactive liquid waste disposal plant, to which the commenters refer, used ferric sulfate6 to treat radioactive wastes prior to disposal. The plant discharged metals including copper, mercury, lead, and zinc, and chlorinated solvents. LASL, Environmental Surveillance at Los Alamos During 1973 (May 1974); DOE, Comprehensive Environmental Assessment and Response Program Phase I (1987). Soil at the plant site has contained, among other contaminants, mercury and trichloroethylene. LANL, Voluntary Corrective Measures Plan for Solid Waste Management Unit 21-011(k) at Technical Area 21 (LA-UR-02-6797) at 15 (Revision 2 Oct. 2002). Comment No. 30: DOE and UC assert that the order “unlawfully” sets radionuclide cleanup levels by including calculated excess cancer risks in establishing cleanup levels for other constituents. Comments at 48-49. Environment Department Response: The Environment Department disagrees with this comment. This issue is addressed in response to Comment 28. Comment No. 31: DOE and UC state that the Atomic Energy Act (“AEA”) established a comprehensive scheme for the regulation of source, special nuclear, and byproduct material. Comments at 49-53. Environment Department Response: The Environment Department does not agree that the AEA establishes a comprehensive regulatory scheme for environmental regulation of source, special nuclear, and byproduct material. Nevertheless, the final Order does not include, and is not intended to include, any requirements that regulate source, special nuclear, or byproduct material. The Order only contains requirements for monitoring and reporting of radionuclides as incidental to regulation of solid and hazardous waste. The Environment Department has added a new paragraph in Section I (Introduction) of the final Order to clarify this issue, largely in response to this and similar comments. Order at 2. 6 Ferric sulfate, once discarded, is a solid waste under RCRA and the HWA. It is also a “hazardous substance” under CERCLA. 40 C.F.R. § 302.4 (Table 302.4).


22

Comment No. 32: DOE and UC state that RCRA and the HWA exempt from the definition of solid waste source, special nuclear, and byproduct material as defined in the AEA. Comments at 53-54. Environment Department Response: The Environment Department generally agrees with this comment. The final Order does not include, and is not intended to include, any requirements that regulate source, special nuclear, or byproduct material. The Order only contains requirements for monitoring and reporting of radionuclides as incidental to regulation of solid and hazardous waste. The Environment Department has added a new paragraph in Section I (Introduction) of the final Order to clarify this issue, largely in response to this and similar comments. Order at 2. Comment No. 33: DOE and UC state that the HWA “provides that it shall not apply to ‘any activity or substance’ which is ‘subject to’ the AEA.” Comments at 54. Environment Department Response: The Environment Department believes that this comment mischaracterizes the cited section of the HWA. That section provides that “[n]othing in the [HWA] shall be construed to apply to any activity or substance which is subject to . . . the [AEA] except to the extent that such application or regulation is not inconsistent with the requirements of such acts.” NMSA 1978, § 74-4-3.1 (emphasis added). The Environment Department believes the emphasized language significantly limits the general provision quoted by the commenters. Comment No. 34: DOE and UC state that the Environment Department has no authority to regulate source, special nuclear, or byproduct material under the HWA. Comments at 54-59. Environment Department Response: The Environment Department generally agrees with this comment. The final Order does not include, and is not intended to include, any requirements that regulate source, special nuclear, or byproduct material. The Order only contains requirements for monitoring and reporting of radionuclides as incidental to regulation of solid and hazardous waste. The Environment Department has added a new paragraph in Section I (Introduction) of the final Order to clarify this issue, largely in response to this and similar comments. Order at 2. Comment No. 35: DOE and UC state that the Environment Department cannot rely on United States v. New Mexico, 32 F.2d 494 (10th Cir. 1994), to require monitoring and reporting of radionuclide contamination, apparently even if it is incidental to regulation of solid and hazardous waste. DOE and UC argue that preemption was not adjudicated in that decision. Comments at 56-57. Environment Department Response: The Environment Department disagrees with this comment. The AEA regulates, and preempts states from directly regulating, source, special nuclear, or byproduct material. Conversely, RCRA and the HWA exempt source special nuclear, and byproduct material as defined by the AEA. Both the district court


23

and the court of appeals in United States v. New Mexico recognized that such material is exempt under RCRA. 35 Env’t Rep. Cas. (BNA) at 1696; 32 F.3d at 496, n. 1. Yet both courts held that the state can require the monitoring and reporting of radionuclides, even though the radionuclides are source, special nuclear, or byproduct material, in order to implement its statutory and regulatory authority over hazardous waste. These courts concluded that such requirements were not substantive regulation of radionuclides, but were regulation of hazardous waste. That conclusion, and the practical bases for the conclusion, apply with equal force under a preemption analysis. Comment No. 36: DOE and UC state that the Environment Department has only very limited authority to regulate the “non-AEA” portion of mixed waste. Comments at 59-62. Environment Department Response: The Environment Department does not believe that this comment is relevant, because the Order does not expressly address mixed waste.

Nevertheless, the Environment Department agrees with this comment insofar as it states that the AEA regulates the source, special nuclear, and byproduct material component of mixed waste and that RCRA and the HWA regulate the hazardous (and solid waste) component of mixed waste. New Mexico v. Watkins, 969 F.2d 1132 (D.C. Cir. 1992). The final Order does not include, and is not intended to include, any requirements that regulate the source, special nuclear, or byproduct material component of mixed waste. The Order only contains requirements for monitoring and reporting of radionuclides as incidental to regulation of solid and hazardous waste. The Environment Department has added a new paragraph in Section I (Introduction) of the final Order to clarify this issue, largely in response to this and similar comments. Order at 2.

The Order does not contain any cleanup measures to specifically address radionuclides, or mixed waste. However, the Environment Department may eventually require cleanup of mixed wastes at the LANL facility. Such cleanup requirements may indirectly result in the cleanup of the source, special nuclear, or byproduct material component of mixed waste if such component cannot be separated from the mixed waste. See Sierra Club v. U.S. Dep’t of Energy, 734 F. Supp. 946 (D. Colo. 1990) (finding that hazardous waste mixed with exempt plutonium is nevertheless subject to regulation as hazardous waste). Comment No. 37: DOE and UC cite Brown v. Kerr-McGee Chemical Corp., 767 F.2d 1234 (7th Cir. 1985), as holding that “state agency action exceeded RCRA jurisdiction and infringed on exclusive AEA jurisdiction because of the inseparable nature of mixed waste.” Comments at 61. Environment Department Response: The Environment Department disagrees with this comment. The Brown case cited by the commenters is inapposite. Contrary to the comment, Brown was neither a state agency action, nor was it based on RCRA jurisdiction. Rather, the plaintiffs were three private individuals owning residential property who brought the action under “state law tort theories.” 767 F.2d at 1236. Thus,


24

the Brown court did not consider the requirements of RCRA, or the EPA rules addressing mixed waste. Comment No. 38: DOE and UC state that the AEA preempts the Environment Department from regulating radionuclides in mixed waste. Comments at 62-65. Environment Department Response: The Environment Department agrees that the AEA preempts the Environment Department from directly regulating the source, special nuclear, or byproduct material component of mixed waste. However, the Environment Department is not preempted from requiring monitoring and reporting of radionuclides as incidental to regulation of solid and hazardous waste. See discussion in response to Comment 22 above. Comment No. 39: DOE and UC state that the AEA preempts the Environment Department from requiring corrective action of mixed waste because it would result in a conflict between the AEA and RCRA and would “stand as an obstacle to DOE’s accomplishment of the full purposes and objectives of its AEA mandate to protect nuclear safety.” Comments at 65. Environment Department Response: The Environment Department disagrees with this comment. As DOE and UC acknowledge, EPA determined that “wastes containing both hazardous waste and radioactive waste are subject to the RCRA regulation.” 51 Fed. Reg. 51504 (July 3, 1986); see also New Mexico v. Watkins, 969 F.2d 1122, 1132 (D.C. Cir. 1992) (“EPA, however, the agency charged with RCRA administration, has now definitively interpreted RCRA as covering these substances”). DOE itself has stated that “the definitional exclusion and the language of section 1006(a) [of RCRA] are correctly understood to provide for the regulation under RCRA of all hazardous waste, including waste that is also radioactive.” 52 Fed. Reg. 15937, 15940 (May 1, 1987).

Thus, mixed wastes are subject to RCRA, including corrective action and other cleanup requirements. According to EPA guidance on low-level mixed waste, “The corrective action provisions of [RCRA] apply to facilities that handle mixed waste.” EPA, Low-Level Mixed Waste: A RCRA Perspective for RCRA Licensees (EPA/530-SW-90-057 at 12 (Aug. 1990).

Requiring corrective action or otherwise requiring cleanup of mixed waste would not result in a conflict between the requirements of the AEA and the requirements of RCRA. Section 1006(a) of RCRA, and section 74-4-3.1 of the HWA, both allow regulation of a substance or activity which is subject to the AEA, provided that such application or regulation “is not inconsistent with the requirements” of the AEA. The requirements of RCRA and the AEA have been generally found to be consistent. In 1988, EPA and NRC conducted a joint review of their respective regulations “to delineate the extent of inconsistencies between EPA’s hazardous waste and NRC’s radioactive waste management requirements.” EPA concluded: “No inconsistencies were identified as a result of this comparison.” EPA, Clarification of Interim Status Qualification Requirements for the Hazardous Components of Radioactive Mixed Waste, 53 Fed. Reg.


25

37045, 37048 (Sep. 23, 1988). Although EPA found that RCRA was in some instances more prescriptive or more stringent than the AEA, EPA recognized that “[d]iffering or more stringent regulations do not necessarily constitute inconsistent requirements.” Id. EPA determined that where the regulatory requirements differed, they were sometimes “found to be complementary,” but “were not found to be inconsistent.” Id. Since making this finding, EPA and NRC have worked to integrate the two sets of regulations. See, e.g., NRC and EPA, Joint EPA/NRC Guidance on Testing Requirements for Mixed Radioactive and Hazardous Waste, 62 Fed. Reg. 62,079 (Nov. 20, 1997).

DOE and UC have the burden of showing a specific inconsistency between the requirements of the order and the requirements of the AEA. Edison Elec. Inst. v. EPA, 36 Env’t Rep. Cas. (BNA) 1913, 1921 (D.C. Cir. 1993) (“Petitioners, however, are unable to point to any direct conflict between the EPA’s position and any specific provision of the AEA”); Legal Envtl. Assistance Found., Inc. v. Hodel, 586 F. Supp. 1163, 1167 (E.D. Tenn. 1984) (“The burden is on defendants, however, to show that such an inconsistency would result”). DOE and UC in their comments do not point to any direct conflict between the Order and the AEA. Comment No. 40: DOE and UC state that the AEA preempts the Environment Department from regulating naturally occurring and accelerator produced radioactive material. Comments at 73-76. Environment Department Response: The Environment Department disagrees with this comment. The Atomic Energy Act of 1954 (“AEA”), 42 U.S.C. §§ 2011 to 2297g-4, regulates three different classes of radioactive material: source material, special nuclear material, and byproduct material. United States v. Kentucky, 252 F.3d 816, 821 (6th Cir. 2001); see 42 U.S.C. §§ 2014(e), (z), and (aa). The AEA does not regulate naturally occurring or accelerator produced radioactive material (“NARM”). Gassie v. SMH Swiss Corp., 1999 WL 539489 at *2 (E.D. La. 1999). Thus, the Environment Department is not preempted from regulating such material. DOE has long recognized this distinction. In its 1996 Integrated Data Base Report, DOE stated:

NARM wastes are currently not regulated by any federal agency. Responsibility for regulating the disposal of NARM is not addressed in the [AEA]. Regulation of NARM disposal currently rests with the states as part of their authority for ensuring the protection of public health and safety.

DOE, Integrated Data Base Report – 1996: U.S. Spent Nuclear Fuel and Radioactive Waste Inventories, Projections, and Characteristics at 7-1 (Revision 13 Dec. 1997). Comment No. 41: DOE and UC state that the DOE nuclear safety requirements have the same preemptive effect as federal statutes. Comments at 75. Environment Department Response: The Environment Department disagrees with this comment. In support of their preemption argument, the commenters cite two DOE executive orders, DOE Order 435.1 (July 9, 1999) and DOE Order 420.2A (Jan. 8, 2001),


26

and DOE regulations at 10 C.F.R. pts. 820, 830, and 835. These executive orders and regulations do not have the effect of preempting state law. To begin with, for an agency order to preempt state law, it must be a substantive “legislative” rule, adopted after notice and comment under section 553 of the Administrative Procedure Act (“APA”). New York v. Trans World Airlines, 728 F. Supp. 162, 180 (S.D.N.Y. 1990). Although agency orders “may embody the [agency’s] enforcement policy, . . . that does not imbue them with sufficient power to preempt state law.” Id. The referenced DOE orders were not adopted under the notice and comment procedures of the APA. 5 U.S.C. § 553. Furthermore, for an agency regulation or order to preempt state law, the agency must manifest its intent to do so. “When agency preemption is at issue, the inquiry focuses on whether the agency intended to preempt state law and whether it had the authority to do so.” Symans v. Smithkline Beecham Corp., 152 F.3d 1050, 1053 (8th Cir. 1998). The regulations and orders that DOE cites manifest no intent to preempt state hazardous and solid waste cleanup laws. Indeed, these regulations and orders have only the most tenuous connection to environmental cleanup. The DOE regulations that the commenters cite are procedural rules, 10 C.F.R. pt. 820; general nuclear safety requirements, 10 C.F.R. pt. 830; and occupational safety requirements, 10 C.F.R. pt. 835. None of these regulations specifically addresses cleanup of environmental contamination. Nor do they express any intent to preempt state law. The DOE orders that the commenters cite address radioactive waste management, DOE Order 435.1; and the safety of accelerator facilities, DOE Order 420.2A. Again, neither order specifically addresses environmental cleanup, and neither order expresses an intent to preempt state law. To the contrary, DOE Order 435.1 states that “Radioactive waste shall be managed to . . . [c]omply with applicable Federal, State, and local laws and regulations.”

Finally, for an agency regulation or order to preempt state law, Congress must have given the agency the authority to do so. Symens, 152 F. 3d at 1053. The AEA contains no clear Congressional grant of authority providing for agency preemption of all state hazardous and solid waste cleanup laws as they apply to radionuclides. The AEA regulates three different classes of radioactive material: source material, special nuclear material, and byproduct material. United States v. Kentucky, 252 F.3d 816, 821 (6th Cir. 2001). There is nothing in the AEA, explicit or implicit, authorizing agency preemption of state laws regulating other radioactive materials. Comment No. 42: DOE and UC state that the AEA and RCRA conflict because DOE uses a dose-based approach to determining cleanup levels under the AEA, while EPA uses a risk-based approach under RCRA. Comments at 77-78. Environment Department Response: The Environment Department disagrees that this difference results in any conflict between the AEA and RCRA. A dose-based approach can be incorporated into risk assessment under RCRA. As EPA concluded after comparing the requirements of the AEA and RCRA, “[n]o inconsistencies were identified as a result of this comparison.” EPA, Clarification of Interim Status Qualification


27

Requirements for the Hazardous Components of Radioactive Mixed Waste, 53 Fed. Reg. 37045, 37048 (Sep. 23, 1988). Comment No. 43: DOE and UC state that the AEA and RCRA conflict because DOE nuclear safety requirements under the AEA are “more protective” and “more rigorous” than those required under RCRA. Comments at 78. Environment Department Response: The Environment Department disagrees that these differences result in any conflict between the AEA and RCRA. As EPA concluded after comparing the requirements of the AEA and RCRA, “more stringent regulations do not necessarily constitute inconsistent requirements.” EPA, Clarification of Interim Status Qualification Requirements for the Hazardous Components of Radioactive Mixed Waste, 53 Fed. Reg. 37045, 37048 (Sep. 23, 1988). Comment No. 44: DOE and UC state that the “unnecessary” increased monitoring requirements in the Order would result in increased worker exposure to radionuclides and thus make it impossible for DOE to comply with the nuclear safety requirements under the AEA. Comments at 79. Environment Department Response: The Environment Department disagrees with this comment. It disagrees that the monitoring required under the Order is “unnecessary.” Quite the contrary, it is necessary to determine the character and extent of contamination at LANL, and ultimately to protect the public health and the environment. Such monitoring, if conducted properly, will not result in a significant increase in worker exposure to harmful radiation. As the Nuclear Regulatory Commission and EPA state in their joint guidance on testing mixed waste, “[f]lexibility in the RCRA requirements is emphasized so that the As Low As is Reasonably Achievable (ALARA) concept can be incorporated into the mixed waste testing activities.” Joint NRC/EPA Guidance on Testing Requirements for Mixed Radioactive and Hazardous Waste, 62 Fed. Reg. 62,079, 62,081 (Nov. 20, 1997). Comment No. 45: DOE and UC state that cleanup actions under RCRA and the HWA would “often conflict with DOE requirements and result in DOE’s inability to also comply with its nuclear safety requirements.” They state that RCRA imposes remedial actions based solely on consideration of chemical hazards present, most commonly excavation and disposal of contaminated soils and buried wastes. Comments at 79. Environment Department Response: The Environment Department disagrees with this comment, for several reasons. First, the Order does not require any cleanup measures to specifically address radionuclides. Second, any such cleanup measures that may eventually be required will take into account not only the chemical hazards present, but the radioactivity hazards, as well. Indeed, this is one reason why the Order requires monitoring and reporting of radionuclide contamination. Third, while the “most commonly” implemented remedy under RCRA for contaminated soils and buried waste may be excavation and disposal, it is not the only remedy. In selecting cleanup measures, the Environment Department will seek comments from the public, including LANL, and


28

will take radioactive hazards into account. Innovative technologies, such as in situ vitrification, will be considered in appropriate circumstances. RCRA cleanup actions can be implemented consistently with the AEA. Comment No. 46: DOE and UC state that the exemption in the HWA for “industrial discharges which are point sources subject to permits under Section 402 of the federal Water Pollution Control Act, as amended” prohibits the Environment Department from exercising regulatory authority over surface waters, sediments, and groundwater containing materials discharged by laboratory point sources from 1972 to the present. Comments at 82-98. Environment Department Response: The Environment Department does not agree that the exemption for industrial discharges serves to shield DOE and UC from liability under the HWA for investigation and cleanup of contaminated soil, sediment, or groundwater in the canyons at LANL, or investigation of associated surface water. The Environment Department has concluded that the exemption does not apply to such contaminated soil, sediment, or groundwater. Moreover, even if the exemption is generally applicable to these contaminated media, it would apply only to contamination resulting from permitted discharges. After carefully reviewing the comments, as well as RCRA and its legislative history, relevant case law, and various EPA guidance and other documents, the Environment Department has concluded that the exemption for industrial discharges was never intended to apply to contamination or threatened contamination of soil, sediments, and groundwater downstream of a permitted outfall. Rather, the Environment Department believes the exemption for discharges from point sources subject to permits was intended to apply to just that: discharges from industrial outfalls. The purpose of the exemption is to prevent duplicative regulation. Inland Steel Co. v. Environmental Protection Agency, 901 F.2d 1419, 1423 (7th Cir. 1990). Thus, a party disposing of hazardous waste by discharging it through a permitted industrial outfall, for example, need not obtain a hazardous waste disposal facility permit under RCRA. However, downstream contamination of soil, sediment, and groundwater is not exempt from the broad cleanup authorities of section 7003 of RCRA and its analogue, section 74-4-13 of the HWA. In reaching this conclusion, the Environment Department is mindful that section 7003 of RCRA, and section 74-4-13 of the HWA which was modeled on section 7003, is a remedial statute and should be interpreted liberally to further its intended purposes. See Atlantic Richfield Co. v. American Airlines, Inc., 98 F.3d 564, 570 (10th Cir. 1996) (“because CERCLA is remedial legislation, it should be construed liberally to carry out its purpose”); Colorado v. Idarado Mining Co., 916 F.2d 1486, 1492 (10th Cir. 1990) (CERCLA is a remedial statute and its provisions should be construed liberally”), cert. denied 499 U.S. 960 (1991); United States v. Valentine, 835 F.Supp. 1506, 1511 (D. Wyo. 1995) (“RCRA is a remedial statute which is to be liberally construed”). Conversely, exceptions to liability under a remedial statute, such as RCRA and the HWA, should be narrowly construed. See Idaho v. Hanna Mining Co., 882 F.2d 392, 396 (9th Cir. 1989).


29

DOE and UC seem to have implicitly agreed with this application of the exemption, by designating the contaminated areas associated with outfalls as “solid waste management units,” a RCRA term which suggests an area designated for RCRA cleanup. See, e.g., RCRA § 3004(u), 42 U.S.C. § 6924(u) (requiring corrective action for “solid waste management units”); EPA, Corrective Action for Solid Waste Management Units at Hazardous Waste Management Facilities, 55 Fed. Reg. 30,798, 30,874 (proposed July 27, 1990) (was to be codified at 40 C.F.R. § 264.501) (defining “solid waste management unit” for corrective action). For example, “SWMU No. 35-016(g) is an “active outfall” (NPDES Permit No. 04A127) that discharges from the Target Fabrication Facility, Building 35-213, at TA-35 into Mortandad Canyon. LANL, RFI Work Plan for Operable Unit 1129 (LA-UR-92-800) at 3-57 (May 1992). It is also significant that the Clean Water Act provides no remedy for this contamination. Although the Clean Water Act provides a remedy to address unlawful industrial point source discharges, it does not provide a remedy to address contaminated soil, sediment, or groundwater. As the court stated in Inland Steel, “The purpose of the exemption in section 1004(27) of [RCRA] . . . is to avoid duplicative regulation, not to create a regulatory hole.” 901 F.2d at 1423.

Furthermore, even if the exemption for industrial point source discharges is applicable to contaminated soil, sediment, and groundwater, such contamination must be the result of a permitted discharge pursuant to the National Pollutant Discharge Elimination System under section 402 of the Clean water Act, 33 U.S.C. § 1342. Contamination in the canyons at LANL is the result of a variety of releases and discharges of contaminants beginning in the early 1940’s and continuing to the present. While some of those discharges may arguably be exempt as industrial discharges which are point sources subject to permits under section 402 of the Clean Water Act, a significant portion of those discharges clearly are not.

First, the exemption clearly does not apply to point source discharges at LANL that occurred prior to October 18, 1972, the date section 402 of the Clean Water Act was enacted. Although LANL (or Los Alamos Scientific Laboratory as it was known until 1981) kept few records of its discharges between 1943 and 1972, documents in the administrative record show that many such discharges occurred. A few examples follow:

• Beginning in 1950, LANL discharged photo processing waste from Buildings

21 and 22 at TA-8 into Pajarito Canyon. Approximately 1 to 4 gallons per minute (gpm) was discharged from Building 21 and approximately 1 to 5 gpm was discharged from Building 22. LANL, CEARP Phase I at p. TA8-7 (Draft Oct. 1987); LANL, Pajarito Canyon Work Plan at 2-5 (Sept. 1998); LANL, RFI Work Plan for Operable Unit 1157 (LA-UR-93-1230) at 5-10 (July 1993).

• Beginning in 1952, LANL discharged high explosives, acids, chemicals, and solvents from various sumps at TA-9 into Pajarito Canyon. LANL, Solid Waste Management Units Report (Nov. 1990); LANL, CEARP Phase I at p. TA9-4 (Draft Oct. 1987).


30

• From 1943 until approximately 1965, LANL discharged a variety of contaminants into Los Alamos Canyon from former TA-1. The discharges included mercury, solvents, and other unspecified chemicals, and were suspected to have included chromium. LANL, Work Plan for Operable Unit 1049 at 2-12 (Nov. 1995).

• During the 1950’s, LANL discharged contaminants that probably included high explosive compounds and photographic laboratory wastes containing silver and organic compounds from Building 8 in Area R-40 at TA-15 into Three Mile Canyon. LANL, Pajarito Canyon Work Plan (LA-UR-98-2550) at 2-24 to 2-25 (Sept. 1998).

• During the 1940’s, LANL discharged photographic processing chemicals from former TA-4 through an outfall above Cañada de Buey. LANL, Solid Waste Management Units Report (Nov. 1990); LANL, Mortandad Canyon Work Plan (LA-UR-97-3291) at 2-11 (Sept. 1997).

• From 1944 through 1959, LANL discharged radioactive and chemical constituents from a darkroom and shop at TA-5 into Mortandad Canyon. LANL, Mortandad Canyon Work Plan (LA-UR-97-3291) at 2-11 (Sept. 1997); LANL, RFI Work Plan for Operable Unit 1129 (LA-UR-92-800) at 3-17 (May 1992).

• From 1951 until 1963, LANL discharged at least 2,690,165 gallons of treated wastewater from the treatment plant at TA-35 into Pratt Canyon, a tributary to Mortandad Canyon. The plant treated the waste water to reduce its radioactivity, and the treated effluent contained caustic, acid, dielectric oil, other unknown chemicals, and radionuclides. LANL, Mortandad Canyon Work Plan (LA-UR-97-3291) at 2-12 to 2-17 (Sept. 1997).

• Beginning in 1958, LANL discharged hydrochloric acid and nitric acid from Building 24 at TA-46 through Outfall Y into SWSC Canyon, a tributary to Pajarito Canyon. The discharge is also suspected to have contained volatile organic compounds, semi-volatile organic compounds, PCB’s, mercury, and other metals. LANL, RFI Work Plan for Operable Unit 1140 at 5-122 to 5-123 (Aug. 1993).

• From 1951 until 1985, LANL discharged treated cooling water from the waste water treatment plant at TA-3 into a small tributary of Sandia Canyon. Until 1972, the effluent contained hexavalent chromate. LANL, Sandia Canyon and Cañada del Buey Work Plan (LA-UR-99-3610) at 2-13 (Sept. 1999).

• From 1964 until 1976, LANL discharged caustic wash and rinse water from compressed-gas cylinder cleaning operations at the Compressed Gas Facility, Building 170, into Sandia Canyon. The discharge contained heavy metal precipitates and semi-volatile organic compounds from paint stripping. LANL, VCA Plans for PRS, Group 3 at 8 (June 7, 1995).

• At various times in the 1960’s and 1970’s, LANL discharged various contaminants from Buildings 38, 105, and 207 at TA-3 into Sandia Canyon.


31

Discharges from the Sherwood Building, Building 105, included dielectric insulating oil and hydraulic oil containing PCB’s. During 1968, discharges from the Johnson Controls shop, Building 38, included Stoddard solvent containing xylene and petroleum naphtha. In the 1960’s and 1970’s, discharges from Building 38 contained cutting oils contaminated with beryllium particles. LANL, RFI Work Plan for Operable Unit 1114, Addendum 1 at 5-25-1 (July 1995).

Second, the exemption clearly does not apply to unpermitted point source discharges that occurred at LANL prior to December 31, 1974. Under section 402(k) of the Clean Water Act, “[u]ntil December 31, 1974, in any case in which a permit for discharge has been applied for pursuant to this section, but final disposition of such application has not been made, such discharge shall not be a violation” of section 402. 33 U.S.C. § 1342(k). DOE and UC assert that industrial point source discharges “subject to” permits under section 402 means “point sources that should have a permit in place, whether in fact they do or not.” Comments at 84. However, even assuming arguendo that DOE and UC are correct in this assertion (which the Environment Department does not believe), under section 402(k), until December 31, 1974, point sources were not required to have a permit in place.

Third, contrary to the assertion of DOE and UC, the exemption does not apply to any point source discharge of contaminants at LANL prior to the issuance of a permit for that discharge. Lutz v. Chromatex, 725 F. Supp. 258, 263 (M.D. Pa. 1989); United States v. Allegan Metal Finishing Co., 696 F. Supp. 275, 280-81 (W.D. Mich 1988); United States v. Iron Mountain Mines, Inc., 37 Env’t Rep. Cas. (BNA) 1543, 1546 (E.D. Cal. 1993).

The starting point for interpreting a statute is the language of the statute itself.

American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982). The HWA, much like RCRA, exempts from the definition of solid waste “industrial discharges which are point sources subject to permits under Section 402” of the Clean Water Act. NMSA 1978, § 74-4-3.O; 42 U.S.C. § 6903(27). By its plain meaning, this exemption applies only to permitted discharges. A discharge cannot be “subject to” a permit unless a permit is in place. Thus, after concluding that the exemption applies to “those actual discharges from point sources which are made pursuant to and authorized by a NPDES permit,” one court found that this conclusion is “clearly supported by the plain language of section 1004(27) of RCRA.” Lutz, 725 F. Supp. at 263 and n. 1. Another court similarly noted that the exemption applies to discharges that are “subject to” a permit, not discharges that are “potentially subject to” or “capable of obtaining” a permit. Iron Mountains Mines, 37 Env’t Rep. Cas. at 1546.

DOE and UC reference an EPA memorandum stating EPA’s interpretation that

the exemption applies to “point sources that should have a NPDES permit in place, whether in fact they do or not.” Comments at 84. However, contrary to the assertion of DOE and UC, EPA has not been consistent in its interpretation of the scope of the exemption. For example, in a brief filed in the Allegan case, cited above, the United States on behalf of EPA stated: “The exclusion from the definition of solid waste is for


32

actual discharges from point sources made pursuant to and authorized by an NPDES permit.” United States v. Allegan Metal Finishing Co., Reply of the United States to Defendant’s Motion for Immediate Consideration (W.D. Mich. filed Apr. 1988). In a more recent EPA training document, EPA states that “an industrial facility may be able to take advantage of the industrial wastewater discharge exclusion if it possesses an NPDES permit and is in compliance with the permit requirements.” EPA, RCRA, Superfund & EPCRA Hotline Training Module: Introduction to Other Laws that Interface with RCRA 10 (EPA530-R-99-056 PB2000-101 896 Feb. 2000). Given this inconsistency, the EPA interpretation that DOE and UC cite is not entitled to deference. Watt v. Alaska, 451 U.S. 259, 273 (1981).

Fourth, the exemption does not apply to point source discharges of contaminants

at the LANL facility if those contaminants were not listed in the facility’s permit application. As the Lutz, Allegan, and Iron Mountain Mines courts each stated, the exemption applies to “those actual discharges from point sources which are made pursuant to and authorized by a NPDES permit.” Lutz, 725 F. Supp. at 263; Allegan, 696 F. Supp. at 281; Iron Mountain Mines, 37 Env’t Rep. Cas. at 1546 (emphasis added). Unless the contaminants in the discharge are identified in the permit application, discharge of those contaminants is not authorized by the permit.

The various NPDES permit applications that LANL submitted to EPA, spanning

the period from the early 1970’s to 1998, do not identify many of the contaminants in the discharges. For example, organic constituents such as 1,1,1-trichloroethane, 1,2-dichlorobenzene, and 2-nitrophenol were not identified in the LANL permit applications until April 1986. See Application for Permit to Discharge Wastewater (Apr. 3, 1986) (multiple documents). High explosives such as cyclonite, or Royal Detonating Explosive (“RDX”), were not identified in the LANL permit application until September 1990. See National Pollutant Discharge Elimination System Permit Reapplication, NM0028355 for Los Alamos National Laboratory (Sept. 1, 1990). Perchlorate was not included in a permit until 2000. EPA, Authorization to Discharge Under the National Pollutant Discharge Elimination System, No. NM0028355, at 10 (2000).

Fifth, the exemption does not apply to point source discharges of contaminants at

the LANL facility if those discharges are in violation of permit limits. Again, the exemption applies to actual discharges from point sources which are authorized by a NPDES permit. See cases cited supra. Discharges of contaminants in excess of permit limits are not authorized by the permit. Moreover, discharges that are outside the permitted range for pH are also not authorized by the permit, and may act to mobilize contaminants in the discharge in a manner not authorized by the permit.

For example, between 1977 and 1991, the discharge from Outfall (050)050, which

discharges from TA-21 into DP Canyon, a tributary to Los Alamos Canyon, exceeded the LANL permit limits at least 80 times for pH, chemical oxygen demand, total suspended solids, cadmium, chromium, copper, iron, mercury, zinc, and total chlorine, most frequently for metals. LANL, Discharge Monitoring Reports (1977-1991). Between 1978 and 1996, the discharge from Outfall (051)051, which discharges from TA-50 into


33

Effluent Canyon, a tributary to Mortandad Canyon, exceeded the LANL permit limits at least 114 times for pH, chemical oxygen demand, total suspended solids, cadmium, chromium, copper, iron, lead, mercury, zinc, radium-226, and radium-228. LANL, Discharge Monitoring Reports (1978-1996).

Sixth, the exemption does not apply to any stormwater discharges that occurred at

the LANL facility prior to October 1, 1992. LANL submitted to EPA its first Notice of Intent to obtain coverage under a general stormwater permit on October 1, 1992, meeting a deadline set by EPA for that purpose. 57 Fed. Reg. 41236, 41236 and 41306 (Sept. 9, 1992). The commenters correctly point out that the federal court of appeals held that EPA “does not have the authority to exempt categories of point sources from the permit requirements of § 402.” Natural Resources Defense Council v. Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977). However, stormwater discharges were exempt from the permit requirement by EPA regulation. See 40 C.F.R. § 125.4 (1975). The Costle decision did not create any immediate -- or retrospective -- legal obligation on the part of dischargers such as LANL. By regulation, LANL was not required to have a stormwater discharge permit in place until October 1, 1992. Stormwater discharges at LANL prior to that date, therefore, were not “subject to permits” under section 402 of the Clean Water Act.

Seventh, the exemption does not apply to any releases of contaminants into the

canyons at the LANL facility that are not point source discharges, such as contaminants released into canyons through seeps and springs. For example, octohydor-1357-tetranitro-1357-tetrazocine, or High Melting Explosive (“HMX”), at 1100 ppb and RDX at 77 ppb have been detected in springs discharging into Threemile Canyon. See New Mexico Environment Department, Ground-Water Oversight at Los Alamos National Laboratory and Surrounding Areas 1994 through 1995 (Dec. 1996) at 47.

Thus, regardless how broadly the exemption is interpreted, there is considerable

evidence in the record that a significant proportion of the contaminants in the canyons at the LANL facility are not subject to the exemption. These non-exempt contaminants represent a substantial contributing factor to the endangerment that may exist at the facility. Moreover, these non-exempt contaminants are commingled with the contaminants that DOE and UC assert are exempt, and in all likelihood it is impossible to separate the non-exempt contaminants from those contaminants asserted to be exempt. However, DOE and UC bear the burden of proving that the exemption applies. The Tenth Circuit, in Tosco Corp. v. Koch Industries, Inc., 216 F.3d 886 (10th Cir. 2000), addressed a very similar issue on the burden of proving a statutory exemption. The case involved the application of the “petroleum exclusion” under the other federal hazardous waste statute, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Liability under CERCLA is predicated on the release into the environment of a “hazardous substance,” in much the same way that liability under RCRA section 7003 and section 74-4-13 of the HWA is predicated upon the handling or disposal of a “solid waste or hazardous waste.”7 The exclusion for “petroleum including

7 Compare CERCLA section 106(a) and 107(a), 42 U.S.C. §§ 9606(a) and 9607(a), with RCRA section 7003(a), 42 U.S.C. § 6973(a), and with NMSA § 74-4-13.A.


34

crude oil or any fraction thereof” in the CERCLA definition of “hazardous substance” parallels the exemption for industrial discharges from point sources that are subject to NPDES permits in the RCRA and HWA definitions of “solid waste.”8 In Tosco, the court held that once the plaintiff has alleged the release of hazardous substances, “the party asserting the benefit of the petroleum exclusion bears the burden of proof on that issue.” 216 F.3d at 894, n. 5. Other courts have likewise assigned the burden of proving an exemption on the party claiming the exemption. Johnson v. James Langley Operating Co., 226 F.3d 957, 963 n.4 (8th Cir. 2000) (defendants bear the burden of showing the CERCLA petroleum exclusion applies); Organic Chem. Site PRP Group v. Total Petroleum, 58 F. Supp. 2d 755, 763 (W.D. Mich. 1999) (because the CERCLA petroleum exclusion is best treated as an exemption to a statutory prohibition, the defendant carries the burden of showing that this exclusion applies); Ekotek Site PRP Comm. v. Self, 881 F. Supp. 1516, 1524 (D. Utah 1995); (“In determining the potential applicability of [the petroleum] exclusion from the general definition of a hazardous substance under CERCLA, the court finds that the burden of proof is on the defendants to establish their right to the exemption”); United States v. Eastern of N.J., Inc., 770 F. Supp. 964, 978 (D.N.J. 1991) (the burden properly rests on the party claiming an exemption under RCRA regulations for hazardous waste from small quantity generators); In re Acushnet River & New Bedford Harbor: Proceedings Re Alleged PCB Pollution, 722 F. Supp. 893, 901 (D. Mass. 1989) (party who claims CERCLA exemption for a federally permitted release bears the burden of proving “which releases were federally permitted”); see also United States v. First City Nat’l Bank of Houston, 386 U.S. 361, 366 (1967) (the general rule is that the person who “claims the benefits of an exception to the prohibition of a statute” carries the burden of proof). DOE and UC have not met this burden as to any specific contamination at the LANL facility. Further, because the environmental contaminants that DOE and UC claim to be exempt are commingled with contaminants that are clearly not exempt, DOE and UC bear the burden of proving that the (claimed) exempt contaminants can be segregated from the non-exempt contaminants. As the Tenth Circuit ruled in Tosco, the CERCLA petroleum exclusion was “inapplicable” because “hazardous wastes have commingled with the petroleum products in the soil and floating on the groundwater beneath the refinery.” 216 F.3d at 893. DOE and UC have not submitted any evidence to support segregation of non-exempt from claimed exempt waste for purposes of investigation or cleanup. Comment No. 47: DOE and UC state that EPA has consistently interpreted the exemption for industrial discharges to apply whether or not a permit was actually obtained, and that the Environment Department has reached a similar conclusion. Comments at 84. Environment Department Response: The Environment Department disagrees with this comment. As explained above, the EPA position on this issue has been inconsistent over

8 Compare CERCLA section 101(14), 42 U.S.C. § 9601(14), with RCRA section 1004(27), 42 U.S.C. § 6903(27), and with NMSA 1978, § 74-4-3.O.


35

time and therefore is not entitled to deference. On some occasions, EPA has stated the position that the exemption only applies if the discharger has an NPDES permit and is in compliance with that permit. The Environment Department prepared the memorandum that DOE and UC reference without any independent analysis, relying solely on EPA statements at the time. Affidavit of Tracy M. Hughes (Nov. 18, 2002). Moreover, the memorandum addresses the regulatory exemption in the RCRA regulations at 40 C.F.R. § 261.4(a), not the statutory exemption in section 1004(27) of RCRA. The regulatory exemption, by its plain language, is broader than the statutory exemption, and conversely, the regulatory definition of “solid waste” is narrower than the statutory definition).9 Comment No. 48: DOE and UC state that sediments that have become contaminated by pollutants discharged from a point source subject to the Clean Water Act are not covered by RCRA. Comments at 84-85. Environment Department Response: The Environment Department disagrees with this comment, as explained in response to Comment No. 46. Comment No. 49: DOE and UC state that the jurisdiction of the Clean Water Act extends to ground water that has a hydrologic connection to surface waters of the United States. Comments at 85-86. Environment Department Response: The Environment Department agrees that an NPDES permit is required under the Clean Water Act for the discharge of pollutants into groundwater that is hydraulically connected to surface waters of the United States. However, it does not follow that the RCRA exemption for industrial point source discharges subject to NPDES permits extends to contaminants in such groundwater. EPA, in issuing NPDES permits, considers only surface water standards, not groundwater protection standards. Comment No. 50: DOE and UC state that the Order would assert jurisdiction over LANL’s “undiscarded military munitions.” Comments at 99-102. Environment Department Response: The Environment Department agrees that the Order asserts jurisdiction over solid wastes from military munitions at LANL. However, it does not agree that these wastes are “undiscarded.” Under EPA regulations and pertinent case law, military munitions may become “discarded,” and therefore meet at least the statutory definition of “solid waste,” under a number of circumstances. First, the wastes that are generated in the production of military munitions are not exempt under EPA’s “Military Munitions Rule,” 40 C.F.R. Pt. 266, subpt. M. Such wastes are treated as other industrial wastes, and are regulated under RCRA and the HWA. According to EPA when it proposed the Military Munitions Rule, “EPA’s long- 9 EPA has, in other contexts, made a distinction between the statutory definition of solid waste in RCRA section 1004(27) and the regulatory definition of solid waste in 40 C.F.R. § 261, and interpreted the statutory definition more broadly. 60 Fed. Reg. 56468, 56469 (Nov. 8, 1995); Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 1314-15 (2d Cir. 1993).


36

standing regulations defining when manufacturing products and secondary materials become solid wastes would continue to apply to residues and other byproducts of munitions manufacture and processing.” EPA Military Munitions Rule, 60 Fed. Reg. 56,468, 56,477 (proposed Nov. 8, 1995). Thus, for example, releases of high explosives such as HMX, RDX, and TNT from Building 16-260 at TA-16 are not covered by the exemption for military munitions. See Order at § II.A.6.f.

Second, the Military Munitions Rule expressly provides that an unused military munition becomes discarded under at least four circumstances: 1) if it is abandoned by being disposed of, burned, detonated, incinerated, or treated prior to disposal; 2) if it is removed from storage for disposal or treatment prior to disposal; 3) if it is deteriorated or damaged to the point that it can no longer be returned to serviceable condition and cannot reasonably be recycled or used for other purposes; and 4) it has been determined by an authorized military official to be a solid waste. 40 C.F.R. § 266.202(b).

Third, military munitions are discarded if they are disposed of on a military range.

The exemption in the Military Munitions Rule expressly does not apply to “the on-range disposal or burial of unexploded ordnance and contaminants when the burial is not a result of product use.” 40 C.F.R. § 266.202(a)(1)(iii).

Thus, for example, at TA-15 until 1981 debris from Firing Site G was placed in

an on-site landfill designated Material Disposal Area Z (SWMU 15-007(b)). LANL, RFI Work Plan for Operable Unit 1086 (LA-UR-92-3968) at 2-5 (June 1993). At TA-49, the experimental shafts at Material Disposal Area AB were buried with sand and, except for Area 3, sealed with concrete after the experiments were completed and the measurements taken. LANL, Environmental Status of Technical Area 49, Los Alamos, New Mexico (LA-11135-MS) at 2 (Nov. 1987). The burial of the contaminants resulting from these experiments, which includes beryllium and lead, constitutes on-range disposal. These contaminants were thus “discarded” within the meaning of the Military Munitions Rule and section 1004(27) of RCRA. At TA-39, wastes in at least three firing sites were scraped up and consolidated into debris mounds. LANL, RFI Work Plan for Operable Unit 1132 (TA-39) (LA-UR-93-768) at 2-2 (June 1993). Although it is not entirely clear from the report that the debris mounds were placed on the designated firing sites, assuming that they were, it would constitute on-range disposal.

Fourth, military munitions are discarded if they are removed from the military range for the purpose of storage, reclamation, treatment, disposal, or treatment prior to disposal. Again, the Military Munitions Rule expressly provides that the exemption does not include such munitions. 40 C.F.R. § 266.202(c)(1). For example, beginning in 1959 wastes from the firing sites at TA-39 were removed and placed in five or more disposal pits at two locations within the technical area. The wastes included beryllium, cadmium, mercury, silver, thallium, solvents, and PCB-containing oil. LANL, RFI Work Plan for Operable Unit 1132 (TA-39) (LA-UR-


37

93-768) at 2-2 and 5-1 to 5-2 (June 1993). Similarly, in 1971, a disposal pit was dug for the disposal of wastes at TA-49. Two more disposal pits were dug in 1984. LANL, RFI Work Plan for Operable Unit 1144 (LA-UR-92-900) at 6.3-7, 6.3-8, and 6.3-11 (May 1992).

Fifth, military munitions are discarded if they land off the military range. For purposes of the statutory definition of solid waste in section 1004(27) of RCRA, the Military Munitions Rule does not exempt any “munition that lands off-range and is not promptly rendered safe and/or retrieved.” 40 C.F.R. § 266.202(d). Thus, as expressly stated in the Rule, such munitions are subject to the authorities under section 7003 of RCRA. Id. The active and inactive ranges at LANL have not been adequately investigated to determine whether and to what extent contaminants have landed or migrated off the range. However, one LANL report suggests two mechanisms by which uranium – and presumably other contaminants – has been and may currently be transported from firing sites on mesa tops to the canyons. First, surface water run-off can carry both dissolved contaminants and suspended particulates. Second, explosive-driven particulates are scattered over large areas by large tests. LANL, RFI Work Plan for Operable Unit 1086 (LA-UR-92-3968) at 7-12 (June 1993). Finally, military munitions are discarded, and are solid waste under section 1004(27) of RCRA, if they have been left to accumulate long after they have served their intended purpose. Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 1316 (2d Cir. 1993).10 The Connecticut Coastal Fishermen’s case involved a trap and skeet shooting range which deposited lead contamination from lead shot and target fragments in the adjacent waters of Long Island Sound. The shooting range had been operating since 1945. 989 F. 2d at 1308. EPA, as amicus, argued that the expended lead shot and target fragments “may provide a basis for plaintiff’s imminent and substantial endangerment claim because RCRA’s statutory definition of solid waste, and not EPA’s regulatory definition, control such actions.” Conn. Coastal Fisherman’s Ass’n, Brief for the United States as Amicus Curiae at 20 (filed Aug. 28, 1992). EPA went on to state that “EPA applies a broader definition of solid waste for remedial purposes than for regulatory purposes in order to preserve the widest possible latitude for imminent threats to the public and the environment and to limit RCRA’s prospective regulatory requirements to waste management activities.” Id. at 23. Finally, EPA concluded:

The literal meaning of “discarded” certainly can encompass shot and targets released into the environment and left to accumulate long after they have served their intended purpose. In other words, the ammunition and target fragments, if left on the ground indefinitely, eventually become discarded materials within the statutory definition of “solid waste.”

10 In their comments, DOE and UC incorrectly cite the Connecticut Coastal Fisherman’s case as “holding that shot and clay target debris deposition on land and in water in the normal course of skeet shooting is not ‘solid waste’ because they are not ‘discarded.’” Comments at 104. In fact, the court quite clearly held that the shot and target debris were “discarded,” and fall within the statutory definition of solid waste. 989 F.2d at 1316. (The court found it unnecessary to decide whether the shot and target debris also fall within the regulatory definition of solid waste. 989 F.2d at 1315-16.)


38

Id. at 25. Relying on EPA’s interpretation, the Second Circuit concluded: “Without deciding how long materials must accumulate before they become discarded – that is, when the shot is fired or at some later time – we agree that the lead shot and clay targets in Long Island Sound have accumulated long enough to be considered solid waste.” 989 F.2d at 1316. Although EPA did not address this specific issue in the Military Munitions Rule, it cited the Connecticut Coastal Fishermen’s decision favorably and stated it saw “no compelling reason” to alter” the interpretation in its amicus brief. EPA Military Munitions Rule, 62 Fed. Reg. 6622, 6630 (Feb. 12, 1997). As the commenters acknowledge, many of the locations at the LANL facility where military munitions were deposited have long since been closed, decommissioned, or transferred. For example, Firing Points A through H at TA-15 are no longer in use, and LANL states that “most of the structures associated with these firing sites have been decommissioned and dismantled.” LANL, RFI Work Plan for Operable Unit 1086 (LA-UR-92-3968) at 2-3 (June 1993). As an even clearer example, former TA-10 was transferred to the County of Los Alamos in 1967. LANL, RFI Work Plan for Operable Unit 1079 (LA-UR-92-850) at 3-1 (May 1992). At these locations, the contamination from military munitions, having been “left on the ground indefinitely, has “accumulated long enough to be considered solid waste.” Conn. Coastal Fishermen’s Ass’n at 1316. Comment No. 51: DOE and UC state that the firing site facilities occupy approximately 22 square miles (57 square kilometers) of land at the LANL facility. Comments at 99. Environment Department Response: The Environment Department disagrees with the implication that 22 square miles of the LANL facility meets the definition of “military range” under the Military Munitions Rule, 40 C.F.R. § 266.201. The actual designated ranges are smaller, discrete portions of the LANL facility. For example, LANL elsewhere describes TA-39 as originally consisting of three firing sites, a main building containing offices, a laboratory, and a shop, a high explosives assembly building, two magazines, and a single-stage gas gun; two additional firing sites and other structures were added later. LANL, RFI Work Plan: Operable Unit 1132 (TA-39) (LA-UR-93-768) at 2-2 (June 1993). The Comments acknowledge that TA-14, TA-15, TA-36, TA-39, and TA-40 incorporate “sixteen firing sites.” Comments at 99. Only the designated firing sites or ranges are covered by the Military Munitions Rule. Comment No. 52: DOE and UC state that references to high explosive compounds such as perchlorate, 2,4,6-trinitrotoluene (TNT), cyclonite or Royal Detonating Explosive (RDX), and octohydor-1357-tetranitro-1357-tetrazocine or High Melting Explosive (HMX) are replete throughout the Order. Comments at 100. Environment Department Response: The Environment Department agrees that there are many references to high explosive compounds in the Order. High explosive contaminants are widespread at certain portions of the LANL facility. Much of this contamination is solid waste under section 1004(27) of RCRA and section 74-4-3.O of HWA, and within the Environment Department’s authority, as explained above.


39

Comment No. 53: DOE and UC state that the Order addresses “undiscarded” military munitions by requiring investigation at six areas of TA-49 that were used for nuclear device safety tests and high explosive containment tests in shafts. Comments at 100-101. Environment Department Response: The Environment Department disagrees with this comment. The contaminants resulting from these tests at TA-49 have been discarded. The tests were conducted in below-ground shafts of varying dimensions. As explained in response to Comment No. 50 above, after the tests were complete and the measurements taken, the shafts were buried with sand and, except for Area 3, sealed with concrete. LANL, Environmental Status of Technical Area 49, Los Alamos, New Mexico (LA-11135-MS) at 2 (Nov. 1987). The burial of the contaminants resulting from these experiments, which includes beryllium and lead, constitutes on-range disposal. Comment No. 54: DOE and UC state that the Order addresses “undiscarded” military munitions by requiring investigation at TA-10, one of the primary areas where LANL conducted high explosive detonation as part of weapons research, development, testing, and evaluation. Comments at 101. Environment Department Response: The Environment Department disagrees with this comment. The contaminants at TA-10, including those from high explosive detonation, have been discarded. As explained in response to Comment No. 50 above, LANL transferred TA-10 to Los Alamos County in 1967. LANL, RFI Work Plan for Operable Unit 1079 (LA-UR-92-850) at 3-1 (May 1992). Comment No. 55: DOE and UC state that the Order addresses “undiscarded” military munitions by requiring LANL to list all solid waste management units (“SWMU’s”) and areas of contamination (“AOC’s”) not specifically addressed in the Order. Comments at 101. Environment Department Response: The Environment Department disagrees with this comment. Solid waste management units by definition contain discarded solid waste. EPA defined the term in the proposed Subpart S corrective action regulations, which it now uses as guidance, as “any discernible unit at which solid wastes have been placed at any time, irrespective of whether the unit was intended for the management of solid or hazardous waste. 55 Fed. Reg. 30,798, 30,874 (July 27, 1990) (proposed 40 C.F.R. § 265.501). Areas of contamination, as that term has been used at LANL, also refers to hazardous waste constituents or other solid wastes.

The Order is not intended to address military munitions on an active or inactive firing site or military range within the meaning of the EPA Military Munitions Rule, 40 C.F.R. § 266.201. The Environment Department has added a new paragraph in Section I (Introduction) of the final Order to clarify this issue, largely in response to this and similar comments. Order at 1-2.


40

Comment No. 56: DOE and UC state that the Order addresses “undiscarded” military munitions by requiring sampling and investigation of the contaminant perchlorate. Comments at 101. Environment Department Response: The Environment Department disagrees with this comment. Much of the perchlorate contamination at the LANL facility is solid waste under section 1004(27) of RCRA and section 74-4-3.O of HWA, and within the Environment Department’s authority, as explained above. Comment No. 57: DOE and UC state that the Endangerment Determination addresses historic and current firing sites at LANL. Comments at 101-102. Environment Department Response: The Environment Department does not agree that the final Order addresses military munitions at active and inactive firing sites. The Environment Department has added a new paragraph in Section I (Introduction) of the final Order to clarify this issue, largely in response to this and similar comments. Order at 1-2. The Environment Department agrees that the Order addresses historic firing sites. The munitions on such sites has become discarded and is therefore solid waste within the meaning of section 1004(27) of RCRA and section 74-4-3.O of the HWA, as explained in response to Comment No. 50 above. Comment No. 58: DOE and UC state that EPA has adopted the Military Munitions Rule to promulgate an exclusion from the regulatory definition of solid waste for military munitions. Comments at 102. Environment Department Response: The Environment Department generally agrees with this comment. Comment No. 59: DOE and UC state that in adopting the Military Munitions Rule, EPA “specified the circumstances that may cause military munitions to become statutory ‘solid waste.’” Comments at 102. Environment Department Response: The Environment Department disagrees with the implication in this comment that EPA specified in the Military Munitions Rule all circumstances that may cause military munitions to become statutory solid waste. While the rule specifies some such circumstances, such as munitions landing off-range, the Rule does purport to specify all such circumstances. Section 3004(y) of RCRA, 42 U.S.C. § 6924(y), the basis of the rule, only requires EPA to propose and promulgate regulations “identifying when military munitions become hazardous waste for purposes of this subchapter.”11 It does not require EPA to identify when military munitions become solid waste under section 1004(27) of RCRA. Indeed, EPA expressly stated that it was postponing final action on the status of military munitions left on closed or transferred

11 This “subchapter” refers to subtitle C of RCRA, which is codified as subchapter III, chapter 82, title 42 of the United States Code. It addresses hazardous waste management, and is the basis of the RCRA hazardous waste regulations. Section 7003 of RCRA is in subtitle G of RCRA, codified in subchapter VII, chapter 82, title 42 of the United States Code.


41

ranges for purposes of the statutory definition of solid waste. 62 Fed. Reg. 6622, 6623 and 6632 (Feb. 12, 1997). Comment No. 60: DOE and UC state that the New Mexico Environmental Improvement Board has adopted the Military Munitions Rule. Comments at 103. Environment Department Response: The Environment Department generally agrees with this comment. Comment No. 61: DOE and UC state that under the Military Munitions Rule, military munitions, when used for their intended purpose, are not discarded and thus not statutory solid waste. Comments at 103-104. Environment Department Response: The Environment Department does not agree that the exemption for military munitions which are used for their intended purpose, as set forth in the Military Munitions Rule, applies to the statutory definition of solid waste in sections 1004(27) or 7003 of RCRA, as opposed to the regulatory definition of solid waste in 40 C.F.R. § 261.2. The passage from the final Federal Register notice that the commenters quote refers only to RCRA regulation. Moreover, in the introductory paragraph of that same section of the notice, EPA states: “Military munitions, under today’s rule, are not a solid waste for regulatory purposes . . .” 62 Fed. Reg. 6622, 6628 (Feb. 12, 1997) (emphasis added). Likewise, in the preamble to the proposed Subpart S regulations, EPA refers only to corrective action under sections 3004(u) and (v) of RCRA, which are part of the Subtitle C regulatory program, not to section 7003. The sentence in the preamble following the one quoted by the commenters states, “[t]here is a strong argument that unexploded ordnance fired during target practice is not discarded material which falls within the regulatory definition of ‘solid waste.’” 55 Fed. Reg. 30,798, 30,809 (July 27, 1990) (emphasis added). Furthermore, the cases cited by commenters recognized the distinction between the statutory and regulatory definitions of “solid waste.” In Connecticut Coastal Fishermen’s Association v. Remington Arms Co., 989 F.2d 1305 (2d Cir. 1993), the court found it unnecessary to decide whether the lead shot and target debris fell within the “regulatory definition of solid waste,” id. at 1315-16, but held that the debris did fall within the “statutory definition of solid waste,” id. at 1316. In Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998), the court stated:

As a result of this distinction between the statutory and regulatory definitions, while any discarded material that poses an imminent and substantial hazard may be the subject of a lawsuit brought pursuant to [section 7003], only discarded material that has been “disposed of” can constitute hazardous waste that is subject to the stringent “cradle-to-grave” regulatory scheme of Subtitle C.

Id. at 951. In Water Keeper Alliance v. U.S. Department of Defense, 152 F. Supp. 2d 163 (D.P.R. 2001), the court noted, “Defendants acknowledge that the [Military Munitions


42

Rule] relies on the regulatory, rather than the statutory, definition of solid waste.” Id. at 168. Comment No. 62: DOE and UC state that the definition of military munitions “broadly” includes conventional and chemical ammunition products and their components produced by or for the military for national defense and security. Comments at 105. Environment Department Response: The Environment Department generally agrees with this comment to the extent that it tracks the language in the regulation defining “military munitions” at 40 C.F.R. § 260.10. The Environment Department does not necessarily agree that the definition is “broad.” Comment No. 63: DOE and UC state that military munitions within the scope of the Military Munitions Rule include munitions under the control of DOE. Comments at 105. Environment Department Response: The Environment Department generally agrees with this comment. See 40 C.F.R. § 266.201; 62 Fed. Reg. 6622, 6624 (Feb. 12, 1997). Comment No. 64: DOE and UC state that the definition of military range “broadly” includes not only the firing range, but “designated lands and water areas set aside and used to conduct research on, develop, test, and evaluate military munitions, including firing lines, maneuver areas, firing lens [sic], test pads, impact areas and buffer zones.” Comments at 105. Environment Department Response: The Environment Department generally agrees with this comment to the extent that it tracks the language in the regulation defining “military range” at 40 C.F.R. § 266.201. The Environment Department notes that the definition includes “firing lines and positions, maneuver areas, firing lanes, test pads, detonation pads, impact areas, and buffer zones with restricted access and exclusionary areas.” Id. (emphasis added). The Environment Department does not necessarily agree that the definition is “broad.” Comment No. 65: DOE and UC state that the exclusion from the definition of solid waste in the Military Munitions Rule covers a “broad” array of activities, including the use of munitions in research, development, testing, and evaluation of military weapons; the recovery, collection, and on-range destruction of unexploded fragments during range clearance; and the repair, reuse, recycling, and reclamation of munitions and their components. Comments at 105-106. Environment Department Response: The Environment Department generally agrees with this comment to the extent that it tracks the language in the Military Munitions Rule at 40 C.F.R. § 266.202(a). The Environment Department does not necessarily agree that the exclusion covers a “broad” array of activities. Comment No. 66: DOE and UC state that the exclusion from the definition of solid waste in the Military Munitions Rule covers on-range soil and groundwater


43

contamination resulting from the intended use of military munitions. Comments at 106-108. Environment Department Response: The Environment Department disagrees with this comment. In the Environment Department’s view, contamination from the use of munitions used for its intended purpose that migrates to ground water is “off-range,” and therefore is not covered by the exemption in the Military Munitions Rule. See 40 C.F.R. § 266.202(d) (off-range contamination that is not promptly rendered safe or retrieved can be addressed under section 7003 of RCRA). Nevertheless, the Order does not require the installation of any ground water monitoring wells on military ranges. Comment No. 67: DOE and UC state that “most” of the activities conducted at the high explosive testing facility sites at LANL are covered by the exemption in the Military Munitions Rule. Comments at 107. Environment Department Response: The Environment Department disagrees with this comment for the reasons explained above. Comment No. 68: DOE and UC state that the military munitions and associated contaminants at transferred ranges and other ranges no longer in use are not solid waste. Comments at 107-108. Environment Department Response: The Environment Department disagrees with this comment for the reasons explained above. Comment No. 69: DOE and UC state that because EPA deferred the “closed range” portion of the Military Munitions Rule, the “undiscarded” military munitions at TA-10, which has been closed and transferred to Los Alamos County, are not solid wastes. Comments at 108. Environment Department Response: The Environment Department disagrees with this comment. Although EPA decided to postpone adopting regulations specifying when military munitions and associated contaminants are solid waste on closed or transferred military ranges, it did not state that such contaminants are therefore not solid wastes. The final rule simply did not address the issue and, under section 3004(y) of RCRA, did not need to. See discussion accompanying note 9 supra. EPA did not repudiate its interpretation of the statutory definition of solid waste set forth in its amicus brief in the Connecticut Coastal Fishermen’s case. To the contrary, it cited that brief favorably. 62 Fed. Reg. 6622, 6630 (Feb. 12, 1997). That interpretation still stands, and is entitled to deference. Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-45 (1984) (“considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer”). Comment No. 70: DOE and UC state that the Environment Department did not make any determinations in the Endangerment Determination, the Order, or elsewhere in the


44

administrative record that would place military munitions at LANL outside the exemption in the Military Munitions Rule. Comments at 108-109. Environment Department Response: The Environment Department disagrees with this comment. Many of the releases of contaminants described in the original Endangerment Determination occurred off the designated firing site or military range. The Order makes very similar findings, although the Environment Department has included additional information, partially in response to this comment. Order at 21-25. Moreover, this Response to Comments, which is part of the Administrative Record, makes many such findings, as discussed above. Comment No. 71: DOE and UC state that the Environment Department has the burden of proving that the contaminants addressed by the Order are solid wastes under RCRA. Comments at 109. Environment Department Response: The Environment Department disagrees with this comment. The party claiming an exemption has the burden of establishing that that exemption applies. Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886, 894 n.5 (10th Cir. 2000); see discussion in response to Comment No. 46 supra. Comment No. 72: DOE and UC state that the inclusion of “undiscarded” military munitions and related contaminants or activities in the Endangerment Determination and Order is “contrary to law” and “void.” Comments at 109. Environment Department Response: The Environment Department disagrees with this comment. The munitions and associated contaminants referenced in the Endangerment Determination and Order have been discarded, as explained above. Comment No. 73: DOE and UC state that the Order would require investigation and cleanup of polychlorinated biphenyls (“PCB’s”) contrary to state and federal law. Comments at 110-111. Environment Department Response: The Environment Department agrees that the Order would require investigation of PCB contamination at the LANL facility. However, the Environment Department disagrees that these requirements in the Order are contrary to state or federal law. To the contrary, these requirements are consistent with and authorized by both federal and state law, as explained below. Comment No. 74: DOE and UC state that section 1006(b) of RCRA, 42 U.S.C. § 6905(b), which requires EPA to “integrate all provisions of [RCRA] for purposes of administration and enforcement and [to] avoid duplication, to the maximum extent practicable, with the other provisions of . . . such other Acts of Congress as grant regulatory authority to” EPA, precludes the Environment Department from regulating PCB’s because PCB’s are regulated under the Toxic Substances Control Act (“TSCA”), 15 U.S.C. §§ 2601 t0 2692. Comments at 111.


45

Environment Department Response: The Environment Department disagrees with this comment, for several reasons. First, the plain language of RCRA is contrary to the commenters’ assertion. Section 7003 of RCRA, by its express terms, is not limited by section 1006(b). The opening phrase of section 7003 is: “Notwithstanding any other provision of this [Act] . . ..” 42 U.S.C. § 6973.12

Moreover, section 1006(b) of RCRA is itself limited in scope. The commenters have selectively quoted section 1006(b). The rest of that section provides: “Such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies expressed in [RCRA] and in the other acts referred to in this subsection.” 42 U.S.C. § 6905(b). In enacting RCRA, Congress established “a comprehensive statutory scheme providing cradle-to-grave oversight of solid and hazardous waste.” United States v. Power Eng’g Co., 191 F.3d 1224, 1227 (10th Cir. 1999). Among the goals of RCRA is to “minimize present and future threats to human health and the environment.” Id.; see also United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1383 (8th Cir. 1989) (the purpose of section 7003 of RCRA is to “give broad authority to the courts to grant all relief necessary to ensure complete protection of the public health and the environment”)13. These purposes would be thwarted if RCRA section 7003 were interpreted to be inapplicable to PCB contamination. Whereas section 7003 of RCRA (like section 7-4-13 of the HWA) is remedial in nature, TSCA is fundamentally a regulatory statute. Hudson Riverkeeper Fund, Inc. v. Atlantic Richfield Co., 138 F. Supp. 2d 482, 486 (S.D.N.Y. 2001). TSCA does not provide a remedy for the general investigation and cleanup of PCB contamination at the LANL facility, nor does it provide an enforcement mechanism available to the Environment Department.

The HWA contains no analogue to section 1006(b) of RCRA. The requirement to “integrate” the administration and enforcement of RCRA with other acts of Congress applies only to EPA, not to the Environment Department. Indeed, the Environment does not administer or enforce other acts of Congress, which would make it fairly impossible for the Environment Department to integrate them with administration and enforcement of the HWA. Second, the legislative history of RCRA is contrary to the commenters’ assertion. In enacting RCRA, Congress clearly intended that it apply to PCB contamination. Section 1006(b) of RCRA was initially enacted in 1976 when RCRA was passed as an amendment to the Solid Waste Disposal Act.14 Section 1006 originated as section 106 of 12 Section 74-4-13 of the HWA opens with the same phrase, although the HWA does not have an analogue to section 1006(b) as explained below. 13 Congress has made similar statements. The Senate Report to the 1984 RCRA amendments, which made substantial amendments to section 7003, states that “section 7003 is intended to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risks posed by toxic wastes.” SEN. REP. NO. 284, 98th Cong., 1st Sess. 59 (Oct. 28, 1983) (internal quotes omitted), reprinted in 2 A LEGISLATIVE HISTORY OF RCRA at 2085. 14 Pub. L. No. 94-580, 90 Stat. 2795 (Oct. 21, 1976).


46

the House bill, H.R. 14496. HOUSE REP. NO. 1491, 94th Cong., 2d Sess.53 (1976), reprinted in 1 A LEGISLATIVE HISTORY OF RCRA at 614. The authors of the House report accompanying the bill cited a number of “actual instances of damage caused by current hazardous waste disposal practices.” They cited the following example, which occurred in Waynesboro, Tennessee in 1972:

Waste polychlorinated biphenyls (PCB) have been deposited in the city dumpsite by a local firm. This waste was then pushed into a spring that emptied into Beech Creek where wildlife and aquatic life were destroyed. The pollution is now moving downstream to the Tennessee River.

Id. at 17 and 22 (reprinted in 1 A LEGISLATIVE HISTORY OF RCRA at 578 and 583). Thus, Congress intended that, notwithstanding section 1006(b), RCRA should apply to PCB contamination. Moreover, Congress confirmed its intent that RCRA address PCB contamination when it passed sweeping amendments to RCRA in the Hazardous and Solid Waste Amendments of 1984 (“HSWA”).15 In the HSWA Conference Report, the conferees stated that they “recognize the grave dangers associated with PCBs, are aware of [EPA’s] regulatory proceedings regarding PCBs and urge the [EPA] Administrator to bring PCBs under the regulatory structure of subtitle C as expeditiously as possible to the extent such coverage is appropriate.” HOUSE CONF. REP. NO. 1133, 98th Cong., 2d Sess. 105 (Oct. 3, 1984), reprinted in 2 A LEGISLATIVE HISTORY OF RCRA at 2415.

Third, EPA’s actions are contrary to the commenters’ assertion. EPA has used its RCRA authority to regulate PCB’s. In the Burns case, discussed below, EPA sought, albeit unsuccessfully, to require cleanup of PCB’s under section 7003 of RCRA. United States v. Burns, 512 F. Supp. 916 (W.D. Pa. 1981). More significantly, although EPA has not listed PCB’s as a hazardous waste under RCRA, EPA has included PCB’s in various final RCRA regulations. Thus, PCB’s are included in the regulatory list of hazardous constituents subject to corrective action under RCRA. 40 C.F.R. pt. 261, app. VIII. PCB’s are also included on the regulatory list of constituents that must be looked for in a groundwater compliance monitoring program at a hazardous waste treatment, storage , or disposal facility. 40 C.F.R. pt. 264, app. IX. Finally, section 1006(b) of RCRA does not create any rights for a person to resist regulation. It is merely “an exhortation to the EPA to avoid unnecessary and overlapping regulation.” United States v. Vineland Chem. Co., 692 F. Supp. 415, 420 (D.N.J. 1988). As the court in Vineland Chemical concluded, section 1004(b) “is a general admonition against wasteful regulation, not a right enforceable by the regulated.” Id. at 421. Comment No. 75: DOE and UC state that “[t]he federal courts have long recognized that state or federal agencies cannot regulate PCB’s outside of TSCA, in recognition of” section 1005(b) of RCRA. They cite United States v. Burns, 512 F. Supp. 916 (W.D. Pa. 1981) as the “leading case” for this proposition. Comments at 111-112.

15 Pub. L. No. 98-616, 98 Stat. 3221 (Nov. 8, 1984).


47

Environment Department Response: The Environment Department disagrees with this comment. Far from being the “leading case” holding that TSCA precludes EPA from requiring cleanup of PCB’s under RCRA, it is the only case that the Environment Department could find reaching such a conclusion.16 Other courts have reached the opposite conclusion. In Hudson Riverkeeper Fund, Inc. v. Atlantic Richfield Co., 138 F. Supp. 2d 482, 486 (S.D.N.Y. 2001), the plaintiffs alleged an “imminent and substantial endangerment” under RCRA seeking cleanup of PCB contamination. Defendants argued that the RCRA claims were preempted by TSCA. The court held that, notwithstanding section 1006(b) of RCRA, “plaintiffs’ RCRA claims are not preempted by TSCA.” Id. In United States v. Vineland Chemical Co., 692 F. Supp. 415, 420 (D.N.J. 1988), the court found that United States v. Burns “was wrongly decided.” It went on to hold that the federal government’s RCRA claims were not preempted by the cleanup provisions of CERCLA,17 again notwithstanding section 1006(b) of RCRA. Id. Moreover, as explained above, EPA has included PCB’s in the RCRA regulations listing substances for groundwater monitoring, 40 C.F.R. pt. 265, app. IX, and the RCRA regulations listing hazardous constituents subject to corrective action, 40 C.F.R. pt. 261, appx. VIII. In addition, the Burns case did not involve a state action, but an EPA action. The commenters provide no citation to a judicial decision, or to any other authority, in support of their statement that state agencies cannot regulate PCB’s outside of TSCA. Comment No. 76: DOE and UC state that the Burns case has been “widely accepted” as accurately stating the limit of a state or federal agency’s authority over PCB’s under RCRA. The commenters cite Brewer v. Ravan, 680 F. Supp. 1176, 1181 (M.D. Tenn. 1988). Comments at 112-113. Environment Department Response: The Environment Department disagrees with this comment. Brewer v. Ravan simply stated, correctly, that PCB’s have not been listed or identified as “hazardous wastes” under RCRA, and cited Burns in support of this statement. 680 F. Supp. at 1181. Brewer v. Ravan does not support the commenters’ contention that TSCA preempts a RCRA action for cleanup under section 7003, which applies to solid or hazardous waste. Comment No. 77: DOE and UC distinguish the holding in Hudson Riverkeeper Fund because it held that section 1006(b) of RCRA does “not limit the actions of private litigants, but only those of government agencies.” Comments at 113. Environment Department Response: The Environment Department disagrees with this comment. What the commenters seem to be saying is that, because the plaintiffs in Hudson Riverkeepers were private parties, they were not limited by section 1006(b), but the federal government and state governments are. In fact, the court in Hudson Riverkeeper Fund stated that “TSCA is regulatory in nature, . . . primarily applying to 16 Interestingly, the Burns court rejected the position of the United States that section 7003 of RCRA applied to PCB contamination, finding that the “Government’s position has two fundamental weaknesses,” and thus dismissed the United States’ RCRA claim. 512 F. Supp. 918-919. 17 PCB’s are also “hazardous substances” under CERCLA. 40 C.F.R. § 302.4, Table 302.4.


48

suits brought by the EPA Administrator on behalf of the government,” in other words, the federal government. 138 F. Supp. 2d at 486 (emphasis added). As noted above, only EPA, not the Environment Department, has authority to bring an action under TSCA; section 1006(b) of RCRA applies only to EPA, not to the Environment Department; and the HWA has no provision analogous to section 1006(b) that would be applicable to the Environment Department. Thus, the Environment Department is in much the same position as the private litigant in Hudson Riverkeeper, and is not limited by section 1006(b). The commenters suggested distinction is inapposite. Further, the court ruled that section 1006(b) did not limit the plaintiffs’ action, not merely because they were private as opposed to government litigants, but because their action was remedial as opposed to regulatory. 138 F. Supp. 2d at 486. Comment No. 78: DOE and UC state that EPA has issued various rulemakings and guidance reflecting that PCB’s should be regulated under TSCA rather than RCRA. Comments at 113-115. Environment Department Response: The Environment Department disagrees with this comment. While EPA has issued the referenced rulemakings and guidance, they apply to the regulation of hazardous wastes, not to actions under section 7003 of RCRA which applies to hazardous and solid waste. The cited rulemakings and guidance, therefore, are not relevant. Comment No. 79: DOE and UC state that jurisdiction under the HWA can be no broader than that under RCRA. Comments at 115-116. Environment Department Response: The Environment Department does not necessarily agree with this comment. As the commenters point out, the definitions of “solid waste” and “hazardous waste” in the HWA are virtually identical to the definitions in RCRA. While this similarity suggests that the federal and state provisions should generally be given similar interpretations, it does not follow that the two statutes must be applied identically in every circumstance. The Environment Department may, in some cases, decide that the state provisions should be interpreted differently from the federal provisions, particularly for some consideration that may be unique to New Mexico.

The commenters also cite section 74-4-4.A of the HWA in support of their statement. That section provides that the New Mexico Environmental Improvement Board “shall adopt regulations for the management of hazardous waste as may be necessary to protect public health and the environment, that are equivalent to and no more stringent than federal regulations adopted by [EPA] pursuant to [RCRA].” On its face, however, this provision applies only to the adoption of regulations for hazardous waste. It does not apply to the interpretation of sections 74-4-10.1 or 74-4-13 of the HWA, under which the Order is issued. Comment No. 80: DOE and UC state that the TSCA program regulating PCB’s is not delegable to the states, and the Environment Department is therefore precluded from imposing requirements for PCB’s in the Order. Comments at 116.


49

Environment Department Response: The Environment Department agrees that the TSCA program is not delegable to states. However, the Environment Department does not agree that it is precluded from addressing PCB’s as solid waste under section 74-4-13 of HWA, for the reasons explained above. Comment No. 81: DOE and UC state that the draft Order imposes requirements for PCB’s that conflict with or duplicate TSCA requirements imposed on LANL by EPA, and therefore that the draft order exceeds the Department’s authority. Comments at 116-120. Environment Department Response: The Environment Department disagrees with this comment. The permit that EPA has issued to LANL under TSCA is very limited in scope. It authorizes the disposal of PCB’s in disposal shafts at TA-54, Material Disposal Area G. It also authorizes the storage of PCB’s at Area L at TA-54. Although the permit requires very limited surface water and groundwater (from springs) monitoring for PCB’s near the disposal areas, it does not include any requirements for investigation or cleanup of existing PCB contamination. EPA, Los Alamos National Laboratory: PCB Landfill Approval Conditions (June 5, 1996). While the Order requires sampling of soil and sediments within Area G, the purpose of such sampling is not to investigate the presence only of PCB’s, but many other contaminants, as well. The sampling and analysis requirements include volatile organic compounds, semi-volatile organic compounds, high explosive compounds, dioxins, furans, perchlorate, metals, cyanide, nitrates, pH, and radionuclides. Order §§ IV.C.1.c.iv, IV.C.1.c.v. Comment No. 82: DOE and UC state that the Order is “in sum and substance” a corrective action order under NMSA 1978, § 74-4-10.E, that denies LANL “certain procedural rights and protections.” Comments at 125. Environment Department Response: The Environment Department disagrees with this comment for the reasons stated in response to Comments No. 22 above. As explained in response to Comment No. 22, section 74-4-10.E of the HWA applies only to interim status facilities. Because most of the LANL facility is under a permit, section 74-4-10.E is of limited applicability. Comment No. 83: DOE and UC state that the Order is arbitrary and capricious because it contravenes the role of risk assessment in determining final cleanup levels for contaminants. Comments at 126-134. Environment Department Response: The Environment Department disagrees with this comment. The cleanup levels required under the Order are groundwater quality standards established by the New Mexico Water Quality Control Commission (“WQCC”), 20.6.2.3103.A and 20.6.2.7.VV NMAC; maximum contaminant levels (MCL’s) set by EPA under the Safe Drinking Water Act, 40 C.F.R. pt. 141; the Environment


50

Department’s Soil Screening Levels; surface water quality standards established by the WQCC 20.6.1 and 20.6.2.2000 NMAC; surface water quality standards established by EPA under the Clean Water Act; and the drinking water equivalent level of the EPA draft reference dose for perchlorate (discussed in response to Comment No. 12). Order § VIII. Each of these standards is health based (although some of the surface water standards are based in part on ecological risks).

The Environment Department has determined that these screening levels are adequate for use as cleanup levels for a residential scenario. The Environment Department position paper on human health risk adequately addresses calculation of risk to human health under the standard residential and industrial risk. The residential scenario is sufficiently protective for most expected future land use. If information indicated that this scenario was not protective of the expected land use at a particular site, site-specific allowable residual levels would be calculated for that site. As EPA provided in the proposed Subpart S corrective action rules, which it uses as guidance, “[f]or ground water and surface water that is a current or potential source of drinking water, the [regulatory agency] shall consider maximum contaminant levels promulgated under [the Safe Drinking Water Act] in establishing media cleanup standards.” 55 Fed. Reg. 30,798, 30,878 (July 27, 1990). Comment No. 84: DOE and UC state that the Order ignores the WQCC’s allowance for alternative abatement standards for groundwater. Comments at 128. Environment Department Response: The Environment Department disagrees with this comment. The Environment Department is not authorized to approve alternative abatement standards. Under the WQCC Regulations, such standards can only be adopted by the WQCC upon a petition by the person seeking such standards. 20.6.2.4103.F NMAC. The WQCC has not approved alternate abatement standards for groundwater at the LANL facility, nor has LANL filed a petition seeking alternate abatement standards. If LANL seeks such standards, and the WQCC approves them, the Order will be modified accordingly. Comment No. 85: DOE and UC state that the Order is unjustified and arbitrary because it applies a residential use scenario for cleanup of nearly all contaminants at every site at LANL. Comments at 131-134. Environment Department Response: The Environment Department agrees that the Order applies a residential use scenario for cleanup of the LANL facility. The Environment Department has determined that in evaluating site risks, a residential future land use should generally be assumed for all corrective action sites under RCRA and the HWA. See letter from James P. Bearzi, Chief, Hazardous Waste Bureau, New Mexico Environment Dep’t to RCRA regulated facilities (Jan. 23, 2001). The Environment Department has concluded that assuming an industrial future land use is not protective of human health and the environment. The Environment Department has no means to enforce any institutional controls or land use restrictions under New Mexico law. See


51

Singleterry v. City of Albuquerque, 96 N.M. 468, 470, 632 P.2d 345, 347 (1981) (“Only private parties possess the right to enforce restrictive covenants”). Comment No. 86: DOE and UC state that the Order sets cleanup levels for radionuclides in the “disguise” of reporting levels, although it has no authority over radionuclides. Comments at 131. Environment Department Response: The Environment Department disagrees with this comment. The Order refers to “reporting levels” for radionuclides. It sets no cleanup levels for radionuclides. As explained above, the Order only contains requirements for monitoring and reporting of radionuclides as incidental to regulation of solid and hazardous waste. As also explained above, the Environment Department may require cleanup of radionuclides that are not source, special nuclear, or byproduct material. Comment No. 87: Order is arbitrary and capricious because it is impractical or impossible to perform and is extraordinarily prescriptive without adequate justification, and reference 218 separate comments. Comments at 134-137. Environment Department Response: The Environment Department disagrees with this comment. The Environment Department is responding to the individual separate comments in Volumes 2 and 3 of the Response to Comments on the Draft Order. Comment No. 88: DOE and UC state that the Order fails to allow for a “phased approach” to investigation. Comments at 137-138. Environment Department Response: The Environment Department disagrees with this comment. Many provisions of the Order allow for a phased approach to the investigation. The Order provides that work satisfactorily completed prior to its effective date will be taken into consideration. Order § III.N. For many of the canyon-specific and site-specific investigations, the Order first requires a historical investigation to gather and assess environmental investigation that has already been completed. Order §§ IV.B.1.c, IV.C.1.b, IV.C.2.b, IV.C.3.b, IV.C.5.b, and IV.C.5.b. The Order provides a staggered schedule for installation of groundwater monitoring wells. Order § XII, Table XII-2. Moreover, in several places throughout the Order, provision are made for the installation of additional groundwater monitoring wells based new information. E.g., Order §§ IV.B.1.e.vi; IV.C.1.c.ix; IV.C.2.c.iii; IV.C.2.d.iii; IV.C.2.d.viii; and IV.C.2.e.iii. Comment No. 89: DOE and UC state that the Order fails to use EPA’s Data Quality Objective Process. Comments at 138-139. Environment Department Response: Data Quality Objectives (DQO’s) are not required under EPA's data quality system. EPA recommends the use of DQO’s when data are being used to select between two opposing conditions, such as determining compliance with a standard. EPA, Guidance for the Data Quality Objectives Process (G-4) (EPA/600/R-96/055) (Aug. 2000); EPA, Guidance for the Data Quality Objectives


52

Process for Hazardous Waste Sites (G-4HW) (EPA/600/R-00/007) (Jan. 2000). The DQO process is guidance and not regulation. Comment No. 90: DOE and UC state that the Order is arbitrary and capricious because it lacks a nexus to the Endangerment Determination. Comments at 139-141. Environment Department Response: The Environment Department disagrees with this comment. The Endangerment Determination, now included in the Order, describes instances of contamination known or likely to be present in soil, sediment, surface water, and groundwater throughout the LANL facility. The findings focus on TA-2 in Los Alamos Canyon; TA-3; former TA-10; TA-21, particularly MDA A, MDA B, MDA T, MDA U, and MDA V; former TA-45; TA-49; TA-50; and TA-54, particularly MDA G, MDA H, and MDA L. Order § II.A. The Order requires investigation and eventual cleanup, as determined to be necessary, of contamination in soil, sediment, surface water, and groundwater throughout the LANL facility. Likewise, the investigation requirements of the Order focus on the canyon systems adjacent to the technical areas described in Endangerment Determination; one SWMU in TA-3; former TA-10; TA-21, particularly MDA A, MDA B, MDA T, MDA U, and MDA V; TA-49; TA-50; and TA-54, particularly MDA G, MDA H, and MDA L. Order § IV. These two sections of the final Order are thus linked very closely. Moreover, the EPA Environmental Appeals Board decision that the commenters cite in support of their statement is inapposite. See Comments at 42, citing In re Caribe Gen. Elec. Prod., RCRA App. No. 98-3, 8 Envt’l Admin. Dec. 696, 712 (EAB 2000). In that case the Appeals Board faulted the EPA Region for failure to show a nexus between the contaminants and the facility. It can hardly be disputed that the contaminants at the LANL facility originated anywhere but from LANL. Nor is any “nexus” necessary between the drinking water wells located northeast or east of LANL and the contamination located on the southern or western portion of the LANL facility. See Comments at 141. As explained in response to Comment 7 above, soil and groundwater, even that on the southern and western portion of the LANL facility, is part of the environment. Comment No. 91: DOE and UC state that the Environment Department has ignored the site characterization activities already underway or completed at LANL and to “start from scratch.” Comments at 140. Environment Department Response: The Environment Department disagrees with this comment. The Order expressly provides that work satisfactorily completed prior to its effective date may be used to comply with the requirements of the Order, and that the Order shall be construed to avoid duplication of work already satisfactorily completed. Order § III.N. In addition, for many of the canyon-specific and site-specific investigations, the Order first requires a historical investigation to gather and assess environmental investigation that has already been completed. Order §§ IV.B.1.c, IV.C.1.b, IV.C.2.b, IV.C.3.b, IV.C.5.b, and IV.C.5.b.


53

Comment No. 92: DOE and UC state that the Order is arbitrary and capricious because it is internally inconsistent and duplicative, and reference 108 separate comments. Comments at 141-142. Environment Department Response: The Environment Department is responding to the individual separate comments in Volumes 2 and 3 of the Response to Comments on the Draft Order. Comment No. 93: DOE and UC state that the Order is arbitrary and capricious because it is factually inaccurate, and reference 54 separate comments. Comments at 142. Environment Department Response: The Environment Department is responding to the individual separate comments in Volumes 2 and 3 of the Response to Comments on the Draft Order.


54

NMED Response to Comments Received through July 31, 2002 by NMED on the Los Alamos National Laboratory (LANL) Draft Order No. Order

Section/ Attachment

Unique No.

Subject Comment NMED Response Includedin Order?

Y/N R1 General –

Not directly related to Order

1 ViolationPenalties

A commenter suggested that NMED was selectively enforcing NM law, in particular with the proposed $25,000/day fines.

Proposed fines for non-compliance are enforced in accordance with the New Mexico Hazardous Waste Act, NMSA 1978 §§ 74-4-10 and 74-4-10.1E, and NMED’s civil penalty policy.

N

R2 General –Not directly related to Order

2, 18 Cleanup Program

Several comments were received regarding the cleanup program at LANL. One commenter indicated that Provost Linford, UC, appeared not to be aware of the “sorry state of affairs” with the cleanup program at LANL and that the Order indicates progress has been inadequate. Another commenter noted that some $701 million in “cleanup” had been done at LANL, but at least 80 – 90% of that had been spent on overhead and studies. This commenter also noted that waste disposal continues at LANL, with a considerable increase in the amount of waste disposed in the environment since the beginning of the “cleanup” program.

The Order is intended to direct LANL’s environmental restoration efforts and the Department of Energy’s cleanup funding toward sites that are considered by NMED to be high priorities. These high priority sites need further investigation or warrant cleanup and/or monitoring based on information currently available to NMED. The Order is also intended to expedite the schedule for investigation and/or cleanup at the sites that NMED believes pose the greatest potential threat to human and ecological receptors. Waste management (i.e. waste disposal) at LANL is addressed in its operating permit and is not covered by this Order.

N


2 CAB One commenter provided several comments regarding the CAB. One comment was that since the departure of “activists” on the Citizen Advisory Board (CAB), it has not had independent representation from the surrounding communities nor has there been any continuity with former environmental remediation committees. This commenter suggested a new and independent CAB to report to the California and New Mexico legislatures.

This comment is beyond the scope of the Order; therefore a response is not warranted.

N

New Mexico Environment Department Response to Comments on the Draft Los Alamos National Laboratory (LANL) Order 11/26/02 Page 1 See associated table “Index of Comments”


Section/ Unique

No. Subject Comment NMED Response Included

in Order? Attachment Y/N

This commenter also noted that numerous observations and recommendations by the CAB during his tenure were ignored, with the result that Mortandad and several other canyons were contaminated with hazardous wastes. He indicated the reaction of the DOE to CAB recommendations and concerns was to disband the CAB and reformulate it with new members associated with the DOE, making it useless as a means of dealing with contamination at LANL. This commenter also indicated that the initial Bechtel report on the community attitude toward the CAB was erroneous; he has not seen the second and recent Bechtel report.


2, 4, 6, 18, 34, 37

Public Participation

There were several comments regarding public participation: One commenter suggested that a new and independent CAB should adopt a program of hearings and participation to ensure its oversight function will reflect the concerns of the surrounding communities. A commenter stated that the public should have opportunities to consider a proposed remedy, comment on it, and receive NMED’s response to comments at the following stages: schedule of compliance, RFI scope, conditions and schedule, CMS work plan scope and

The corrective measures evaluation (CME) in the Order is generally equivalent to the corrective measures study described in EPA guidance (OSWER Directive 9902.3-2A, 1994) and LANL’s operating permit. The corrective measures selection process is subject to a public participation period, followed by responses by NMED. This process follows those described in 20.4.1.901 NMAC. In addition, Section VII.D.7 of the Order states that the corrective measures evaluation includes a statement of basis for remedy selection at any site undergoing the CME process. As stated in this section, the statement of basis will be provided to the public for comment, and those comments will be responded to by NMED.

Y



Section/ Unique



schedule, remedy selection, corrective measures implementation plan, and remedy completion. A commenter emphasized the need for public hearings on the CAO and expressed concern that the NMED has not responded to public inquiries and requests made about permitting and closure plans at LANL. This commenter requested that NMED keep the public better informed in the future. Another commenter indicated that the draft Order appears to be a modification of the LANL operating permit, and as such, should be open for formal public hearings. This commenter noted that NMED is 1) promulgating the Order with a public participation process that appears to be voluntary; 2) basing the Order on HWA, §74-4-10.1, effectively removing any specific statutory or regulatory right of appeal for the final decision; 3) placing the cleanup work outside the permitting process therefore removing that work from the citizen enforcement provisions under RCRA and HWA in which citizens have standing to compel compliance with permit conditions; and 4) wiping out 17 years of joint compliance efforts, including hundreds of public meetings from 1989 to the present at which specific cleanup proposals were

The draft and final versions of the Order are not subject to the public participation process outlined in 20.4.1.901 NMAC because they are not modifications to LANL’s operating permit; however, NMED will provide public participation information as Section III.R in the Order. LANL’s HSWA module states that the Permittee shall prepare a Community Relations Plan (CRP) as part of each RFI Workplan that allows for public participation in the RFI process. Additionally, the public is provided an opportunity to comment on the corrective action process if NMED requires a CMS. The public also has the opportunity to comment during the permit modification process for no further action determinations once cleanup is completed. Any member of the public may review materials related to cleanup in the Hazardous Waste Bureau’s (HWB) library at any time, provided he request in writing to the HWB his intent to review reference material. HWB’s library contains the Administrative Record for LANL. The Letter of Intent was not considered when the Order was prepared. NMED encourages the public, including Santa Fe County and the Pueblos, to actively participate and provide comment to NMED regarding remedy selection and major permit modifications during the associated public comment process. Section VII of the Order requires a public participation plan.



Section/ Unique



discussed and debated. This commenter also noted that the public participation process initiated by the draft Order is informal providing no basis or record on which to appeal; could be terminated or abridged at any time prior to actual cleanup decisions; and appears to be side-stepping permitting requirements in favor of a process that will cut out the public from all substantive deliberation and provide complete discretion for the agency and DOE. This commenter also noted that the Letter of Intent seems to indicate that “senior level involvement and support,” “the expansion of high performance teams to focus on accelerated decision-making and to optimize cleanup schedules,” and “shortened review periods” sound as though decisions will be made outside the context of public participation. This commenter also noted that the parties to the Letter of Intent commit to integrating DOE and regulatory public participation. However, while NMED has legal requirements for public involvement, DOE has no public participation requirements. This commenter also noted that there is no requirement for NMED to consider any public comment as it finalizes the CAO and no explicit and specific



Section/ Unique



public right of appeal for the final CAO. Another commenter noted the public should continue to participate in the process of investigative and cleanup plans and that Santa Fe County and its citizens, including the Pueblos, need to be considered a party. Another commenter noted that the draft Order does not state when, where, and how the public may participate in and comment on investigation and cleanup processes that will be performed by the Facility and reviewed by NMED. This commenter recommended that NMED prepare a public participation section for the draft Order based on EPA guidance as referenced in the NM Attorney General’s July 30, 2002 comments and release it for a 30-day comment period. After receiving and incorporating the comments, NMED should release the Final Order.


2 EnvironmentalRestoration Rating

A commenter indicated that the DOE’s “outstanding rating for LANL’s environmental restoration program for FY 2001” could not be rationalized with the draft CAO.

This comment is beyond the scope of the Order and is not the topic of this public notice. In addition, NMED is not involved in DOE’s formulation of ratings for DOE facilities.

N


2, 9, 14, 16

Schedule of Cleanup

There were several comments regarding the schedule of cleanup. One commenter noted that accelerated cleanup scenarios had been agreed to in the past, but none have been accomplished.

For each site requiring cleanup, LANL will evaluate potential remedial alternatives and will recommend a preferred remedy that will be protective of human health and the environment and attain the appropriate cleanup goals.

N



Section/ Unique



Another commenter expressed the belief that the cleanup of hazardous waste sites at LANL has proceeded too slowly. Another commenter asked, “What is the schedule for cleanup?” Another commenter noted that the draft Order does not provide schedules for further investigation or corrective action activities at most of the SWMUs listed in the Permit. This commenter is concerned with those SWMUs on federal land parcels slated for transfer to the County in the near future (SWMUs 00-003, 00-012, 00-030(b), 21-013(d, e), 21-024(f), and 21-029). Delay in implementing investigation and corrective actions at these SWMUs would negatively impact the transfer of land to the County.

The schedule in Section XII of the Order is enforceable and is based on NMED’s prioritization of site investigations and the identified cleanup actions. The results of the scheduled site investigations are intended to identify the need for further investigation and cleanup that will be added to the schedule as necessary. Land transfer is a DOE priority. Sites planned for land transfer may not correspond to NMED priorities. The State of New Mexico must approve all land transfers; therefore, all SWMUs slated for transfer must be evaluated by NMED unless the sites have already received no further action determinations.


2, 11, 18, 36

Diversion of Cleanup Funds

There were several comments regarding possible diversion of cleanup funds. One commenter stated that while the CAB had prioritized various programs for managing waste, monies allocated to them were diverted to weapons research or other activities, such as reports and studies on how to conduct studies to accomplish cleanup. The commenter indicated that this could have resulted in additional contamination at LANL.

The Order is intended to direct LANL’s environmental restoration efforts and the Department of Energy’s cleanup funding toward sites that are considered by NMED to be high priorities. These high priority sites need further investigation or warrant cleanup and/or monitoring based on information currently available to NMED. The Order is also intended to expedite the schedule for investigation and/or cleanup at the sites that NMED believes pose the greatest potential threat to human and ecological receptors. The intent of the Order is to provide a detailed

N



Section/ Unique



Another commenter noted that NMED put effort and resources into creating the Order and LANL is diverting significant resources and effort to respond to it, funds and resources diverted from the actual cleanup. Another commenter noted that the draft Order provides a “scientific” rationale for squandering scarce cleanup funds by ignoring 15 years of prior research, at a cost approaching $700 million, which provided more than adequate knowledge to support cleanup requirements or detailed engineering and cost studies in many cases. This commenter notes that the draft Order formalizes a strategy of using cleanup funds to conduct research and risk assessment that will cost, in many cases, more than cleanup would. Another commenter noted that of $360 million spent by LANL for cleanup in 1995, roughly 20% had gone to actual cleanup. This commenter noted that the Cerro Grande fire accentuated the imminent and substantial endangerment, which could have been pre-empted had there been effective cleanup in the past. This commenter also indicated that the persistent pattern of declining funding for cleanup caused doubt that LANL would ever embark on comprehensive cleanup.

schedule of NMED’s priority sites requiring cleanup. The schedule included in the Order may be used by LANL and DOE to secure funding for future cleanup and investigation activities required by NMED. NMED urges LANL to work with DOE to ensure that necessary funding is available.

R8 General – 2 Plutonium Pits One commenter indicated that although This comment is beyond the scope of the Order; N



Section/ Unique


in Order? Attachment Y/N Not directly related to Order

the President of the UC asserted that LANL under its management would not be permitted to manufacture plutonium pits, this prohibition has been withdrawn. Is plutonium pit production at Rocky Flats in Colorado the cause of contamination? The engineers in charge of pit production there have moved to LANL.

therefore a response is not warranted.


2 University ofCalifornia (UC)

One commenter indicated that since the UC has only superficial contact with stakeholders, it is irrelevant in managing environmental cleanup or protection at LANL.


N


2 Accord Pueblos One commenter indicated that although four Accord Pueblos are receiving over $300,000 each to monitor contamination of air and water, it is not likely that any data that may be acquired will be released to the public. This commenter stated that the DOE agreement recognized the Pueblos as sovereign nations that are permitted to maintain secrecy of any information derived on their land. This commenter also suggested that there is little action toward cooperation with NMED or DOE EM divisions to protect the Accord Pueblo lands from further contamination.

LANL and the Pueblo of San Ildefonso are planning to negotiate an access agreement that will allow for construction of a monitoring well in Mortandad Canyon on Pueblo property. The Pueblo is interested in having a monitoring point downgradient from releases in Mortandad Canyon. Because LANL would construct the well, data would be available to the public. However, because the Pueblo is a sovereign nation, NMED cannot require it to share data with the general public. NMED can encourage the Pueblo to share its data.

N


2 Water QualityTask Force (WQTF)

One commenter indicated that the WQTF established by the City of Santa Fe conducted a study of potential pathways by which contamination might reach the aquifer serving Santa


N



Section/ Unique



Fe. LANL hydrologists admit there is no information yet available on such pathways. The WQTF has no legitimate basis for concluding that hazardous wastes in LANL canyons and perched waters will not percolate into the aquifer serving Santa Fe in quantities sufficient to force the abandonment of this source of supply within the next 40 years.


2, 3, 7, 9, 12, 15, 16, 34, 35, 36

Support There were several comments supporting the draft CAO: It is only by this Order that the communities surrounding LANL can expect to see a realistic effort by DOE to clean up hazardous contamination created by LANL; relief that measures will be taken to protect the beautiful state of New Mexico; commended the NMED for attempting to protect health from the experimentation by the government and its agents; supports the intent of the NMED Draft CAO; that it is a comprehensive proposal for cleanup that addresses soil, surface water and ground water; that it sets firm priorities for investigation and cleanup of ground water, canyons, and MDAs; that it adopts a firm schedule for cleanup actions; and it reaffirms NMED’s adoption and use of the watershed approach for investigations; agreed that there is ample evidence to justify NMED issuing the Order. Another commenter supports the

No response needed. N



Section/ Unique



Order’s strong emphasis on monitoring for impacts to the regional aquifer, as well as alluvial and perched ground water. Another commenter noted support for NMED concerning the Order. Another commenter noted that the CAO is impressive in its scope and quantity of further MDA investigations, monitoring wells, and the reports that it mandates over the coming decade. Another commenter praised NMED for doing something meaningful, aggressive, comprehensive, and forward looking in its regulatory enforcement role over LANL. This commenter also indicated, however, that this Order should have been issued more than a decade ago, so time is of the essence for implementation. This commenter also gave support provided NMED remain zealous in implementing the Order and protecting it from the DOE/LANL/UC challenge.


3 Compensationfor Health Problems

One commenter questioned what LANL will be required to do to compensate the people who have suffered “health” problems due to its negligence; recommended the investigation extend into the health arena.

NMED has no legal authority to require such compensation.

N

R14 General – Not directly

4, 5, 18 Use of Modeling There were several comments regarding groundwater modeling. Two

There are many inherent uncertainties and assumptions in any model. LANL is aware of

N



Section/ Unique


in Order? Attachment Y/N related to Order

commenters expressed concern that the groundwater models developed by LANL may not accurately reflect the natural processes. These commenters indicate that LANL’s current model does not resolve the significant problems with flow and transport in fractured rock in the unsaturated zone and, therefore, should not be used unless it is calibrated to match the observed instances of contamination and approved by outside peer reviewers. One commenter suggested that LANL catalog the known instances where contaminants or environmental tracers have moved significant distances in the subsurface at LANL; analyze each of these instances; and organize the analyses into a report(s). Another commenter noted that the parties to the Letter of Intent commit to “improve the definition of data quality objectives and what constitutes sufficient and acceptable data for predictive modeling.” This commenter suggests that most of the predictive modeling will never achieve the predictive capability needed to determine final remedies for MDAs and other contaminated sites. He recommends that the lower limit of error for predicted hydraulic conductivity, contaminant arrival time,

NMED’s concerns regarding use of models. NMED considers that adequate site-specific data is essential for proper calibration and use of any model. NMED accepts the use of the model as a tool, but will not rely on the model’s predictions, nor make regulatory decisions based on its predictions.



Section/ Unique



etc. be determined to show the total error in risk, which would be enormous.


4, 9, 10, 34

Accessibility of Information

There were several comments regarding the accessibility of information and documents: One commenter suggested the use of the Internet to make the index of files concerning hazardous waste regulation at LANL available to the public; and publishing RFI work plans, RFI reports, CMS plans, CMS reports, etc. on the NMED Internet site or a LANL website. This commenter also recommended receiving public comment via the Internet. Another commenter suggested that the generated information be in an easily comprehensible form to allow more efficient NMED review and that timely and convenient public access to this information must be addressed in the Order. Another commenter noted that the quantity of sampling and level of documentation required by the Order may introduce delays in the process. This commenter recommended that consideration be given to electronically archiving the generated documentation to make them accessible to the Respondents and NMED. A commenter indicated that the Permit

Documents submitted to NMED by LANL are available for review at the Hazardous Waste Bureau office located at 2905 Rodeo Park Drive East, Building 1, in Santa Fe. Additionally, the draft Order can be found at NMED’s website at www.nmenv.state.nm.us/hwb/publicnotice.html, along with a link to the software necessary for viewing the draft Order. Many documents are available from LANL, either on the Environmental Restoration Project’s web site (erproject.lanl.gov) or through the ER’s Virtual Library. The revised schedule was designed with regard to NMED resources. NMED recognizes that review times are problematic and will implement mechanisms to ensure timely reviews. However, NMED is required by its Hazardous Waste Fee Regulations to meet review timeframes once a document is accepted by NMED for review and payment of fees has been received from a facility. The reporting requirements specified in Section XI of the Order are designed to expedite the review process, provided that LANL submits future reports in the format outlined in the Order.

N


http://www.nmenv.state.nm.us/hwb/publicnotice.html


Section/ Unique



is not readily accessible on the computer and directions for downloading documents should be provided on the NMED website.


4 TA-1 One commenter noted that some remedial action had been taken on the townsite area on an emergency basis, but most of the sites have not progressed beyond receipt of RFI reports and supplemental information. LANL should be required in 2002 to submit a proposal to delete Potential Release Sites (PRSs) in OU-1078 from the permit or to conduct a CMS and promptly complete CMS reports on such PRSs.

All of the SWMUs, AOCs, and other sites at LANL will be characterized and remediated individually, as part of an aggregate, or as part of a canyon system. The Order schedule includes work plans and reports associated with each individual site, aggregate, or canyon. If further data collection is required, a CMS has not been scheduled. The dates listed in the Order schedule for plans and reports are based on available data, NMED's prioritization of the site, aggregate, or canyon, and on the suspected or known amount of work that needs to be performed.

N


4 TA-15 One commenter noted that former OU-1086 contains numerous TA-15 firing sites; NMED files indicate that after initial RFI and interim action reports in 1996 and a NOD response in 1997, Phase II investigations were conducted in 1998; and a revised RFI report and SAP were due in 1999, but were not submitted. These should be listed for completion in 2002.


N


4 TA-18, SWMU18-001(a,b,c)

One commenter noted that TA-18 is a criticality test area; that RFI reports have been filed; an Expedited Cleanup Plan for SWMU 18-003(e) was filed in 1995; an Expedited Cleanup

All of the SWMUs, AOCs, and other sites at LANL will be characterized and remediated individually, as part of an aggregate, or as part of a canyon system. The Order schedule includes work plans and reports associated with each individual

N



Section/ Unique



Completion Report for SWMU 18-001(b) and a VCA Completion Report for SWMU 18-001(a) were filed in 1996; a SAP was under consideration in 1997; in 1999 LANL requested to defer all corrective measures to 2003; and there are unresolved questions of groundwater contamination. Both the SAP and the pursuant field work should be scheduled for 2002 and a CMS plan required promptly thereafter.

site, aggregate, or canyon. If further data collection is required, a CMS has not been scheduled. The dates listed in the Order schedule for plans and reports are based on available data, NMED's prioritization of the site, aggregate, or canyon, and on the suspected or known amount of work that needs to be performed.


4 TA-32 One commenter noted that a RFI report has been submitted; a Phase II investigation was apparently planned; VCA plans were also submitted for several PRSs; but none of these documents have been approved by NMED. NMED should direct that any needed additional sampling be completed and a supplemental RFI report be completed in 2002-2003.


N


4 TA-33 One commenter noted that TA-33 is the location of firing site and mesa-top disposal areas; based on initial sampling, EPA pointed out the presence of significant radiological contamination and the risks of migration to nearby springs in February 1998. Additional sampling is called for to determine the extent of contamination and a report should be furnished in 2002-2003.


N



Section/ Unique




4 TA-35 One commenter noted that TA-35 housed a wastewater treatment facility; several RFI reports were submitted in 1996 and one in 1998; a response to a Request for Supplemental Information (RSI) was filed in 1999; the June 1996 RFI report stated that further inquiry was required at several sites; and in 1997 and early 2002 SAPs were filed for most of the PRSs needing further investigation. The investigation should continue to complete Phase II sampling in 2002 and a report should be filed soon thereafter.

All of the SWMUs, AOCs, and other sites at LANL will be characterized and remediated individually, as part of an aggregate, or as part of a canyon system. The Order schedule includes work plans and reports associated with each individual site, aggregate, or canyon. If further data collection is required, a CMS has not been scheduled. The dates listed in the Order schedule for plans and reports are based on available data, NMED's prioritization of the site, aggregate, or canyon, and on the suspected or known amount of work that needs to be performed. A SAP for TA-35 has been submitted and approved by NMED. Work to be performed at TA-35 is included in the Mortandad Canyon Work Plan.

N


4 TA-36 One commenter noted that TA-36 contains firing sites and surface disposal areas; LANL filed a response to a NOD for PRSs in TA-36 in 1996; NMED determined that the RFI report on several of these PRSs was “grossly deficient” in 1997; LANL proposed to remedy the deficiencies in a new SAP scheduled to be delivered by September 1998, extended to December 1998,but apparently not [submitted]. The [submittal] of the SAP and its execution should be completed in 2002.


N


4 TA-39 One commenter noted that TA-39 contains firing sites and disposal areas within Ancho Canyon; NMED in 1997 called in the RFI report for PRSs in this area having identified it as “high priority for review;” the RFI report was

All of the SWMUs, AOCs, and other sites at LANL will be characterized and remediated individually, as part of an aggregate, or as part of a canyon system. The Order schedule includes work plans and reports associated with each individual site, aggregate, or canyon. If further data collection

N



Section/ Unique



submitted in March 1997; and NMED issued a RSI in November 1997, specifying additional work to be completed in the field and in analysis; LANL responded in December 1997 agreeing that the RFI report was deficient, requested until September 1998 to complete the report, then requested a further extension to Sept 1998, which was granted; but the report was never [submitted]. NMED should schedule this RFI report for completion in 2002.

is required, a CMS has not been scheduled. The dates listed in the Order schedule for plans and reports are based on available data, NMED's prioritization of the site, aggregate, or canyon, and on the suspected or known amount of work that needs to be performed.


4 TA-48 One commenter noted that a RFI report was [submitted] on PRSs, mainly outfalls, connected to the TA-48 radiochemistry site in 1995; a response to a NOD in 1996; s SAP [submitted] in 1997; a RFI report addendum [submitted] in late 1997; and EPA advised NMED that the outfall sampling was inadequate in 1998. In 2002 additional sampling at these PRSs should be scheduled and with the report following.

All of the SWMUs, AOCs, and other sites at LANL will be characterized and remediated individually, as part of an aggregate, or as part of a canyon system. The Order schedule includes work plans and reports associated with each individual site, aggregate, or canyon. If further data collection is required, a CMS has not been scheduled. The dates listed in the Order schedule for plans and reports are based on available data, NMED's prioritization of the site, aggregate, or canyon, and on the suspected or known amount of work that needs to be performed. Work to be performed at TA-48 is included in the Mortandad Canyon Work Plan.

N


5, 18, 35 Area G Performance Assessment

There were several comments regarding the PA for Area G. One commenter noted that the FEHM model, developed by LANL, was used to assess transport of wastes in the 1997 PA for disposal Area G, but does not meet the robust requirement that it be tested under different field

NMED cannot issue a determination for no further action or assess closure of a site based on model predictions. Characterization data for MDA G is not adequate to delineate the extent of the contaminant releases or to determine the threat to human health and the environment from direct exposures and from contaminant migration. Without sufficient data, closure and post-closure

N



Section/ Unique



conditions. This commenter suggests that the FEHM model be applied to each of the known instances of contaminant movement and be shown to work. Another commenter noted that this is a non-RCRA process, but the work done in it will underlie the RCRA choices at this site. The new Performance Assessment is due to be released early 2004, approximately when Area G is to close. Another commenter recommended that the Final Order should expressly address Area G and outline an immediate mitigation strategy.

care cannot be addressed. NMED has ordered additional investigation to be performed at MDA G. The Order requires both a site investigation and a corrective measures study.


6, 36 Orders for Corrective Action

There were several comments regarding orders for corrective action. One commenter noted that the CAO does not contain any actual orders for corrective action. Another commenter expressed concern that the Order does not mandate actual corrective measures or cleanup.

Section VII of the Order states that NMED will require Corrective Measures Evaluation Reports for sites where there has been a release of hazardous waste or hazardous waste constituents into the environment and where investigation and cleanup is necessary to protect human health or the environment. These reports will evaluate potential remedial alternatives and will recommend a preferred remedy that will be protective of human health and the environment and attain the appropriate cleanup goals.

N


6, 18, 35 Cleanup Standards

There were several comments regarding cleanup standards. One commenter indicated that the CAO sets no site wide cleanup standards. Another commenter indicated that the

Due to the diversity and complexity of sites at LANL, NMED has determined that appropriate cleanup standards should be decided on a site-by-site basis. The Order states that NMED has established

N



Section/ Unique



draft Order does not propose or require any cleanup standards for the site, but rather formalizes a process in which cleanup decisions will be made separately for roughly two thousand contaminated sites. This commenter noted that future adoption of clear, site-wide standards that would conserve agency resources and provide clear guidelines for action is all but ruled out. Another commenter recommended that NMED select the most restrictive usage scenario for all carcinogenic substances under review and in the implementation of applicable cleanup standards.

cleanup levels at sites where investigation and cleanup is required in response to the release of contaminants to the environment. The cleanup levels are based on excess lifetime cancer risk levels that are consistent with the EPA’s National Oil and Hazardous Substance Pollution Contingency Plan, 40 C.F.R. §300.430(e)(2)(i)(A)(2).


6 Cleanup Orders The CAO fails to order cleanup for well-studied sites.

NMED agrees that there are sites at LANL that have been well-studied, yet lack adequate supporting data to make risk-based, investigation and cleanup decisions. Adequate determination of the nature and extent of contamination and rates of contaminant migration at sites is essential to ensure that cleanup methods are both appropriate and sufficient. NMED has ordered additional work to be completed at those sites.

N


6 UnpermittedDisposal Facilities

The CAO will continue to allow dumping at unpermitted disposal facilities.

Waste management operations will be addressed in LANL’s new operating permit and are beyond the scope of the Order.

N


6, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34,

Letter of Intent There were several comments regarding the Letter of Intent. One commenter expressed concern about the ramifications of the Letter of Intent and asked NMED to reconsider its agreement to this document that

The Letter of Intent was not considered when the Order was prepared. In addition, the Letter of Intent does not limit or prejudice future NMED action, nor does it invalidate requirements under RCRA subtitle C, 20.4.1 NMAC, or NMSA 1978 §§ 74-4-1 to 74-4-14.

N



Section/ Unique



36, 37 compromises the prospects for thorough cleanup at LANL. Several commenters noted that the Letter of Intent, which is a result of private negotiations between Secretary Maggiore, DOE, and UC, commits NMED to certain processes, principles, and agreements that limit its regulatory options under RCRA relative to DOE. This commenter indicated that the Letter of Intent and its supporting documents would result in leaving all the hazardous and radioactive waste at LANL in the ground, often in exactly the places where it was originally spilled, dumped, or discharged. This commenter requested that the NM Attorney General ask Secretary Maggiore to clarify that the Letter of Intent does not limit or prejudice future NMED action. These commenters also indicated that, since money would change hands as a result of signing this letter, the Letter of Intent is essentially a business deal, not a regulatory activity. These commenters also noted that NMED agrees to DOE’s overall cleanup plan, from expediting TRU disposal, to DOE’s approach to risk analysis, to a secret decision-making process, and other substantive matters, and [that NMED] will get paid by DOE



Section/ Unique



under a new protocol defined by the Letter of Intent which may or may not be public. Another commenter recommended that NMED examine the currency and validity of the Letter of Intent and possibly rule it an invalid and inoperative, since appropriations were denied for the DOE’s Accelerated Cleanup Account by the Senate Energy and Water Subcommittee which allocated these proposed “expedited cleanup” funds directly to the individual sites and barred the DOE Asst. Secretary for Environmental Management from discretionary reallocations, and that the two primary signatories to the Letter of Intent may soon be gone.


8, 14 Cleanup Methodology

There were several comments regarding cleanup methodology. One commenter recommended that LANL consider comparisons among the results of remediation for various TAs, their individual disposal procedures, and disposal environments in order to facilitate cleanup. Another commenter questioned if the process of cleanup would involve the use of more chemicals. What is involved in the cleanup?

For each site requiring cleanup, LANL will evaluate potential remedial alternatives and will recommend a preferred remedy that will be protective of human health and the environment and attain the appropriate cleanup goals.

N


9 WorkingRelationships

One commenter expressed concern that the tone of the Draft Order threatens to

NMED does not believe that the Order will destroy working relationships with LANL nor will it

N



Section/ Unique



destroy the constructive working relationships between DOE, LANL, NMED, and the public. This commenter recommends that DOE and NMED consider less confrontational means to reach the same objectives, such as a four-party agreement including UC/LANL, DOE, NMED, and EPA; inclusion of corrective action provisions in the RCRA Operating Permit; or retaining the Order in draft form.

impede work at LANL.


9, 11, 12, 15, 18, 35,

36

ISE Determination

There were several comments on the ISE Determination: one commenter noted that the term “imminent and substantial endangerment to human health or the environment” has alarmed the public. This commenter recommends that NMED provide the public in meetings and notices the exact nature and severity of this “endangerment” and define the term “imminent.” Another commenter noted that while the title “Determination of an Imminent and Substantial Endangerment to Health and the Environment” is legally necessary, it is interpreted literally by the public and activist groups, unjust to the lab, and grossly misleading to the public. This commenter also suggested an executive summary or introduction that clearly states the extent of Imminent and Substantial Endangerment to Health and the

NMED issued the “imminent and substantial endangerment” finding in accordance with New Mexico Hazardous Waste Act, NMSA 1978 §§ 74-4-13.A. The finding was discussed in presentations given by NMED in four public meetings held during the Draft Order public comment period in May 2002 to provide information on the Order. The ISE can be reviewed at the Hazardous Waste Bureau office at 2905 Rodeo Park Drive East, Building 1, Santa Fe, NM, and at NMED’s website at www.nmenv.state.nm.us/hwb/publicnotice.html

N


http://www.nmenv.state.nm.us/hwb/publicnotice.html


Section/ Unique



Environment be added to the final draft of the Order. Another commenter noted that the danger is beyond “imminent and substantial endangerment to human health and the environment.” Another commenter commended NMED for recognizing “the substantial hazard to human health and the environment” and “the imminent and substantial endangerment to health or the environment” posed by releases from the subject areas cited in the Order. Another commenter noted that the ISE Determination is based on NMSA §§ 74-4-[13] which has no provision for public participation, no specific right of public appeal, and provides no authority to order actual cleanup. This commenter also noted that the ISE Determination does not state that there actually is any imminent and substantial endangerment, just that there may be such endangerment, which leads to authority in this law for investigation but not for an actual cleanup order. Another commenter noted that the ISE Determination is well-founded and appropriate under New Mexico law and relevant federal case law.



Section/ Unique



Another commenter also supported the ISE Determination, believes that the DOE/LANL/UC challenges claiming that there is not a solid legal basis for the finding to be unsupported, and commended NMED on this finding.

R34 General -Not directly related to Order

38 ISEDetermination

Another commenter made several comments (R34-R67) on the ISE Determination: ¶ 2, p. 1 – in the second sentence, NMED states “[t]he canyons run roughly east to west or southwest.” This should read “the canyons run roughly west/southwest to east.”

The text in the ISE will be changed to read “the canyons run roughly west to east”.

Y



Section/ Unique




38 ISEDetermination

¶ 3, p. 1 – NMED inaccurately states that “[h]ydrogeologic investigations have identified four discrete hydrogeologic zones beneath the Pajarito Plateau on which the Facility is located,” including “intermediate perched water in the volcanic rocks (Tschicoma Formation and upper and lower members of the Tshirege Member of the Bandelier Tuff).” Non-canyon-specific intermediate perched water is not known to exist in the Tshirege Member of the Bandelier Tuff at the Facility and should not be described as a separate hydrogeological zone.

The statement is based on the review of LANL documents submitted to NMED. For example, the Installation Work Plan, Revision 8 (LANL, 1998e, p. 2-32) states, “perched groundwater within the Bandelier Tuff along the Jemez Mountains may be maintained by seepage from streams exiting the mountains.” Furthermore, LANL states that “[t]he presence of perched water at TA-16 and on the flanks of the Jemez Mountains is evidently controlled by contrasts in lithologic proper-ties [sic] within the Bandelier Tuff, which might exist at boundaries between flow units.” In addition, NMED staff has identified several springs at TA-16. The springs issue “from canyon walls well above the alluvium”, thus indicating non-canyon specific perched groundwater originating from the Tshirege Member of the Bandelier Tuff. Springs have also been identified emitting from Tshirege Member of the Bandelier Tuff at TA-9 and TA-18 (NMED, 1996c, p. 23).

N

R36 General -Not directly

38 ISEDetermination

¶ 6, p. 2 – NMED inaccurately states that “[t]he Facility is currently owned

Documents submitted by LANL are inconsistent with respect to the University of California. For

N



Section/ Unique



and operated by the United States Department of Energy and operated by the University of California (the ‘Facility Operators’).” The owner of the Facility is DOE; the Facility is operated by the Regents of UC.

example, LANL indicates (LANL, 1998e, p. iii) that the Department of Energy and University of California are conducting the ER Project with no mention of the “Regents”. The January 1999 Site-Wide Environmental Impact Statement (p. 2-118) also indicates that “UC manages LANL for DOE”; however, the Permit recognizes the University of California Regents as a co-permittee (DOE, 1999). NMED believes that DOE is both owner and operator of the Facility.


38 ISEDetermination

¶8, p. 2 – NMED inaccurately states, “[t]he Omega West Reactor is scheduled for decontamination and decommissioning in 2006.” Decontamination and decommissioning of the Omega West Reactor is beginning this year (2002) and will likely be completed prior to 2006.

The NMED statement is based on information found in the LANL 2000 Environmental Surveillance Report (LANL, 2001c, p. 509). LANL states that the “reactor will be transferred to the institution for placement into the decontamination and decommissioning (D&D) program beginning in 2006.”

N


38 ISEDetermination

¶17, p. 3 – There is no explanation why the “16 year period from the early 1970s to middle 1980s” is relevant to description of solvent use. This paragraph also does not convey information contained in the referenced document, the February 2002 draft Center for Disease Control and Prevention, “A Summary of Historical Operations at Los Alamos National Laboratory and Associated Off-Site Releases of Radionuclides and Other Toxic Metals-Draft Report, Version 2G” (draft CDCP 2002) that the use of solvents very likely resulted in air emissions, not “releases” of solid waste to the environment. This commenter recommends that if NMED had data

Unfortunately, historic documentation regarding non-radiologic contaminants and wastes are limited and incomplete. The purpose of the compilation of organics used is to highlight that large quantities of solvents have been used at LANL and were undoubtedly released to the environment, not only via airborne emissions, but in the form of effluent discharges, wastes disposed in shafts, pits and trenches, or other types of releases. It is important to note that LANL’s inference that 100% of VOCs historically used at the Facility were volatilized to the atmosphere is unlikely given the presence of volatile organics in the subsurface at LANL (for example, MDA G) (LANL, 2000a, p. 3-41). LANL submitted draft reports in 2002 discussing the presence of vapor-

N



Section/ Unique



concerning the amounts that were land disposed, this would be more meaningful than to state the amount used.

phase VOCs in the subsurface at disposal areas MDA H (LANL, 2002, LA-UR-02-3397) and MDA L (LANL, 2002, ITRD Summary Report: Conceptual Model Review and Remediation Options for Los Alamos National Laboratory Technical Area 54, Material Disposal Area L). Another example of discharged, released, discarded solvents is found in the description of 16-003(o) (LANL, 1993). It states “[M]ost of the volatiles are distilled during the processing [of plastic-bonded explosives]. In the past, any remaining solvents were discarded to the sump with the waste water.” Also, a 250-ft weir was installed in an attempt to eliminate volatile organic compounds discharged from the outfall to the environment (LANL, 1993, p. 5-37).


38 ISEDetermination

¶25. p. 4 – NMED inaccurately states that “[t]hroughout the Facility, large quantities of solvents have been released at accelerator operations.” Large quantities of solvents are not typically associated with the operation of an accelerator. This paragraph also is not supported by the draft CDCP 2002, which states “[l]ittle operational data concerning the quantities and releases have been found for 1970s and 1980s during systematic search of CRC records holdings.” As in ¶ 17 above, a large percentage of the solvent releases were emitted to the air. Also, this paragraph incorrectly refers to the site name with the acronym LAMPF; the site name has been changed to Los Alamos Neuron Science Center (LANSCE).

CDCP (2002, p. 55) states “Accelerator complexes within DOE have been found to release large quantities of solvents”; therefore, the LANL Facility assertion that “[l]arge quantities of solvents are not typically associated with the operation of an accelerator” is not necessarily accurate. In addition, the fact that operational data concerning quantities and releases is sparse has no bearing on whether or not solvents were used or released in large quantities at the LANL accelerators. A dearth of historic documentation regarding nonradiologic releases, quantities and operations is not exceptional and is an issue that causes considerable uncertainty at LANL. It is important to note that LANL’s inference that 100% of VOCs historically used at the Facility were volatilized to the atmosphere is unlikely given the presence of volatile organics in the subsurface at LANL (for example, at MDA G)

Y



Section/ Unique



(LANL, 2000a, p. 3-41). LANL submitted draft reports in 2002 discussing the presence of vapor-phase VOCs in the subsurface at disposal areas MDA H (LANL, 2002, LA-UR-02-3397) and MDA L (LANL, 2002, ITRD Summary Report: Conceptual Model Review and Remediation Options for Los Alamos National Laboratory Technical Area 54, Material Disposal Area L). Another example of discharged, released, discarded solvents is found in the description of 16-003(o) (LANL, 1993). It states “[M]ost of the volatiles are distilled during the processing [of plastic-bonded explosives]. In the past, any remaining solvents were discarded to the sump with the waste water.” Also, a 250-ft weir was installed in an attempt to eliminate volatile organic compounds from the outfall (LANL, 1993, p. 5-37). The text in the ISE will be changed to read, “CDCP reports that throughout the DOE complex, accelerators have been found to have released large quantities of solvents” (CDCP, p.55). The text in the ISE will be changed to read “Los Alamos Neu[t]ron [sic] Science Center (LANSCE)”, rather than LAMPF.


38 ISEDetermination

¶ 27, p. 5 – NMED’s statement that iodide leaked from drums in the 1950s is irrelevant and does not support the existence of an endangerment condition. The iodide was stable, in solution with sodium hydroxide, and was used to scrub the ventilation exhaust air. It may have commingled with plutonium and possibly uranium

LANL states, “[c]orrosion of the drums resulted in liquid releases to surface soil on MDA A. The volume of liquid and its chemical content are unknown” (LANL, 1991, p. 16-244). In addition, NMED’s statement provides insight into LANL’s waste handling procedures and resulting contaminant releases. The iodide waste may have been “stable”, but it was used to “scrub”

N



Section/ Unique



and was not accelerator-produced radioactive material.

ventilation exhaust and may have contained other contaminants (for example, metals), in addition to the possible plutonium and uranium that commingled with the iodide as indicated in the text. Note that the storage area was later paved over to “immobilize” contaminants (LANL, 1991, p. 16-244).


38 ISEDetermination

¶33, p. 6 – NMED states that the four absorption beds at MDA T received wastewater between 1945 and 1983. The four absorption beds at MDA T received waste only until 1967.

Documentation provided by LANL (LANL, 1991, p. 3-5) indicates that MDA T ceased operation in 1983. This includes the disposal of treated effluent and sludge from TA-21-257 with cement in augured shafts and corrugated metal pipes in a retrievable storage area. MDA T was used as a disposal area for treated wastewater and sludge in augured shafts or the retrievable storage area until 1983.

N


38 ISEDetermination

¶35, p. 6 – NMED states the dimensions of the shafts at MDA T as 8 feet in diameter and 18 to 68 feet in depth. The 1988 and 1990 SWMU Reports state diameters ranging from 4 to 8 feet and depths ranging from 15 to 69 feet.

As discussed in the LANL comment, reported dimensions of the shafts are inconsistent, although not substantially, between various LANL references. However, two additional references have been utilized and the following text will be added: “Disposal shafts were augured and a retrievable waste storage area was constructed between the absorption beds. The shafts and retrievable storage area were utilized between 1968 and 1976 and 1975 to 1983, respectively. Liquid waste from TA-21-257 industrial waste treatment plant was mixed with cement and pumped into the shafts or pumped into corrugated metal pipes and placed in the retrievable storage area. There are apparently 101 shafts that appear to range between 4 and 8

Y



Section/ Unique



feet in diameter and from 15 to 80 feet in depth (LANL, 1996b, pp. 161-167). These areas were collectively identified as MDA T. The corrugated metal pipes where removed and sent to Area G between 1984 and 1986” (LANL, 1991, pp. 3-5 through 6 and 16-97; 1996a, pp 2-3; and 1996b, pp. 161- 167; LANL, February 1996, Sampling and Analysis Plan for Subsurface Investigation at Solid Waste Management Unit Group 21-016 Material Disposal Area T Technical Area 21 Potential Release Site (PRS) 21-016(a, b, c), Los Alamos National Laboratory, Los Alamos, New Mexico (LANL, 1996); Emility, L.A., 1996, A History of Radioactive Liquid Waste Management at Los Alamos, LA-UR-96-1283, Los Alamos National Laboratory, Los Alamos, New Mexico (Emility, 1996)).


38 ISEDetermination

¶38, pp. 6-7 – NMED incorrectly describes the location of nuclear device safety and related testing as occurring only at Areas 2, 2A, and 2B. Such tests were also performed at Areas 1, 3, and 4. In addition, the depths of the shafts at the three reference sites extend at most 78 feet below ground surface, not 50 to 120 feet as NMED states. Also, NMED stated that this testing “resulted in releases.” The materials remain contained within the shafts. Also, NMED estimates the amount of beryllium placed in the subsurface at MDA AB as “11 to 13 kg,” which is inconsistent with the amount stated in Section II.A.5.15 of the draft Order.

NMED inadvertently left Areas 1, 3, and 4 from the description of the areas being investigated as part of MDA AB. The ISE should have stated that nuclear device safety and related testing occurred at Areas 1, 3 and 4 in addition to Areas 2, 2A and 2B at TA-49. Various LANL documents are inconsistent with respect to shaft dimensions; therefore the maximum dimensions found were cited. For example, LANL 1987 (p. 4) indicates that some experiments at TA-49 MDA AB were conducted in holes as deep as “120 feet”. However, additional research has discovered reports that some of the holes at MDA AB “varied from 31 to 142 feet in depth” (LANL OU 1144 Work Plan (May 1992, p. 3-8)).

Y



Section/ Unique



Hydronuclear and related experimental holes were utilized at MDA AB (LANL, May 1992, RFI Work Plan for Operable Unit 1144, LA-UR-92-900, Los Alamos National Laboratory, Los Alamos, New Mexico (LANL, 1992e)). Four incidents of contaminant releases to the surface occurred at Areas 2, 2A and 2B and were documented by LANL (1998a, pp. 5-7). Consistency within LANL documents is of concern. For example, LANL states that “[n]o data have shown any indication of contamination…offsite transport of plutonium contamination from TA-49 by surface water…”; however, it is later stated that samples collected from surface monitoring station A3 (located in a drainage leading to Water Canyon directly adjacent to Areas 2, 2A and 2B) have shown Pu-239 ranging from 0.01 to 17 pCi/g in sediments leaving the site (LANL, 1987, p. 12). Surface samples have also indicated that lead and beryllium have been detected above background concentrations (LANL, 1992e, p. 3-10). The highest radionuclide concentration measured in a surface sample at MDA AB is approximately 1660 pCi/g of Pu 239-240 for an individual sample at Area 2 (LANL, 1992e, p. 7-20). Additionally, groundwater was periodically observed in monitoring well CH-2 (now plugged and abandoned) located at Areas 2, 2A and 2B. Groundwater found in CH-2 during 1977 and 1978 contained 1.7 to 3.1 pCi/L of Pu-239 and samples collected in 1979 and 1980 contained 0.1 and 5.5 pCi/L of Pu-239. Pu-239 and uranium were also detected in samples obtained in 1991 indicating subsurface contaminant migration not expected by



Section/ Unique



historic site hydrogeology studies (LANL, 1998a, p 10, 19-20). In an effort to minimize the unexpected hydrogeologic conditions beneath TA-49, interim measures and best management practices were completed (in 1999) in an attempt to reduce the potential for subsurface migration of contaminants at Areas 2, 2A, and 2B (LANL, 1998a, p. 1).


38 ISEDetermination

¶42, p. 7 – NMED incorrectly states that “MDA C encompasses 11.8 acres and consists of seven disposal pits, a chemical disposal pit, and 108 shafts.” According to the 1988 and 1990 SWMU Reports, there are a total of 7 pits, including the chemical pit, at MDA C. Also NMED has mischaracterized existing contaminant levels at MDA C by asserting that “[h]igh activities of radionuclides, including tritium,” and “high concentrations of volatile organic compounds [‘VOCs’] have been released from MDA C to the vadose zone.” The RFI’s analytical data demonstrate that only tritium was detected at levels exceeding the Screening Action Level and high concentrations of VOCs have not been detected in pore gas at MDA C.

NMED agrees that MDA C contains seven disposal pits, including a chemical disposal pit. LANL reports 11.4 ppmv TCA and 12.9 ppmv TCE at 120 and 200 feet respectively (LANL, 2000c, p. 15). These concentrations correspond to concentrations up to 70,000 µg/m3, which exceed the EPA Region VI ambient air (residential scenario) of 1000 µg/m3 and 1.1 µg/m3, for TCA and TCE, respectively.

Y


38 ISEDetermination

¶43, pp. 7-8 – NMED incorrectly states that, since 1957, MDA G “has been the Facility’s primary radioactive and mixed waste disposal site.” While

NMED acknowledges that the number of disposal pits at MDA G was erroneously stated to be 47 pits rather than 34.

Y



Section/ Unique



asphalt, circuit boards, and soil from TA-3 SWMU cleanup have been placed in Pit 37 since then, NMED did not require Pit 37 be managed as an active mixed waste unit. Also in this paragraph, NMED incorrectly states that there are 47 disposal pits at MDA G; there are only 34.

NMED does not understand the remainder of LANL’s comment as the statement appears to be taken out of context.


38 ISEDetermination

¶44, p. 8 – NMED incorrectly states “MDA G encompasses 100 acres.” Area G is approximately 100 acres, but MDA G occupies only a portion of Area G and is about 63 acres. Also NMED incorrectly states that solid and mixed wastes were placed in pits, trenches, and shafts since 1957 and classified mixed waste was disposed at MDA G until 1985.

LANL documents utilize both references for describing MDA G or Area G. For example LANL (LANL, 2000a, p. 3-5) states “MDA G spans 100 acres”. Also, the two terms are seemingly used synonymously in the 1987 CEARP (DOE, 1987, MDA G Section). LANL also states "MDA G spans 100 acres, all of which are fenced, with active access control. Approximately 65 of 100 acres have been and continue to be used for waste disposal." (LANL, 2000a page 3-5). LANL is inconsistent in its reporting in documents submitted to NMED. LANL documents report mixed low-level waste was disposed of at the site “until about 1986” (LANL, 1992d, p. 5-53). In addition, LANL also describes “The volume of waste that was disposed of at MDA G through July 24, 1990 and that qualified as mixed low level waste is difficult to estimate. Annual generation rates indicated by the mixed LLW database ranged between about 8 and 112m3 over the 1986 to 1998 period” (LANL, 2000a, p. A-17). Based on this information, mixed low-level waste was disposed at MDA G after 1985.

N


38 ISEDetermination

¶48, p. 8 – NMED incorrectly states that “[t]he Facility Operators disposed of hazardous and radioactive wastes, including HE, in nine shafts at MDA H

Shaft #9 is included within the boundaries of MDA H (LANL, 2000a, p. 4-1). According to the documents, waste disposal at MDA H actually ceased in 1986 (8/29/86) (LANL, 1992d, 5-53 and

Y



Section/ Unique



from 1960 to 1989.” Only shaft #9 received hazardous waste after 1980, and all hazardous waste disposal at this shaft ceased in 1985, not 1989.

2000a, p. 4-1). Therefore, MDA H received waste until August 29, 1986.


38 ISEDetermination

¶49, p. 8 – NMED inaccurately states “[t]he Facility Operators disposed of liquid hazardous and radioactive wastes at MDA L from 1959 to 1986.” MDA L did not receive any wastes after 1985. In the third sentence, NMED inaccurately states that “[t]he area is covered by an asphalt pad and is presently used for permitted waste storage management,” which fails to reflect that the Laboratory also stores mixed waste on the referenced asphalt pad pursuant to interim status authorization.

According to LANL documents (1992d, p. 5-105 and 2000a, p. 5-5), surface impoundment C, which is included within MDA L, operated “from July 1985 and December 1986.” NMED does not understand the significance of distinguishing whether waste stored on the asphalt at MDA L is permitted or interim status.

N


38 ISEDetermination

¶50, p. 8 – In the second sentence, NMED mischaracterizes use of MDA L surface impoundments by stating that “[t]he impoundments were used at various times from 1972 to 1986.” The impoundments were not used for storage and/or treatment after 1985. In the fourth sentence, NMED inaccurately states that the impoundment was filled “to 25% of its 2000 cubic foot capacity”. Current information indicates the impoundment was filled to within 3 feet of the surface. Also, the dimensions described by NMED could not possibly yield a volume capacity of 2000 cubic feet. In addition, in the fifth sentence, NMED says “[t]he impoundment was

According to LANL documents submitted to NMED, surface impoundment C, which is included within MDA L, operated “from July 1985 to December 1986.” (LANL, 1992d, p. 5-105 and 2002a, p. 5-5). Available LANL documents indicate that surface impoundment B was filled to 24.6% of its capacity (LANL, 1992d, p. 5-110 and 2000a, p. 5-6). NMED is using capacities provided by LANL. Surface impoundments B, C and D are described as having 2000 ft3 capacities even though the dimensions would yield larger volumes (i.e., 60 x 18 x 10 feet, 35 x 12 x 10 feet and 75 x 18 x 10 feet respectively). Erroneous volumes were cited from the capacities of the impoundments that were calculated by LANL (LANL, 2000a, p. 5-6).

N



Section/ Unique



used as secondary containment for oil storage for an unknown duration.” Evidence indicates it was used as such for about 3 years.

LANL documentation reports surface impoundment D was utilized for secondary containment for oil storage tanks “for an unknown period of time” (LANL, 2000a, p. 5-6).


38 ISEDetermination

¶52, p. 9 – In the second sentence, NMED incorrectly states that the referenced pit is “filled to an estimated 10% of its 28,800 cubic foot capacity.” Table 5.3-5 of the May 1992 RFI Work Plan for OU-1148 indicates that the total specified volume of waste disposed in Pit A is 300.84 cubic feet, therefore the reference pit is filled to an estimated 1.04% of its capacity.

Documentation provided by LANL indicates that Disposal Pit A is filled to “10.4% of its 28,800-ft3 capacity” (LANL, 1992d, p. 5-110 and LANL, 2000a, page 5-5). It should be noted that the cited dimensions of Pit A vary between documents, but the 200 ft x 15 ft x 12 ft, equals 36, 000-ft3, not the 28,800-ft3 quoted by LANL (LANL, 2000a, p. 5-3). Additionally, early liquid waste disposal practices “included disposing of non-containerized wastes and liquids in drums without added absorbents” (LANL, 1992d, p. 5-105). Disposal in such a manner would infiltrate and migrate in the subsurface via fractures and higher permeability units (for example, surge beds) and not necessarily fill the pit.

N


38 ISEDetermination

¶55, p. 9 – No evidence exists to support that trichloroethylene, dichloroethylene, and dichloroethane were released into, and detected in, groundwater beneath the Facility.

Trichloroethylene, dichloroethylene and dichloroethane as well as other solvents, have been detected in shallow alluvial and perched aquifer wells and springs beneath the LANL Facility (LANL, 1998c, p. 3-112, 4-78 and 4-82; EPA, 2001b, page 15). Two references were inadvertently not cited: LANL, 1998c and EPA, 2001b.

Y


38 ISEDetermination

¶56, p. 9 – NMED incorrectly states that “HE compounds and metals have been detected in groundwater beneath the Facility at levels in excess of maximum contaminant levels (‘MCLs’)

The text in the Order has been changed to read, “levels in excess of health advisory levels”. NMED considers that health advisory levels are pertinent to protection of human health and the

Y



Section/ Unique



set by the EPA under the federal Safe Drinking Water Act…”. EPA has not established MCLs for HE compounds, but has only proposed health advisory levels, which are not enforceable standards.

environment.


38 ISEDetermination

¶60, p. 10 – The 1990 SWMU Report does not support the statement that solvents were released from the cooling towers at TA-2. Even if solvents had been emitted from the towers in uncontained gaseous form, they would not have met the definition of solid or hazardous waste. This report also characterizes radionuclides associated with the reactors at TA-2 as source, special nuclear, and/or by-product material that is subject to the AEA and exempt from RCRA. Therefore there is no basis for NMED to allege that the contamination resulting from discharge of radionuclides or solvents at the cooling towers may present an actionable endangerment condition.

Solvents were inadvertently listed in the text. Chromium discharges from the former TA-2 cooling towers are of primary concern. The following language will be removed from the Order’s Findings of Fact, “Various contaminants were released from reactor cooling towers at TA-2, including chromium (including chromium VI), mercury, solvents, and radionuclides”. However, the text in the Order will be revised to read “Chromium was released to Los Alamos Canyon from the cooling towers at the reactor complex. In addition, solvents, mercury (other metals), and radionuclides may have also been released to the environment at TA-2.” The assumption that all solvents used in process operations at LANL would have been 100% volatilized is refuted by the fact that solvents have been found in environmental media at LANL. Solvent releases of concern would be to sediments, surface water, and groundwater.

Y


38 ISEDetermination

¶67, p. 10 – NMED’s reference to “natural uranium” is irrelevant to its endangerment determination because such uranium is categorized as a source, special nuclear, or by-product material that is subject to the AEA and exempt from RCRA. Also no information exists in the AR to support

Natural uranium was mentioned in the Imminent and Substantial Endangerment finding to highlight the potential health hazards at Building 16-340 as well as the complex investigation and cleanup issues that arise throughout the Facility. In addition, LANL documentation states, “…natural uranium had been used in the building” (LANL, 1993, p. 5-37). This statement indicates that

N



Section/ Unique



that uranium was managed at Building 16-340. Also, materials were not “released” from Building 16-340, but were “discharged” pursuant to an outfall subject to the FWPCA.

uranium is a contaminant of concern. Uranium is a toxic metal as well as a radioactive metal. During site investigation and potential remediation, proper health and safety precautions must be determined. Any investigation and remediation wastes will require thorough characterization for the purpose of identifying proper handling and disposal requirement. The term “release” includes discharge. The propose Subpart S corrective action regulations define release as “any spilling, leaking, pouring, emitting, emptying, discharging, injecting, pumping, escaping, leaching, dumping or disposing…” (53 Fed. Reg. 30798, 30874 (July27, 1990)).


38 ISEDetermination

¶69, p. 10 – NMED incorrectly states that wastewater from Building 16-340 was discharged untreated to the 16-260 outfall. Wastewater from Building 16-340 was not associated with the 16-260 outfall.

The text will be changed to read, “…was discharged untreated to the Building 16-340 outfall.”

Y


38 ISEDetermination

¶73, p. 11 – NMED misleadingly presents the NMED residential soil screening level for RDX (44 ppm), when the preceding paragraph reports concentrations of the explosive compound in surface water (800 ppb below the 16-260 outfall). NMED inappropriately exaggerates the nature of contamination related to the 16-260 outfall by comparing a soil screening level and surface water concentrations.

The health advisory for drinking water and soil screening levels are presented as facts within the context of the Imminent and Substantial Endangerment finding and are clear, because both soil and water screening levels were discussed in the prior finding (¶72).

Y

R57 General - 38 ISE ¶84, p. 12 – NMED presents a Most radionuclides of concern at LANL are ?



Section/ Unique



Determination misleading juxtaposition by stating that “[c]admium, copper, lead, nickel, silver, and zinc exceed background concentrations in shallow (<18 inches) samples while TCE, silver, chromium, cyanide, and some radionuclides have been detected to depths of 100 feet, the furthest extent of investigation so far.” NMED does not describe whether such constituents are naturally occurring or if concentrations or activity levels detected at such depths exceed either the relevant constituent’s background level or the applicable analytical method’s level of significant uncertainty. Without this information, there is no basis for attempting to establish a relationship between shallow concentrations and concentrations at depths of up to 100 feet.

manmade, have a fallout baseline rather than background, and should not be found at depth unless as an indication of subsurface contaminant migration. This is of particular importance at TA-21 where untreated and treated industrial wastewater was discharged. One LANL document states that according to data from boreholes drilled in 1978 “both plutonium and americium have moved to depths of 30.5 m (100 ft) beneath bed 1” (LANL, 1991, pp. 16-104 and 105). TCE is not naturally occurring; therefore, there cannot be a background concentration. This fact alone is proof of contaminant migration to depths of 100 feet below ground surface. It is LANL’s responsibility to provide adequate studies to determine background concentrations for naturally occurring elements. LANL, in its response to the Order, appears to contradict its own data presented in documents submitted to NMED. This highlights the need for LANL to conduct proper investigations and have adequate sample and handling procedures and protocol in addition to the accountability that the Order requires.


38 ISEDetermination

¶90, p. 13 – NMED reports that both hazardous constituents and radionuclides have been detected in Acid Canyon and speculates “that hazardous constituents were discharged concurrently with radionuclides.” The fact that contamination was detected at the same location in the same media does not support this assertion.

“Buildings in which general laboratory or process chemistry and radiochemistry wastes were produced, were served by industrial waste lines known as acid sewers. Ultimately all such industrial waste flowed into a main acid sewer that extended generally north to a discharge point at the edge of Acid Canyon” (LANL, 1981, p. 10). In addition, metals, PCBs, organic contaminants, and radionuclides were detected in samples

N



Section/ Unique



collected in Acid Canyon (LANL, 2001a). Collocation of hazardous and radioactive constituents, although not conclusive, is a compelling indication of concurrent discharge. NMED is unclear as to the relevance of this comment.


38 ISEDetermination

¶92, p. 13 –Because “residual treatment sludge” is not released from the TA-50 wastewater facility, there is no basis for including any reference to such sludge in Section III.G, “Releases of Contaminants from TA-50.”

The composition of the sludge is likely to reflect the composition of the influent and effluent discharged by the TA-50 Radioactive Liquid Waste Treatment Facility and is, therefore, relevant. In addition, sludge from current and former industrial and sanitary treatment plants located at TA-21, TA-45 and TA-50 has been disposed at MDA C and MDA G (Rogers, 1977, pp. C-3, C-9, G-11; LANL, 1991 pp. 14-97, 16-98; LANL, 2000a, p. 3-8). LANL must demonstrate that sludge is never, and has never been, entrained in wastewater discharged from the TA-50 Radioactive Liquid Waste Treatment Facility to support this comment.

N


38 ISEDetermination

¶100, p. 14 – NMED misleadingly states that “[p]lutonium…was detected in shallow alluvial aquifer well MCO-7.5 (2844 meters down gradient of the outfall) within a couple of years after operations at TA-50 began, and plutonium continues to be detected.” The referenced 2000 Environmental Surveillance Report explains that reported values only qualify as detections if they exceed both the MDL and three times the individual measurement uncertainty. None of the values for plutonium at MCO-7.5

After further consideration of Purtymun (1975), NMED agrees with the LANL response. It should be noted that the plutonium detection in MCO-7.5 may be attributable to releases from TA-35 from 1956 to 1963 possibly associated with the LAMPRE I, a molten plutonium reactor located at TA-35 (Purtymun, 1975, p.133; Emility, 1996, p. 111). LANL documents indicate “plutonium contamination of varying amounts occurred in water from all the wells and was greatest in well MCO-1”. Beta-gamma emitters were also found in wells “throughout the disposal system”.

Y



Section/ Unique



qualifies as a detection. Also, Purtymun 1975 (presumably, “Hydrogeology of the Pajarito Plateau with Reference to Quality of Water, 1949-1972” – it was not included in the list of references) demonstrates that concentrations of plutonium were higher at MCO-7.5 before the TA-50 treatment plant commenced operations and were lower in the years following commencement of the treatment plant’s operations. The referenced report does not support any inference that discharge from the TA-50 outfall has caused a condition presenting an imminent and substantial endangerment. In addition, NMED lacks authority under HWA to regulate or base an endangerment determination upon solid or dissolved materials originating in these outfall discharges because they fall under the FWPCA.

(Purtymun, 1967, pp. 57, 58, 58a). Uranium was detected in well MCO-5 prior to TA-50 discharges that may have been attributed to discharges from “New Sigma”. (Purtymun, W.D., June 1967, The Disposal of Industrial Effluents in Mortandad Canyon, Los Alamos, New Mexico (Purtymun, 1967); Purtymun, W.D., 1975, Geohydrology of the Pajarito Plateau with Reference to Water Quality, 1949-1972, Los Alamos Scientific Laboratory informal report LA-5744, Los Alamos, New Mexico (Purtymun, 1975); Emility, L.A., 1996, A History of Radioactive Liquid Waste Management at Los Alamos, LA-UR-96-1283, Los Alamos National Laboratory, Los Alamos, New Mexico (Emility, 1996))


38 ISEDetermination

¶103, p. 14 – NMED stated, “high explosives (e.g. TNT)…have been disposed of at [MDA C].” The 1988 and 1990 SWMU Reports state that no HE were disposed of at the site.

LANL reports that during decontamination and decommissioning activities in 1963 at TA-10, “…90 truckloads of debris, shrapnel, and HE materials were removed from a radius of 760 m from the detonation control buildings at the firing sites, and transported to Material Disposal Area (MDA)-C at TA-50 and MDA-G at TA-54” (LANL, 2001d, p. 2-15). This statement provides strong evidence that HE was, in fact, disposed at TA-50 MDA-C.

N

R62 General -Not directly related to

38 ISEDetermination

¶104, p. 15 – NMED inaccurately states “[a] variety of chemicals…were disposed of at Pit 6, the chemical

The ISE will be revised to read, “The seven pits received a variety of chemicals, but Pit 7 was referred to as the chemical disposal pit.” In

Y



Section/ Unique


in Order? Attachment Y/N Order disposal pit at MDA C.” The chemical

disposal pit was located at Pit 7. addition, LANL reports it was only after fires at Area C, that the idea of a separate disposal area for hazardous nonradioactive chemicals was accepted as “Area C” was closing and “Area G” started to accept waste (Rogers, 1977, pp. C-1 to C-3).


38 ISEDetermination

¶108, p. 15 – In the second sentence, NMED states that monitoring of subsurface pore gas occurred in 1999; pore gas monitoring has detected these solvents since the later part of the 1980s. NMED also states in the first sentence that a plume of vapor gas has been identified, “although not fully characterized.” While additional studies could always be performed at any site, it is inaccurate for NMED to suggest that the pore gas plume at MDA L has been insufficiently characterized.

LANL has not identified the base of the VOC plume and the field and laboratory measurements collected so far have not been adequately correlated. Also, monitoring data collection has been inconsistent in regards to depths and monitoring locations through time. As a result, NMED believes the VOC plume is not fully characterized. In addition, LANL has not submitted a final RFI Report for either MDA L or MDA G to NMED.

N


38 ISEDetermination

¶113, p. 16 (Section IV, Potential for Exposure to Contaminants) – NMED misleadingly states that a water supply well for the Community of White Rock draws water from the regional aquifer and provides no evidence that any contaminants have been detected in the referenced well or that such contamination exceeded background concentrations for Northern New Mexico or applicable MCLs. It is inappropriate and scientifically irresponsible for NMED to suggest that the mere existence of a water supply well near LANL presents a potential for exposure to harmful contamination and

Given the historic and current discharges at LANL, the unknowns regarding contaminant plume location and concentrations, uncertain groundwater flow directions and interconnection between the surface and regional aquifer, the documented presence of contaminants discharged by LANL and other agencies in surface water, springs, perched groundwater and the regional aquifer, it is reasonable to conclude that there may be an imminent and substantial endangerment to health as a result. LANL is responsible for protecting human and environmental receptors from potential harm from its operations and, therefore, must not allow continued degradation of a limited and precious natural resource. Dilution is not an acceptable method for contaminant

N



Section/ Unique



an imminent and substantial endangerment.

remediation. Production wells draw water from screens over hundreds of feet long; therefore, they do not make adequate monitoring wells. LANL must adequately characterize groundwater beneath and downgradient of the Facility using proper and scientifically responsible methods. Wells that supply water to Los Alamos County are located within the boundaries of LANL, including wells associated with the Pajarito Mesa and Otowi well fields. Historically, the Los Alamos and Guaje well fields were also located within the LANL boundary. Municipal supply wells that supply Los Alamos County are located downgradient of many current and historic LANL operational and non-operational releases. Pumping effects on regional groundwater flow by production wells is not understood and, therefore, contaminant transport pathways are not characterized. This information, coupled with the fact that contaminants that act as conservative environmental tracers (for example, perchlorate, HE compounds, nitrate, and tritium) are being detected in supply wells (and other groundwater occurrences), indicates that a pathway for contaminants to the residents of Los Alamos County and LANL/DOE staff exists and must be characterized further to evaluate if remedial action is necessary to protect the water supply. Contamination found in supply wells indicates that endangerment to health and the environment may exist, regardless of whether the detected concentrations are above “applicable MCLs”,



Section/ Unique



health advisory levels, or screening levels.


38 ISEDetermination

¶116, p. 16 (Section IV, Potential for Exposure to Contaminants)– NMED describes the presence of wildlife and livestock “downgradient from the Facility” and such wildlife’s and livestock’s use of surface water flowing from the canyons, seeps, and springs. Screening and risk assessments have not found any adverse affects on wildlife populations and there is no evidence that consumption of exposed wildlife and livestock has or will cause any public health concerns. Therefore there is no basis for NMED to assert that such potential exposures present an endangerment condition.

Screening and risk assessments for ecological receptors have not yet been completed for many areas within the canyons. Contaminant concentrations in soil substantially above LANL ecological screening values have been found in some areas indicating potential for adverse effects to wildlife. Hazard quotients in the Western Aggregate site ranged from 5-11 for antimony, barium, cobalt, zinc, tetryl, and trinitrotoluene. Hazard indices for some receptors (robin, deer mouse, vagrant shrew) ranged from 5-25 at this site (LA-UR-98-3710 as revised through May 15, 2001). Hazard quotients at PRS 21-024(i) were substantially elevated for the deer mouse (barium and cobalt), for the vagrant shrew (antimony, barium, arsenic, cobalt, and silver, for the robin (cobalt), and for the kestrel (cobalt) (from 7/30/02 e-mail from Rich Mirenda [LANL] to Kirby Olson [NMED]). In Cañon de Valle, the concentrations of some contaminants (metals and explosives) were far enough above ecological risk benchmarks to prompt LANL to conduct site-specific field studies on both terrestrial and aquatic species (Ecological Risk Assessment Pilot for Cañon de Valle Status Report 4/10/00, and Cañon de Valle Ecological Risk Assessment Pilot Step 4: Study Design 4/02/01). Chironomous tentans exposed to sediment and water from Cañon de Valle in fall of 2001 showed very reduced survival for exposure to samples from one of the locations in the canyon (Chironomous tentans weight data and summary from 2002 meeting). A series of field studies of small mammals, birds, plants, and earthworms is also planned for Los Alamos and Pueblo Canyons,

N



Section/ Unique



because ecological risk screening in these canyons generated a number of hazard quotients at levels that indicated the potential for risk (ER Memo ER2002-0690 and notes from 4/11/02, 4/18/02, and 5/02/02 in attachment 4 of that memo). All these site-specific studies may or may not show ecological risk corresponding to these areas, but the studies have not been completed; therefore, the potential for ecological risk remains. For contaminants other than radionuclides, the human health screening levels currently used by LANL (EPA Region 6 Human Health Media-Specific Screening Levels and NMED SSLs) do not include consideration of potential dose from ingestion of contaminants through the food chain. Therefore, the potential for risk to humans through contaminants ingested by livestock off-site has not yet been assessed at many sites. DP Canyon was assessed using a resource user scenario that includes consumption of livestock or wildlife (10% fruits and vegetables, 75% meat from on-site); the comparison to this scenario shows that soil concentrations exceed the resource user PRG for nine contaminants (LANL 1999, Evaluation of Sediment and Alluvial Groundwater in DP Canyon, LA-UR-99-4238, p. 5-5, table 5.1-1). If contaminant levels within DP Canyon could result in unacceptably high risk through the livestock consumption pathway, the same pathway could potentially represent a risk at contaminated areas downgradient. An elk cow known from radio collar telemetry data to have spent 55% of its time within two LANL TAs contaminated with natural and



Section/ Unique



depleted uranium contained 50 times the background level of uranium in its muscle tissues (Fresquez et al. 1998, Radionuclide Concentrations in Deer and Elk from LANL: 1991-1998, LA-13553-MS, ER ID # 62347, p. 7). Livestock grazing on contaminated areas downgradient of LANL could show similar levels of accumulation if exposed to similar levels of contamination, given that the muscle tissues sampled are the same type that would be consumed from livestock as meat.


38 ISEDetermination

¶117, p. 16 – The detection of mercury, plutonium, and tritium in rodents does not mean that the animals are being adversely affected by contaminants. LANL has conducted screening assessments using ecological screening levels and has found no potential adverse impacts on ecological receptors. In addition, a separate Laboratory analysis of mercury found in rodents from DP Canyon has demonstrated that the level of mercury found in rodents does not affect the Mexican spotted owl, which preys on the rodents and is a threatened and endangered species. Therefore there is no basis for NMED to suggest the existence of an imminent and substantial endangerment to threatened ecological receptors.

The maximum soil mercury concentration in DP Canyon (LANL 1999, Evaluation of Sediment and Alluvial Groundwater in DP Canyon, LA-UR-99-4238, Table 5.2-1) exceeds the current LANL methyl mercury Ecological Screening Levels for the robin, kestrel, vagrant shrew, and fox. The comparison to screening levels, therefore, does show potential for risk to these ecological receptors from mercury. The cited detections in the tissues of animals demonstrate that contaminants such as mercury, tritium, and plutonium can accumulate in tissues of animals in contaminated areas to levels higher than those seen in uncontaminated areas. In species such as rodents that serve as food for higher trophic level species, this presents a potential for risk to the higher-level species even when there is no risk to the species in which the elevated contaminants were measured. The ecological screening assessments screen against benchmark concentrations in soil and water, and additional calculations would be required to assess the risk from concentrations measured in prey animals. NMED is not aware of any separate study on risk

N



Section/ Unique



from mercury to higher trophic level animals (a group which includes both predatory birds and other predators such as foxes).


38 ISEDetermination

Section V, pp. 16-19, Toxicity of Contaminants – This section contains a lengthy description of toxicological analyses for a number of hazardous constituents and radionuclides, the toxicity of which does not provide evidence of the existence of an ISE, but leaves out key information needed to assess the toxicity of these substances as they are found at LANL, i.e. concentrations and dose levels. The ISE Determination also does not provide information regarding pathways to the receptor, level of sensitivity of the receptor, duration of receptor’s likely exposure, changes to the substance by reactions with chemicals or dilution with water or clean sediments as it moves. Therefore, this information does not support a finding of imminent and substantial endangerment.

Section V of the ISE contains a description of the acute and chronic toxicity of the contaminants detected at various SWMUs on the LANL facility. The concentration in soil, sediment, or water of these contaminants that would potentially result in these toxic effects may vary over several orders of magnitude for the same contaminant depending on the length of exposure, the sensitivity of the receptor (for example, sensitive human subpopulations or different species of ecological receptors), the number of pathways through which the receptor is exposed, as well as the number and kind of other contaminants to which the same receptor is exposed. It would, therefore, be impossible to designate a particular concentration corresponding to toxic effects for each contaminant in this section. At many sites at the LANL facility, the concentrations of contaminants present are not yet well established and the level of exposure is not well documented due to unrestricted recreational use of canyon areas. This section can therefore only provide documentation that there is a potential for risk because the contaminants can have toxic effects and some level of exposure is known to potentially occur.

N


9, 11, 18 Previous Work at LANL

There were several comments regarding previous work performed pursuant to HSWA at LANL. One commenter urged NMED to provide acknowledgment of work LANL has already accomplished and that NMED

NMED acknowledges work completed to date at LANL, as well as ongoing activities. The intent of the Order is to direct the investigation and cleanup at LANL. Work required in the Order that has already been completed does not have to be duplicated. Section III.N of the Order addresses

N



Section/ Unique



has accepted for each of the listed potentially contaminated sites. Another commenter noted that the text of the Order does not acknowledge thirteen years of work in cleaning up areas that might actually pose a danger. Another commenter indicated that by basing the CAO on NMSA §§ 74-4-10.1, NMED is “turning back the RCRA clock” to before HSWA and before all the work that has been done pursuant to HSWA at LANL. This commenter noted that the CAO requests a summary of this prior work, but does not use the facts already known to order any actual reduction of risk, i.e. cleanup.

duplication of work. NMED agrees that there are sites at LANL that have been well-studied, yet lack adequate supporting data to make risk-based, investigation and cleanup decisions. Adequate determination of the nature and extent of contamination and rates of contaminant migration at sites is essential to ensure that cleanup methods are both appropriate and sufficient. NMED has ordered additional work to be completed at those sites before appropriate investigation and cleanup decisions can be made.


9 Prioritization ofOrder

One commenter suggested that the Draft Order be structured and prioritized in a way to reflect the ability of NMED to provide proper oversight functions.

The Order schedule was designed with regard to NMED resources and to NMED’s prioritization of sites at LANL. NMED will implement mechanisms to ensure adequate oversight and timely review of documents.

N


9 Duplication ofEffort

One commenter suggested that the Draft Order should make it clear that duplication of investigations, sampling, or reports is not required.

NMED acknowledges work completed and documents submitted to date at LANL. The Order is a comprehensive document that includes some work that has already been agreed upon by NMED and LANL in various other documents, such as the Hydrogeologic Workplan and the individual Canyon Work Plans. NMED and LANL are aware of the overlap and will take precautions to ensure that duplication of work is not required. Section III.N of the Order addresses duplication of work.

N


9, 35 DOE Resources There were several comments regarding DOE resources. One

NMED urges LANL to work with DOE to ensure that necessary funding is available. NMED is

N



Section/ Unique



commenter requested that once the Order is issued as a Final Order, DOE actively and aggressively obtain the funding and all other resources necessary to comply with the Final Order. Another commenter supports the full and effective funding of DOE site cleanup budgets, but suggests that NMED not operate under the assumption that the funding available for cleanup now will be available 10 years from now.

aware that the amount of work that can be performed is partly based on available funding. NMED strongly believes that the deliverables outlined in the Order schedule represent warranted investigations.


9, 11, 35, 36

NMED Resources

There were several comments regarding NMED resources. One commenter requested that once the Order is issued as a Final Order, NMED secure the funding and staff to adequately execute the provisions of the Final Order. Another commenter noted that in issuing this Order, NMED has an obligation to fulfill its regulatory duties toward the lab in a timely fashion. This commenter noted that the new state administration needs to provide NMED with the necessary resources. Another commenter noted that at current staffing levels, NMED will not have the resources or be capable of absorbing and responding promptly and productively to the information contained in or missing from the

NMED makes annual budget requests to the State Legislature regarding its projected funding needs. The Order schedule was designed with regard to NMED resources. NMED also recognizes that review times are problematic and will implement mechanisms to ensure timely reviews. However, NMED is required by its Hazardous Waste Fee Regulations to meet review timeframes once a document is accepted by NMED for review and payment of fees has been received from a facility.

N



Section/ Unique



reports and plans. This commenter suggested NMED immediately, as part of the Order, institute the independent structure and capacity for adequately dealing with the massive influx of environmental information due from the Respondents as a result of this Order. Another commenter recommended that NMED examine its resource base for supporting the ongoing implementation of this Order and the means whereby it succeeds in consolidating that resource base.


9 Emphasis onCleanup

One commenter recommended strongly that the emphasis should be on actual cleanup on the basis of the investigations already available. This commenter also expressed concern that the prescriptive reporting requirements may cost time and money better spent on actual cleanup.

The Order is intended to direct LANL’s environmental restoration efforts and the Department of Energy’s cleanup funding toward sites that are considered by NMED to be high priorities. These high priority sites need further investigation or warrant cleanup and/or need monitoring based on information currently available to NMED. The Order is also intended to expedite the schedule for investigation and/or cleanup at the sites that NMED believes pose the greatest threat to human and ecological receptors. The reporting requirements included in the Order are designed to facilitate both report preparation and review, and eliminate excessive rounds of comments and changes by NMED and LANL that currently occur with the format presently used by LANL.

N

R74 General –Not directly related to

10 Schedule forDocument Review

One commenter recommended that NMED provide a schedule to making responses to the reports required of the

NMED believes that it will have sufficient personnel to respond to submitted documents and to monitor the timeliness of submittals by both the

N



Section/ Unique


in Order? Attachment Y/N Order Respondents and to consider using a

separate organization to monitor the timeliness of both Respondents submissions and NMED responses, i.e. NMED DOE Oversight Bureau, Carlsbad Center for Environmental Monitoring and Research, or New Mexico Environmental Evaluation Group.

Respondents and NMED. NMED is required, by its Hazardous Waste Fee Regulations, to meet review timeframes once a document is accepted by NMED for review and payment of fees has been received from a facility.


10 MARLAP One commenter suggested the Multi-Agency Radiological Laboratory Analytical Protocols Manual (MARLAP) might be of assistance to NMED in arriving at Final Order content and in the later stages of the implementation process.

MARLAP’s purpose is to provide guidance for the planning, implementation, and assessment phases of projects that require the laboratory analysis of radionuclides. The manual is currently undergoing a peer review by the EPA and is scheduled to be finalized in 2003. NMED will consider review of the final document.

N


11 Transfer of Land A commenter noted that the few sites scheduled for transfer to Los Alamos County or San Ildefonso do not appear to have any special consideration in the prioritization schedule and no mention is made of inconsequential sites that should be certified for no further action before the transfers are made.

NMED based the Order on its priorities for investigation and cleanup at LANL. NMED understands that LANL and other interested parties have additional priorities (for example, land transfers).

N


12, 13 Radioactive Contamination

One commenter noted that sediment at the bottom of drainages always shows high levels of radiation and the outflow from the White Rock and Los Alamos sewage systems were also elevated with evidence of plant mutation below Los Alamos. Another commenter described a 1990s citizen’s radioactive monitoring expedition with several other scientists on LANL lands. This commenter

LANL acknowledges that radiological contaminants have been discharged into Los Alamos Canyon. LANL’s HSWA Permit Module II, Section N, states that the Permittee shall take corrective action, as required by NMSA 1978 Section 74-4-4.2B (as amended 1989), for all releases of hazardous wastes or constituents from any solid waste management unit at [t]his facility. Additionally, LANL must implement investigation

N



Section/ Unique



stated that radioactivity was found under the water tower on a hill behind the town of Los Alamos and on the bank of Los Alamos creek in Los Alamos Canyon. This commenter also noted that there appeared to be a very deformed mullein plant in Los Alamos Canyon.

and cleanup beyond the facility property boundary if releases from a solid waste management unit pose a hazard to human health or the environment (40 C.F.R. 264.101(c)).


13 IndependentOversight

One commenter recommended that an independent oversight agency should monitor the watershed lands and publicly report the results.

The mission of the New Mexico Environment Department DOE Oversight Bureau is to assure that activities at DOE facilities, including LANL, are protective of the public health and safety and the environment. One of the Bureau’s primary objectives is to develop and implement a program of independent monitoring and oversight. Another important function of the Bureau is to increase public knowledge of environmental matters about the facilities, and coordinate with local and tribal governments.

N


14 GroundwaterCleanup

Will cleanup activities result in cleaner (better) groundwater?

The goal of groundwater cleanup is to ensure that groundwater quality at LANL meets established groundwater protection standards.

N


14 Post-fireCleanup

Does the cleanup address the fires from the past summer?

The impact of the Cerro Grande Fire on sites at LANL continues to be investigated. Data gathered from Cerro Grande Fire investigation activities will be considered on a site-by-site basis. The Order addresses areas affected by the fire.

N


15 Past Non-Compliance

One commenter noted that the Order neglects the past compliance or non-compliance of the Permittee in complying with the conditions of its permit and only provides for future compliance but not penalties for past non-compliance.

The Order is not intended to address past violations. It addresses investigation and cleanup. If, after the Order is issued, DOE and UC fail to comply with its requirements, they may be subject to civil penalties and other enforcement action. The penalty for noncompliance with the permit is described in 40 C.F.R. 270.30 which states that the

N



Section/ Unique



Permittee must comply with all conditions of the permit and any permit noncompliance constitutes a violation of the appropriate Act and is grounds for enforcement action, permit termination, permit revocation and reissuance, permit modification, or denial of a permit renewal application. Proposed fines for non-compliance are enforced in accordance with the New Mexico Hazardous Waste Act, NMSA 1978 §§ 74-4-10 and 74-4-10.1E.


15 ViolationPenalties

One commenter noted that non-compliance under Section 74-4-10 is assessed $25,000 per day for permit violation, whereas the sections under which the proposed Order would be issued provide $5,000 per day. Has NMED determined that no permit violations have occurred requiring the assessment of penalties?

The penalty for noncompliance with the permit is described in 40 C.F.R. 270.30 which states that the Permittee must comply with all conditions of the permit and any permit noncompliance constitutes a violation of the appropriate Act and is grounds for enforcement action, permit termination, permit revocation and reissuance, permit modification, or denial of a permit renewal application. Proposed fines for non-compliance are enforced in accordance with the New Mexico Hazardous Waste Act, NMSA 1978 §§ 74-4-10 and 74-4-10.1E.

N


16 SWMUs onNon-Federal Land

One commenter noted that many SWMUs listed in the hazardous waste facility operating permit for LANL are on private or County property, but that in the draft Order removal of SWMUs from the permit is not a goal. This commenter strongly recommends that the Final Order have an objective of removing all SWMUs on non-federal land from the permit and promptly implementing any investigation and

NMED based the Order on its priorities for investigation and cleanup at LANL. NMED understands that LANL and other parties have other priorities (for example, land transfers). Land transfer is a DOE priority. Sites planned for land transfer may not correspond to NMED priorities. The State of New Mexico must approve all land transfers; therefore, all SWMUs slated for transfer must be evaluated by NMED unless the sites have already received no further action determinations.

N



Section/ Unique



corrective action activity to accomplish that objective.


16 VoluntaryCorrective Action Procedure

One commenter recommends that the Respondents be explicitly allowed to voluntarily perform investigation and corrective action activities at any SWMU or AOC where NMED has not formally required such activity and that NMED commit to reviewing and responding in a timely manner to any completion reports submitted by the Respondents following such voluntary activity.

Facilities are allowed to conduct an accelerated investigation and cleanup approach that includes voluntary corrective action (VCA), expedited cleanup (EC) and voluntary corrective measures (VCM). VCA and EC are intended to be final remedies and may be implemented at simple sites (where the remedy is obvious and the cost is low), at risk by the facility without prior approval of NMED. VCMs are similar to VCAs; however, because of complexity and cost of investigation and cleanup, prior approval of NMED is required. Facilities must obtain approval of the VCA, EC and VCM reports from NMED prior to the site being proposed for no further action. The schedule in the Order is designed with regard to NMED resources. Voluntary actions by LANL were not included in the schedule.

N


16 DocumentReview Schedule

One commenter recommended that NMED commit to a review period of three months or less for all reports and documents that are submitted by the Respondents, request or require NMED action, and do not have statutory or regulatory requirements for NMED review time or public comment periods.

The Order schedule was designed with regard to NMED resources. NMED also recognizes that review times are problematic and will implement mechanisms to ensure timely reviews. However, NMED is required, by its Hazardous Waste Fee Regulations, to meet review timeframes once a document is accepted by NMED for review and payment of fees has been received from a facility.

N


16 VoluntaryCorrective Measures Plan/Report

One commenter noted that for certain SWMUs in TA-21, the compliance schedule requires submittal of a Voluntary Corrective Measures Plan and/or Report, but neither of these documents is discussed in the draft Order. This commenter requests that NMED and the Respondent be required

Activities are ongoing at the SWMUs referred to in the comment. The Los Alamos/Pueblo Canyon Work Plan describes required work at TA-21. At SWMU 21-011(k), additional soil removal and site stabilization are planned in 2003. At SWMU 21-024(i), an interim action plan was submitted to NMED. Confirmatory sampling under the interim action plan was conducted in 2001. LANL is

N



Section/ Unique



to consult the County representatives in the selection of remedies prior to NMED approval to ensure that any remediation be acceptable to future private owners and their financing sources.

currently preparing an Interim Action Completion Report for SWMU 24-024(i) that will be submitted to NMED on or before March 30, 2003. Land transfers are beyond the scope of the Order.


17, 22, 37 Section Reference

Three commenters noted that the reference in Section VII.A was incorrect.

This typographical error has been corrected. Y


18 AdministrativeRecord

One commenter noted that the AR prepared to support the draft Order is incomplete. This commenter recommends including documents supporting or recording meetings concerning the “High-Performing Teams,” any and all “Accelerated Cleanup” proposals in which NMED has taken part, the Performance Management Plan(s), and the Letter of Intent, at a minimum.

The Administrative Record (AR) includes documents that are the basis for the terms of the Order. NMED will consider including notes from the high performing teams in the AR. The Letter of Intent and DOE’s Performance Management Plan are not related to issuance of the Order. Additionally, both documents were released after the draft of the Order was issued for public comment. The Letter of Intent and the Performance Management Plan do not affect the requirements of the Order.

N


18 Future Research One commenter indicated that the draft Order has abridged statutory due process in favor of conducting further research that is in many case logically and scientifically fallacious and irrelevant. This commenter noted that much is known about every aspect of the site, about the contamination present, what to do about it, and the approximate relative risks posed by various contaminated sites. He indicated that more detailed knowledge will be very costly, will be fragmentary due to site heterogeneity, and will create “holes” that may be conduits for

NMED acknowledges that there is a considerable amount of data on contamination at LANL. However, there are many sites that have been well-studied, yet lack adequate supporting information to make risk-based, investigation and cleanup decisions. Adequate determination of the nature and extent of contamination and rates of contaminant migration at sites is essential to ensure that cleanup methods are both appropriate and sufficient. NMED has ordered additional work to be completed at sites that have not been sufficiently characterized before appropriate investigation and cleanup decisions can be made.

N



Section/ Unique



contamination at the site. This commenter suggested that the time to compare remediation strategies is past, and it is time to proceed to corrective action at most of the smaller sites and that it is often more cost-effective to combine investigation and removal or other remediation, particularly in the case of shallow aquifers and sediments.


18 Closure Plans One commenter noted that NMED personnel had indicated that the work required in the draft Order would take the place of an enforceable closure plan for areas G, H, and L of TA-54 in the forthcoming draft LANL permit. This commenter indicated that such closure plans are legally-required permit obligations and are the subject of requests by numerous citizens, organizations, and the Attorney General of New Mexico. This commenter also noted that on April 25, 2002, DOE and UC submitted closure plans for the three TA-54 sites G, H, and I, pursuant to a process begun in secret by NMED in December [2001], thereby violating RCRA public participation requirements. This commenter also noted that the plan submitted for Area H is based on HSWA corrective action requirements, not RCRA closure requirements, and is expected to set a precedent for remedies at all other disposal sites at LANL.

Closure of regulated units is subject to the requirements of 40 C.F.R. part 264 subpart G. Additionally, characterization for MDAs G, H, and L is not adequate to delineate the extent of the contaminant releases or to determine the threat to human health and the environment from direct exposures and from contaminant migration. Without sufficient data, closure and post-closure care cannot be addressed. On December 21, 2001, NMED notified LANL that the closure plan submitted for MDAs G, H, and L did not comply with the requirements of the Hazardous Waste Regulations 20.4.1.500 NMAC. Additionally, MDA G is currently being used for the disposal of low-level radioactive waste in pits and storage of mixed and transuranic waste. Waste management operations and requirements concerning hazardous waste container storage at MDA G will be addressed in the TA-54 permit. The Corrective Measures Plan for MDA H is site-specific and does not address remedies at other sites at LANL.

N



Section/ Unique




18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36,

37

Area G Several commenters indicated that Area G continues to accept nuclear waste for disposal in large quantities, estimated by DOE as 19 million cubic feet over the next 70 years. These commenters noted that the NM Attorney General has found this to be illegal, but is not enforcing the law. Another commenter noted that through discovery for its Clean Air Act lawsuit, Concerned Citizens for Nuclear Safety obtained extensive inventory summaries of wastes disposed of at Area G, including reactor rods, activated targets from LANSCE, and “classified shapes.” This information indicates that Area G is not the “low-level” radioactive waste dump that LANL pretends it to be. This commenter also recommends that the Final Order require closure plans for Area G and explain how Area G issues intersect between the Order and the pending renewal of LANL’s RCRA permit.

MDA G is currently being used for the disposal of low-level radioactive waste in pits and storage of mixed and transuranic waste. Requirements concerning hazardous waste container storage at MDA G will be covered in LANL’s new HSWA permit, which is currently being revised and will be subject to public participation procedures.

N


18 NMED/DOECollaboration

One commenter noted that NMED has been participating in private meetings with top DOE officials and expects to receive at least $400,000 annually from DOE in return for acquiescence to DOE’s cleanup philosophy, its cleanup goals, its secret decision-making structure, and others.


N


18 AcceleratingRisk Reduction

One commenter noted that the phrase “accelerating risk reduction” in the


N



Section/ Unique



Letter of Intent refers to accelerating a bureaucratic program of risk reduction that involves changing perceptions without necessarily changing the environment.


18 NationalSecurity Mission

One commenter noted that the Letter of Intent indicates that NMED agrees to assist the NNSA to focus on nuclear weapons work, which is not part of the authority of NMED.


N


18, 35 Long-Term Environmental Stewardship

There were several comments regarding long-term stewardship. One commenter noted that the Long-Term Environmental Stewardship office at LANL is slated for closure in about four years. This commenter also noted that the “implementation” of “long-term environmental stewardship” and “moving the date of implementation [of LTES] forward” as used in the Letter of Intent means that the “cleanup” will be completed at an earlier date. It is not clear if there will be any more work done after this. Another commenter expressed concern that the Respondents’ failure to adequately fund and implement a long-term stewardship program for DOE sites indicates there may not be significant reduction of long-term risks to public health and the environment.

NMED does not have knowledge of any plans to close the Long-Term Environmental Stewardship office at LANL. NMED agrees with the mission of LTES and urges LANL to obtain necessary funding from DOE to continue the operation of its office at LANL. The Order requires that long-term monitoring be conducted at the facility where appropriate. The Letter of Intent does not change the requirements outlined in the Order.

N


18 Quick-to-WIPP One commenter noted that the Quick-to-WIPP strategy may reduce some of the risk at LANL created by storing “legacy” TRU waste in tents at Area G,

MDA G is currently being used for the disposal of low-level radioactive waste in pits and the storage of mixed and TRU waste. NMED does not consider permanent storage of “legacy” TRU

N



Section/ Unique



but it could be construed as a selection of a “final remedy” for a RCRA-permitted or RCRA interim-status storage site at TA-54 which may or may not fall under the public participation regulations and guidelines of RCRA.

wastes at MDA G to be a “final remedy.” Requirements concerning hazardous waste container storage at MDA G will be covered in LANL’s new HSWA permit.


18 WatershedAggregate Approach

One commenter noted that the watershed aggregate approach aggregates risk over an entire watershed rather than having any specific cleanup standard at any single point. This commenter indicated that with this method, it is almost certain that calculated or apparent risk levels can be held low enough to avoid all actual cleanup at LANL.

Each Solid Waste Management Unit (SWMU) and Area of Concern (AOC) is listed separately within an aggregate unit. Aggregate areas may be grouped by watersheds or within a watershed based on geologic and hydrologic factors, contaminant source, transport pathways, exposure routes, receptors, potential cumulative risk, and potential locations for contaminants to accumulate. The aggregate approach prioritizes the investigation of sites based on their risks to human health and the environment. LANL’s use of the aggregate approach incorporates NMED’s recommendations concerning watershed and aggregate prioritization. The cleanup goals for each aggregate area must be calculated on a site-specific basis and must be approved by NMED.

N


18 DefiningRegulatory Endpoint

One commenter noted that the Letter of Intent states that the signatory parties are “committed” to defining the regulatory endpoint, something that is generally done through the process of promulgating a regulation, pursuant to a statute. Defining the regulatory endpoint is the responsibility of NMED and EPA, not DOE, and only after receiving input in a fact-finding, adversarial hearing process conducted on the record.


N

R99 General – 18 Institutional One commenter noted that the Letter of This comment is beyond the scope of the Order; N



Section/ Unique



Controls Intent repeated the term “institutional controls” leading the reader to believe that the cleanup plans promulgated under this letter will lean heavily on institutional controls and will not be cleanup plans at all.



18 EnvironmentalCovenants Act (ECA)

One commenter noted that the ECA, if passed, would provide the legal means of excluding the “most exactly future land uses from contaminated sites,” effectively precluding risk analysis for those uses, and give NMED the responsibility for enforcing future pollution zoning. This commenter also noted that the ECA will establish “technical infeasibility” as a new exit clause for corrective action requirements under almost all NM environmental laws. NMED would also be responsible for maintaining any environmental treatment works on many contaminated sites and for enforcing land use restrictions.


N


18 Protection ofWorkers

One commenter noted that the safety of workers is always in tension with environmental remediation goals and that the safest program for the environmental restoration worker is one that does not involve exposure to the contaminated environment.

Safety and remediation do not have to be in conflict with one another. Proper planning and research into the contaminants and other potential hazards that may be encountered at a contaminated site form the basis for the site health and safety plans required for each site. Safety is of utmost importance when working at contaminated sites. Every individual who performs work at these sites is required to receive appropriate training in accordance with state and federal regulations.

N

R102 General – 18 Innovative One commenter suggested that the This comment is beyond the scope of the Order; N



Section/ Unique



Cleanup Procedures

innovative cleanup procedures called for in the Letter of Intent may not lead to effective investment for American taxpayers.



18, 35 Performance Management Plan (PMP)

There were several comments regarding the Performance Management Plan. One commenter noted that the PMP will include “actions, milestones, responsibilities, business processes, and acquisition strategies necessary to achieve the agreements made in this letter” and will be prepared by DOE and its contractors. This commenter noted that NMED may also sign it, which may result in NMED losing control. Another commenter noted that the Draft PMP shows the Respondents’ plans for cleanup essentially consist of capping and covering MDAs, monitoring the attenuation of groundwater contamination, and relying on an as yet unformed and unfounded Long Term Stewardship program, whereas the draft Order states that a remedy that reduces risks with little long-term management and that has proven effective under similar conditions shall be preferred. This commenter strongly encourages NMED to address this discrepancy between the State and the Respondents by selecting the most restrictive usage scenarios.

DOE’s Performance Management Plan (PMP) has not been approved by NMED, has not been funded by Congress, would not invalidate requirements under RCRA subtitle C, 20.4.1 NMAC, or NMSA 1978 §§ 74-4-1 to 74-4-14, and was not considered during the preparation of the Order.

N


18 CAO One commenter noted that the bulk of the work called for in the CAO is

The Order is intended to direct LANL’s environmental restoration efforts and the

N



Section/ Unique



oriented toward risk assessment, not remedy selection. This commenter also noted that DOE estimates this work would cost about $65 million the first year and that LANL will receive $76 million that year as a result of the Letter of Intent. The work to be done under the CAO will therefore supersede all other cleanup activity at LANL. This commenter also noted that NMED officials admitted that the content and purpose of the CAO was HSWA corrective action and RCRA closure and post-closure care under the operating permit, and that the CAO might be incorporated into the permit. This commenter was concerned that the hearing process for the permit would then legitimize the CAO without actually providing a hearing of the issues involved in the CAO.

Department of Energy’s cleanup money toward sites that are considered higher priorities than others. The Order is also intended to expedite the schedule for investigation and/or cleanup at many sites at LANL. NMED regulations do not require NMED to conduct a hearing for an Order. The draft LANL Operating Permit is subject to the public notice requirements outlined in 20.4.1.900 and 901 NMAC.


18, 36 UC Lawsuit There were several comments regarding the UC legal action. One commenter noted that the University of California filed a lawsuit seeking declaratory and injunctive relief against the ISE Determination and CAO, claiming they violate both procedural and substantive due process obligations under RCRA, since they seem to be modifications of the LANL RCRA operating permit. This commenter expressed concern that this lawsuit could be a means to “fix” the outcome of decisions and put them out of reach


N



Section/ Unique



of the public by recording them as an official settlement of the case. Another commenter noted that the UC assertion that it has sole jurisdiction over mixed radioactive waste flies in the face of RCRA and the Federal Facilities Compliance Act (FFCA). This commenter urged NMED to vigorously fight off UC’s challenge and proceed with issuance of the Final Order.


18 High-Performance Teams

One commenter noted that there are three or four high performance teams, composed of regulators and regulated, meeting privately to evaluate possible corrective actions and closure remedies for various sites. Any decisions made by these teams would then be brought into the public notice and comment process. This commenter noted that this is the private process to which NMED is committed to by the Letter of Intent.

The High Performance Teams are comprised of technical staff members representing NMED, DOE, and LANL who are involved with site-specific activities at LANL. The team concept was implemented primarily to facilitate communication among the agencies. All decisions made by the teams are part of the Administrative Record.

N


18 RCRAOperating Permit

One commenter noted that a draft RCRA operating permit for LANL will be issued by NMED on October 1, 2002. This commenter is concerned that, although there will be public notice and hearings, the main decisions on cleanup and closure will have already been made under the CAO, Letter of Intent, results of the UC lawsuit, closure plans for TA-54, and high-performance teams.

Revision of LANL’s HSWA permit is currently in progress and will be subject to public participation procedures in accordance with 20.4.1.900 and 901 NMAC when it is issued. All public participation requirements will be followed. It is NMED’s intent to keep the public informed on cleanup and closure issues at LANL.

N

R108 General – 18 Annual Unit One commenter noted that NMED On December 21, 2001, NMED notified LANL N



Section/ Unique



Audit assesses hazardous waste fees based on the number of regulated units at a facility. Until last year, LANL had asserted that Area G was one unit, however, it now seeks to close a small portion of Area G and leave the rest open as another unit(s). LANL is apparently in negotiations related to the annual unit audit process for Area G, which will not be decided in an open permitting process. This commenter is also concerned that if Area G is split into many units and NMED subsequently receives more fees, there will be less incentive for a “holistic” closure of the site.

that the closure plan for MDA G did not comply with the requirements of the Hazardous Waste Regulations 20.4.1.500 NMAC. NMED does not agree that a limited number of MDA G disposal units can be closed while the remainder of the disposal units continue to have operating status. MDA G is currently being used for the disposal of low-level radioactive waste in pits and storage of mixed and transuranic waste. Requirements concerning hazardous waste container storage at MDA G will be covered in LANL’s new HSWA permit, which is currently being revised and will be subject to public participation procedures.


18 EnforcementActions

One commenter noted that each NMED enforcement action will create a separate negotiating forum at which a localized solution will be found for the disputed regulatory finding in question, forums in which the public will not be involved. This commenter is concerned that these settlements will stand, will bind future NMED choices, and will not be revisited in future permit hearings.

Due to the diversity and complexity of sites at LANL, NMED has determined that appropriate investigation and cleanup should be determined on a site-by-site basis. Accordingly, LANL’s Hazardous Waste Permit states that the Permittee, in conjunction with the Administrative Authority, shall establish site specific objectives for corrective action. These objectives shall be based on public health and environmental criteria, information gathered during the RFI, EPA guidance, and the requirements of any applicable Federal statutes. At a minimum, all investigation and cleanup concerning releases from solid waste management units must be consistent with, and as stringent as, those required under 40 C.F.R. 264 Subpart F. For each site requiring cleanup, LANL will evaluate potential remedial alternatives and will recommend a preferred remedy that will be

N



Section/ Unique



protective of human health and the environment and attain the appropriate cleanup goals.


18 PermitModifications

One commenter noted that a number of permit modifications have been written and approved for LANL, but only one had gone to public hearing. This commenter also noted that, other than one hearing on the incinerator and the initial hearings by EPA in 1989, no public hearings have been convened for the LANL permit which has expired and is now “continued” in some fashion. This commenter also noted that permits, including modifications, are explicitly open to citizen lawsuits to compel compliance.

Major permit modifications are required to go through a public participation process in accordance with 20.4.1.900 and 901 NMAC. Revision of LANL’s operating permit is currently in progress and will be subject to the applicable public participation procedures.

N


34, 37 Compliance/ Litigation

There were several comments regarding compliance/litigation. One commenter expressed the desire to see DOE and UC help pay for enforcement costs if funding by the State is a problem. NMED should use its right to civil litigation if DOE and UC do not comply with the Order. Another commenter recommended that NMED should quickly commence civil litigation against the Respondents under NMSA §74-4.10.1 if the Respondents fail to respond in any way to any of the requirements found in the Order.

Penalties, including fees and civil litigation, for non-compliance are enforced in accordance with the New Mexico Hazardous Waste Act, NMSA 1978 §§ 74-4-10 and 74-4-10.1E.

N


35 ImmediateRemedial Action

One commenter noted that more than $700 million had been spent in more than a decade of investigation, yet NMED identified no targets for

Adequate determination of the nature and extent of contamination and the rates of contaminant migration at sites is essential to ensure that cleanup methods are both appropriate and sufficient. Many

N



Section/ Unique



immediate remedial action. The commenter recommends that NMED explain why some DOE sites are well into the cleanup phase while another decade’s worth of studies have been ordered.

sites at LANL have not yet been adequately characterized and investigated. These are sites where NMED and LANL lack adequate supporting information to make risk-based, investigation and cleanup decisions. Consequently, additional work has been ordered.


35 UrgentCorrective Actions

One commenter questioned why, if Los Alamos County is examining closure of specific wells in the path of contamination plumes, the CAO does not address specific harms and urgent corrective actions. This commenter recommends that the Final Order should state specifically if NMED’s expectation and intent is to use the earliest completed studies as the basis for ordering near-term mitigation and cleanup actions to the cleanup standards outlined in Section VIII. The Order should identify targets for immediate regulatory actions to prevent further environmental harms, mitigate known environmental risks, and undertake actual cleanup.

NMED is unaware of Los Alamos County’s intent to discontinue use of any of its water supply wells. Adequate determination of the nature and extent of contamination at sites is essential to ensure that cleanup methods are both appropriate and sufficient. Many sites at LANL have not yet been adequately characterized and investigated. These are sites where NMED and LANL lack adequate supporting information to make risk-based, investigation and cleanup decisions. Consequently, additional work has been ordered.

N


35 SpecialTechnical Advisory Board

One commenter suggested that the Final Order provide for an independent NMED Special Technical Advisory Board for unbiased peer review, in order to ensure the independence and integrity of the huge number of reports and plans that Respondents are scheduled to submit in compliance with the Order.

Personnel from the NMED DOE Oversight Bureau may be available for independent peer review of submittals. The mission of the Oversight Bureau is to assure that activities at DOE facilities are protective of the public health and safety and the environment.

N

R115 General –Not directly related to

35, 36 Reprisal Provision

There were several comments regarding whistleblowers and reprisals. One commenter recommended that the

There are several laws which are designed to protect whistleblowers:

N



Section/ Unique


in Order? Attachment Y/N Order Final Order include a provision

specifically protecting against reprisal any individual employee or group of employees of LANL or its contractors who supply information regarding actions by Respondents that have the effect or intent of misleading State and Federal regulators, the press, or the public, regarding the true state of environmental contamination and waste management at LANL. Another commenter recommended that the Final Order incorporate measures that would protect any whistleblowers that might come forward with valuable information.

The Energy Reorganization Act provides nuclear workers with protection provisions (42 U.S.C.A. s 5851). 10 C.F.R. part 708 establishes procedures for timely and effective processing of complaints by employees of contractors performing work at sites owned or leased by the Department of Energy (DOE), concerning alleged discriminatory actions taken by their employers in retaliation for the disclosure of information relative to health and safety, mismanagement, and other matters as provided in 10 C.F.R. 708.5(a), for the participation in proceedings before Congress or pursuant to this part, or for the refusal to engage in illegal or dangerous activities. In 1995, DOE signed a whistleblower initiative based on then-Secretary of Energy Hazel R. O'Leary's policy of "zero tolerance for reprisal." The reforms include measures to ensure that whistleblowers are not retaliated against by misuse of security clearance procedures; a limit on payment of contractor litigation costs in whistleblower cases; and establishment of an enhanced employee concerns program which would have the effect of strengthening DOE policies and programs to ensure that employee concerns are given full attention by DOE and DOE contractor managers and supervisors.


35 Intent of Study Effort

One commenter questioned if the study effort was to better quantify the public health risks at the site boundary in order to justify future determinations of negligible risks, and hence little remedial actions or to better inform and

NMED does not use data to eliminate risk. Data is used by LANL to determine risk. NMED, in turn, uses this assessment to determine the need for the appropriate investigation and cleanup.

N



Section/ Unique



provide a basis for cleanup decisions that are imminent, necessary under the law, and will be ordered by NMED before the next decade of study begins. If it is the latter, this commenter applauds NMED for aggressively proceeding under the State’s RCRA obligations and seeking substantial information from the Respondents in an enforceable context.


36 Comparison toOther States’ Orders

One commenter recommended that NMED be aware of other states’ Orders, what worked, what didn’t, and what may be applicable to this Order. This commenter noted that the May 2002 GAO Report “Waste Cleanup: Status and Implications of DOE’s Compliance Agreements” has a list by state of Orders and Consent Decrees issued against DOE.

NMED will consider reviewing the documents noted in the comment.

N


36 Projected Costof Compliance

One commenter suggested that NMED pressure DOE/LANL/UC into calculating project costs for complying with the Order so that future compliance can be better assured with a sound fiscal basis.

NMED is aware that the amount of work that can be performed is partly based on available funding. NMED urges LANL to work with DOE to ensure that necessary funding is available.

N


36 WasteInventories

One commenter recommended that the Final Order require continually updated aggregated inventories of waste by their waste type classification as data is acquired.

LANL is required under 40 C.F.R. §264.73 to keep a written operating record at its facility that must be maintained until closure of the facility. Included in this record are locations and quantities of each hazardous waste at the facility, monitoring, testing, or analytical data, any required investigation and cleanup, and records and results of waste analyses and waste determinations.

N


37 DocumentRetention

One commenter recommended that the Respondents be required to maintain

LANL’s Hazardous Waste Facility Permit requires that LANL retain all data and documents

N



Section/ Unique



paper copies of all “documents, data, and other information required to be prepared under this Order” for 100 years, a time period discussed in the context of long-term stewardship and long-term environmental stewardship. This commenter also recommended that NMED require the Respondents to keep electronic copies, with a properly maintained and operating electronic reader. This commenter also recommended that the Final Order include a provision prohibiting the Facility from destroying any documents or samples, including drilling cores, until receiving approval to destroy them from NMED.

throughout the duration of its permit. NMED believes that 25 years (after completion of investigation and cleanup for the entire facility) is sufficient time for all documents, data, and other information prepared under the Order to be maintained by the Respondents.


37 Pre-LANLCleanup Levels

One commenter strongly supports the development of a “return of the lands used by the Facility to 1942 background levels,” also known as “pre-LANL,” “sustainable homesteader,” or sacred,” scenario for use in cleanup levels, screening levels, reporting levels, migration pathways, and risk assessments. This commenter also recommends that public participation in the development of such a scenario should be included in the Final Order.

The Order states that NMED has established cleanup levels at sites where investigation and cleanup is required in response to the release of contaminants to the environment. The cleanup levels are based on excess lifetime cancer risk levels that are consistent with the EPA’s National Oil and Hazardous Substance Pollution Contingency Plan, 40 C.F.R. §300.430(e)(2)(i)(A)(2).

N


38 Risk-BasedApproach

LANL noted that its corrective action decisions are based on degree of risk in accordance with EPA’s risk assessment strategy and guidance that was initially adopted and supported by NMED policy and guidance. The draft Order,

The requirements in the Order enhance, rather than negate, the risk-based investigation and cleanup decisions used by LANL. Completed work and progress made were considered when NMED developed the requirements in the Order.

N



Section/ Unique



however, moves away from this approach and negates years of significant work and progress already made.


38 Data QualityObjectives (DQOs)

LANL noted that the corrective action program at LANL follows the USEPA’s Data Quality Objectives (DQOs) process, which is based on the outcome of an iterative process and builds on existing data in order to focus potential future activities. The draft Order, however, prescribes sample location, sample collection and monitoring without appropriate levels of planning and awareness of objectives.

The requirements in the Order take into consideration the many years of sampling, monitoring, and data collection already performed. The requirements were developed using existing data provided to NMED by LANL.

N


38 Reports LANL noted that it has, working with NMED, modified the format and content of documents to produce clear, readable reports that simplify review. NMED and LANL had agreed that the inclusion of final chemical analytical data reports, including QA/QC results, was excessive and voluminous. Summary tables of the information were jointly developed with NMED and are included in reports. The draft Order, however, requires the inclusion of the final chemical analytical data reports, including QA/QC results, which is inconsistent with RCRA requirements and the industry standard as well as NMED’s “Document Requirement Guide” and the formats already agreed upon with NMED.

NMED is unaware of the RCRA requirements that are being referenced in this comment. Regardless, the reporting requirements in the Order are consistent with EPA guidance and industry standards. NMED is requiring that LANL submit data and QA/QC results in the original format as received from the analytical laboratory without having been subjected to LANL's own qualifiers.

N

R125 General – 38 Corrective LANL noted that its ongoing corrective The Order accelerates investigation and potential N



Section/ Unique



Action Program action program incorporates the consolidation of PRSs, a watershed approach, use of risk as a basis for remediation decisions, voluntary corrective actions, joint NMED and LANL decision making, and real time review by NMED, with the goal of improving and accelerating investigations and cleanup of PRSs. The Order, however, would prolong and delay cleanup activities, including RFIs currently underway.

remediation at many of the sites at LANL. This is accomplished by incorporating LANL's existing approaches to investigation and cleanup with NMED's prioritization of sites.


38 Hydrogeologic Characteriza-tion

LANL noted that its Hydrogeologic Work Plan was designed to be iterative, using analytical tools to learn from each new well. Thus, the number and location of subsequent wells is based on a thorough review of existing data and other relevant information. The draft Order, however, requires installation of a fixed set of wells at fixed locations without a technical basis or understanding of the hydrogeologic setting that is needed to design a monitoring network.

LANL's Hydrogeologic Work Plan is incorporated into this Order. Specific requirements in addition to those in the Hydrogeologic Work Plan are intended to help fully characterize the nature and extent of groundwater contamination and the hydrogeologic system beneath the Facility. The number and locations of these additional wells are not fixed. Instead, they are to be included in site- or canyon-specific work plans in which LANL may provide rationale for change.

N


38 EnvironmentalStewardship

LANL noted that under DOE’s authority, LANL has demonstrated itself as a good steward of natural and cultural resources. LANL has established risk reduction efforts addressing historical operations and environmental contamination. This commenter believes it is critical for LANL to implement the Accelerated Environmental Management Program, which focuses on completion of legacy




Section/ Unique



transuranic waste disposition at WIPP, protection of the regional aquifer, cleanup of watersheds that could have the potential for off-site transport, and long-term stewardship of remediated areas as well as operational areas of LANL.

R128 General-notdirectly related to Order

38 VoluntaryActions

Where the Laboratory believes that it is in the public interest to expedite the cleanup at sites, the Lab has proceeded with the cleanup as an “interim action”, “voluntary corrective action”, or a “voluntary corrective measure”. This approach has NMED’s concurrence and VCAs and VCMs are performed with varying degrees of NMED involvement. For a VCA or a VCM to be performed, there must be a clear and final remediation goal and an obvious method for implementing that goal. VCAs/VCMs are performed with the understanding that the Lab may be required to revisit remedial action taken at the site due to the limited involvement of NMED at the time of implementation. In all, since 1993, the Lab has undertaken and completed approximately 110 voluntary cleanup actions or measures at 100 SWMUs.

The Laboratory may implement voluntary investigation and cleanup at risk. However, NMED must approve all final investigation and cleanup and the Laboratory must fulfill all requirements included in the Order.

N

R129 General-notdirectly related to Order

38 InstallationWork Plan/ Watershed Approach

The Lab’s proposed corrective actions are documented in the Installation Work Plan (IWP) and are implemented through workplans submitted to NMED for approval as required by the HWF permit. The IWP ensures that all permit requirements are met and

In response to LANL’s Revision 8 of the IWP, NMED proposed a revision to the IWP work schedule for public comment. The IWP schedule was finalized and approved on September 9, 2002. The IWP schedule reflects the priorities and methodologies described in the Order.

N



Section/ Unique



provides the Lab with clear guidance on the methods and priorities for investigation and potential remediation of sites. NMED has been an active participant in establishing priorities for addressing PRSs through monthly meetings and High Performance Team meetings. Priorities for site activities are set in the annual IWP work schedule that establishes the corrective action the Lab will perform each year. The most recent IWP Revision (Revision 8), which incorporates an integrated watershed-based approach, was provided to NMED for approval on March 30, 2000. NMED has not yet approved Revision 8, but it did approve a change in methodology, the watershed approach. This approach is a systematic, integrated risk-based process for characterizing PRSs that follows EPA guidance. The last IWP revision approved by NMED was Revision 7 in 1999.


38 Notification ofRisk

LANL provided a letter from Mr. Fred Brueggeman, Deputy County Administrator, Los Alamos County, NM, who stated that during his service in the County Administrator’s Office, no official of the County had received notice from NMED pursuant to Section 74-4-13.C NMSA that NMED had received any information or made any determination that hazardous waste presents an imminent and substantial endangerment to human health or the




Section/ Unique



environment at any location in Los Alamos County and that no County official has received from NMED a copy of a Determination signed by Peter Maggiore, Secretary of NMED, on May 2, 2002, or has received a copy of the draft Order.

R131 Section II.A 36 Findings of Fact One commenter concurs with all of the facts presented in this section, and suggests noting that declining LANL cleanup budgets led NMED to doubt that all of the noted deficiencies and lab cleanup could ever be rectified.


R132 SectionII.A.3, IV.B.1.a

37 Facility One commenter recommended Santa Fe County should be included as an entity surrounding LANL in all descriptions of the Facility.

This change will be included in the Final Order. Y

R133 SectionII.A.3, IV.B.1.a

38 Facility LANL recommended that the reference to “Bureau of Land Management as being part of the lands surrounding the Laboratory facility” should be deleted because BLM lands do not border LANL.

According to LANL’s report entitled Environmental Surveillance at Los Alamos during 2000, “large tracts of land north, west, and south of the Laboratory site are held by the Santa Fe National Forest, Bureau of Land Management,…”

N

R134 SectionII.A.3

38 Facility LANL recommended the third sentence, which states that the Rio Grande and tribal lands border the Laboratory facility "downgradient to the east," is incomplete, as Los Alamos County lands also border the Laboratory to the east.

This change will be included in the Final Order. The change will also include Sandoval County.

Y

R135 SectionII.A.3

38 Facility LANL commented that the first sentence states that there are nineteen major surface drainages and canyons dissecting the Pajarito Plateau. By contrast, the Table of Contents of the Draft Order listed only fifteen canyons

Neither of these two provisions is in error. According to LANL’s Environmental Surveillance at Los Alamos during 2000, there are 19 major drainages on the Pajarito Plateau. The 15 canyons listed in the Table of Contents of the Order do not include Bayo Canyon because it is covered under

N



Section/ Unique



within the boundaries of the Laboratory. One of these two provisions is in error, and should be corrected.

the TA-10 investigation (Section IV.C.5), Cañada del Buey because it is covered under the Sandia Canyon Watershed investigation (Section IV.B.5), DP Canyon because it is covered under the Los Alamos Canyon investigation (Section IV.B.1.e), and Frijoles Canyon.

R136 Section II.A.4

38 FacilityOperations

LANL commented that the Draft Order attempts to regulate radionuclides by requiring the Laboratory to conduct an “investigation and, as necessary, cleanup of contaminants” in lab areas, and ignores limitations on the HWA regulation of mixed waste. NMED cannot regulate the radioactive portion of mixed waste nor can it regulate the hazardous waste portion, due to conflict with DOE regulation of the radioactive portion of mixed waste. LANL feels this provision is preempted by and contrary to federal law.

See Response to Legal Comments, Comment Numbers 28, 36 and 40.

N

R137 SectionII.A.4


LANL commented that the statement in paragraph eight of this section, that “[t]his Order requires investigation and, as necessary, cleanup of contaminants in the following current and former TAs [technical areas]…,’ is inconsistent with the “Compliance Schedule Tables” in Section XII. For example, in Section II.A.4, only five TAs (TAs 10, 21, 49, 50, and 54) are listed; however, in the section XII compliance schedule, additional TAs, which are not referenced in Section II.A.4, are listed. It is inconsistent and contradictory to state in Section II.A.4 that five TAs require investigation and

This last sentence of this paragraph will be changed to read “This Order requires investigation and, as necessary, cleanup of contaminants in all of the Facility’s current watersheds, aggregates, and current and former TAs. This Order includes specific requirements for investigation and, as necessary, cleanup of contaminants in the following TAs.”

Y



Section/ Unique



potential remediation yet, under the compliance schedule (Section VII), to list additional TAs that also require document submission.

R138 SectionII.A.4.8.b


LANL commented that the date stated in this subsection is incorrect. Some operations at TA-21 began in 1944, and not in 1945 as stated.

Documents provided by LANL to NMED state that “chemical research and plutonium metal production” at TA-21 was “from 1945-1978” (for example, TA-21 Operable Unit RFI Work Plan for ER, May 1991).

N

R139 SectionII.A.5

38 WasteManagement

LANL commented that although Po-210 may have been released from MDA U as asserted in the third sentence, the half-life of this isotope is less than one year and operations ceased at this site in the 1970s. It is therefore impossible that Po-210 remains as a current potential site contaminant of significance.

Section II.A.5 paragraph 14(d) states that Po-210 is a contaminant that was released from MDA U. Depending on the activity when released, it is possible that Po-210 can still be detected, even considering its 138-day half-life. Additionally, depending on how the Po-210 isotopes were made, it is possible to find either parent or daughter products, or other polonium isotopes, present at MDA U that may have longer half-lives than that of Po-210. It is not a true statement when LANL claims that it is impossible that Po-210 remains a significant site contaminant.

N

R140 SectionII.A.5

38 WasteManagement

LANL commented that the assertion in the third sentence that “high concentrations of VOCs” have been released into the vadose zone from MDA C is inaccurate and contradicted by the available data. Trichloroethene (TCE) and trichloroethane (TCA), the two most commonly detected organic constituents in pore gas samples from beneath MDA C, are measured at concentrations consistently less than 15 ppmv. Few organic compounds were detected in tuff samples from boreholes beneath MDA C, and the majority of these detections are accounted for by

The last sentence of Section II.A.5 paragraph 16(a) will be changed to read “VOCs and high activities of radionuclides, including tritium, have been released from MDA C to the vadose zone. TCA and TCE were detected at concentrations up to 70,000 µg/m3, which exceed the EPA Region VI ambient air (residential scenario) of 1000 µg/m3 and 1.1 µg/m3, respectively.”

Y



Section/ Unique



acetone and bis (2-ethylhexyl) phthalate, two common analytical laboratory contaminants. The vast majority of organic analytical results for MDA C, in all media, are non-detects. This data was submitted to NMED in July 2001 and will be presented in the upcoming MDA C RFI Report.

R141 SectionII.A.5

38 WasteManagement

LANL commented on the paragraph stating that the Laboratory disposed of waste at MDA H from "1960 to 1989 in nine shafts." This statement is incorrect. According to the waste inventory, MDA H received waste from May 3, 1960 through August 29, 1986, after which time the facility was no longer used.


R142 SectionII.A.6

38 Releases ofContamination

LANL commented that the conclusion in paragraph 22 is incorrect. No Maximum Contaminant Levels (MCLs) for HE have been set by USEPA. USEPA has established health advisory levels, not MCLs, for HE. The concentrations of metals that are above MCLs have been demonstrated to be attributable to well construction materials or to sampling artifacts and procedures (such as turbidity). This was the conclusion stated in the Laboratory’s regional well R-25 data reports and Well Completion Report; correspondence on sampling specific wells; and the Annual Environmental Surveillance Report. HE compounds have only been detected in groundwater

Section II.A.6, paragraph 22, will be changed to read “at levels in excess of health advisories set by the EPA”. NMED does not necessarily agree that the metals detected in groundwater (for example, in Mortandad Canyon) are the result of well installation activities. The extent of HE contamination detected in the alluvial and regional groundwater at TA-16 has not been defined. Additionally, HE has been detected in the regional aquifer at R-31 (LANL, March 9, 2000, “Analytical Results from Sampling Ground Water Produced During the Drilling of Monitoring Well R-31”, ESH-18/WQ&H:00-0079, Los Alamos National Laboratory, Los Alamos, New Mexico). It is premature to make any recommendations or conclusions regarding HE contamination in

Y



Section/ Unique



beneath TA -16, not beneath the entire Laboratory facility as suggested in the Draft Order, and have not been detected in excess of USEPA health advisory levels. The HE compounds detected in one well, R-25, appear to have been associated with the construction of that well, and have since dissipated, indicating that HE was not in the regional aquifer.

groundwater at LANL as further investigation is needed.

R143 SectionII.A.6


LANL commented that the conclusion in paragraph 23 is inaccurate and incomplete. In over 30 years of data collection, the Laboratory has detected only one total cyanide concentration in excess of the NMWQCC groundwater standard. This concentration was identified in a 1995 sample obtained from the BIA wellpoint number one, located near Totavi in Lower Los Alamos Canyon.

According to LANL’s environmental surveillance data (1974 and 1995), cyanide was detected in several different wells in Los Alamos and Mortandad Canyons, and the Bureau of Indian Affairs Wellpoint 1. All of these detects were above EPA’s MCL and the NMWQCC level of 0.2 mg/L.

N

R144 SectionII.A.6


LANL commented that the conclusion in paragraph 24 is incorrect and incomplete. USEPA has not yet established a drinking water equivalent for perchlorate. Although USEPA has drafted a proposed perchlorate drinking water equivalent of one ppb, it has not yet been finalized. The detection of perchlorate in two of the Laboratory wells (Otowi-l and R-5) is questionable due to the controversy regarding the appropriate detection limit for perchlorate. If the Minimal Detection Level for the Ion Chromatography method for perchlorate analysis is

The U.S. EPA has established a draft drinking water equivalent for perchlorate of 1 ppb, based on a draft 0.00003 mg/kg-day reference dose. See Response to Legal Comments, Response Numbers 11 and 12. NMED does not believe that a detection limit of 4 ppb for perchlorate is low enough. Under EPA Method 314, the method detection limit is 0.53 ppb and the reporting limit is 4 ppb. However, method detection limits and reporting limits will need to be achieved when the new EPA drinking water standard for perchlorate is finalized. In addition, it is NMED’s policy to require method detection limits to be 20% of the cleanup standard,

N



Section/ Unique



recognized as four ppb, then there are only two detections (5 ppb in 2000; and 5.85 in 2001) of perchlorate at Otowi-l, and no detections at any of the other 11 water supply wells in Los Alamos County.

screening level, or background level.

R145 SectionII.A.8

38 Regulation ofthe Facility

LANL commented that the date stated in Paragraph 31 (August 15, 1980) for the Laboratory's submission to USEPA of the "Notification of Hazardous Waste Activity" is incorrect; the correct date is August 13, 1980.


R146 SectionII.A.8


LANL commented that in Paragraph 32, the Draft Order states that the Part A application submitted on November 19, 1980 did not include mixed waste. This statement is incomplete. Part A discussed mixed waste but expressly deferred potential reporting of specific mixed waste streams until a decision resolving RCRA jurisdiction was made. The Laboratory submitted revised Part A applications on several dates: October 1983, April 1984, July 1984, October 1984, October 1985, November 1985, February 1986, August 1987, October 1987, July 1989, July 1988, October 1988, August 1989, January 1991, October 1994, June 1995, July 1995, September 1995, April 1996, September 1996, December 1996, May 1997, October 1997, April 1998, November 1999, July 2000, in addition to the Apri12, 1985 date mentioned in Paragraph 32.

The intent of this section is to provide a brief and general regulatory background of the Facility. It is not meant to be inclusive of all the regulatory decisions or timeframes associated with regulation of the Facility. Section II.A.8, paragraph 32, will be changed to read, “The Respondents have revised the Part A permit application several times since it was submitted, the last date being July 2000.”

Y

R147 Section 38 Regulation of LANL commented that the regulatory The intent of this section is to provide a brief and N



Section/ Unique


in Order? Attachment Y/N II.A.8 the Facility chronology set forth in Section II.A.8 is

incomplete. The chronology should add after Paragraph 32 a reference that DOE/the Laboratory submitted a groundwater monitoring waiver demonstration for Technical Area (“TA”) 54 on November 1, 1984. NMED should also add this documentation to the administrative record. Second, the chronology should include a statement at the end of Paragraph 34 that NMED issued a Compliance Order to the Respondents on May 7, 1985 requiring that additional specific information be developed to supplement the groundwater monitoring waiver demonstration for TA-54. Laboratory Supp. AR, at 3.

general regulatory background of the Facility. It is not meant to be inclusive of all the regulatory decisions or timeframes associated with regulation of the Facility.

R148 SectionII.A.8


LANL commented that the statement made in the first sentence of Paragraph 37 is incorrect. March 1, 1987 is the date that the Laboratory/DOE submitted the response to the May 7, 1985 NMED Compliance Order for supplemental information supporting the TA-54 groundwater monitoring waiver demonstration, not the date that the Laboratory submitted its request for waiver from the groundwater monitoring requirements for TA-54.

Section II.A.8, paragraph 37 will be deleted. New paragraphs will be added to Section II.A.8 stating the following: “On July 26, 1984, LANL requested a waiver from the groundwater monitoring requirements under the Hazardous Waste Regulations incorporating 40 C.F.R. § 265.90(c) for MDAs G and L at TA-54. On May 7, 1985, the Department issued a compliance order to LANL requiring vadose zone monitoring to substantiate the waiver at MDAs G and L at TA-54.”

Y

R149 SectionII.A.8


LANL commented that the statement in Paragraph 38 is inaccurate. The sentence states that the Laboratory submitted a groundwater monitoring waiver request for “surface

Section II.A.8, paragraph 38, will be changed to read “…the Respondents requested a waiver from the groundwater monitoring requirements under the Hazardous Waste Regulations incorporating 40 C.F.R. § 265.90(c) for the area surrounding the

Y



Section/ Unique



impoundments and the MDA P waste pile at TA-16.” The waiver request was directed at a single-surface impoundment and the MDA P landfill. Only one impoundment existed and MDA P, and it was a landfill - not a waste pile.

landfill (MDA P) and surface impoundment at the TA-16 burning ground,...”

R150 SectionII.A.8


LANL commented that the statement in the last sentence of Paragraph 45 is incomplete. It should be revised to read “The permit did not address the groundwater monitoring waiver demonstration submitted; however, it did prescribe monitoring of springs and groundwater at locations established in the Laboratory’s Environmental Surveillance program and data reporting in that program’s annual report.”

The intent of this section is to provide a brief and general regulatory background of the Facility. It is not meant to be inclusive of all the regulatory decisions or timeframes associated with regulation of the Facility.

N

R151 SectionII.A.8


LANL commented that the relevant regulatory chronology mentioned in Paragraphs 40 and 41 is inaccurate in a material respect. Following Paragraph 41, a new paragraph should be added to provide as follows: “On July 25, 1990, the State of New Mexico received from USEPA authorization to expand its hazardous waste program under the Hazardous Waste Act in lieu of the federal program [55 Fed. Reg. 28397 (July 11, 1990)]”.

Section II.A.8, paragraph 33, will be amended to complete the chronology in paragraphs 40 and 41 to read “Subsequent program revision applications were approved effective on April 10, 1990, July 25, 1990, December 4, 1992, August 23, 1994, December 21, 1994, July 10, 1995, January 2, 1996, March 10, 1997, and June 13, 1998 (40 C.F.R. § 272.1601).”

Y

R152 SectionII.A.8


LANL commented that the statement in Paragraph 41 is incomplete. The status of the TA-53 surface impoundment was changed from active units to corrective action units in 1997. The approval

The intent of this section is to provide a brief and general regulatory background of the Facility. It is not meant to be inclusive of all the regulatory decisions or timeframes associated with regulation of the Facility.

N



Section/ Unique



letter for the change in status is dated July 21, 1997. A section should be included at the end of the paragraph as follows: “Information was submitted to demonstrate a groundwater monitoring waiver at the TA-53 surface impoundments; these three impoundments were subsequently determined to be subject to evaluation under the Hazardous and Solid Waste Amendments (“HSWA”) module of the RCRA permit only, and not to management as active units. Compliance with Subpart F groundwater monitoring provisions was no longer required.”

R153 SectionII.A.8


LANL commented that the first sentence in Paragraph 42 is erroneous. The USEPA issued the HSWA module in 1990, not 1994. It became effective on May 23, 1990.

Although the effective date of the HSWA module is May 23, 1990, the U.S. EPA did not issue LANL its revised module incorporating EPA’s modifications until April 19, 1994. It became effective 30 days after that date.

N

R154 SectionII.A.8


LANL commented that the statement in the last sentence of Paragraph 42 is incomplete. The last sentence asserts, “the EPA portion of the permit also required investigation and reporting of radionuclides.” However, the Laboratory/DOE appealed that provision of the permit on the basis that NMED lacked authority over radionuclides. In a settlement of the appeal, the Laboratory agreed to monitor and report information regarding radionuclides, but only pursuant to the health and safety responsibilities under the AEA, and not

NMED disagrees with this comment. EPA issued this portion of the LANL permit pursuant to its authority under RCRA. EPA has no authority to implement the AEA.

N



Section/ Unique



pursuant to RCRA. R155 Section

II.A.8 38 Regulation of

the Facility LANL commented that the statement in Paragraph 44 regarding “surface impoundments and the MDA P waste pile at TA-16” is erroneous for the same reason as stated in the comment relating to Paragraph 38 of Section IIA.8.

Section II.A.8, paragraph 44 will be changed to read “the area surrounding the landfill (MDA P) and surface impoundment at the TA-16 burning ground”

Y

R156 SectionII.A.8


LANL commented that the relevant regulatory chronology presented in Paragraph 47 is incomplete in a material respect. After Paragraph 47, the following information should be added: “On January 2, 1996, the State of New Mexico received from USEPA final authorization to implement its corrective action program under the Hazardous Waste Act.”


R157 SectionII.A.8


LANL commented that the relevant regulatory chronology presented in Paragraph 49 is incomplete in a material respect. Paragraph 49 should be modified to include the following sentence: “The Hydrogeologic Workplan was approved by NMED on March 25, 1998.”


R158 SectionII.A.8


LANL commented that the statement made in Paragraph 52 concerning the various submittals made by the Laboratory related to the permit renewal is incorrect. The statements in Paragraph 52 give the impression that there have been only three applications for permit renewal covering TAs 54, 3, 55, 14 and 16 when, in fact, there have been multiple individual permit

Section II.A.8, paragraph 52, will be amended to read, “The Respondents have submitted several requests for application revision subsequent to the permit renewal request submittal.”

Y



Section/ Unique



renewal submittals which individually address each TA listed, per guidance issued to the Laboratory by NMED. Paragraph 52 incorrectly identifies treatment only at TA 55, when in fact there is also container storage addressed in the TA 55 permit application. Additionally, the Laboratory is seeking a permit only for open burning at TA 16, not detonation. Paragraph 52 fails to note the General Part B submittals, which address facility-wide permit requirements (as opposed to TA-specific), or the TA 50, 36, or 39 permit renewal applications. In almost every case, NMED has issued RSIs, NODs, and/or a request for a revised application. Thus, the administrative record for the permit renewal effort at the Laboratory is far more extensive than Paragraph 52 portrays. There are also factual inaccuracies (in this case, omissions which lead the reader to an inaccurate view of the whole picture). This section does not include the majority of the Laboratory ER Project submittals to USEPA Region 6 and the Department and related submittals from USEPA Region 6 and the Department to the Laboratory, which are all part of the administrative record.

R159 Section II.B 36 Conclusions of Law

One commenter strongly supports NMED’s assertion that “Such monitoring and reporting [of radioactive contaminants] is necessary

RCRA Section 6001(a), as amended by the Federal Facility Compliance Act of 1992 (FFCA), waives sovereign immunity for federal facilities with respect to federal, state, and local solid waste

N



Section/ Unique



for the Department to properly implement the regulation of hazardous wastes constituents, and other solid wastes pursuant to the HWA and the Hazardous Waste Regulations” and NMED’s assertion of its jurisdictional authority over DOE and LANL through RCRA and HWA. This commenter suggests NMED should also note its jurisdictional authority invested by the FFCA.

disposal and management requirements, including those requirements that are more stringent or broader in scope than the federal RCRA provisions. Section 6001of RCRA, as amended by the FFCA, also provides that federal facilities are subject to civil and administrative penalties associated with these requirements. Therefore, federal facilities must comply with federal, interstate, and local solid and hazardous waste disposal and management requirements, including those requirements that are more stringent or broader in scope than the federal RCRA rules. The reference to Section 6001 of RCRA includes the FFCA Amendments.

R160 SectionII.B.10

38 ConclusionsOf Law

LANL commented that this statement regarding NMED’s authority over radionuclide contaminants is incorrect. The evaluation of radioactive materials is included in the RCRA HSWA module only to the extent allowed under the permit modification. See withdrawal of appeal, September 7, 1990.

NMED believes that this conclusion is an accurate statement of the law. See Response to Legal Comments, Comment Numbers 26 and 28.

N

R161 SectionIII.A

16, 36 Purposes There were several comments regarding the purposes of the Order. One commenter noted that the purposes of the draft Order relate to releases or migration of hazardous constituents “at or from the Facility.” This commenter requested clarification of “from the Facility” and recommends that the Final Order apply to all LANL release sites and identified SWMUs whether located within or outside the Facility and that the Respondents be allowed to voluntarily respond to releases located

Section III.A of the Order states the general purposes of the Order. Sections IV and VI of the Order list specific TA, watershed, AOC, and SWMU investigations whether in or outside of the Facility boundary. All of the SWMUs, AOCs, and other sites at LANL that are included in Sections IV and VI will be characterized and remediated individually, as a part of aggregate, or as part of a canyon system. Section V provides investigation and cleanup requirements for SWMUs and AOCs not addressed in Section IV and VI, including any additional SWMUs and AOCs discovered after the issuance of the Order.

N



Section/ Unique



off the Facility whether or not NMED has formally requested a response. Another commenter requests clarification as to whether NMED considers the Order to be a “work in progress” which will be continually added to or will there be subsequent Orders that mandate actual corrective action measures. This commenter also questions to what extent the renewed LANL RCRA permit will incorporate corrective action measures.

The Order will address all releases of solid waste contaminants at or from the Facility, regardless of their location. The Order is a work intended to stand on its own. Any violations of the requirements of this order may result in enforcement action. The Order addresses corrective measures in Section VII. The results from the site investigations described in Section IV through VI will be used as a basis for determining the need for further investigation and cleanup in each SWMU, AOC, and other sites in LANL. LANL’s operating permit will reference the Order, which covers the investigation and cleanup measures.

R162 Section III.B 37 Definitions One commenter recommended that the definition for MDA should explain more fully why closure or post-closure care requirements may not apply to an MDA.

RCRA makes clear distinction between placement of waste before and after July 26, 1982. Those units that only received waste before July 26, 1982 are subject to the requirements of 40 C.F.R. § 264.101, Corrective Action for Solid Waste Management Units. For more definitions and details, please refer to 40 C.F.R. §264.90(a).

N

R163 Section III.B 38 Definitions LANL commented the Draft Order attempts to regulate radionuclides through broadly defining “contaminant” to include “any radionuclide; perchlorate; and any other substance present in soil, sediment, rock surface water, groundwater, or air for which the Department determines that monitoring, other investigation, or a remedy is necessary to carry out the purposes of this Order”. NMED does not have authority to regulate radionuclides; therefore, all Draft Order provisions that refer to contaminants that include radionuclides are unlawful.

NMED has the authority to require monitoring and reporting of source, special nuclear, or byproduct material to the extent necessary to properly implement the regulation of hazardous and solid wastes. NMED also has the authority to regulate radionuclides that are not source, special, or byproduct material. A paragraph has been added to Section I of the Order to clarify this authority. See Response to Legal Comments, Comment Numbers 26 and 34.

Y



Section/ Unique



R164 Section III.B 38 Definitions LANL commented that the definition of “groundwater” in Section III.B contradicts the definition “groundwater” in New Mexico’s Hazardous Waste Act. The definition in the Draft Order should be changed to reflect the definition found in the HWA “water in a subsurface zone of saturation” (20.4.100 NMAC and 40 C.F.R. 260.10).

Section 74-4-13 of the HWA, under which the Order is issued, refers to protection of health and the “environment”. The environment includes groundwater in the vadose zone as well as water beneath the water table. The Order therefore includes all such water in the definition of groundwater. Protection of the environment under Section 74-4-13 is not limited by the regulatory definition of groundwater in 20.4.1.100 NMAC and 40 C.F.R. 260.10.

N

R165 Section III.B 38 Definitions LANL commented that the definition of “groundwater” is not clear. Specifically, the meaning of “liquid” subsurface water is unclear. It is further unclear whether this definition is intended to establish a definition not encompassed by the New Mexico statutes cited in the Draft Order.

Section 74-4-13 of the HWA, under which the Order is issued, refers to protection of health and the “environment”. The environment includes groundwater in the vadose zone as well as water beneath the water table. The Order therefore includes all such water in the definition of groundwater. Protection of the environment under Section 74-4-13 is not limited by the regulatory definition of groundwater in 20.4.1.100 NMAC and 40 C.F.R. 260.10.

N

R166 Section III.B 38 Definitions LANL commented that although a definition is provided in this section for “Solid Waste Management Unit” or “SWMU,” there is no definition provided for “solid waste,” and thus the meaning of this term is unclear.

Section III.B. states that the terms used in the Order shall have the same meanings as set forth in the HWA, RCRA, and their implementing regulations. The definition of “solid waste” is set forth in Section 74-4-3.0 of the HWA.

N

R167 SectionIII.B.V

38 Definitions LANL commented that the inclusion of “one time and accidental events” within the definition of “Solid Waste Management Unit” or “SWMU,” is incorrect insofar as USEPA guidance does not include such events within the definition of a SWMU for regulation under RCRA corrective action authority.

LANL’s reference to Section III.B.V is incorrect. It should be Section III.B. Such language regarding one-time and accidental events has been previously included in other permits issued by NMED (for example, Triassic Park) and has been added to the definition of a SWMU for LANL.

N

R168 Section III.C 36 Jurisdiction One commenter suggests referencing The reference to Section 6001 of RCRA, 42 N



Section/ Unique



the FFCA in this section. U.S.C.§6961, includes amendments made by the FFCA.

R169 SectionIII.G

36 Work Plans and Schedules

One commenter noted that it is essential that NMED be expeditious in review and approval/disapproval of work plans and schedules, and should secure its resource base to do so.

NMED will be as expeditious in reviewing and approving or disapproving of work plans and schedules as its resources allow. NMED also recognizes that review times are problematic and will implement mechanisms to ensure timely reviews. However, NMED is required by its Hazardous Waste Fee Regulations to meet review timeframes once a document is accepted by NMED for review and payment of fees has been received from a facility.

N

R170 Section III.I 38 Entry andInspection

LANL commented the requirement in this section, regarding NMED “entry and inspection” of the Laboratory, exceeds NMED authority under HWA Section 74-4-4.3. This section asserts that NMED may “…interview Respondents’ personnel and contractors performing work required by this Order.” This provision exceeds the authority granted to NMED by Section 74-4-4.3 of the HWA. NMED has not provided a rationale or legal justification for this overly intrusive provision.

Under the HWA Section 74-4-4.3, “any person who generates, stores, treats, transports, disposes of or otherwise handled hazardous wastes shall furnish information relating to such hazardous wastes”. This provision includes any person, including contractors, conducting work at any of the HSWA sites (SWMUs and AOCs) listed in LANL’s permit or discovered subsequent to the issuance of the permit. The rationale and justification for such actions is the HWA itself.

N

R171 Section III.J 36 Availability ofInformation

One commenter strongly recommended that precise times be mandated rather than “a reasonable time.”

NMED will mandate a specific time frame for furnishing information every time information is requested, on the basis of the amount and urgency of information needed.

N



Section/ Unique



R172 SectionIII.M

36, 37 Enforcement There were several comments regarding enforcement. One commenter strongly supports NMED in vigorous enforcement as needed. Another commenter recommended that NMED charge the Respondents fees that will adequately fund a strong enforcement program.

NMED intends to vigorously enforce the requirements of the Order as necessary, and will charge appropriate penalties, if necessary, as outlined in Section III.M.

N

R173 SectionIII.N

36 Relationship toWork Completed

One commenter suggested that NMED request LANL to inventory what might be satisfactory work already completed in order to save taxpayer money and to effectively accelerate genuine cleanup at LANL. This commenter also noted that NMED must investigate and judge whether or not previously completed work is satisfactory, and reject it if it is not.

NMED agrees that there are results from past and ongoing investigations have not yet been submitted to NMED by LANL. The Order requires that the Respondents submit data and results from all previous investigations as part of the historical information section of work plans required to be submitted for Facility sites. For the remaining sites, NMED has, and will to continue to, evaluate submittals for technical and administrative completeness and determine the need for further investigation and cleanup.

N

R174 SectionIII.N

38 Relationship toWork Completed

LANL commented that this statement clearly allows credit for work that has been “satisfactorily completed” and “fulfills the substantive requirements of the Order” in order to avoid duplication; however, there is little acknowledgement in the Draft Order of specific work efforts or deliverables that have been completed and approved by NMED, or are in progress under NMED-approved work plans, permit conditions, etc. This places an unreasonable burden on the Laboratory to create an extensive accounting system for work completed and approved to date, in order to

NMED does not agree that this requirement places an unreasonable burden on LANL. NMED realizes that LANL has started work, and even completed work, that has not been submitted or approved. Work that has been submitted, but not yet approved, has been incorporated into and amended by the Order. The specific requirements in the Order were written based on work LANL has submitted and NMED has approved.

N



Section/ Unique



demonstrate that many requirements of the Draft Order are indeed duplicative.

R175 SectionIII.O

36 Integration withPermit

One commenter strongly recommended that the Final Order better explain and clarify exactly how and where the Order; possible future Orders; and future permits, in particular the pending renewed LANL RCRA permit, may or may not intersect.

LANL’s renewed operating permit will reference the Order.

N

R176 Section IV 35, 36 Facility Investigation

There were several comments regarding the facility investigation. One commenter noted that details of the compliance activities and deliverables can be found in Sections IV, V.H, and VI, but also noted the Respondents history of failing to meet deadlines and compliance schedules. This commenter recommended that NMED clearly state its highest priorities and that failure to adequately address those priorities will result in immediate enforcement action. Another commenter questioned to what extent the reports and information generated will be available to the public. This commenter suggested information be available through the NMED and LANL web sites and noted that, after September 11, the public has been denied access to the LANL web site. This comment argues that public access should be restored in the environmental arena.

NMED intends to enforce the requirements of the Order and will charge appropriate penalties, if necessary, as outlined in Section III.M of the Order. References, including reports and other submittals, are available for review at the Hazardous Waste Bureau at 2905 Rodeo Park Drive East, Building 1, Santa Fe, NM.

N

R177 SectionIV.A.1

38 Background LANL commented that NMED’s conclusion in this section that “…the

One expected outcome of the HWP is to define “areas of existing or potential groundwater

N



Section/ Unique



wells [the Laboratory has] proposed to install in the HWP are not sufficient, in number or location, to fully detect contamination or to conduct compliance monitoring in accordance with the HWA,” is unsupported by evidence in the administrative record. The Draft Order prescribes drilling in numerous specific locations without any evidence why the particular location has been chosen, or any description of characterization goals. There is no reasonable basis for NMED’s determination of whether a prescribed measure is necessary or effective. It is further unclear to LANL how NMED could make a determination while the Laboratory is still actively in the process of characterizing the Hydrogeologic regime.

contamination” (p.5-2). It is NMED’s opinion, based on the information available, that the HWP wells alone will not be sufficient to adequately characterize the nature and extent of groundwater contamination at LANL. Additional wells are prescribed in the Order to help fully characterize groundwater at LANL. The number and locations of these additional wells are not fixed. Instead, they are to be included in site- or canyon-specific work plans in which LANL may provide rationale for change.

R178 SectionIV.A.1

38 Background LANL commented that the second sentence of the third paragraph is inaccurate. It incorrectly states: “[u]nder the HWP, the Respondents are installing additional groundwater monitoring wells, which will become part of the groundwater monitoring network. “There has been no agreement or regulatory requirement that these wells become part of a “groundwater-monitoring network.” The purpose of the HWP is to compile information sufficient to either design and implement a detection monitoring program that meets applicable

NMED believes that it is both necessary and appropriate to establish a groundwater monitoring network at LANL. NMED expects that long term monitoring plans will be updated as new wells are installed and as new information is acquired that affects the monitoring requirements. NMED believes it is unreasonable to wait until the completion of the HWP for LANL to propose long-term groundwater monitoring and sampling. LANL’s existing Groundwater Monitoring Plan should be revised to meet the requirements of the Order. The current groundwater monitoring is conducted to satisfy DOE Order 5400.1. The Order requires groundwater monitoring to satisfy 40 C.F.R. 264.97.

N



Section/ Unique



requirements and/or to demonstrate that monitoring requirements can be waived. Further, as described in the Hydrogeologic Workplan (p. 5-2) “[i]f it is determined, as a result of the characterization effort, that enhanced groundwater monitoring is necessary, an inter-disciplinary Laboratory group will develop a proposed amendment to the Groundwater Monitoring Plan. . . .” The core purpose of the Hydrogeologic Workplan is to gain sufficient knowledge of the hydrogeologic setting to design an effective monitoring network, if it is necessary and appropriate. Under the Hydrogeologic Workplan, the Laboratory retains the right to determine which of the hydrogeologic characterization wells will be included in the groundwater monitoring network based on the characterization results.

R179 SectionIV.A.1

38 Background LANL commented that the statement in paragraph two of this section, that the groundwater monitoring network “. . . is not designed to collect consistently valid and useful data concerning contaminants in groundwater,” is not supported by NMED with evidence in the administrative record.

It is NMED’s opinion that the locations of the HWP wells are not sufficient for detecting all groundwater contaminants at LANL. Consequently, the Order requires wells to be installed in addition to those in the Hydrogeologic Work Plan. These wells are intended to help characterize the nature and extent of groundwater contamination beneath the Facility.

N

R180 SectionIV.A.1

38 Background LANL commented that the statement in paragraph two of this section, that the “. . . [groundwater] monitoring network has been determined by the Department to be inadequate for the purpose of groundwater characterization and

LANL is subject to the groundwater monitoring requirements of 40 C.F.R. 264.97.

N



Section/ Unique



monitoring, as required under 40 C.F.R. Part 264, Subpart F,” is incomplete. Other than the prescriptive requirements that might apply to the active units at TA-54, no specific requirements exist for SWMUs subject to section 264.101.

R181 SectionIV.A.2

37 General FacilityInformation

One commenter recommended that all information required to be posted on the Facility web site should be accessible and able to be effectively downloaded by older computers.


N

R182 SectionIV.A.2


LANL commented that this provision requiring the Laboratory to map “flow direction data” is not possible. It is impossible to collect and present “flow direction data” because “flow direction” cannot be directly measured, but only inferred indirectly, which the Laboratory has already done and will continue to do.

The HWP states “potentiometric maps shall be used to determine flow directions and hydraulic gradients” (p.4-31). LANL reports that it has “indirectly inferred” flow direction information available. LANL will submit to NMED maps of alluvial, perched-intermediate, and regional groundwater with the acknowledged flow direction information noted on the maps.

N

R183 SectionIV.A.2


LANL commented the requirement in this section for the Laboratory to submit specific “General Facility Information” to NMED, is inconsistent and contradictory, because it requires the submission of information previously submitted to NMED, or addresses work that is currently ongoing or planned under the Hydrogeologic Workplan, and thus not available for submission until the relevant work is completed. Several relevant documents were previously submitted to NMED. These include, but are not limited to: “Documentation

NMED is ordering the Respondents to submit the information listed in Section IV.A.2 of the Order as one submittal, to be kept together as a General Facility Information reference and to be updated annually. NMED acknowledges work completed and documents submitted to date by LANL. NMED expects that LANL will provide rationale for information that it is unable to submit according to schedule. NMED will review submittal omissions on a case-by-case basis.

N



Section/ Unique



for the LANL Expanded Hydrogeologic Atlas”; “Water Supply at Los Alamos in 1997”; “A Regional Flow and Transport Model for Groundwater at LANL”; Environmental Surveillance Reports; Well Completion Reports; and Annual Status Reports for the Hydrogeologic Characterization Program.

R184 SectionIV.A.2


LANL commented that the requirement to submit a “[f]acility-wide topographic map,” is unclear, as the specific contour interval and scales are not specified.

NMED expects that LANL would use appropriate contour intervals and scales for a facility-wide topographic map.

N

R185 IV.A.2 38 General FacilityInformation

The requirement to submit a Hydrogeologic Atlas including a water-level contour map of the regional aquifer that includes “…known radii-of-effects from pumping of municipal supply wells” is impossible to perform because “radii-of-effects” is not a standard hydrogeological term. Instead, “capture zone” is the accepted nomenclature and should replace “radii-of-effects”. The standard method for estimation of capture zones is numerical flow modeling.

Regardless of the terminology used to describe effects from the pumping of municipal supply wells, NMED expects that LANL will be able to submit a Hydrogeologic Atlas including an acceptable water-level contour map of the regional aquifer.

N

R186 Section IV.A.3

38 GroundwaterInvestigation

LANL believes that the Draft Order imposes an overbroad, intrusive and unlawful requirement on the Laboratory’s technical areas and canyon watershed in regards to regulating radionuclides by imposing an evaluation of “radiochemical factors influencing the transport of contaminants in groundwater”.

See Response to Legal Comments, Comment Numbers 26 and 28.

N



Section/ Unique



R187 SectionIV.A.3


LANL commented that the requirement to “…fully characterize the nature, vertical and lateral extent, fate, and transport of groundwater contamination…,” is unreasonable and technically impractical, because it is not linked to any specific characterization goals. USEPA guidance stresses the importance of specificity in the development of compliance orders, stating that “[s]pecificity regarding what will be considered appropriate or adequate, can help avoid the wasted time and effort that results when a respondent performs actions later deemed inadequate,” and also stating that “…. there must develop between the Agency and the respondent an express understanding as to what activities will constitute compliance with the regulations.” In the absence of characterization goals, the phrase “fully characterize” is without meaningful definition, and could require the Laboratory to conduct characterization activities without reasonable limit.

The USEPA’s RCRA Corrective Action Plan (May 1994) states that the implementing agency (NMED) will decide which investigation and cleanup components are necessary to ensure a complete corrective action plan and will be included in a permit or order. One component which is listed in the above-referenced USEPA guidance and which NMED believes is appropriate for LANL is to “characterize the nature and extent of contamination that is both within the facility boundary and migrating beyond the facility boundary. This would include defining the pathways and methods of migration of the hazardous waste or constituents, including the media affected, the extent, direction and speed of the contaminants, complicating factors influencing movement, concentration profiles, etc.”

N

R188 SectionIV.A.3


LANL commented this section is both internally inconsistent and contradicts prior NMED-approved action. This section requires that “[t]he [Hydrogeologic Workplan] HWP is incorporated into this Order, and its requirements are made an enforceable part of this Order.” However, the Draft Order inconsistently circumvents

Additional wells are prescribed in the Order based on data currently available to NMED. It is NMED’s opinion, based on the information available, that the HWP wells alone will not be sufficient to adequately characterize groundwater contamination at LANL. Specific requirements in addition to those in the HWP are intended to help characterize the nature and extent of groundwater contamination and the hydrogeologic system

N



Section/ Unique



planning based on results from the HWP, by separately prescribing specific and contradictory requirements in the Draft Order. For example, the HWP provides that, “[i]f it is determined, as a result of the characterization effort [i.e. the HWP], that enhanced groundwater monitoring is necessary, an inter-disciplinary Laboratory group will develop a proposed amendment to the Groundwater Monitoring Plan that will be reviewed and endorsed by the Technical Review Committee prior to submittal to the appropriate regulatory agency(ies).” The approach to characterization required under the HWP is to collect data according to the HWP protocol, then to decide how groundwater monitoring is best implemented. However, the Draft Order states that additional monitoring and characterization should be implemented before the HWP effort has been completed. There is inconsistency between the characterization approach in the HWP and the required approach to the same issue on other provisions of the Draft Order.

beneath the Facility. LANL may propose alternate groundwater monitoring if additional data collected under the HWP or other drilling activities supports an alternative groundwater monitoring program.



Section/ Unique



R189 SectionIV.A.3.a

38 Objectives LANL commented that the requirement to determine “the horizontal and vertical extent of each zone of saturation” is impracticable, if not impossible, to perform. Delineation of every saturated zone above the water table is highly impracticable, if not impossible, at any site. Saturated zones vary in number and thickness at LANL. Some are not recognized because of their small size, or they are masked by drilling activities. On the other hand, some apparent intermediate zones were identified and the wells were constructed to sample these zones, only to find that the water was a small pocket that drained out and remained dry (R-9, CdV-15-3). The value or necessity of delineating saturated intervals within the vadose zone to assure groundwater resource protection has not been explained at all, much less justified by NMED in the administrative record.

NMED understands that LANL has had some difficulty identifying perched groundwater zones when drilling monitoring wells. NMED believes that, due to the probable interconnectivity of perched and regional aquifers, the delineation of perched groundwater is an important part of groundwater characterization. Additionally, LANL’s Ground Water Protection Strategy (1996) states, in the section “Ground Water Quality: Intermediate Perched Ground Water (Vadose Zone)”, that “chemical characterization will require direct examination of waters of these intermediate saturated zones.” NMED believes that perched zones must be delineated in order to be “directly examined” (i.e. sampled). The Ground Water Protection Strategy also states “the location and characterization of intermediate zones may offer opportunities for utilizing indirect methods of investigation, such as geophysical techniques.” NMED will consider alternative techniques, provided LANL submits sufficient rationale and justification for utilizing such techniques.

N



Section/ Unique




38 Objectives LANL commented that there is no benefit to determining “migration of groundwater across hydrostratigraphic boundaries…”. The hydrostratigraphic boundaries do not serve as “dividers” between separate flow systems and therefore there is no technical reason to calculate fluxes across these boundaries, or to calculate the potential effects of these fluxes. The data collection and modeling described in the Hydrogeologic Workplan is designed to address aquifer heterogeneity.

It is NMED’s opinion that, in order to fully characterize the groundwater and contaminant transport at LANL, the migration of groundwater across hydrostratigraphic boundaries and the potential effects of contaminant migration must be determined.

N


38 Objectives LANL commented the requirement in paragraph five of this section, to implement groundwater investigations and sampling and analysis, to determine “groundwater flow direction and velocities,” is duplicative of work previously required, and approved by NMED in March 1998, as part of the HWP. This work is ongoing under the HWP and does not need to be prescribed in the Draft Order (HWP 4-35).

NMED acknowledges work completed and documents submitted to NMED to date by LANL. The Order is a comprehensive document that includes work that has already been agreed upon by NMED and LANL in various other documents, such as the Hydrogeologic Workplan and the individual Canyon Work Plans. At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted the results of all investigations. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work.

N



Section/ Unique




38 Objectives LANL commented the requirement in paragraph seven of the section, to implement groundwater investigation and sampling and analysis, to determine “watershed and regional water balance information…’ is duplicative of work previously required, and approved by NMED in March 1998, as part of the HWP. This work is ongoing under the HWP, and thus need not be prescribed in the Draft Order (HWP 4-37).


N


38 Objectives LANL commented the requirement in paragraph eight of the section, to implement groundwater investigation and sampling and analysis, to determine “water supply well pumping influences, seasonal monthly pumping rates and annual amount of water withdrawn,” is duplicative of work previously required, and approved by NMED in March 1998, as part of the HWP. This work is ongoing under the HWP, and thus need not be prescribed in the Draft Order (HWP 3-9).


N



Section/ Unique




38 Objectives LANL commented the requirement in paragraph nine of the section, to implement groundwater investigation and sampling and analysis, to determine “saturated and unsaturated hydraulic-conductivity…” and other hydrologic property data, is duplicative of work previously required, and approved by NMED in March 1998, as part of the HWP. This work is ongoing under the HWP, and thus need not be prescribed in the Draft Order. In addition, the guidelines for data collection established in the HWP, rest on a stronger scientific foundation, and thus are more appropriate than the elements listed in this paragraph (HWP 3-7).


N


38 Objectives LANL commented the requirement in paragraph ten of the section, to implement groundwater investigation and sampling and analysis, to determine “contaminant concentrations and activities from soil, rock, sediment, and vapor sample analyses and absorption coefficient (Kd) from each hydrostratigraphic unit…” is duplicative of work previously required, and approved by NMED in March 1998, as part of the HWP. Concentrations or activities of metals, anions, and radionuclides and stable isotope ratios, are determined on selected solid samples collected during drilling. Core samples collected at appropriate depth provide the most


N



Section/ Unique



suitable medium for determining distribution of these analytes. Selection of Kd values and other geochemical parameters are needed for quantifying contaminant transport, through empirical observation, experimental results, and computations. This is required to produce a technically defensible database for evaluating contaminant transport based on geochemistry. Sorption constants (Kd values) are available for americium, plutonium, technetium, and uranium for unit IV of the Bandelier tuff at TA-54. Sorption constants for strontium and other metals are not available for the Bandelier Tuff, Puye Formation, and Cerros del Rio basalt. The work activity for evaluating Kd values has started in FY2002, and an initial Kd database for the Laboratory should be assembled by the end of calendar year 2002.

R196 SectionIV.A.3.b

36 GroundwaterMonitoring Plan

One commenter concurred with NMED’s requirement of an interim groundwater monitoring plan within 90 days.


R197 SectionIV.A.3.b

38 GroundwaterMonitoring Plan

LANL commented that the requirement in Section IV.A.3.b of the Order, to: (1) submit to NMED for approval an “interim Facility-wide groundwater monitoring plan” within 90 days of the effective date of the Order; (2) to revise and update the plan annually and (3) to submit to NMED for approval a “long-term, watershed specific groundwater

NMED expects that long term monitoring plans will be updated as new wells are installed and as new information is acquired that affects the monitoring requirements. LANL’s existing Groundwater Monitoring Plan should be revised to meet the requirements of the Order. The current groundwater monitoring is conducted to satisfy DOE Order 5400.1. The Order requires groundwater monitoring to satisfy 40 C.F.R.

N



Section/ Unique



monitoring plan…” to replace the interim plan, is impracticable and inconsistent with ongoing work, and contradicts prior commitments made by NMED. The Laboratory currently conducts facility-wide monitoring under the Groundwater Monitoring Plan, which is also a component of the Laboratory’s Environmental Monitoring Program, and is a requirement of DOE Order 5400.1. Laboratory Supp., AR, at 11. The Groundwater Monitoring Plan includes facility-wide monitoring of production wells, springs, shallow wells, intermediate-depth wells, and regional test wells. After characterization activities are complete for each newly installed well, they are evaluated for initial inclusion in the monitoring network. The Laboratory continually updates the facility-wide monitoring program and regularly discusses these proposed changes with NMED. The Laboratory regularly updates the monitoring plan and has plans to incorporate newly installed wells in the next revision. The design of the long-term monitoring well network can reasonably be completed only after analysis of well placement and contaminant history. The ultimate design of the long-term program must wait until characterization is complete, in keeping with written comments of the NMED.

264.97.



Section/ Unique



R198 IV.A.3.b 38 GroundwaterMonitoring Plan

The Groundwater Monitoring Plan requirement is unreasonably burdensome. Watershed-specific monitoring will provide little or no benefit because the direction of groundwater movement within the deep regional system is not controlled by watershed boundaries and must be viewed in a facility-scale context. Submission of an annual monitoring plan is of little benefit. The Lab’s approach includes incorporation of canyon-specific monitoring into the facility-wide monitoring plan. Watershed-scale details can be added for monitoring the shallow and intermediate depth zones.

NMED’s requirements and LANL’s approach do not appear to differ substantially, but rather in the format in which the information will be submitted. The Order provides LANL with an opportunity to justify its approach for incorporating the canyon specific monitoring plans into the facility-wide groundwater monitoring plan, while still meeting the requirements of the Order. Although the monitoring plan may not change annually, NMED expects that the long term monitoring plans will be updated as new wells are installed and as new information is acquired that affects the monitoring requirements. NMED requires the yearly update so that current information will be available to the agency.

N

R199 SectionIV.A.3.c

38 GeophysicalInvestigations

LANL commented that the requirement in this section to “…collect core and open-hole geophysical measurements from each boring as specified by the Department” is unreasonably burdensome and inconsistent with the Data Quality Objectives process established in the Hydrogeologic Workplan, and approved by NMED in March 1998. The DQO process was developed by the USEPA as a planning tool to ensure that data collected is adequate to aid in decision-making. The collection of data and samples in a borehole should reasonably be based on well-specific DQOs. Core and geophysical measurements from each boring in Sampling and Analysis Plans are to be prepared pursuant to the

NMED believes that the core collection and geophysical survey requirements outlined in the Order are necessary in order to obtain sufficient and appropriate geochemical, geophysical, and hydrogeological information from the borings and wells completed at the Facility. NMED has stated its opinion to LANL regarding the importance of collecting core samples (see NMED’s correspondence to LANL dated 3/1/02). An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific and canyon-specific work plans. As stated in the comment, the DQO process was developed by the EPA as a planning tool and is to be used as guidance. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process

N



Section/ Unique



Hydrogeologic Workplan. (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.

R200 SectionIV.A.3.d

36, 37 Background Investigation

There were several comments regarding background investigation. One commenter noted that care must be used so that “naturally occurring” metals and radionuclides, not contaminants from LANL, are determined for background concentrations. This commenter also strongly recommended that LANL be required to determine what proportion of groundwater tritium contamination might be reactor-produced vs. accelerator-produced in order to assist NMED to clarify its jurisdictional authority over tritium contamination at LANL. Another commenter recommended that NMED be more specific about the requirements for the background ground water concentration study required by the Order. Is the Respondent required to take background samples from each well, at each level in the alluvial aquifer, intermediate zone, and regional aquifer ground water? This commenter recommended that the Final Order state

Section IV.A.3.d of the Order requires the Respondents to submit to NMED for approval a work plan in order to determine background concentrations. NMED requires that LANL report to NMED the presence and concentrations of radionuclides in its existing HSWA permit and also in the Order. It is NMED’s position that risk cannot be properly evaluated at any site where radionuclide contamination is present without information regarding radionuclide concentrations, regardless of the source of contamination. NMED requested information on accelerator-produced waste from LANL in a letter dated August 21, 2002.

N



Section/ Unique



where and the frequency of sampling in order to establish an adequate background ground water data set. This commenter also recommended that the Final Order include a requirement for a background surface water concentration study that includes the specifics above and include perennially-flowing surface water, snowmelt run-off, storm water run-off, and artificial sources of storm water, including outfalls.


38 BackgroundInvestigation

LANL commented that the requirement that the Laboratory “…shall submit to the Department a background concentration investigation report stating the background concentration for each metal…,” is impracticable. LANL recommended the Laboratory’s approach could be to submit “background concentration ranges” in these reports for each metal.

It is acceptable to NMED to report background concentration ranges for metals.

N


38 BackgroundInvestigation

LANL commented the requirement in this section, for the Laboratory to prepare a work plan and submit an investigation report regarding a “background” geochemical investigation, is inconsistent with work currently being conducted, and previously performed, pursuant to discussions between the Laboratory and NMED. A proposal for this work was previously prepared and approved by the ER Project in 1996. Discussions were held with both NMED and DOEOB regarding sampling location,

NMED acknowledges work completed and documents submitted to date by LANL. The Order is a comprehensive document that includes work that has already been agreed upon by NMED and LANL in various other documents, such as the HWP and the individual Canyon Work Plans. At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted the results of all investigations. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the

N



Section/ Unique



analytes, duration of sampling, analytical methods, and analytical laboratories. Groundwater samples were subsequently collected from fifteen background-baseline sampling stations within the Jemez Mountains, Sierra de los Valles, Pajarito Plateau, and White Rock Canyon. Analytes included TAL metals, radionuclides, major ions, trace elements and trace metals, naturally-occurring organic compounds, and stable isotopes of hydrogen, oxygen, and nitrogen. Alluvial groundwater, perched-intermediate groundwater, and the regional aquifer were also sampled to determine background-baseline concentrations of analytes. To-date six sampling rounds have been conducted at each sampling station from 1997 through the springs of 2000. Replicate samples have been collected a frequency of one per five sampling sites. A draft report has been prepared by the Laboratory and is currently awaiting revision following review and comment, and a final report will be transmitted to NMED by May 2, 2003. The requirement to submit a work plan for a background geochemical investigation should be allowed to proceed to conclusion under the prior understanding between NMED and the Laboratory.

Order addresses duplication of work.

R203 SectionIV.A.3.e

36 MonitoringWells and

One commenter recommended that split sampling with NMED upon

It is NMED’s opinion that the repetition of this requirement is not necessary in this section of the

N



Section/ Unique



Piezometers demand be reiterated in this section. Order. R204 Section

IV.A.3.e.iii 38 Regional Wells LANL commented that the requirement

in paragraphs one and two of this section, to submit separate well design and well construction plans regarding well installation, appear duplicative and unreasonably burdensome. The Laboratory’s approach would be to combine these activities into a single report.

It is not uncommon for the conceptual well construction plan and the actual as-built well design to differ from one another. NMED will not waive this requirement.

N

R205 SectionIV.A.3.f

36, 37 Springs There were several comments regarding springs. One commenter recommended that split sampling with NMED upon demand be reiterated in this section. Another commenter recommended that all quarterly or periodic monitoring results be posted on the Facility web site when submitted to NMED, with appropriate qualifiers.

It is NMED’s opinion that the repetition of this requirement is not necessary in this section. Monitoring reports and information are available for review during office hours at the Hazardous Waste Bureau at 2905 Rodeo Park Drive East, Building 1. NMED may request that LANL post this information on its website in the future.

N


38 Springs LANL commented that the Draft Order unlawfully regulates radionuclides including total uranium, “tritium, strontium-90, technetium-99, cerium-137, isotopic americium, isotopic uranium, isotopic plutonium and gamma spectroscopy” and “additional analytes not listed.” by ordering the monitoring, sampling, analysis and reporting of radionuclide constituents in groundwater from springs.


N


38 Springs LANL commented that the requirement that the elevation of each spring to be established by registered surveyor to accuracy within 0.01 foot is

NMED requires that some method of ground-truthing be used to enable LANL to obtain more precise locations of springs. A 20-foot range of accuracy is not acceptable. Industry standard is

N



Section/ Unique



impracticable, and unreasonably burdensome without providing a commensurate benefit. Many of the springs are located in deep White Rock Canyon; therefore conventional line-of-sight surveying methods are not feasible. The Laboratory’s approach includes the use satellite and aerial imagery to establish these elevations. Under this approach, the horizontal locations of springs are first established using Global Position System (GPS) technology, accurate to within about 20 feet. Also, the horizontal locations are matched with ground elevations established by laser (LIDAR) aerial surveys of the Laboratory. The ground elevation accuracies of the springs will likely be within 20 feet, and sufficiently accurate for large-scale hydrology studies.

accuracy to within 0.01 foot. NMED believes that 0.01-foot accuracy is achievable and is not unreasonably burdensome since it is common practice in the environmental industry.


38 Springs LANL commented the requirement that “dissolved oxygen…and oxidation-reduction potential…be measured at the sample location during each sampling event” is impracticable and unreasonably burdensome. The Laboratory’s approach includes periodic measurements when such measurements are relevant. Once groundwater discharges to the surface, and is in contact with air, the measurements are very difficult to make and the analytical data is not representative of groundwater.

NMED does not believe that the requirement is unreasonably burdensome. A practical approach to obtaining the required measurements is to use a flow cell. NMED requests that LANL provide clarification regarding when the dissolved oxygen and oxidation-reduction potential measurements are not relevant.

N

R209 Section 10 Spelling One commenter noted that This typographical error has been corrected. Y



Section/ Unique


in Order? Attachment Y/N IV.A.3.f (4) “technicium-99” should be spelled

technetium. R210 Section

IV.A.3.f (4) 10 Correct

Terminology One commenter noted that if only one isotope of an element is expected, that isotope should be specified and “isotopic” should not be used.

The “isotopic” in this section is used with the meaning of “any isotope of” the mentioned element.

N

R211 SectionIV.A.3.f (4)

10 GammaSpectroscopy

One commenter noted that gamma spectroscopy is a technique, not an analyte, and requires a list of radionuclides to be reported from this analysis which should indicate peaks to be quantified, photon abundances, and half-lives for each radionuclide. This commenter suggested that NMED, the Respondents, and the analytical laboratories to be used, collaboratively generate this list.

The radionuclide suite included in gamma spectroscopy may vary slightly from analytical laboratory to laboratory. NMED is more concerned with total gamma emissions than individual radionuclides.

N

R212 SectionIV.A.3.f (4)

10 ChemicalAnalyses

One commenter expressed concern that a thorough, objective process had not been used to develop the radionuclide target list. This commenter recommended that the radionuclide target list in the final Order be a result of thorough, objective examination of those radionuclides historically and currently produced and used at the Respondents facility.

As stated in Section IV.A.3.f, paragraph 4, the Respondents may request that the radionuclide target list be site-specific or canyon-specific. Any modifications to the analytes list will be submitted in each work plan for the specific SWMU, AOC, or canyon.

N

R213 SectionIV.A.4

36 SedimentInvestigations

One commenter recommended that split sampling with NMED upon demand be reiterated in this section. This commenter also applauded the focus on post-Cerro Grande Fire effects in this section.

It is NMED’s opinion that the repetition of this requirement is not necessary in this section of the Order.

N



Section/ Unique



R214 SectionIV.A.4

38 SedimentInvestigation

LANL believes that the Draft Order unlawfully regulates radionuclides by ordering “investigations to fully characterize the current surface water hydrology, and the nature, extent, fate and transport of sediments and contaminants in surface water and downgradient to the Facility”. This intrusive provision imposes the monitoring, collecting and analyzing sediments for radionuclides.


N

R215 SectionIV.A.4

38 SedimentInvestigation

LANL commented the requirement in this section, for the Laboratory to conduct “Sediment Investigation[s]” in accordance with detailed requirements in this section, is inconsistent with, and contradicts the requirement for DQOs in Section IX.C.2 of the Draft Order entitled “Review of Field and Laboratory QA/QC Data,” which requires the use of DQOs pursuant to USEPA guidance. The overly prescriptive requirements for Sediment Investigation activities in this section are in direct conflict with the establishment of DQOs. The DQO process was developed by the USEPA as a planning tool to ensure that data collected is adequate to resolve decisions.

It is NMED’s opinion that the two sections listed do not contradict one another and that the general requirements in Section IV.A.4 for the Sediment Investigations are warranted. LANL will have an opportunity to address DQOs in its individual canyon investigation work plans. As stated in the comment, the DQO process was developed by the EPA as a planning tool and is to be used as guidance. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.

N



Section/ Unique



R216 SectionIV.A.5

38 Surface WaterInvestigation

LANL commented that the requirement “…to fully characterize the current surface water hydrology, and the nature, extent, fate and transport of sediments and contaminants in surface water….”, is unreasonable and technically impracticable, because this requirement is not linked to any specific characterization goals.

It is NMED’s opinion that the hydraulic connectivity between surface water and alluvial groundwater warrants characterization of surface water at LANL.

N

R217 SectionIV.A.5


LANL commented that the requirement that the “Laboratory shall [c]onduct surface water monitoring at LANL Stations designated in Table IV.A.5-1…,” including Technical Area 46, is unreasonably burdensome. Most of the drainages below the SWMUs listed in this section do not receive water at a frequency and/or volume sufficient to collect surface water samples. It is unreasonable to require gauging stations at each individual SWMU. Many of the individual SWMUs located on the mesa top drain to the same channel, and all drain to Canada del Buey. The Laboratory’s approach is to monitor for groups of Potential Release Sites (“PRSs”) at the Cañada del Buey station.

NMED is interested in surface water quality as related to individual SWMUs. LANL may perform “group” sampling at the Cañada del Buey station, but it must also sample the individual surface water monitoring stations as outlined in the Order. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific or canyon-specific work plans. Surface water samples cannot be obtained from locations with no surface water present.

N



Section/ Unique



R218 SectionIV.A.5


LANL commented that the requirement that “[s]urface water monitoring and sampling… shall consist of… flow velocity measurements…,” is impracticable, if not impossible, to fully perform. Surface water monitoring of storm event runoff currently consists of steam level and flow volume gauging. However, flow velocity measurements and field measured parameters cannot currently be obtained during collection of runoff samples. Collecting velocity measurements during all storm events, is highly impracticable as it would require measuring velocities at multiple locations and depths in a channel at multiple times during an event.

NMED requests clarification and rationale for why flow velocity measurements and field measured parameters cannot be obtained during collection of runoff samples. NMED will require surface water monitoring and sampling until LANL can provide justification or clarification to NMED. NMED must approve all modifications to the Order.

N



Section/ Unique



R219 SectionIV.A.5


LANL commented the requirement in this section, for the Laboratory to conduct “Surface Water Investigation[s]” in accordance with the prescriptive requirements established in this section, is inconsistent with, and contradicts the requirement for DQOs in Section IX.C.2 of the Draft Order. Section IX.C.2 requires the use of DQOs pursuant to USEPA guidance. The DQO process was developed by the USEPA as a planning tool to ensure that data collected is adequate to resolve decision. The appropriate amount and type of information needed to satisfy DQOs, is determined on an individualized, site-specific basis, and is not amendable to a predetermined set of prescriptive requirements.

It is NMED’s opinion that the two sections listed do not contradict one another and that the general requirements in Section IV.A.5 for the Surface Water Investigations are warranted. LANL will have the opportunity to address DQOs in its individual canyon investigation work plans. As stated in the comment, the DQO process was developed by the EPA as a planning tool and is to be used as guidance. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.

N

R220 SectionIV.A.5


LANL commented the requirement that the Laboratory shall ‘[c]onduct surface water monitoring at the Laboratory Stations designed in Table IV.A.5-1” in conjunction “…with groundwater monitoring events and after seasonal and precipitation events that produce flow in volumes large enough to allow for sample collection,” is unreasonably burdensome, does not conform to NMED practice, and is inconsistent with prior statements made by NMED. It is highly impracticable, if not impossible, to collect samples at all designated Laboratory stations after all precipitation events. A reasonable alternative would be the adoption of

Sampling surface water according to NMED’s rotating basin system approach is acceptable to NMED. LANL should submit a sampling schedule to NMED for approval. An opportunity is provided in the Order to justify a modification of the required work, such as when to discontinue sampling, in the site-specific or canyon-specific work plans.

N



Section/ Unique



NMED’s rotating basis system approach to water quality monitoring. The NMED, Surface Water Quality Bureau employs this approach for the State of New Mexico. Under this approach, a select number of watersheds are intensively monitored each year with an established return frequency of every five to seven years. Mr. John Young, of the New Mexico Environmental Department’s Hazardous Waste Bureau, also proposed this approach at a meeting on April 16, 2002. In the April 16 meeting, Mr. Young proposed monitoring in canyons downstream from SWMUs and monitoring specific prioritized SWMUs on a rotating basis. The purpose of this proposal was to identify the migration of contaminants from SWMUs and to evaluate BMP (Best Management Practice) effectiveness. The actual watershed rotation schedule will be included in the monitoring section of the Laboratory Watershed Management Plan, a draft document that would be jointly finalized by the Laboratory and NMED, and approved by NMED. The Draft Order also fails to include a provision for cessation of monitoring. The final Order should include a provision of the termination of surface water monitoring requirements, based on criteria jointly developed by the Laboratory and NMED, and included in



Section/ Unique



the Laboratory’s Watershed Management Plan. Such criteria would include the absence of contaminants, trends of increased water quality, biological indicators and watershed health. Under the Laboratory’s approach, the schedule for surface water monitoring, as described in Section IV.A.5, paragraphs one and four, and Table IV.A.5-1, would be revised to include rotating monitoring requirements, and criteria for determining when such monitoring is no longer necessary and thus can be eliminated.

R221 SectionIV.A.5


LANL commented that the phrase “sediment investigation” in the last sentence of paragraph one appears to be in error. This phrase should be replaced by “surface water investigation” because all subsequent references are to surface water investigation rather than to sediment investigation.

This typographical error has been changed. Y

R222 Section IV.A.5 Table IV.A.5-1


LANL commented that NMED does not have the authority to regulate radionuclides. The Draft Order unlawfully regulates radionuclides by requiring collection of surface water samples and “laboratory analysis of the specific analytical suites” including “radionuclides”.


N



Section/ Unique



R223 SectionIV.A.5

Table IV.A.5-1


LANL commented the requirement in Table IV.A.5-1 of this section, requiring radionuclides be included in the Analytical Suite for Sandia Canyon Watershed Stations, is contrary to prior agreement and approvals by NMED. NMED previously approved the removal of radionuclides from the analytical suite at all but two of the base surface water flow sampling locations in Upper Sandia Canyon (NMED correspondence dated January 27, 1999). In this correspondence, NMED stated “the two sampling locations that should continue to have full suite analysis are the south tributary below the outfall and the sampling location below the toe of the wetlands.” NMED also stated that three more quarters of (base flow) sampling at these locations, would provide sufficient data to better understand the wetland system. The Laboratory has subsequently completed this additional base flow sampling and thus the requirement to monitor surface water in Upper Sandia Canyon appears complete.

At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted the results of all investigations in Sandia Canyon. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

R224 SectionIV.A.6

17 Reporting One commenter suggested that this section should include language requiring all results that exceed surface water standards (20.6.4 NMAC) or ground and surface water quality protection regulations (20 NMAC 6.2) be identified and “flagged” in the monitoring reports.

In order to standardize report submittals, the Order requires reports to be prepared in accordance with the requirements outlined in Section XI.D of the Order.

N



Section/ Unique



R225 IV.A.6 38 Reporting The requirement that “…reports shall be submitted within 120 days after completion of the monitoring event…” is impracticable, as data retrieval and analysis takes up to 90 days. Semi-annual or annual reports would allow inclusion of more contextual information, and thus improved data analysis for LANL and NMED. Preliminary surface water data is available on the website 60 days after the samples are submitted to the analytical lab.

It is NMED’s opinion that LANL should be able to produce reports within 120 days after completion of monitoring. NMED expects LANL to explicitly justify why it cannot complete reports in the allotted amount of time.

N

R226 SectionIV.B

38 CanyonWatershed Investigations

LANL commented that this section of the Draft Order imposes unlawful requirements on other canyons, including Los Alamos Canyon, Mortandad Canyon, Water Canyon, Pajarito Canyon and Sandia Canyon. LANL feels that NMED does not have the authority to regulate these radionuclides.


N

R227 SectionIV.B

38 CanyonWatershed Investigations

LANL commented the Draft Order is internally inconsistent, because it requires action in Section IV.B that directly contradicts other provisions for the Draft Order. For example, regarding “Canyon Watershed Investigations,” Section IV.B. provides that “[i]f the Department determines that the Work Plan is inadequate to fully investigate [a site]”, then “the Department will require the Respondents to submit a supplemental work plan that meets the requirements of this Section…” (see also Sections

NMED believes that the Canyon Watershed Investigation requirements are clear. Upon completion of each canyon work plan, NMED will determine if the investigation completed under the individual work plan is adequate. If a canyon has been fully investigated, an additional work plan will not be required. If the investigation of a specific canyon is not sufficient, NMED will require a supplemental work plan for further investigation in that canyon.

N



Section/ Unique



IV.B.1.d.i; IV.B.1.e.i; IV.B.2.b.i; IV.B.3.b.i; IV.B.4.b.i; IV.B.5.b.i). However, in numerous sections of the Draft Order, NMED specifically prescribes detailed action, that is not included in any current Laboratory work plan. This is contradictory and confusing.

R228 SectionIV.B.1.a

37 CanyonWatershed Investigations Background

One commenter recommended that Santa Fe County be included as an entity surrounding LANL in all descriptions of the Facility.

The Final Order will include Santa Fe County as a surrounding entity.

Y

R229 SectionIV.B.1.c

38 HistoricalInvestigation

LANL commented the requirement in this section that the Laboratory conduct an “historical investigation” regarding the Los Alamos/Pueblo Canyon Watershed is duplicative of a prior submission to NMED. Historical investigations for the Los Alamos and Pueblo Canyon watersheds have previously been submitted by the Laboratory pursuant to NMED-approved work plans. This section unreasonably requires the Laboratory to duplicate archival searches and summaries of data previously collected and submitted.

Some of the items listed in the Historical Investigation have been submitted to NMED by LANL. The report outlined in Section IV.B.1.c of the Order also requires information that has not been submitted to NMED, including current information on SWMUs and other sites as well the most recent sampling data.

N

R230 SectionIV.B.1.c


One commenter supported the list of requirements, but recommended that LANL be required to determine what proportion of groundwater tritium contamination might be reactor-produced vs. accelerator-produced in order to assist NMED to clarify its jurisdictional authority over tritium contamination at LANL.

The Order will be revised to request that the Respondents provide the known or suspected source of any groundwater contaminants. Section IV.A.3 of the Order requires the Respondent to submit to NMED for approval a work plan in order to determine background concentrations. NMED requires that LANL report the presence and concentrations of radionuclides in its existing HSWA permit and also in the Order. It is

Y



Section/ Unique



NMED’s position that risk cannot be properly evaluated at any site where radionuclide contamination is present without that information, regardless of the source of contamination. NMED requested information on accelerator-produced waste from LANL in a letter dated August 21, 2002.

R231 SectionIV.B.1.d.ii

38 Pueblo CanyonSource Area Investigation

LANL commented the requirement in this section, that the Laboratory “…investigate the sources and extent of contamination in Pueblo Canyon…,” is duplicative of work that has already been completed by the Laboratory, and submitted to USEPA and/or NMED in numerous USEPA and NMED-approved work plans and reports.

NMED does not believe that the extent of contamination in Pueblo Canyon has been adequately delineated. At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted the results of all investigations in Pueblo Canyon. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

R232 SectionIV.B.1.d.iii

38 Pueblo CanyonSediment Sampling

LANL commented this section, which requires the Laboratory to “…investigate sediments in the Pueblo Canyon,” is duplicative of work previously submitted to NMED under the NMED-approved Task/Site Work Plan for Los Alamos and Pueblo Canyons.

It is NMED’s understanding that sediment sampling is ongoing in Pueblo Canyon. Additionally, the effects of the Cerro Grande Fire on accumulated sediments have not been sufficiently evaluated. At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted the results of all investigations in Pueblo Canyon. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the

N



Section/ Unique



requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.



LANL commented the requirement in paragraph three of this section, to conduct “[a] radionuclide survey…in areas not previously surveyed during historical investigations in Pueblo Canyon…” is duplicative of, and inconsistent with, the technical strategy in the Laboratory’s NMED-approved Task/Site work Plan for Los Alamos and Pueblo Canyons, which this Draft Order also requires the Laboratory to implement. Previous work has demonstrated that levels of radionuclide contamination in Pueblo Canyon are very rarely high enough to make such surveys useful.

The effects of the Cerro Grande Fire on accumulated sediments have not been sufficiently evaluated. NMED believes that additional radionuclide surveys are warranted in Pueblo Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N



LANL commented the requirement in paragraph five of this section, to conduct laboratory analysis of sediment samples for …molybdenum [and] tungsten…,” is inconsistent with the Laboratory’s NMED-approved Task/Site Work Plan for Los Alamos and Pueblo Canyons, which this Draft Order also requires the Laboratory to implement. Molybdenum and tungsten are not included in the analytical suite in the existing NMED-approved Task/Site Work Plan. Further, there is no evidence in the administrative

NMED considers molybdenum and tungsten to be contaminants of concern in Pueblo Canyon and expects LANL to analyze sediments for these constituents. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N



Section/ Unique



record in support of adding molybdenum and tungsten to this analytical suite.



LANL commented that the requirement that the Laboratory conduct a radionuclide survey in Pueblo Canyon and its tributaries “…in all areas not previously surveyed during historical investigations…” is unreasonably burdensome and inconsistent with NMED-approved work plans. NMED has approved a reach sampling approach to address this issue. Prior surveys have demonstrated that levels of radionuclide contamination in Pueblo Canyon are rarely high enough to make these surveys useful. Conducting such work would delay completion of investigation reports and corrective action decisions. This work is inconsistent with the technical strategy in the NMED-approved Task/Site Work Plan for Los Alamos and Pueblo Canyons.

The effects of the Cerro Grande Fire on accumulated sediments have not been sufficiently evaluated. NMED believes that additional radionuclide surveys are warranted in Pueblo Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

R236 SectionIV.B.1.d.iv

38 Pueblo CanyonSurface Water Monitoring

LANL commented the requirement in paragraph two of this section, to install new gauging stations in the Pueblo Canyon Watershed, is inconsistent with the surface monitoring requirements listed in Table IV.A.5-1 of the Draft Order. This table specifies a new gauging station in the south fork of Acid Canyon. However, section IV.B.1.d.iv specifies a new gauging station in Acid Canyon below the confluence with the south fork of Acid

It is NMED’s opinion that installing the new gauging stations as outlined in the Order is warranted to adequately monitor surface water in Pueblo Canyon and its tributaries. NMED does not believe that E056 is sufficient for monitoring surface water in Acid Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N



Section/ Unique



Canyon. Further a gauging station currently exists in lower Acid Canyon (E056) above the confluence with Pueblo Canyon, and is considered adequate for monitoring surface water in Acid Canyon. In addition, Section IV.B.1.d.iv also requires new gauging stations at (1) Pueblo Canyon below the confluence with Acid Canyon; (2) Pueblo Canyon below the confluence with Graduation Canyon; and (3) Pueblo Canyon midway between Graduation Canyon and Los Alamos Canyon. Inconsistently, however, none of these locations are located in Table IV.5.A-1. In addition to these inconsistencies, the requirement to install these new gauging stations is overly prescriptive, and the need from them is not supported by NMED with evidence in the administrative record.

R237 SectionIV.B.1.d.v

38 Pueblo CanyonAlluvial Groundwater Well Installation

LANL commented that the requirement that “[a]t least three piezometers shall be installed at locations PAO-2 and PAO-2.5…” is unreasonably burdensome, premature, and possibly unnecessary in light of ongoing related work. Additional groundwater characterization for Pueblo Canyon must be based on a complete assessment of existing data and be driven by the presence or absence of contaminants in groundwater at unacceptable levels. The Laboratory’s approach is to propose additional piezometers in Pueblo Canyon

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED does not believe that LANL understands the alluvial groundwater system in Pueblo Canyon and that piezometers are warranted in the locations specified in the Order. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. NMED cannot comment on the findings of a report (LAPSAR) that it has not yet received or reviewed. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals.

N



Section/ Unique



following the results and recommendations presented in the Los Alamos/Pueblo Canyon Surface Aggregate Report (LAPSAR). Data assessment for the LAPSAR is underway and involves significant participation of NMED.



LANL commented that the requirements (i.e. requiring wells and sediment sampling at Pueblo Canyon) described in paragraphs four through ten of this section are unreasonably burdensome and possibly unnecessary, in light of ongoing related work. The Laboratory’s approach is to use the Los Alamos/Pueblo Canyon Surface Aggregate Report (LAPSAR) process/document to identify data gaps, and inform the decisions and recommendations for any additional data collection or monitoring described in this section. Data assessment for LAPSAR is underway and involves significant participation of NMED.

Based on the information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the work outlined in the Order is warranted. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific canyon work plans. NMED cannot comment on the findings of a report (LAPSAR) that it has not yet received or reviewed. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals.

N



Section/ Unique





LANL commented the requirement that “[a]t least three monitoring wells shall be installed in Pueblo Canyon” is inconsistent with work previously conducted under NMED-approved work plans. Wells now being sampled under the “Task/Site Work Plan for Los Alamos and Pueblo Canyons” and “Los Alamos and Pueblo Canyons Work Plan Addendum, Surface Water and Alluvial Groundwater Sampling and Analysis Plan” were agreed to by the Laboratory and NMED (Laboratory Supp. AR, at 66). The SAP specifies that four rounds of sampling will be conducted at a large number of alluvial groundwater monitoring wells located throughout the watershed. The Laboratory’s approach is to propose additional alluvial groundwater monitoring, if needed, following the results and recommendations to be presented in the Los Alamos/Pueblo Canyon Surface Aggregate Report. Data assessment of the LAPSAR is underway and involves significant participation of NMED.

NMED acknowledges work completed and documents submitted to date by LANL. The Order is a comprehensive document that includes work that has already been agreed upon by NMED and LANL in various other documents, such as the HWP and the individual Canyon Work Plans. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the specific canyon work plans. NMED cannot comment on the findings of a report (LAPSAR) that it has not yet received or reviewed. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals.

N



Section/ Unique



R240 IV.B.1.d.vi 38 Pueblo CanyonRegional Groundwater Well Installation

The requirement to construct regional wells “…to monitor and sample intermediate/perched groundwater, if present” is inconsistent with NMED-approved Hydrogeologic Workplan. The Lab’s approach calls for greater reliance on mud-rotary drilling in the regional aquifer after sealing off the vadose zone with permanent casing. Well screens are to be installed only in the regional aquifer. Dedicated intermediate wells could be installed for perched systems identified during the drilling of the regional wells. This approach was addressed in an email from C. Nylander to J. Young on April 25, 2002.

It is NMED’s opinion that, if a productive intermediate/perched groundwater zone is encountered while drilling a regional groundwater well, LANL should construct the well such that the intermediate zone can be monitored. NMED understands that this may not always be possible, and therefore expects that LANL will provide justification for when it cannot construct the well as outlined in the Order. NMED will decide whether drilling a separate intermediate depth well adjacent to the regional well will be acceptable on a case-by-case basis.

N



Section/ Unique



R241 SectionIV.B.1.d.vii

38 Pueblo CanyonGroundwater Monitoring

LANL commented the requirement in this section, to monitor most wells and springs in the Pueblo Canyon at a quarterly frequency, is inconsistent with the Laboratory’s NMED-approved “Task/Site Work Plan for Los Alamos and Pueblo Canyons”, and the “Los Alamos and Pueblo Canyons Work Plan Addendum, Surface Water and Alluvial Groundwater Sampling and Analysis Plan”. The SAP requires four rounds of sampling. The Laboratory’s approach is to base decisions regarding long-term monitoring on this data. Further, any additional alluvial groundwater monitoring for Pueblo Canyon should be based on the decisions and recommendations to be presented in the Los Alamos/Pueblo Canyon Surface Aggregate Report. Data assessment for the LAPSAR is currently underway and involves the participation of the NMED. The completion date of this report is estimated to be the end of FY2003.

NMED does not believe that sampling wells and springs in Pueblo Canyon less frequently than quarterly is currently supported by the administrative record. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the specific canyon work plans. NMED cannot comment on the findings of a report (LAPSAR) that it has not yet received or reviewed. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals.

N



Section/ Unique





LANL commented the requirement in paragraph four of this section, to submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, and impracticable, prior to the completion of the hydrogeologic characterization required by NMED. The Hydrogeologic Workplan, currently in progress, provides for a groundwater quality characterization phase and thus will provide data useful for the development of a ground water monitoring plan. The Laboratory approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual MDA and RFI investigations.

The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. LANL had installed 13 of the wells as of the issuance of the Order on May 2, 2002. At that pace, it will take LANL nearly seven more years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the HWP for LANL to propose long-term groundwater monitoring and sampling. NMED expects that long term monitoring plans will be updated as new wells are installed and as new information is acquired that affects the monitoring requirements.

N



LANL commented that the requirement to monitor most wells and springs in the Pueblo Canyon at a quarterly frequency is unreasonably burdensome and is overly prescriptive and without support in the administrative record. Sampling results have demonstrated that sampling on a quarterly basis is not necessary, and will provide very little meaningful data. NMED has provided no evidence in the administrative record to support the need for such extensive monitoring. In addition, such sampling would be costly. The Laboratory’s approach is to determine monitoring frequency on a case-by-case basis, and in accordance with the

NMED does not believe that monitoring wells and springs in Pueblo Canyon less frequently than quarterly is currently supported by the administrative record. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the specific canyon work plans. Additionally, sampling costs do not outweigh regulatory requirements and protection of human health and the environment.

N



Section/ Unique



objectives of the monitoring program. R244 Section

IV.B.1.d.vii 38 Pueblo Canyon

Groundwater Monitoring

LANL commented that the requirement in paragraph two of this section, for full suite analysis of alluvial groundwater samples on an ongoing basis, is overly prescriptive, and unsupported by evidence in the administrative record. NMED provides no evidence or justification in the record to support the required extensive analyte suites or the frequency of sampling. Alluvial groundwater monitoring should reasonably be based on a thorough review of existing data, and other relevant information, such as the location of contaminant sources and groundwater occurrences. This iterative approach is also consistent with the Hydrogeologic Workplan. There is no support in the administrative record for NMED’s “prescriptive” approach. The Laboratory’s approach is to rely on the ongoing process of re-evaluating and justifying the current alluvial well monitoring program following the Data Quality Objectives process.

NMED does not believe a limited sampling suite is currently supported by the Administrative Record. The Order provides an opportunity to justify a more limited suite of analytical testing in the required canyon-specific work plans.

N



LANL recommended that the requirement to monitor groundwater monitoring well TW-1a should be deleted because TW-1a is no longer considered a well form which valid samples can be retrieved. LANL also commented that because POI-4 is located close to TW-1a, and taps that same groundwater zone, there is no

The Order states that the monitoring well TW-1a shall be plugged and abandoned according to the procedures outlined in Section X.D. LANL may abandon the well as soon as it is able to do so. After that time, monitoring and sampling will not be required.

N



Section/ Unique



need to monitor both wells. LANL feels that samples taken from well POI-4 are representative of samples that would have been taken from inoperable well TW-1a.



LANL commented that the requirement in paragraph four that “…groundwater sample shall be analyzed for general chemistry parameters as described in Section IV.B.2.i… and for other analytes specified by the Department,” is overly prescriptive and unsupported by evidence in the administrative record. Analytical suites for intermediate perched groundwater monitoring should be determined by reference to the specific contaminants of concern in the watershed upstream of monitoring locations. There is a large body of historical analytical data available for the Canyon, and from these wells, that should be used by NMED to focus analytical testing on the relevant COCs. NMED makes no reference to this, or any evidence in the administrative record to support the work specified. The requirement for analysis of general chemistry parameters should focus on the specific parameters needed, and on the frequency of testing that is relevant.

NMED does not believe a limited sampling suite of specific parameters is currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in the canyon-specific work plans.

N



Section/ Unique





LANL recommended that the requirement to collect groundwater samples from regional monitoring well TW-2 should be deleted because well TW-2 is no longer considered a well from which valid samples can be retrieved. The Laboratory agrees that that monitoring should continue, however the Laboratory’s Hydrogeologic Workplan proposes regional aquifer characterization wells R-2 and R-4 in Pueblo Canyon as replacement for the older wells listed in paragraph five of this section.

The Order states that the monitoring well TW-2 shall be plugged and abandoned according to the procedures outlined in Section X.D. LANL may abandon the well as soon as it is able to do so. After that time, sampling will not be required.

N



LANL commented that the requirement in paragraph six that “… groundwater samples shall be analyzed for general chemistry parameters as described in Section IX.B.2.i… and other analytes specified by the Department,” is overly prescriptive and burdensome, and without support in the administrative record. The analytical suites for regional aquifer groundwater monitoring should be determined by reference to the specific contaminants of concern in the watershed upstream of monitoring locations. There is a large body of historical analytical data available for the Canyon, and from these wells, that should be used by NMED to focus analytical testing on the relevant COCs. NMED makes no reference to this, or any evidence in the administrative record to support the work specified. The requirement for

NMED does not believe a limited sampling suite of specific parameters is currently supported by the Administrative Record. The Order provides an opportunity to justify a more limited suite of analytical testing in the canyon-specific work plans.

N



Section/ Unique



analysis of general chemistry parameters should focus on the specific parameters needed, and on the frequency of testing that is relevant.



LANL commented the requirement to submit “[a] long-term groundwater monitoring and sampling work plan…,” prior to completion of the hydrogeologic characterization required by NMED, and implementation of the groundwater sampling program, is inconsistent with ongoing NMED-approved work. The Hydrogeologic Workplan, currently in progress, provides for a groundwater quality characterization. The long term groundwater monitoring plan required by NMED in this section should be developed only after completion of the HWP and activities for individual RFI investigations. Additional alluvial groundwater monitoring requirements for Pueblo/Canyon should similarly await the decisions and recommendations pending in the Los Alamos/Pueblo Canyon Surface Aggregate Report. The Laboratory approach is to use the LAPSAR to identify relevant data gaps, and inform the decisions regarding any additional data collection or monitoring described in this section. Data assessment for the LAPSAR is underway and involves significant participation of the NMED. In the meantime, the Laboratory will also continue monitoring under the


N



Section/ Unique



existing Groundwater Monitoring Plan. R250 Section

IV.B.1.e.ii 38 Los Alamos

Canyon Source Area Investigations

LANL commented the requirement in this section, to “…investigate the sources and of extent of contamination in Los Alamos Canyon,” is inconsistent with, and duplicative of, work previously submitted to NMED in numerous work plans and reports.

Based on the information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes further investigation is needed to delineate the contamination in Los Alamos Canyon. At the time of the issuance of the Order, LANL had not submitted the results of all investigations in Los Alamos Canyon NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

R251 SectionIV.B.1.e.iii

38 Los AlamosCanyon Sediment Sampling

LANL commented that the requirement in this section that the Laboratory conduct “…[a] radionuclide survey of area of sediment accumulation…in Los Alamos Canyon …,” is unreasonably burdensome and inconsistent with prior NMED-approved work. NMED is requesting a complete and continuous field radiation survey of areas of young sediment in Los Alamos Canyon and it tributaries. This is unreasonable for several reasons: • Previous work has demonstrated that levels of radionuclide contamination in many parts of Los Alamos Canyon, including upstream from DP Canyon and downstream from Pueblo Canyon,

The effects of the Cerro Grande Fire on accumulated sediments have not been sufficiently evaluated. NMED believes that additional radionuclide surveys are warranted in Los Alamos Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N



Section/ Unique



are not high enough to make the surveys required in this section useful

• Conducting these surveys would delay completion of investigation reports and corrective action decisions

• The work required is inconsistent with the technical strategy approved by NMED in the Task/Site Work Plan for Los Alamos and Pueblo Canyons.



LANL commented that the requirement in this section that sediment samples from the Los Alamos Canyon “… be analyzed by a laboratory for …molybdenum, tungsten [and] … perchlorate …,” is overly prescriptive, and inconsistent with prior NMED-approved work. Molybdenum, tungsten, and perchlorate are not included in the analytical suite specified in a related NMED-approved work plan. The Laboratory is required to complete this Task/Site Work Plan under the Draft Order. At the request of NMED the Laboratory has previously analyzed samples for perchlorate in Acid Canyon and failed to detect this analyte. In addition, perchlorate is an analyte expected to be found in water, but not in sediments.

NMED considers molybdenum, tungsten, and perchlorate to be contaminants of concern in Los Alamos Canyon and expects LANL to analyze sediments for these constituents. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N



Section/ Unique





LANL commented that the requirement in this section, to “…investigate sediments in Los Alamos Canyon,” is inconsistent with, and duplicative of, work previously submitted to NMED-approved Task/Site Work Plan for Los Alamos and Pueblo Canyons.

NMED acknowledges work completed and documents submitted to date at LANL. At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted the results of all investigations in Los Alamos Canyon. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

R254 SectionIV.B.1.e.iv

38 Los AlamosCanyon Surface Water Monitoring

LANL commented the requirement in paragraph two of this section, to install four new gauging stations in Los Alamos Canyon, is overly prescriptive and unsupported by evidence in the administrative record, and inconsistent with the surface monitoring requirements listed in Table IV.A.5-1 of the Draft Order. Section IV.B.1.e.iv requires new gauging stations at (1) Los Alamos Canyon below TA-2; (2) Los Alamos Canyon above DP Canyon; (3) Los Alamos Canyon mid-way between DP Canyon and the south fork of Los Alamos Canyon (the TA-53 canyon); and (4) Los Alamos Canyon below the south fork of Los Alamos Canyon (the TA-53 canyon). Inconsistently, however, none of these locations are included in Table IV.A.5-1. This requirement is also overly

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that installation of the new gauging stations listed in the Order is warranted to adequately monitor surface water in Los Alamos Canyon and its tributaries. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N



Section/ Unique



prescriptive and unsupported by evidence in the administrative record. Six gauging stations, located above each major confluence, already exist in Los Alamos Canyon. However, NMED provides no evidence or explanation why these, or any, additional gauging stations are required in this area. Finally, one gauging station (E030) is currently located in Los Alamos Canyon upstream of DP Canyon, and would likely satisfy the requirement for a new station at that location.

R255 SectionIV.B.1.e.v

38 Los AlamosCanyon Alluvial Groundwater Well Installation

LANL commented that the requirement to conduct a survey “…to locate all existing wells in Los Alamos Canyon and ascertain the status of all existing and former wells and borings,” is unreasonably burdensome because NMED is currently aware through prior Laboratory submissions of all existing and former wells and boring in Los Alamos Canyon.

For ease of reference and to avoid duplication of efforts, NMED requires a summary of the locations and operational status of all existing and former wells and borings in Los Alamos Canyon.

N



Section/ Unique





LANL commented the requirement in paragraph four of this section, to install at least five piezometers “…between LAO-1.2 and LAO-1.6 (g)…to evaluate whether two zones of saturation exist in the alluvium and to determine the extent of saturation west of LAO-1.8, if present,” is overly prescriptive without supporting evidence in the administrative record and inconsistent with ongoing NMED-approved work. Additional groundwater characterization activities should be based on a complete assessment of existing data, and be driven by the presence or absence of contaminants in groundwater at unacceptable levels. The Laboratory’s approach is to propose additional piezometers in Los Alamos Canyons, if needed, following the results and recommendations presented in the Los Alamos/Pueblo Canyon Surface Aggregate Reports (LAPSAR).

The administrative record does not currently reflect an adequate determination of zones of saturation in the alluvium in Los Alamos Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. NMED cannot comment on the findings of a report (LAPSAR) that it has not yet received or reviewed. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals.

N



Section/ Unique





LANL commented the requirement in this section to conduct additional groundwater characterization activities in Los Alamos Canyon, is inconsistent with ongoing work proposed under the NMED-approved Task/Site Work Plan for Los Alamos and Pueblo Canyons”. The scope of work currently underway has been discussed with NMED, with the understanding that there is agreement in scope. The Laboratory’s approach is to conduct additional groundwater characterization activities, beyond the current scope, such as determination of extent of alluvial aquifers and recharge areas for Los Alamos Canyon, following a complete assessment of existing data, and following the decisions and recommendations to be presented in the Los Alamos/Pueblo Canyon Surface Aggregate Report (LAPSAR). Data assessment for the LAPSAR is underway and involves significant participation from NMED. The completion date of this report is estimated to be the end of FY2003.

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the additional groundwater characterization activities listed in the Order are warranted in Los Alamos Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. NMED cannot comment on the findings of a report (LAPSAR) that it has not yet received or reviewed. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals.

N



Section/ Attachment

Unique No.

Comment NMED Response Includedin Order?

Y/N R258 Section

IV.B.1.e.vi Based on information available to NMED at the

time of the issuance of the Order on May 2, 2002, NMED believes that the intermediate monitoring well listed in the Order is warranted in Los Alamos Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. NMED must approve the locations of wells installed by LANL. Based on previous drilling activities at LANL, geophysical methods have not been adequately proven to be the most appropriate tool for determining intermediate well drilling locations. However, NMED will consider alternative techniques, provided LANL submits sufficient rationale and justification regarding the usefulness and accuracy of such techniques.

38 Los AlamosCanyon Intermediate Groundwater Well Installation

LANL commented the requirement to install “[o]ne intermediate monitoring well…between LAO-4.5 and LAO-6” in Los Alamos Canyon is unreasonably burdensome and potentially unnecessary prior to completion of the Hydrogeologic Workplan and subsequent risk-based decision making analysis. LANL feels it is not reasonably possible to determine if additional characterization or monitoring is necessary at this location prior to completion of the HWP and subsequent risk analysis. Even if the outcome of the risk-based decision process suggests the need for an additional intermediate well, the Laboratory’s approach would be to use geophysical methods and determine the most appropriate drilling location.

N

R259 SectionIV.B.1.e.vii

38 Los AlamosCanyon Regional Groundwater Well Installation

LANL commented that the requirement to construct a new monitoring well in “…Los Alamos Canyon, north of the undesignated canyon located east of TA-53,” is not supported by evidence in the administrative record. The regional aquifer in this part of Los Alamos Canyon is already sufficiently characterized by two existing regional wells that “bracket” the proposed NMED well. Well R-8/8a is located 0.45 miles west of the proposed NMED well, and R-9 is located 0.9 miles east of same. Both existing well locations were selected with the concurrence of NMED. Geochemical data for regional

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the regional monitoring well listed in the Order is warranted in Los Alamos Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N groundwater collected from R-8/8a and R-9 do not support the need for an additional regional well at the proposed location, because no contaminants have been detected. There are not potential contaminant sources between wells R-8/R8a and R-9. This well is not included as part of the current Hydrogeologic Workplan, or the Los Alamos/Pueblo Canyon Work Plan, thus this requirement is also inconsistent with existing NMED-approved workplan.

R260 SectionIV.B.1.e.viii

38 Los AlamosCanyon Groundwater Monitoring

LANL commented the requirement to monitor wells in the Los Alamos Canyon, at a quarterly frequency (as specified in Section XII) is unreasonably burdensome. LANL also feels that such frequent monitoring is overly prescriptive and without adequate corresponding support in the administrative record. Within the regional aquifer beneath the Pajarito Plateau, groundwater moves very slowly and thus groundwater will show very little change in chemistry as a function of time. Sampling results have demonstrated that sampling on a quarterly basis is not reasonably necessary and provides very little meaningful information. NMED has provided no evidence in the administrative record to support the need for such extensive monitoring. In addition, such sampling would be very costly. The Laboratory’s approach is to

NMED does not believe that sampling wells and springs in Los Alamos Canyon less frequently than quarterly is currently supported by the administrative record. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. Sampling costs do not outweigh regulatory requirements and protection of human health and the environment. In addition, NMED believes there is insufficient evidence to determine the rate at which groundwater flows beneath the Facility. Therefore, NMED requires further investigation as outlined in the Order.

N

Subject



Section/ Attachment

Unique No.


Y/N determine monitoring frequency on a case-by-case basis, and in accordance with the objectives of the monitoring program.



LANL commented the requirement to monitor alluvial groundwater at the 23 (or more) wells specified in paragraph one of this section, is overly prescriptive and without adequate corresponding support in the administrative record. Decisions regarding the location of alluvial groundwater monitoring wells must be based on a thorough review of existing data, and other relevant information, such as the location of contaminant sources and groundwater occurrences. NMED fails to provide evidenced in the administrative record to support the well locations specified in this section, and the number of locations specified exceed the number reasonably required. The Laboratory’s approach is to re-evaluate the current alluvial well monitoring program, using the DQO process prior to the designation of any additional well locations in this area. The DQO process was developed by the USEPA as a planning tool to ensure that data collected is adequate to resolve decisions.

Based in information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the monitoring wells listed in the Order are warranted to monitor alluvial groundwater in Los Alamos Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. As stated in the comment, the DQO process was developed by EPA as a planning tool and is to be used as guidance. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.

N

Subject



Section/ Attachment

Unique No.


Y/N R262 Section

IV.B.1.e.viii 38 Los Alamos

Canyon Groundwater Monitoring

LANL commented the requirement in paragraph one of this section, to collect groundwater samples from “… New Mexico Highway Department wells MW-3, MW-5, MW-6 and MW-9…,” is impracticable and unreasonably burdensome. There is no information in the record indicating a location of these Highway Department wells. Even if located, these third party well are of unknown construction and integrity, and thus sampling from these wells will provide unreliable data. The Laboratory has previously installed wells in the general area of the wells specified. The Laboratory wells should be considered prior to consideration of any third party well, and could provide the needed data, if appropriate.

LANL may present its current knowledge regarding the listed Highway Department wells in the required survey of existing wells in Los Alamos Canyon as outlined in Section IV.B.1.e.v. It is the responsibility of LANL to request construction details for the Highway Department wells from the New Mexico Highway Department. LANL should make every attempt to determine the status and construction of the NMHD wells listed.

N



LANL commented the requirement in paragraph two of this section, that “[a]lluvial groundwater samples shall be analyzed by a laboratory for general chemistry parameters …,” and requiring a full suite analysis of same, is overly prescriptive and burdensome, and not supported by NMED with any evidence in the administrative record. The analytical suite for alluvial groundwater monitoring should reasonably be determined by reference to the specific contaminants of concern in the watershed upstream of the monitoring locations and, further, should be based on a thorough review of existing data and other relevant

NMED does not believe that a limited sampling suite is currently supported by the administrative record. An opportunity is provided in the Order for LANL to justify a more limited suite of analytical testing in the canyon-specific work plans. As stated in the comment, the DQO process was developed by EPA as a planning tool and is to be used as guidance. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to

N

Subject



Section/ Attachment

Unique No.


Y/N information, such as the location of contaminant sources and groundwater occurrences. However, NMED makes no reference to this, or other evidence in the administrative record, to support the work specified. The Laboratory’s approach is to re-evaluate the current alluvial well monitoring program in accordance with the DQO process and with the participation of the NMED. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions.

select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.



LANL commented the requirement in this section to collect groundwater samples “…from intermediate wells LADP-3, R-9i, LAOI (A)-1.1, and all wells installed in the future that intersect zones of groundwater in Los Alamos Canyon,” is overly prescriptive and burdensome, and unsupported by evidence in the administrative record. There is not evidence in the record supporting the requirement to monitor all intermediate groundwater wells in Los Alamos Canyon. Intermediate groundwater monitoring must reasonably be determined by the results of the hydrological investigations performed during installation and sampling of intermediate groundwater monitoring wells, however, no such record evidence is provided by NMED in this regard.

Due to the probable hydraulic connectivity between perched intermediate groundwater and the regional aquifer, NMED believes that zones of perched groundwater should be monitored. NMED requires LANL to provide rationale for not sampling existing, functioning monitoring wells. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N R265 Section



LANL commented the requirement in this section that ”[i]ntermediate groundwater samples shall be analyzed by a laboratory for general chemistry parameters…,” and requiring a full suite analysis of same, overly prescriptive and unsupported by evidence in the administrative record. The analytical suite for intermediate perched groundwater monitoring must reasonably by determined by reference to the specific contaminants of concern in the watershed upstream of the monitoring locations. However NMED makes no reference to this, or any other evidence in the administrative record to support the work specified.

NMED does not believe that a limited sampling suite is currently supported by the administrative record. An opportunity is provided in the Order for LANL to justify a more limited suite of analytical testing in the canyon-specific work plans.

N



LANL commented the requirement in this section that “[g]roundwater samples shall be obtained from regional wells R-5, R-7, R-9, TW-3 and all regional wells installed in the future in Los Alamos Canyon,” is overly prescriptive and burdensome and unsupported by NMED with any evidence, in the administrative record. In fact available evidence indicates to the contrary, as NMED’s hydrogeologic evaluation proposes two regional monitoring wells in Los Alamos Canyon. In addition, any decision regarding additional wells in this area must reasonably depend on the outcome of hydrogeologic investigations and optimization of the monitoring well network.

NMED requires LANL to provide rationale for not sampling existing, functioning monitoring wells. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N R267 Section



LANL commented the requirement in paragraph six of this section, that "[r]egional groundwater samples shall be analyzed by a laboratory for general chemistry parameters…,” and requiring a full suite analysis of the same is overly prescriptive and unsupported by evidence in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific contaminants of concern in the watershed upstream of the monitoring locations and must be based on a thorough review of existing data and other relevant information, such as the location of contaminant sources and groundwater occurrences. However, NMED makes no reference to this, or any other evidence in the administrative record, to support the work specified.

NMED does not believe that a limited sampling suite is currently supported by the administrative record. An opportunity is provided in the Order for LANL to justify a more limited suite of analytical testing in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N R268 Section



LANL commented the requirement to submit a long-term groundwater monitoring and sampling work plan, prior to implementation of the groundwater sampling program, is unreasonable and impracticable to perform in the sequence required by NMED. The Hydrogeologic Work Plan, currently in progress, provides for a groundwater quality characterization phase. The Laboratory’s approach is to develop a long-term groundwater monitoring plan over time, using the iterative process that builds form the HWP and RFI actions, and is consistent with USEPA guidance and conventional practices nationwide.

The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. LANL had installed 13 of the wells as of the issuance of the Order on May 2, 2002. At that pace, it will take LANL nearly seven more years to complete the HWP well installations. NMED expects that long term monitoring plans will be updated as new wells are installed and as new information is acquired that affects the monitoring requirements.

N

R269 SectionIV.B.2

17 MortandadCanyon Watershed

One commenter recommended that this section should include a General Investigation Requirement section similar to IV.B.1.b (Los Alamos/Pueblo Canyon Watershed) and should also include a surface water monitoring and sampling program requirement as found in Section IV.B.1.d.iv.

There is an existing work plan for Mortandad Canyon. Section IV.B.2 is a supplement to the existing work plan. It is NMED’s opinion that Section IV.B.1.b does not need to be repeated in Section IV.B.2.

N

R270 SectionIV.B.2.b.ii

38 MortandadCanyon Alluvial Groundwater Well Installation

LANL commented the requirement in this section that “[t]hree monitoring wells shall be installed in Cañada del Buey…” is unreasonably burdensome and unsupported by evidence in the administrative record. Evidence indicates that these wells are not reasonably required. Nine alluvial groundwater monitoring wells currently exist in Cañada del Buey and only two

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the monitoring wells listed in the Order are warranted to fully investigate the source of alluvial saturation in Cañada del Buey. The borings should be drilled to the vapor-phase notch for characterization, but the actual wells need only be set to a depth that is appropriate for monitoring alluvial groundwater. An opportunity is provided in the Order for LANL to provide

N

Subject



Section/ Attachment

Unique No.


Y/N of those wells typically yield groundwater. The Laboratory concludes that no meaningful data would result from the prescribed work. Drilling to the vapor-phase notch in Cañada del Buey would achieve depths estimated at 70-100 feet. These depths are significantly below the alluvium/bedrock interface, and therefore, the required work would not be useful for investigating the source of alluvial saturation.

additional information or justify a modification of the required work in the canyon-specific work plans.



LANL commented the requirement to install three wells to “…be installed to the top of the Bandelier Tuff…,” is unreasonably burdensome and unsupported by evidence in the administrative record. Available evidence indicates these wells are likely not required. Two comparable wells are proposed in the “Work Plan for Mortandad Canyon”. The Work Plan for Mortandad Canyon also includes installation of several alluvial groundwater monitoring wells, including two wells that will form a transect across the Mortandad valley floor in the vicinity of R-13. In addition, since the completion of the Mortandad Canyon work plan, well R-13 has been drilled through canyon bottom alluvium and into the regional aquifer, and no groundwater was found within the alluvium. Alluvial groundwater monitoring wells SIMO-1 and SIMO-2 are also located in the

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the monitoring wells listed in the Order are warranted to monitor alluvial groundwater in Mortandad Canyon. The Order is a comprehensive document that includes work that has already been agreed upon by NMED and LANL in various other documents, such as the HWP and the individual Canyon Work Plans. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. If, as LANL has suggested, “available evidence” indicates the wells outlined in the Order are not necessary, LANL should provide such information to NMED. It is not NMED’s intent to require LANL to drill monitoring wells in areas that do not produce water.

N

Subject



Section/ Attachment

Unique No.


Y/N vicinity of well R-13, and are dry. The administrative record contains no discussion of these facts nor of any other evidence in support of the wells required.



LANL commented this section addresses the installation of alluvial monitoring wells in Mortandad canyon. The Laboratory agrees that an alluvial monitoring well should be installed directly from the Mortandad-Effluent Canyon confluence. Alluvial groundwater monitoring well MCO-0.6 is located approximately 2,600 feet up-canyon from the Mortandad-Effluent Canyon confluence, and is dry. The prescribed well is needed to support monitoring alluvial groundwater and characterization of water quality, if groundwater is present. Although the need and location of proposed well MCO-6 is appropriate, this well has previously been proposed in the “work Plan for Mortandad Canyon” and thus the Laboratory’s approach is to install this well as proposed in this Work Plan. In regard to the piezometers prescribed listed in this paragraph, the Laboratory’s approach is to further discuss and clarify with NMED questions regarding the determination of groundwater flow direction and gradient. There are numerous potential approaches for acquiring the requested information, and well-formulated objectives must be prepared to ensure

The Order is a comprehensive document that includes work that has already been agreed upon by NMED and LANL in various other documents, such as the Hydrogeologic Workplan and the individual Canyon Work Plans. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. Additionally, regarding the piezometer installation outlined Section IV.B.2.b.ii in the Order, LANL should take the opportunity provided in the Order to submit additional information or justify a modification of the required work in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N optimal data collection. A number of options should be considered for how necessary data are collected, and decisions regarding the timing and location of groundwater-loss data, should be based on a phased approach that allows consideration of available data.



LANL commented the requirement in paragraph three of this section, to install one alluvial well in Ten Site Canyon, and a nested piezometer “…in the vicinity of the well, if groundwater is present in the newly installed well,” is duplicative of a work in previously submitted to NMED. Monitoring well MCO-6 is already proposed in the “Work Plan for Mortandad Canyon”. Thus, the Laboratory’s position would be to install this well as proposed in the Work Plan.

The Order is a comprehensive document that includes work that has already been agreed upon by NMED and LANL in various other documents, such as the Hydrogeologic Workplan and the individual Canyon Work Plans. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work.

N

R274 SectionIV.B.2.b.iii

38 MortandadCanyon Intermediate Groundwater Well Installation

LANL commented the requirement to install one intermediate well “…approximately 0.25 miles downgradient from the TA-50 outfall…” is impracticable to perform as required, because it is unlikely that transport of contaminants from the discharge point could have recharged the perched horizon so close to the source. The Laboratory’s approach is to install an intermediate well at a location sufficiently downgradient, at a point where effluent discharges will have infiltrated and recharged the perched intermediate zone. LANL

An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. NMED accepts the use of modeling and geophysical surveys as tools, but does not believe they can be used to eliminate potentially contaminated locations from consideration.

N

Subject



Section/ Attachment

Unique No.


Y/N noted that locations up to 1,000 feet east of the TA-50 outfall are accessible along the Bandelier Tuff unit two bench on the south side of Mortandad Canyon. Any such location chosen should be based on field geophysical studies and modeling that evaluate where recharge from flow along the canyon bottom is likely to reach any deeper perched zone. Standard industry practice typically calls for further field and modeling evaluations in siting the location of any investigation well.



LANL commented the requirement to install an intermediate well in upper Ten Site Canyon, at the location of borehole 35-2028, is impracticable at this time, and should reasonably be contingent on encountering perched water in planned regional groundwater well R-14. The proposed well location is within only 600 feet of well R-14. The required new intermediate well is justified only if perched water is found at well R-14. LANL further notes that existing drill hole 35-2028 was drilled to 300 feet and penetrated the Cerro Toledo interval, without encountering any perched water.

At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted the results from the installation of regional groundwater well R-14. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. It is not NMED’s intent to require LANL to drill monitoring wells in areas that do not produce water.

N



LANL commented the requirement to install an intermediate well, in the vicinity of MCO-4 is impracticable, if not impossible, to perform, because the proposed location is in a very narrow

NMED must approve the locations of monitoring wells at LANL. NMED realizes that some locations are not accessible for drilling. NMED will continue to work with LANL, as it has in the past, to negotiate appropriate sites for monitoring

N

Subject



Section/ Attachment

Unique No.


Y/N canyon bottom, and this location is not large enough for required drilling equipment. This section of Mortandad Canyon was extensively explored in prior attempts to site regional groundwater well R-14. At that time, it was determined that this section of Mortandad Canyon is not accessible for drilling, either in the canyon bottom or along the steeply sloping-to-vertical, canyon walls. Field assessment of the requested drilling site indicates that access by helicopter would be the only feasible method for bringing drilling equipment to the site. The present location of well’s R-14 and TW-8 are the closest possible alternative sites to MCO-4 for deep drilling (>600 feet) at reasonable cost. LANL suggested that the area near TW-8 is a more appropriate location for this intermediate well.

wells.



LANL commented the requirement to install an intermediate well, in the vicinity of well MCO-13, is unreasonably burdensome. Data from regional groundwater well R-13, located within 300 feet of MCO-13, has detected no perched water. The absence of perched water along this section of Mortandad Canyon is further corroborated by the experience in drilling unproductive well MCOBT-8.5. It is reasonable to conclude that an intermediate well in this area will encounter only dry units.

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that an intermediate well is warranted in the location outlined in the Order. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. It is not NMED’s intent to require LANL to drill monitoring wells in areas that do not produce water.

N

Subject



Section/ Attachment

Unique No.


Y/N R278 Section

IV.B.2.b.iii 38 Mortandad

Canyon Intermediate Groundwater Well Installation

LANL commented the requirement to install an intermediate well “…in the vicinity of well GS-2 on the south side of the Mortandad Canyon bench” is impracticable, if not impossible, to perform, because the proposed location is on a steeply-sloping canyon wall, and thus inaccessible to drilling equipment. Further, this section of Mortandad Canyon was extensively explored in prior attempts to site regional groundwater well R-14. At that time, it was determined that no accessible drilling area exists along the steeply sloping-to-vertical canyon walls (note that the Mortandad Canyon “bench” does not exist along this stretch of the canyon). Existing well location R-14 is the closest possible replacement site to GS-2.

NMED must approve the locations of monitoring wells at LANL. NMED realizes that some locations are not accessible for drilling. NMED will continue to work with LANL, as it has in the past, to negotiate appropriate sites for monitoring wells. It may be necessary for LANL to drill the proposed well on a mesa top adjacent to Mortandad Canyon.

N



LANL commented the requirement to install an intermediate well between gauging station GS-1 (note that this is not a “well” as stated in the Draft Order), and well TW-8, is impracticable, if not impossible, to perform. The stretch of Mortandad Canyon between gauging station GS-1 and well TW-8 is a very narrow canyon area. In addition, large and dense tree growth makes well installation even more impracticable. The Mortandad Canyon wells proposed in the Hydrogeologic Workplan (R-13, 14, and 15) are sufficient to characterize the regional aquifer in this canyon.

NMED must approve the locations of monitoring wells at LANL. NMED realizes that some locations are not accessible for drilling. NMED will continue to work with LANL, as it has in the past, to negotiate appropriate sites for monitoring wells. Additionally, an opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N Any new wells, if needed, must reasonably be based on this and other available data, including data from new wells installed as part of the Mortandad Canyon Workplan, and following the DQOs established subsequent to this work.



LANL commented that the requirement to install one new well “…approximately 1,500 feet east of well PM-5…,” is impracticable, un unreasonably burdensome, in the absence of data that will soon be available from wells proposed in the Draft Order, for lower Ten Site Canyon, and the mesa south of well R-15. See Section IV.B.2.b.iii, bullet items, three and nine, respectively. The Laboratory’s approach is to make this requirement contingent on the discovery of perched water in these other two wells. If water is not discovered here, it would be unlikely to encounter perched water even farther from the canyon system, and an intermediate depth well at this location would be without benefit.

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the intermediate monitoring well listed in the Order is warranted to monitor groundwater in Mortandad Canyon. However, an opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N



LANL commented that paragraph two of this section should be deleted. The two wells referenced (R-27 and R-28) are located in Water Canyon, far to the south of Mortandad Canyon, the subject of this section, and thus have no nexus to the investigations in the Mortandad Canyon.

This typographical error has been changed. Y

Subject



Section/ Attachment

Unique No.


Y/N R282 Section

IV.B.2.b.iv 38 Mortandad

Canyon Regional Groundwater Well Installation

LANL commented the requirement to install a new well intersecting the top of the regional aquifer, in the vicinity of well R-13, is unsupported by evidence in the administrative record. The existing R-13 well site was selected, in consultation with NMED, to address concerns about the quality of groundwater where Mortandad Canyon exits the laboratory. However, preliminary water quality data from well R-13 does not indicate evidence of the Laboratory-related contamination in the regional aquifer at this location. This conclusion is not contradicted by any evidence in the administrative record.

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the new regional well in Mortandad Canyon as described in the Order is warranted to monitor groundwater in Mortandad Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N R283 Section

IV.B.2.b.iv 38 Mortandad

Canyon Regional Groundwater Well Installation

LANL commented the requirement in this section, to install three new regional aquifer wells and two new intermediate depth wells, is inconsistent with ongoing NMED-approved work. This work should be deferred until an integrated work plan, identifying the remaining Mortandad Canyon groundwater issues, is completed. Deep groundwater investigations, as set forth in the existing Mortandad Canyon Workplan, will be completed following completion of ongoing drilling activities at well R-14. The Laboratory’s approach is to determine the need for any new wells based on this and other available data, including data from new wells installed as part of the Mortandad Canyon Workplan, and following the DQOs established subsequent to this work. The DQO process was developed by the USEPA as a planning tool to ensure that data collected is adequate to resolve decisions.

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the regional and intermediate depth groundwater monitoring wells are warranted in Mortandad Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the Mortandad Canyon Groundwater Investigation Work Plan. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.

N

R284 SectionIV.B.2.b.v

38 MortandadCanyon Groundwater Monitoring

LANL commented the requirement in this section to conduct groundwater monitoring in Mortandad Canyon at a quarterly frequency (as specified in Section XII, Table XII-1) is unreasonably burdensome and is overly prescriptive and without support in the administrative record. Within the regional aquifer beneath the Pajarito Plateau, groundwater moves very

NMED does not believe that sampling wells and springs in Mortandad Canyon less frequently than quarterly is currently supported by the administrative record. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the specific canyon work plan. Sampling costs do not outweigh regulatory requirements and protection of human health and

N

Subject



Section/ Attachment

Unique No.


Y/N slowly and thus groundwater will show very little change in chemistry as a function of time. Sampling results have demonstrated that sampling on a quarterly basis is not reasonably necessary, and will provide very little, if any, meaningful data. NMED has provided no evidence in the administrative record to support the need for such extensive monitoring. In addition, such sampling would be very costly. The Laboratory’s approach is to determine monitoring frequency on a case-by-case basis, and in accordance with the objectives of the monitoring program.

the environment. In addition, NMED believes there is insufficient evidence to determine the rate at which groundwater flows beneath the Facility. Therefore, NMED requires further investigation as outlined in the Order.



LANL commented the requirement is this section, to monitor alluvial groundwater at the specified locations in Mortandad Canyon, and Cañada del Buey, is overly prescriptive and without adequate corresponding support in the administrative record, and inconsistent with existing NMED-approved workplans. Nine alluvial groundwater monitoring wells currently exist in Cañada del Buey. However, only two of those wells, CDBO-6 and CDBO-7, typically yield groundwater. Additional monitoring is unreasonable in the absence of any additional, or new, supporting data. The Draft Order states that the “Work Plan for Sandia Canyon and Cañada del Buey” is incorporated by reference and shall be implemented. This work plan proposes

It is NMED’s understanding that LANL has conducted geophysical surveys along Mortandad Canyon and is currently analyzing the data in order to determine which locations may be most suitable for siting future alluvial wells. Based on information currently available, NMED believes that the sampling requirements and number of wells are justified. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. NMED will review and assess documents submitted by LANL, including the Mortandad Canyon RFI, and will determine the amount of additional investigation required based on the data in the submittals.

N

Subject



Section/ Attachment

Unique No.


Y/N a sampling design that will provide data to enable decisions regarding the need for any further monitoring. As stated in the Draft Order, any additional work, if needed, would then require a supplemental work plan, including a description of objectives and a sampling design to meet these objectives. The specification of new monitoring locations in this section is inconsistent with other NMED-ordered action requiring the collection of data for the purposes of subsequently informing monitoring location selection. Regarding Mortandad Canyon, the “Work Plan for Mortandad Canyon” outlines the RFI for groundwater characterization in Mortandad Canyon, and similarly proposes a sampling design that should be implemented prior to making decisions regarding the need for groundwater monitoring. Thus, until the Mortandad Canyon RFI is completed, and supporting data obtained, there is no reasonable basis for implementing the monitoring prescribed in the Draft Order.



LANL commented the requirement in this section to obtain groundwater samples from intermediate well MCOBT-8.5 is impracticable to perform, and is inconsistent with previously completed work. The Work Plan for Mortandad Canyon included installation of the MCOBT-4.4 and

NMED acknowledges work completed to date at LANL. At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted the results of all investigations in Mortandad Canyon. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not

N

Subject



Section/ Attachment

Unique No.


Y/N MCOBT-8.5 monitoring wells. Both wells have been drilled through canyon bottom alluvium and into the suballuvial units. MCOBT-8.5 was discovered to be dry, and was therefore plugged and abandoned. MCOBT-4.4 was completed as in intermediate observation well, and intermediate groundwater sample were recently collected and are now being analyzed.

expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.



LANL commented the requirement to monitor regional groundwater at all locations in Mortandad Canyon, at the frequency described in Section XII, is unreasonably burdensome and unsupported by evidence in the administrative record. The number and location of groundwater monitoring locations cannot be reasonably determined without completion of the RFI, and in accordance with the results of the hydrogeological characterization performed during installation and sampling of regional groundwater monitoring wells. In the absence of this information and analysis, there is no evidence to support monitoring all regional groundwater wells in the canyon at the frequency required by NMED.

NMED believes that the number of regional groundwater monitoring locations and the sampling frequency outlined in the Order are justified. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. NMED will review and assess documents submitted by LANL, including the Mortandad Canyon RFI, and will determine the amount of additional investigation required based on the data in the submittals.

N



LANL commented the requirement in paragraph four of this section, for full suite analysis of groundwater samples during the monitoring phase is overly prescriptive and burdensome, and NMED has not explained or justified

NMED does not believe a limited sampling suite is currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in the required canyon-specific workplans.

N

Subject



Section/ Attachment

Unique No.


Y/N the need for it in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific contaminants of concern in the watershed upstream of the monitoring locations, and thorough review of existing data, including the location of contaminant sources and groundwater occurrences. However, NMED provides no reference to this information in the administrative record in support of this requirement. The Laboratory’s approach to further groundwater monitoring is based upon the Laboratory’s ongoing reevaluation of the current monitoring program in accordance with the DQO process. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions.

Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.



LANL commented the requirement in this section to submit a long-term groundwater monitoring and sampling work plan prior to completion of hydrogeologic characterization, is impracticable if NMED expects a fully comprehensive plan prior to completion of the ongoing Hydrogeologic Workplan. The HWP provides for a groundwater quality characterization phase. The information derived from this work is essential to the preparation of a long-term ground water monitoring work plan that is both effective and


N

Subject



Section/ Attachment

Unique No.


Y/N resource-efficient. The Laboratory’s approach is to prepare the long-term groundwater monitoring plan after completion of the HWP, and activities for individual RFI investigations.



LANL commented that the requirement to monitor well R-22 in paragraph three of this section, is factually inaccurate. Well R-22 is located on Mesita del Buey east ofTA-54, and not in Mortandad Canyon. The canyons on either side of Mesita del Buey are Pajarito Canyon and Cañada del Buey. Therefore, R-22 should not be included in the Draft Order section on Mortandad Canyon.

The location of regional monitoring well R-22 could be included with either Pajarito or Mortandad Canyon. NMED decided to include it in the Mortandad Canyon section.

N

R291 SectionIV.B.3

17 WaterCanyon/Cañon de Valle Watershed


Surface water sampling is addressed in Sections IV.A and IX of the Order. It is NMED’s opinion that Section IV.B.1.b does not need to be repeated in Section IV.B.3.

N


38 Water Canyon/Cañon de Valle Alluvial Groundwater Well Installation

LANL commented the requirement in this section, to install alluvial monitoring wells in Water Canyon and Cañon de Valle is overly prescriptive and unsupported by NMED in the administrative record. Recent geophysical results from Cañon de Valle present a detailed view of the canyon subsurface, and should be used to determine the location of any new monitoring holes. Similarly, on-going

NMED acknowledges work completed and documents submitted to date at LANL. At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted the results of its geophysical investigations in Water Canyon. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the

N

Subject



Section/ Attachment

Unique No.


Y/N activity to monitor stream flow in Cañon de Valle provides reference data that is essential for reasonably and efficiently determining the location of boreholes, and possibly, piezometers. Reference to similar data and methods are also applicable to the selection of monitoring locations in Water Canyon. Reference to this data will likely reveal that alternative locations are more appropriate than those summarily prescribed by NMED in this section. However NMED provides no reference to this, or any information in the administrative record, in support of this prescriptive requirement.

Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.


38 Canyon/ Cañonde Valle Alluvial Groundwater Well Installation

LANL commented there is no sound technical justification for NMED’s direction to replace well R-25. Despite construction problems that affected two of nine well screens, R-25 continues to provide valuable characterization data for TA-16 area. R-25 has achieved its primary characterization goals determining hydrogeologic conditions in the previously unstudied southwest part of the Laboratory and to determine if groundwater contamination exists downgradient of HE release sites at TA-16. Characterization of HE in groundwater and determination of vertical gradients continues in the completed well. Continued sampling at R-25 enables the Laboratory to determine temporal trends in HE concentrations and to investigate

As stated in NMED’s letter to LANL, dated September 5, 2000, “at this time, HWB will not accept data from regional aquifer well R-25 for ER or monitoring or surveillance activities.” NMED believes that LANL cannot obtain quality groundwater samples from well R-25. NMED believes there is substantial evidence to indicate that R-25 was not properly installed; therefore, NMED continues to recommend that LANL plug and abandon R-25.

N

Subject



Section/ Attachment

Unique No.


Y/N whether pressure heads in groundwater are responding to seasonal fluctuations in surface water availability. The R-25 casing is screened and packed with sand around the screens to enable the representative collection of groundwater samples. The annular space between the borehole and well casing between screens is sealed to prevent the cross contamination of samples in the groundwater. The integrity of these seals between each of the well screens was confirmed by a neutron log performed by Schlumberger, Inc. on April 21, 1999, and confirmed by transducer data in the completed well. The stainless steel well was open for water to communicate from the upper screens to the lower screens for approximately 5 months while awaiting the installation of the Westbay equipment. This period of cross-communication was mitigated by the observation that the regional water level in the well rose during this period, indicating the lower screens did not accept water at the same rate that was supplied from above. In addition, the well was extensively developed, removing much of the water that flowed into the lower part of the well. This characterization well has been sampled four times for HE compounds, tritium, stable isotopes, anions, metals, volatile organic compounds, semivolatile organic compounds,

Subject



Section/ Attachment

Unique No.


Y/N radionuclides, total organic carbon and dissolved organic carbon fractionation. Contaminants of concern at well R-25 include HECs and VOCs associated with TA-16 operations, including production of high explosives. RDX and TNT are the contaminants of greatest concern found at well R-25 because of the low USEPA health advisory limit for RDX and TNT. Concentrations of HECs and tritium have decreased in the regional aquifer during the four sampling events conducted at well R-25. This suggests that the HECs introduced to the regional aquifer during drilling and well construction at well R-25 are re-equilibrating with regional groundwater. Concentrations of HECs within the upper saturated zone at well R-25 remain elevated, which is consistent with the past long-term discharge of these contaminants from the 260 outfall and other sources at TA-16. The compounds RDX and TNT are mobile in groundwater at well R-25 because adsorption of these two solutes onto the Bandelier tuff and Puye formation is minimal. These hydrogeologic units contain very low amounts of solid organic matter, the dominant adsorbent for RDX, TNT and other organic compounds. Both RDX and TNT are recalcitrant, however TNT does biodegrade under anaerobic conditions in the presence of dissolved

Subject



Section/ Attachment

Unique No.


Y/N organic carbon and hydrogen sulfide. Degradation of TNT to 2-amino-4,6-dinitrotoluene and 4-amino-2,6-dinitrotoluene is observed at well R-25. Groundwater at R-25 is oxidizing which is consistent with the mobility of RDX, TNT, and other HECs observed at well R-25. Groundwater samples collected from screen No. 3, however, are compromised because of grout contamination, which results in alkaline pH (>10) conditions. Such conditions enhance degradation of RDX through hydrolysis reactions. Overall, construction of well R-25 has not influenced the fate and transport of HECs in groundwater at the well. Screens No. 1, No. 2, No. 4, No. 5, No. 6, No. 7, and No. 8 are considered reliable for groundwater sampling. In summary, well R-25 should not be plugged and abandoned because reasonable and technically defensible groundwater samples and analytical results have been collected from the well (excluding screen No. 3). Useful hydrologic and geochemical information and data is being collected from well R-25 to evaluate trends in contaminant mobility and pressure gradients.


38 Water Canyon/Cañon de Valle Alluvial Groundwater Well Installation

LANL commented the requirement in this section to complete wells’ R-24, R-26, R-27 and R-28, is both unreasonably burdensome and inconsistent with prior understandings

NMED does not agree with deleting any of the Hydrogeologic Workplan wells. While the exact locations of the HWP wells are subject to change based on data needs, the number of wells that LANL agreed to drill under the HWP is set at 32.

N

Subject



Section/ Attachment

Unique No.


Y/N and agreements between the Laboratory and NMED. Well R-26 was eliminated, and wells R-27 and R-28 were combined into a single well last fall, during the Laboratory’s re-evaluation of data quality objectives for Hydrogeologic Workplan. This subject was discussed with NMED at the Quarterly Meeting of the Hydrogeologic characterization Program, on October 16, 2001, and also documented in the “Groundwater Annual Status Report for Fiscal Year 2001”. Well R-26 was eliminated because wells R-6 and R-24 are expected to provide sufficient information about the hydrology across the Pajarito fault system, and background water quality upgradient of the Laboratory operations. The original site for well R-27, at the confluence of Water Canyon and Cañon de Valle, is too small to support drilling operations, and the closest possible alternative site for well R-27 is very near the planned location for well R-28. Visits to the area, by the Laboratory and NMED staff, identified a single well site that would satisfy the requirements for the original R-27 and R-28 locations. This requirement should thus be modified to eliminate well R-26, and combine wells R-27 and R-28 into a single well in the Hydrogeologic Workplan. The Laboratory agrees with NMED that well R-24 should be installed as

However, based on information obtained during drilling activities, NMED may require the installation of additional groundwater monitoring wells. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

Subject



Section/ Attachment

Unique No.


Y/N planned.

R295 SectionIV.B.3.iv

38 Water Canyon/Cañon de Valle Groundwater Monitoring

LANL commented the requirement in paragraph one of this section, to monitor most wells and springs in Water Canyon and Cañon de Valle at a quarterly frequency (as specified in Section XII, Table XII-1), is overly prescriptive and without justification in the administrative record. Within the regional aquifer beneath the Pajarito Plateau, groundwater moves very slowly (averaging only 50-250 feet per year), and thus groundwater will show very little change in chemistry as a function of time. Sampling results have demonstrated that sampling on a quarterly basis is not reasonably necessary, and will provide very little, if any, meaningful data. NMED has provided no evidence in the administrative record to support the need for such extensive monitoring. Such sampling would be very costly. The Laboratory’s approach is to determine monitoring frequency on a case-by-case basis, and in accordance with the objectives of the monitoring program.

NMED does not believe that monitoring wells and springs in Water Canyon less frequently than quarterly is currently supported by the administrative record. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. Sampling costs do not outweigh regulatory requirements and protection of human health and the environment. In addition, NMED believes there is insufficient evidence to determine the rate at which groundwater flows beneath the Facility. Therefore, NMED requires further investigation as outlined in the Order.

N

Subject



Section/ Attachment

Unique No.


Y/N R296 Section

IV.B.3.iv 38 Water Canyon/

Cañon de Valle Groundwater Monitoring

LANL commented the requirement in paragraph one of this section, to monitor groundwater at the nine existing alluvial groundwater locations in Water Canyon/ Cañon de Valle is impracticable at this time, and inconsistent with the ongoing Corrective Measures study to assess remediation and monitoring needs in this area. Over the last five years, several new shallow wells have been installed by the Laboratory for characterization purposes, and data related to this work is currently being evaluated by the Laboratory to assess the long-term monitoring needs for this area. The Laboratory’s approach is to follow this process to completion, pursuant to existing NMED-approved work plans, prior to the conduct of monitoring at these locations.

At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted all of the results of its investigations in Water Canyon. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. NMED expects that long term monitoring plans will be updated as new wells are installed and as new information is acquired that affects the monitoring requirements.

N

Subject



Section/ Attachment

Unique No.


Y/N R297 Section



LANL commented the requirement in paragraph two of this section, to collect samples from intermediate wells in Water Canyon/ Cañon de Valle is impracticable at this time, and inconsistent with the ongoing Corrective Measures study to assess remediation and monitoring needs in this area. Several new regional aquifer wells with screens in the perched intermediate zones have been installed by the Laboratory in the past five years for characterization purposes, and data related to this work is currently being evaluated by the Laboratory to assess the long-term monitoring needs for this area. The Laboratory’s approach is to follow this process to completion, pursuant to existing NMED-approved work plans, prior to the conduct of monitoring at these locations.


N

Subject



Section/ Attachment

Unique No.


Y/N R298 Section



LANL commented the requirement in paragraph two of this section, to collect samples from regional wells in Water Canyon/ Cañon de Valle is impracticable at this time, and inconsistent with the ongoing Corrective Measures study to assess remediation and monitoring needs in this area. Several new regional aquifer wells with screens in the perched intermediate zones have been installed by the Laboratory in the past five years for characterization purposes, and data related to this work is currently being evaluated by the Laboratory to assess the long-term monitoring needs for this area. The Laboratory’s approach is to follow this process to completion, pursuant to existing NMED-approved work plans, prior to the conduct of monitoring at these locations.


N

Subject



Section/ Attachment

Unique No.


Y/N R299 Section



LANL commented the requirement in paragraph four of this section, to conduct full suite analysis of intermediate groundwater samples in Water Canyon/ Cañon de Valle is overly prescriptive and unsupported by any evidence in the administrative record. NMED provides no evidence in the record to support the required analyte suites or the frequency of sampling. Analytical suites for groundwater monitoring should reasonably be determined following the identification of specific contaminants of concern in the vicinity of the monitoring locations, and the results of historical data, such as the location of contaminant sources and groundwater occurrences. A significant body of analytical data is available for NMED review, and must reasonably be relied upon to determine the scope of the analytical suite.

NMED does not believe a limited sampling suite is currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N R300 Section



LANL commented the requirement to submit “[a] long-term groundwater monitoring and sampling work plan…,” prior to completion of the hydrogeologic characterization previously required by NMED, and implementation of the groundwater sampling program, is unreasonably burdensome and is inconsistent with ongoing NMED-approved work. The Hydrogeologic Workplan, and Corrective Measures Study are currently in progress, and provide for a groundwater quality characterization phase. The Laboratory’s approach would be to prepare a long-term groundwater monitoring plan after completion of the HWP and activities for individual RFI investigations.


N

R301 SectionIV.B.4.b

17 Pajarito CanyonInvestigation


Surface water sampling is addressed in Sections IV.A and IX of the Order. It is NMED’s opinion that Section IV.B.1.b does not need to be repeated in Section IV.B.4.b.

N


38 Pajarito CanyonAlluvial Groundwater Well Installation

LANL commented the requirement in paragraph two of this section, that “…monitoring well 3MAO-2 be moved into reach TH1 East…” is impracticable, if not impossible, because groundwater may not be present at this location in a quantity sufficient for monitoring. The

An opportunity is provided in the Order for LANL to provide additional information regarding the likely presence or absence of alluvial groundwater in Pajarito Canyon. It is in both NMED’s and LANL’s best interest to install wells in locations that are most likely to have water sufficient for monitoring.

N

Subject



Section/ Attachment

Unique No.


Y/N Laboratory agrees that an alluvial groundwater monitoring well is needed in the general vicinity of Reach TH-1E. However, the Laboratory’s approach would be to install well 3MAO-2 in the general vicinity of the location proposed in the Work Plan for Pajarito Canyon, where groundwater is present to accomplish monitoring.


38 Pajarito CanyonAlluvial Groundwater Well Installation

LANL commented the requirement in paragraph five of this section, to install four alluvial aquifer systems piezometers, is overly prescriptive and burdensome and without support in the administrative record. Although it appears NMED’s purpose in requiring these four piezometers is to evaluate loss of alluvial groundwater in the vicinity of TA-54, it is unclear how such data relates to drainage associated with TA-54, or how this data would be used in a monitoring or decision context. In the absence of any evidence in the administrative record to support this requirement, it is not justified.

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED does not believe that LANL understands the alluvial groundwater system in the vicinity of TA-54 and therefore believes that the requirement to install piezometers is warranted. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N


38 Pajarito CanyonIntermediate Groundwater Well Installation

LANL commented the requirement in paragraph two of this section, that “[t]wo nested piezometer sets shall be installed in the vicinity of well PCO-3 to assess the vertical gradients in the Guaje Pumice Beds and the Cerros del Rio Basalt,” is impracticable at this time, and may be unnecessary. This requirement should reasonably be contingent upon an evaluation of the need for an intermediate well in the

At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted all of the results of its investigations in Pajarito Canyon, including results from R-23. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N vicinity of PCO-3. The need for a well in the vicinity of PCO-3 is, itself, reasonably contingent upon the detection of a perched horizon in regional well R-23. Only if a perched saturated zone is present in this portion of Pajarito Canyon, would the proposed location provide useful information concerning background hydrogeology in the Guaje Pumice Bed and in the Cerros del Rio lavas in lower Pajarito Canyon. The Laboratory’s approach would be to make this requirement contingent on the results of the work and findings discussed above.


38 Pajarito CanyonIntermediate Groundwater Well Installation

LANL commented the requirement in paragraph two of this section, that “[o]ne intermediate zone monitoring well…be installed between the flood retention structure and proposed well PCAO-6. The Laboratory’s approach is to use geophysical methods is to determine if perched water exists. If no evidence of perched water is detected, then the proposed well would not encounter water, and thus would not be required. The requirement for this well should be contingent on the presence of intermediate perched water, which can be detected by means other than drilling a well.

Geophysical surveys may be appropriate for determining locations of groundwater. LANL must provide rationale and justification to NMED regarding the usefulness and accuracy of its geophysical investigations. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N


38 Pajarito Canyon Groundwater Monitoring

LANL commented the requirement in this section, to monitor wells in Pajarito Canyon at a quarterly frequency (as specified in Section XII, Table XII-1), is unreasonably burdensome and overly

NMED does not believe that monitoring wells in Pajarito Canyon less frequently than quarterly is currently supported by the administrative record. An opportunity is provided in the Order for LANL to provide additional information or justify a

N

Subject



Section/ Attachment

Unique No.


Y/N prescriptive and without support in the administrative record. Within the regional aquifer beneath the Pajarito Plateau, groundwater moves very slowly and thus groundwater will show very little change in chemistry as a function of time. Sampling results have demonstrated that sampling on a quarterly basis is not reasonably necessary, and will provide very little, if any, meaningful data. NMED has provided no evidence in the administrative record to support the need for such extensive monitoring. In addition, such sampling would be very costly. The Laboratory’s approach is to determine monitoring frequency on a case-by-case basis, and in accordance with the objectives of the monitoring program.

modification of the required work in the specific canyon work plan. Sampling costs do not outweigh regulatory requirements and protection of human health and the environment. In addition, NMED believes there is insufficient evidence to determine the rate at which groundwater flows beneath the Facility. Therefore, NMED requires further investigation as outlined in the Order.


38 Pajarito CanyonGroundwater Monitoring

LANL commented the requirement in paragraph one of this section, to sample groundwater from alluvial wells in Pajarito Canyon, is not justified by any evidence in the administrative record, and inconsistent with current NMED-approved work. Alluvial groundwater is currently being monitored at three of the specified wells in Pajarito Canyon. Further, the “Work Plan for Pajarito Canyon” outlines the RFI for groundwater characterization in Pajarito Canyon. This work plan proposes a sampling design that should be implemented prior to making any decision regarding the need for

At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted all of the results of its investigations in Pajarito Canyon. NMED will review and assess documents, including the Pajarito Canyon RFI, submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N

Subject



Section/ Attachment

Unique No.


Y/N additional groundwater monitoring in this area. Until the Pajarito Canyon RFI and related work is completed, there is not basis, much less a reasonable basis, in the administrative record to support the monitoring prescribed in the Draft Order.



LANL commented the requirement in paragraph two of this section, to conduct intermediate groundwater monitoring, is overly prescriptive and without any justification in the administrative record, and is inconsistent with current NMED-approved work. The RFI for Pajarito Canyon should be completed prior to determining any new monitoring requirement. Decisions regarding new intermediate groundwater monitoring should reasonably await the results of the hydrogeological investigations performed during installation and sampling of intermediate groundwater monitoring wells. NMED provides no evidence for the requirement to monitor all intermediate groundwater wells in Pajarito Canyon. Until the Pajarito Canyon RFI and related work is completed, there is no reasonable basis, or any evidence in the administrative record, to support the monitoring prescribed in the Draft Order.

At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted all of the results of its investigations in Pajarito Canyon. NMED will review and assess documents, including the Pajarito Canyon RFI, submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N



LANL commented the requirement in paragraph three of this section, to conduct regional groundwater monitoring is overly prescriptive and

At the time of the issuance of the Order, on May 2, 2002, LANL had not submitted all of the results of its investigations in Pajarito Canyon. NMED will review and assess documents, including the

N

Subject



Section/ Attachment

Unique No.


Y/N without justification in the administrative record, and is inconsistent with current NMED-approved work. The RFI for Pajarito Canyon should be completed prior to determining any new monitoring requirements. Decisions regarding new regional groundwater monitoring should reasonably await the results of the hydrogeological investigations performed during installation and sampling of regional groundwater monitoring wells. NMED provides not evidence for the requirement to monitor all regional groundwater wells in Pajarito Canyon. Until the Pajarito Canyon RFI, and related work, is completed, there is no reasonable basis, or any evidence in the administrative record, to support the monitoring prescribed in the Draft Order.

Pajarito Canyon RFI, submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

Subject



Section/ Attachment

Unique No.


Y/N R310 Section

IV.B.4.b.v 38 Pajarito Canyon


LANL commented the requirement in paragraph four of this section, to conduct full suite analysis of alluvial, intermediate and regional monitoring well samples in Pajarito Canyon, is overly prescriptive and without justification in the administrative record. Analytical suites for groundwater monitoring should reasonably be determined following the identification of specific COCs in the vicinity of the monitoring locations, and the results of historical data. NMED provides no evidence in the record to support the analyte suites or the frequency of sampling required analyte suites through ongoing reevaluation of the current monitoring program, and in accordance with DQO process, thus resulting in sampling decisions that are supported by site-specific data. The DQO process was developed by the USEPA as a planning tool to ensure that data collected is adequate to resolve decisions.

NMED does not believe a limited sampling suite is currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in the canyon-specific workplans. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.

N



LANL commented the requirement to submit “[a] long-term groundwater monitoring and sampling work plan…,” prior to completion of the hydrogeologic characterization previously required by NMED, and implementation of the groundwater sampling program, is unreasonably burdensome and impracticable to perform in light of this ongoing NMED-approved work. The

NMED acknowledges work completed and documents submitted to date at LANL. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals. The Order is a comprehensive document that includes work that has already been agreed upon by NMED and LANL in various other documents, such as the HWP and the individual Canyon Work Plans. NMED expects that long term monitoring plans will be updated as new

N

Subject



Section/ Attachment

Unique No.


Y/N Hydrogeologic Workplan and Corrective Measures Study are currently in process, and provide for a groundwater quality characterization phase. NMED has not explained why the current plans need to be modified before the data is received. The Laboratory’s approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual RFI investigations.

wells are installed and as new information is acquired that affects the monitoring requirements. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.


38 Background LANL commented that the fifth sentence of the first paragraph states, “PCBs have been detected in sediment samples obtained from the wetland area.” Although PCBs have been detected in sediment samples, this unqualified statement is incomplete. In a document titled “Summary Status of Environmental Restoration Project Investigations In Upper Sandia Canyon” it is reported that only two of 72 samples collected in Sediments in Upper Sandia Canyon have detected values above the USEPA’s most conservative cleanup level of 1 mg/kg. One of the results (11 mg/kg) was from a sediment package that was removed as part of the Voluntary Corrective Action for SWMU 03-056(c) Laboratory Supp. AR, at 59. The only other sample with results above the 1 mg/kg level is a detection of 2 mg/kg.

As LANL states in its comment, PCBs have been detected in a sediment sample obtained from the wetland area in Sandia Canyon. There is a long history of transformer storage and wastewater and power plant cooling water discharges into Sandia Canyon, as well as acknowledged PCB contamination. NMED has not received current sampling data from Sandia Canyon, and therefore cannot claim that there is no PCB contamination in the wetland area.

N


38 Background LANL commented that the fifth sentence of the first paragraph also

As LANL states in its comment, mercury has been detected in a surface water sample obtained from

N

Subject



Section/ Attachment

Unique No.


Y/N states that “mercury has been detected in baseline surface and water samples.” This unqualified statement is incomplete, and implies that there is a prevalent problem related to the presence of mercury in this system. In a letter dated July 30, 1999, the Laboratory submitted results of water sample analyses for four quarters to NMED’s DOE Oversight Bureau. Of the 38 analyses reported, only one result (0.29 ug/L or parts per billion) was an unqualified detection of mercury. This sample was non-filtered. A single detection out of 38 samples, in an unfiltered sample, is in no way indicative of a prevalent mercury problem in this system; in fact, its absence in all other samples indicates the opposite.

the wetland area in Sandia Canyon. There is a long history of transformer storage and wastewater and power plant cooling tower discharges into Sandia Canyon. NMED has not received current sampling data from Sandia Canyon, and therefore cannot claim that there is no mercury contamination in the surface water in the canyon.

R314 SectionIV.B.5.b

17 Sandia CanyonInvestigation


Surface water sampling is addressed in Sections IV.A and IX of the Order. It is NMED’s opinion that Section IV.B.1.b does not need to be repeated in Section IV.B.5.b.

N


38 Sandia CanyonGroundwater Well Installation

LANL commented the requirement in paragraph two of this section, to install four piezometers in the vicinity of alluvial wells, is unreasonably burdensome. Although the type of information sought by NMED under this requirement (e.g. groundwater loss)

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED does not believe that LANL understands the alluvial groundwater system in Sandia Canyon and therefore believes that the piezometers are warranted. NMED will review and assess documents submitted by LANL and will determine

N

Subject



Section/ Attachment

Unique No.


Y/N can sometimes by provided by piezometers, the need for this type of data should be determined only after data from the proposed alluvial groundwater monitoring wells is available. Consideration of alternative methods, such as a single, deeper well, with detailed hydraulic characterization and tracer methods, or geophysical methods, should be considered to meet this objective. These alternative methods are often far more effective, and comprehensive in spatial coverage.

the amount of additional investigation required based on the data in the submittals. Geophysical surveys may be appropriate for determining locations of alluvial groundwater. LANL must provide rationale and justification to NMED regarding the usefulness and accuracy of its geophysical investigations. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.



LANL commented the requirement in paragraph three of this section, to install “[o]ne intermediate aquifer well…in the vicinity of regional aquifer well R-12,” is unreasonably burdensome. Completed regional well R-12 already has two screens above the level of regional saturation. One of these screens is at a perched horizon, at the base of the Cerros del Rio lavas, and the other is at a perched horizon in Puye gravels. Existing perched-zone screens in R-12 thus make the proposed intermediate well redundant and not reasonably necessary.

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that the intermediate monitoring well listed in the Order is warranted to adequately monitor groundwater in Sandia Canyon. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.

N



LANL recommended that the requirement to install regional aquifer well R-10, should be removed under a previous understanding between the Laboratory and NMED. Well R-10 was eliminated during the Laboratory re-evaluation of data quality objectives for the Hydrogeologic Workplan last

NMED does not agree with deleting any of the Hydrogeologic Work Plan wells. While the exact locations of the HWP wells are subject to change based on data needs, the number of wells that LANL agreed to drill under the HWP is set at 32. However, based on information obtained during drilling activities, NMED may require the installation of additional groundwater monitoring

N

Subject



Section/ Attachment

Unique No.


Y/N fall, because the planned well coverage is sufficient to characterize the hydrogeology for this area of the Pajarito Plateau, and wells’ R-11 and R-12 are sufficient to characterize contaminant from sources in Sandia Canyon. This issue was discussed with NMED at the Quarterly meeting of the Hydrogeologic Characterization Program in October 2001, and at a meeting in Santa Fe on November 27, 2001. Removal of well R-10 from the scope of the Hydrogeologic Workplan was also documented in the “Groundwater Annual Status Report for Fiscal Year 2001,” transmitted to NMED on February 6, 2002. The Laboratory agrees that well R-11 should be installed as planned.

wells. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans.


38 Sandia CanyonGroundwater Monitoring

LANL commented the requirement in this section, to monitor wells in Sandia Canyon at a quarterly frequency (as specified in Section XII, Table XII-1) is unreasonably burdensome and overly prescriptive without adequate corresponding support in the administrative record. Within the regional aquifer beneath the Pajarito Plateau, groundwater will show very little change in chemistry as a function of time. Sampling results have demonstrated that sampling on a quarterly basis is not reasonably necessary, and will provide very little meaningful data. NMED has provided no evidence in the administrative

NMED does not believe that monitoring wells in Sandia Canyon less frequently than quarterly is currently supported by the administrative record. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. Sampling costs do not outweigh regulatory requirements and protection of human health and the environment. In addition, NMED believes there is insufficient evidence to determine the rate at which groundwater flows beneath the Facility. Therefore, NMED requires further investigation as outlined in the Order.

N

Subject



Section/ Attachment

Unique No.


Y/N record to support the need for such extensive monitoring. In addition, such sampling would be very costly. The Laboratory’s approach is to determine monitoring on a case-by-case basis, in accordance with the objectives of the monitoring program.


38 Sandia CanyonGroundwater Monitoring

LANL commented the requirement in paragraph two of this section, for full suite analysis of all monitoring wells in Sandia Canyon, is overly prescriptive without adequate corresponding support in the administrative record. NMED provides no evidence in the record to support the required analyte suites or the frequency of sampling. Analytical suites for alluvial groundwater monitoring should reasonably be determined following the identification of specific COCs in the vicinity of the monitoring locations. Alluvial groundwater monitoring should reasonably be based on a thorough review of existing data, and other relevant information, such as the location of contaminant sources and groundwater occurrences. However there is no evidence in the record to support NMED’s overly prescriptive approach. The Laboratory’s approach is to rely on its ongoing re-evaluation of the current well monitoring program following the DQO process.

NMED does not believe a limited sampling suite is currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in the required canyon-specific workplans.

N

Subject



Section/ Attachment

Unique No.


Y/N R320 Section

IV.B.5.b.iii 38 Sandia Canyon


LANL commented the requirement in paragraph three of this section, to submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, and impracticable, prior to the completion of the hydrogeologic characterization required by NMED. The Hydrogeologic Work Plan, currently in process, provides for a groundwater quality characterization phase and thus will provide data useful for the development of ground water monitoring plan. The Laboratory’s approach is to develop a long-term groundwater monitoring plan over times, using the iterative process that builds from the HWP and RFI actions, and is consistent with USEPA guidance and conventional practices nationwide.


N

Subject



Section/ Attachment

Unique No.


Y/N R321 Section

IV.B.6.b.ii 38 Groundwater

Well Installation for the Other Canyons

LANL commented the requirement in this section to install “[o]ne alluvial monitoring well [in Ancho Canyon]…downgradient of MDA Y at TA-39,” is premature and impracticable at this time, because needed data has not yet gathered and/or analyzed. The Laboratory has not yet prepared a work plan for the “Other Canyons” (including Ancho Canyon). The Laboratory’s process for evaluating and proposing alluvial groundwater monitoring in each canyon, includes a review of existing archival information on PRSs, consideration of available Environmental surveillance Program data, and the incorporation of other information, including input from the NMED. The Laboratory’s approach would be to describe the requirement for a new monitoring well in a work plan addressing the “Other Canyons.”

Based on information available to NMED at the time of the issuance of the Order on May 2, 2002, NMED believes that one alluvial monitoring well downgradient from MDA Y is warranted. NMED will review and assess documents submitted by LANL and will determine the amount of additional investigation required based on the data in the submittals. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the “Other Canyons” work plan.

N

Subject



Section/ Attachment

Unique No.


Y/N R322 Section

IV.B.6.b.iii 38 Groundwater

Monitoring for the Other Canyon

LANL commented the requirement in paragraph one of this section, to monitor all wells in the Ancho Canyon at a quarterly frequency (as specified in Section XII, Table XII-1), is unreasonably burdensome and overly prescriptive without adequate corresponding support in the administrative record. Within the regional aquifer beneath the Pajarito Plateau, groundwater moves very slowly and thus groundwater will show very little change in chemistry as a function of time. Sampling results have demonstrated that sampling on a quarterly basis is not reasonably necessary, and will provide very little meaningful data. NMED has provided no evidence in the administrative record to support the need for such extensive monitoring. In addition, such sampling would be very costly. The Laboratory’s approach is to determine monitoring frequency on a case-by-case basis, in accordance with the objectives of the monitoring program.

NMED does not believe that monitoring wells in Ancho Canyon less frequently than quarterly is currently supported by the administrative record. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. Sampling costs do not outweigh regulatory requirements and protection of human health and the environment. In addition, NMED believes there is insufficient evidence to determine the rate at which groundwater flows beneath the Facility. Therefore, NMED requires further investigation as outlined in the Order.

N

R323 SectionIV.C

36 Technical AreaInvestigations

One commenter supported NMED’s concerted focus on TA-54 and Area G in particular.


R324 SectionIV.C

38 Technical AreaInvestigation

LANL commented the requirements in this section are generally inconsistent with and disregard, work previously conducted by the Laboratory under approved work plans, and NMED and USEPA guidance. The program prescribed in this section, does not

NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at sites identified in the Order. NMED recognizes that LANL may have conducted additional work

N

Subject



Section/ Attachment

Unique No.


Y/N adhere to the DQO process required under USEPA RCRA guidance. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions. The requirements in this section also make no reference to NMED’s position paper on Determination of Extent of Contamination (March 2, 2000). The collection and analysis of data, in conformance with relevant NMED and USEPA guidance, is essential to support decisions regarding further investigations. These requirements are also inconsistent with, and make no reference to work previously conducted under USEPA or NMED-approved work plan. In general, NMED’s overly prescriptive approach to investigations in this Draft Order, disregards NMED and USEPA guidance, and work previously conducted by the Laboratory under USEPA or NMED-approved work plans.

that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the canyon-specific work plans. As stated in the comment, the DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007)) when data are being used to select between two opposing conditions, such as determining compliance with a standard. If LANL proposes that EPA guidance is required without modification for any reason, then DOE internal procedures would not be available for use in Environmental Management activities. LANL would therefore be precluded from using its SOPs developed to conduct environmental characterization and monitoring activities unless it was identical to the procedures outlined in EPA guidance. LANL may exercise its option to withdraw its SOPs from consideration during the implementation of the Order. The approach for site investigations required in the Order is in accordance with NMED’s position paper “Determination of Extent of Contamination” (March 2, 2000).

Subject



Section/ Attachment

Unique No.


Y/N R325 Section

IV.C.1 35 Technical Area

54 One commenter questioned whether the intent of the Final Order was to “cure” prior violations such as the lack of approved closure plans for MDAs G, H, and L of TA-54 so that a permit could be issued for continued operation of Area G. This commenter noted that the legal and actual operating status for Area G (and possible new MDAs for low-level radioactive waste) are unclear under the draft CAO, which may indicate that NMED is trading a decade of future site investigations for continued operation of Area G for an indeterminate period. This commenter recommended that the Final Order should clarify its legal relationship to LANL’s history of unredressed and continuing RCRA violations and state NMED’s intentions for continued operation of Area G and other areas of specific concern.

The Order is intended to address investigation and cleanup at all solid waste management units, including MDA G, at LANL that have had releases of contamination into the environment. Waste management operations at MDA G will be addressed in the TA-54 permit and are beyond the scope of the Order.

N

R326 SectionIV.C.1

38 Technical Area54

LANL commented the requirements in this section, regarding MDAs G, H, and L, are in conflict with existing RCRA permits. The Draft Order requirements in this section for MDAs G, H, and L conflict with NMED’s NOD General Part A, April 1998, Revision 0.0, General Part B, October 1998, Revision 1.0 RCRA Permit Applications, dated May 16, 2002. Attachment A, Paragraph 29, requires that MDAs G, H, and L be addressed under the operating permit through the submittal of Closure and Post-Closure Plans for

LANL’s renewed operating permit, scheduled to be issued in draft form in 2003, is required to address investigation and cleanup at the Facility (20.4.1.900 NMAC incorporating 40 C.F.R. 270.32 (b)(1). The operating permit will reference the Order for investigation and cleanup compliance.

N

Subject



Section/ Attachment

Unique No.


Y/N each MDA. This contradicts the Draft Order requirement that each MDA be investigated as a corrective action unit.

R327 SectionIV.C.1.b


LANL commented the requirement in this section, regarding “Historical Investigation” information for MDAs G and L, is duplicative of work previously submitted to NMED. The historical information for MDAs G, H, and L was previously submitted to NMED pursuant to the NMED-approved RFI Work Plan for OU 1148; the March 2000 RFI Report for MDAs G, H and L at Technical Area 54; and the TA-54 reference set. NMED requested that the Laboratory divide this report into three separate RFI reports, and update the vapor phase plume information for MDAs G and L. The RFI report for MDA H was submitted in April 2001. The Laboratory’s current approach is to submit an updated RFI report for MDA L in late FY2002, and the report for MDA G in the second quarter of FY2003.

NMED conducted a review of documents submitted by LANL regarding MDAs G and L and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at the sites identified in the Order. The investigations of MDAs G and L must be conducted in accordance with the requirements of the Order and submittals for site investigations conducted at MDAs G and L also must comply with the requirements of the Order. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in each site-specific work plan.

N

R328 SectionIV.C.1.c and Table XII-2

4 TA-54, SWMUs54-013(b), 54-014(b-d), 54-015(k), 54-017, 54-018, 54-019, and 54-020 (MDA G)

One commenter noted that TA-54 contains MDAs G, H, and L which are RCRA-regulated units for which NMED has required submission and execution of RCRA closure plans; a RFI Report for channel sediment pathways from MDAs G, H, J, and L was [submitted] in 1996; RFI reports were [submitted] on tritium in surface soils at MDA G in 1997; a RFI report

Closure plans for MDAs G and L will be included with LANL’s renewed RCRA operating permit currently in preparation. MDA H is being closed under the corrective action CMS process. The schedule in Section XII of the Order outlines the deliverables and dates for MDAs G, H, and L. According to Table XII-2, all corrective measures studies work plans for these three MDAs will be submitted to NMED no later than October 2004, with reports scheduled for submittal no later than

N

Subject



Section/ Attachment

Unique No.


Y/N concerning MDAs G, H, and L was [submitted] in March 2000; a CMS plan for MDA H was [submitted] in March 2001; a RFI report and a plan for supplemental sampling were [submitted] in May 2001; a RFI report addendum was scheduled for submission in April 2002 but was not [submitted]; and a monitoring Compliance Demonstration for MDA H and a RCRA closure plan for MDA G were [submitted] in April 2002. This commenter suggests that NMED should require that RFI reporting concerning MDAs G, H, and L be completed in 2002 and that a CMS be conducted and reports submitted before the end of 2003.

October 2005. NMED believes that this schedule is appropriate for the amount of work that is anticipated to be required. MDA J is not a RCRA Subtitle C unit. MDA J is a RCRA Subtitle D unit and is being closed under NMED Solid Waste Regulations.

R329 SectionIV.C.1.c.i

38 MDA GInvestigation Work Plan

LANL commented the requirements in this section, regarding the submission of a “MDA G Investigation Work Plan”, are inconsistent with, and/or duplicative of, work previously requested by NMED. In December 1993, USEPA approved the RFI Work Plan for OU 1148, including the investigation plan for MDA G. The RFI Work Plan was implemented in 1995. The RFI Report for MDA G was submitted to NMED in March 2000. NMED subsequently requested the separate submission of RFI reports for each of the three MDAs. The Laboratory’s current approach is to submit an updated RFI report for MDA G in the second quarter of FY2003.

NMED has not completed a formal review of the RFI reports for MDAs G and L. The investigations of MDAs G and L must be completed in accordance with the requirements of the Order. The work plan and report submittals for site investigations conducted at MDAs G and L also must comply with the requirements of the Order. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in each site-specific work plan.

N

Subject



Section/ Attachment

Unique No.


Y/N This report will identify any potential data gaps, and a supplemental investigation work plan will be submitted to address these gaps. The multi-agency MDA High Performing Team, which includes NMED as a member, has agreed to this approach.

R330 SectionIV.C.1.c.ii

38 MDA G Survey of Disposal Units

LANL commented this section, requiring the Laboratory to conduct a survey of the MDA G Survey of Disposal Units, is unreasonably burdensome. “As-built” information is currently available for the pits and shafts specific to plan view and depth. However, information on base profiles is not available. The use of ground-penetrating radar or magnetic surveys is questionable for providing a base profile. The only information required to model the site is the inventory and dimensions of each pit and shaft. A base profile does not provide information to support modeling contaminant fate and transport.

NMED requires the base profile for each pit at MDA G in order to determine the low elevation point(s) in each pit. NMED makes the assumption that construction activities may have reduced the permeability of the base of the pits and that liquid releases, if they occurred, may have migrated to areas of lower elevation in the pits. The purpose is to reduce the number of borings required to investigate for releases. LANL has the opportunity to suggest alternate methods for determining the base profile of the pits in the site-specific investigation work plan for the MDA G or to suggest advancing borings in a grid pattern at each pit location. NMED has not approved any model generated for MDA G. In addition, in LANL’s comment number 67 in Attachment 6 of its July 31, 2002 comments on the draft Order, LANL cites having conducted an integrated geophysical survey at MDA C that employed terrain conductivity (EM 31), high sensitivity metal detector (EM61) and ground-penetrating radar to determine the locations and dimensions of the pits and shafts. NMED expects that LANL will provide an explanation in the MDA G-specific work plan required in the Order as to why LANL asserts that this approach is effective at MDA C but would not be effective at MDA G.

N

R331 SectionIV.C.1.c.iii

38 MDA G Drilling Explorations

LANL commented the requirement in paragraph eight of this section, to

NMED requires that vertical borings be advanced to depths of approximately 700 feet below the

N

Subject



Section/ Attachment

Unique No.


Y/N conduct “[a] minimum of one boring … at MDA G to evaluate for the presence of perched groundwater and vapor-phase contamination…,” is unreasonably burdensome. During the drilling of two deep, angle borings beneath MDA L, wet cuttings were encountered at the contact between the Bandelier Tuff and the Cerros del Rio basalts. A thin soil/sediment horizon was reported to occur at the contact. The soil was reported to be moist-to-wet in the geologic logs. After wet cuttings were encountered at 54-1016, the borehole was allowed to rest in order to allow for water to accumulate for sampling. Water did not accumulate (i.e. did not make water) and a sample could not be collected. Further drilling into the basalt encountered occasional moist to wet vesicles within the basalt, but the borehole never made water. Both angle borings were instrumented with Solinst monitoring ports for both pore gas and pore water. Pore water sample collection was attempted from these ports after construction, and no water was recovered. Subsequent quarterly pore gas monitoring at these wells has not recovered any pore water. Wet cuttings, or wet vesicles, should not be interpreted as saturated conditions, and thus would not reasonably be considered to be perched water or perched aquifers. Saturation is defined

ground surface to evaluate for the presence of intermediate perched groundwater and for the presence of vapor phase contamination at MDAs G and L. NMED does not believe that investigations conducted at and northwest of MDA L are adequate to evaluate for the presence of intermediate perched groundwater or vapor-phase contamination beneath MDA G. In addition, LANL sent a letter to NMED dated April 7, 1995 indicating the observed presence of perched groundwater at 592 feet below ground surface in boring 54-1016 titled “Notification of Groundwater Encountered Below Material Disposal Area (MDA) L”. LANL has not identified the maximum depth of vapor-phase contamination at MDA G nor has LANL advanced borings directly beneath MDA G to the depth required in the Order to evaluate for the presence of intermediate perched groundwater.

Subject



Section/ Attachment

Unique No.


Y/N as the volumetric moisture content being equal to the effective porosity of a material. In fact, a material can seem quite “wet,” without actually being saturated. The borehole did not “make water” when it was allowed to rest, and this strongly supports the conclusion that saturated conditions were not encountered. Consequently, the wet cuttings returned from beneath MDA L should be referred to as “elevated moisture levels” in the paleosol/sediment encountered between the Bandelier Tuff and Cerros del Rio basalts. Thus further borings in this area should not be required.


38 MDA G Drilling Explorations

LANL commented the requirements in this section, regarding “MDA G Drilling Explorations” activities, are inconsistent with ongoing work under USEPA-approved work plans, and are contrary to USEPA RCRA Guidance. The borehole characterization program prescribed in this section for MDA G is not technically justified because it does not present scientific data quality objectives (DQOs) required by RCRA guidance, nor does it take into account the results of the investigations already conducted by the Laboratory. The approach in this section is also inconsistent with NMED’s position paper on Determination of Extent of Contamination (March 2, 2000). The Laboratory has conducted the investigation of MDA G using the

NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at MDA G. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in site-specific work plan for MDA G required in the Order. As stated in the comment, the DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the

N

Subject



Section/ Attachment

Unique No.


Y/N DQO process included in the USEPA-approved RFI Work Plan for OU 1148/. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions. The Laboratory submitted the RFI report for MDA G to NMED in March 2000. At the request of NMED, the Laboratory is updating this report, and plans to submit the revised report to NMED in the second quarter of FY2003. Any potential data gaps will be identified in this report, following the DQO process. The Laboratory’s approach is to use the results of this report to plan additional work prior to finalization of the RFI for MDA G. The multi-agency MDA High Performing Team, which includes NMED as a member, has agreed to this approach.

DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. If LANL proposes that EPA guidance is required without modification for any reason, then DOE internal procedures would not be available for use in Environmental Management activities. LANL would therefore be precluded from using its SOPs developed to conduct environmental characterization and monitoring activities unless it was identical to the procedures outlined in EPA guidance. LANL may exercise its option to withdraw its SOPs from consideration during the implementation of the Order. The approach for site investigations required in the Order is in accordance with NMED’s position paper “Determination of Extent of Contamination” (March 2, 2000). The High Performing Team (HPT) consisting of representatives of DOE, UC and NMED has discussed issues at MDA H and MDA L but has not discussed issues at MDA G since 2000. The HPT agreed that NMED would not continue its review of the RFI report for MDAs G, H and L and that LANL would submit a separate RFI report for MDA H in order to expedite the implementation of a remedy at MDA H. No date was set by the HPT for the submittal of RFI reports for MDAs G and L. The HPTs decisions were summarized in a letter sent by NMED to Dr. John Browne and Mr. Ted Taylor of LANL dated December 27, 2000.

Subject



Section/ Attachment

Unique No.


Y/N R333 Section

IV.C.1.c.iv 38 MDA G Soil and

Rock Sampling LANL commented the requirement in paragraph four of this section, to sample for the presence of “HE compounds” at MDA G, is unsupported by evidence in the administrative record. In fact, no entries in the Area G disposal logs indicate the prior disposal of HE compounds, thus indicating evidence to the contrary. HE wastes were routinely flashed at one of the Laboratory firing sites, and some classified HE-contaminated classified shapes were disposed of at MDA H.

NMED conducted a review of disposal records at MDA G in June 2002. A verbal request for copies of disposal records for MDA G was made by Carl Will of NMED to Sean French of LANL on June 11, 2002. The review indicated that LANL’s disposal records for MDA G are incomplete. In addition, LANL reports disposal of firing site debris at MDA G in its Final EIS dated August 1995 (DOE/EIS-0228). An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA G required in the Order.

N

R334 SectionIV.C.1.c.v

38 MDA G CanyonAlluvial Sediment Sampling

LANL commented the requirements in this section, regarding “MDA G Canyon Alluvial Sediment sampling,” are inconsistent with USEPA RCRA Guidance, and work previously conducted and submitted to NMED under a USEPA-approved plan. The RFI Report for Channel Sediment Pathways from MDAs G, H, J, and L and TA-54, was completed in 1996. The results of this work were included in the RFI Report for MDAs G, H, and L submitted to NMED in March 2000. The Laboratory’s investigation followed the DQO process pursuant to RCRA guidance. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions. The requirements in this section are overly prescriptive and unsupported by any evidence, including the absence of any reference to the

NMED conducted a preliminary review of documents submitted by LANL and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at MDA G. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA G required in the Order. NMED expects LANL to investigate for the presence of contamination in those areas where it is most likely to be present as a way of evaluating the need for further action. It is unclear to NMED which “USEPA RCRA Guidance “ that NMED is not consistent with. As stated in the comment, the DQO process was developed by

N

Subject



Section/ Attachment

Unique No.


Y/N DQO process, or to how existing data in the 1996 and 2000 RFI reports was used to identify the need for this additional work.

EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard.

R335 SectionIV.C.1.c.viii

38 MDA GIntermediate Groundwater Well Installation

LANL commented the requirement in this section, to “…construct one intermediate depth well at MDA G to monitor for the presence of perched groundwater and vapor-phase contamination at depths between 150 and 700 feet below the ground surface,” is unreasonably burdensome, because evidence from completed well R-22 indicates that no perched water is present under the mesa. In addition, planned regional wells for fiscal year 2002, including wells’ R-20, R-21, R-23 and R-32 will provide additional information regarding the existence of perched water, if any, in the vicinity of MDA G.

Vapor-phase sampling and monitoring was not conducted at boring R-22 either during or after the drilling of R-22. NMED requested that vapor sampling and monitoring be conducted during the drilling of regional wells in the vicinity of TA-54 in an email communication from John Young of NMED to Charlie Nylander and other LANL personnel dated May 14, 2002. LANL declined to conduct the requested vapor-phase monitoring in an email communication from David Broxton of LANL to John Young of NMED dated May 16, 2002. LANL has not conducted vapor-phase monitoring beneath MDA G to the depths required in the Order. NMED expects LANL to evaluate for the presence of intermediate perched groundwater while investigating the extent of vapor-phase contamination beneath MDA G.

N

R336 SectionIV.C.1.c.ix

38 MDA G Vapor Monitoring

LANL commented the requirement in paragraph two of this section, to monitor well borings “…for the presence of vapor-phase contaminants prior to well construction,” is impracticable to perform as required, because regional aquifer well locations are an inefficient method for the investigation of vapor transport from

NMED requested that vapor sampling and monitoring be conducted during the drilling of wells in the vicinity of TA-54 in an email communication from John Young of NMED to Charlie Nylander and other LANL personnel dated May 14, 2002. LANL declined to conduct the requested vapor-phase monitoring in an email communication from David Broxton of LANL to John Young of NMED dated May 16, 2002.

N

Subject



Section/ Attachment

Unique No.


Y/N MDAs. Vapor sampling, relative to disposal area is, and continues to be, planned and performed by the MDA activity of the Laboratory’s Environmental Restoration Project. However, for technical and efficiency reasons, a more effective course is to conduct vapor phase investigation independent of the regional aquifer investigation, because the drilling methods for regional aquifer wells are not amendable to collecting vapor samples. The collection of such samples would require an expensive process of removing drilling equipment, cleaning out the borehole, and inserting vapor sampling equipment. Even then, the quality and representativeness of a vapor sample collected from this type of borehole would be questionable. In determining the data needs for vapor sampling around TA-54, the DQO process must be applied to determine what data is needed. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decision. Laboratory and NMED personnel should participate in DQO meetings designed to determine data collection requirements for each borehole.

NMED is aware that additional regional wells have been, or are currently being installed in Pajarito Canyon and Cañada del Buey in advance of the issuance of the final Order. NMED will postpone the requirement for vapor-phase sampling and monitoring in Pajarito Canyon and Cañada del Buey until after the mesa top investigation is completed. NMED may require vadose zone vapor-phase investigations to be conducted in Pajarito Canyon and Cañada del Buey based on the results of the mesa top investigations. The DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard.

R337 SectionIV.C.1.c.x

38 MDA GGroundwater Monitoring

LANL commented the requirement in this section, to conduct intermediate and regional groundwater monitoring at all wells that intersect groundwater, is

An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA G. LANL makes the

N

Subject



Section/ Attachment

Unique No.


Y/N unreasonably burdensome. Rather than monitor every intermediate-depth saturated zone encountered, as required by NMED here, monitoring should instead by focused on the larger saturated zones. By focusing on these larger zones, monitoring resources are appropriately concentrated on bodies that are likely to supply sufficient water and contaminants, and thus potentially impact underlying regional groundwater. The requirement to monitor every intermediate-depth saturated zone, fails to recognize that the larger saturated zones pose the greatest concern for water quality. This particularly true, given that many intermediate-depth saturated zones encounters in the drilling at Los Alamos were thin and not extensive, and thus contained minute volumes of water. NMED fails to provide any explanation why monitoring all intermediate and regional groundwater well in the canyon is necessary or reasonable. Finally, the RFI for MDA G should be completed prior to determining any monitoring requirement. Both intermediate and regional groundwater monitoring should be determined by the results of the hydrological investigations performed during installation and sampling of intermediate groundwater monitoring wells. All relevant information from the RFI should be

assertion in comment number 331 that, based on investigations at MDA L, intermediate groundwater is not present beneath MDA G. In this comment (337), LANL states that intermediate ground water monitoring “should be determined by the results of hydrological investigations performed during installation and sampling of intermediate groundwater wells”. LANL has not evaluated for, or characterized intermediate perched groundwater at MDA G. NMED agrees that groundwater monitoring requirements should be determined based on investigation results. LANL has the opportunity to propose a groundwater monitoring and sampling strategy in the long-term groundwater monitoring and sampling work plan required in Order Section IV.C.1.c.x. Item 4.

Subject



Section/ Attachment

Unique No.


Y/N considered prior to developing monitoring requirements.



LANL commented the requirement in paragraph two of this section, for full suite analysis of groundwater samples during the monitoring phase, is overly prescriptive, and without adequate corresponding support in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific COCs in the vicinity of the monitoring locations, and a thorough review of existing data, including the location of contaminant sources and groundwater occurrences. However, NMED provides no reference to this, or any other such information, in the administrative record in support of this requirement. The Laboratory’s approach is to propose further groundwater monitoring in accordance with the Laboratory’s ongoing re-evaluation for the current monitoring program and following the DQO process. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decision.

A limited sampling suite is not currently supported by the administrative record. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA G. In addition, after the MDA G site investigation report is submitted to NMED for review, LANL has the opportunity to propose a groundwater monitoring and sampling strategy in the long-term groundwater monitoring and sampling work plan required in Order Section IV.C.1.c.x. Item 4. The DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard.

N



LANL commented the requirement in paragraph four of this section, to submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, prior to the completion of the

The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. LANL had installed 13 of the wells as of the issuance of the draft Order on May 2, 2002, four years later. Twelve of the wells are useful for data collection.

N

Subject



Section/ Attachment

Unique No.


Y/N hydrogeologic characterization required by NMED. The Hydrogeologic Workplan, currently in progress, provides for a groundwater quality characterization phase and thus will provide data useful for the development of a ground water monitoring plan. The Laboratory approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual RFI investigations.

At that pace, it will take LANL nearly seven more years to complete the HWP well installations. NMED believes it is unreasonable wait until the completion of the HWP for LANL to propose long-term groundwater monitoring as outlined in Section IV.C.1.c.x of the Order. NMED expects that long term monitoring plans will be updated as new wells are installed and as new information is acquired that affects the monitoring requirements.

R340 SectionIV.C.1.c.xi

38 MDA GInvestigation Report

LANL commented the requirements in this section, regarding the submission of an “MDA G Investigation Report,” are inconsistent with work previously conducted under USEPA-approved work plans. The RFI Report for MDA G was submitted to NMED in March 2000. Investigation activities completed to-date follow the DQOs established for MDA G and described in the approved OU 1148 RFI Work Plan. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions. NMED subsequently requested that the Laboratory submit separate RFI reports for each of the three MDAs. The Laboratory’s approach is to submit an updated RFI report for MD G in the second quarter of FY2003. This report will identify potential data gaps. A supplemental investigation work plan (sampling and analysis plan) will

NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at MDA G. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA G required in the Order. NMED expects LANL to investigate for the presence of contamination in those areas where it is most likely to be present as a way of evaluating the need for further action. The DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for

N

Subject



Section/ Attachment

Unique No.


Y/N subsequently be submitted to address the data gaps identified.

the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The High Performing Team (HPT) consisting of representatives of DOE, UC and NMED has discussed issues at MDA H and MDA L but has not discussed issues at MDA G since 2000. The HPT agreed that NMED would not continue its review of the RFI report for MDAs G, H and L and that LANL would submit a separate RFI report for MDA H in order to expedite the implementation of a remedy at MDA H. No date was set by the HPT for the submittal of RFI reports for MDAs G and L. The HPTs decisions were summarized in a letter sent by NMED to Dr, John Browne and Mr. Ted Taylor of LANL dated December 27, 2000.

R341 SectionIV.C.1.d

38 MDA HInvestigation

LANL commented the requirement in this section, to “…complete the investigation at MDA H,” and to “…confirm that no additional areas at MDA H were used for disposal purposes other than the nine currently known disposal shafts,” is inconsistent with work previously conducted under the USEPA-approved OU 1148 RFI Work Plan. At the request of NMED, supplemental sampling was completed at MDA H in 2001. The MDA H RFI Report Addendum, documenting the supplemental sampling results, was submitted in draft to the MDA High

At the time of issuance of the draft Order on May 2, 2002, LANL had not submitted the results of its additional investigation at MDA H. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work.

N

Subject



Section/ Attachment

Unique No.


Y/N Performing Team, in June 2002. An Appendix to the MDA H CMS Report, submitted to NMED in September 2002, includes all disposal records for the site, and confirms the existence of only nine disposal shafts.

R342 SectionIV.C.1.d and Table XII-2

4 TA-54, SWMU54-004 (MDA H)

One commenter noted that TA-54 contains MDAs G, H, and L which are RCRA-regulated units for which NMED has required submission and execution of RCRA closure plans; a RFI Report for channel sediment pathways from MDAs G, H, J, and L was [submitted] in 1996; RFI reports were [submitted] on tritium in surface soils at MDA G in 1997; a RFI report concerning MDAs G, H, and L was [submitted] in March 2000; a CMS plan for MDA H was [submitted] in March 2001; a RFI report and a plan for supplemental sampling were [submitted] in May 2001; a RFI report addendum was scheduled for submission in April 2002 but was not [submitted]; and a monitoring Compliance Demonstration for MDA H was [submitted] in April 2002. This commenter suggests that NMED should require that RFI reporting concerning MDAs G, H, and L be completed in 2002 and that a CMS be conducted and reports submitted before the end of 2003.

Closure plans for MDAs G and L will be included with LANL’s renewed RCRA operating permit currently in preparation. MDA H is being closed under the corrective action CMS process. The schedule in Section XII of the Order outlines the deliverables and dates for MDAs G, H, and L. According to Table XII-2, all corrective measures studies work plans for these three MDAs will be submitted to NMED no later than October 2004, with reports scheduled for submittal no later than October 2005. NMED believes that this schedule is appropriate for the amount of work that is anticipated to be required. MDA J is not a RCRA Subtitle C unit. MDA J is a RCRA Subtitle D unit and is being closed under NMED Solid Waste Regulations.

N

R343 SectionIV.C.1.d.ii

38 MDA H Soil and Rock

LANL commented the requirement in this section, to conduct “MDA H Soil and Rock Sampling,” is inconsistent

At the time of issuance of the draft Order on May 2, 2002, LANL had not submitted the results of its additional investigation at MDA H. NMED

N

Subject



Section/ Attachment

Unique No.


Y/N Sampling with work previously conducted under

an NMED-approved plan and submitted to NMED. Soil and rock sampling was completed in December 2001, based on the NMED-approved “Plan for Supplemental Sampling for the RCRA Facility Investigation at Material Disposal Area H,” and NMED correspondence regarding “Additional Fieldwork at MDA H, 54-005,” and dated December 3, 2001. Results of the supplemental sampling were reported in the MDA H RFI Addendum submitted to NMED in June 2002.

recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work.

R344 SectionIV.C.1.d.iii

38 MDA H Soil and Rock Sampling

LANL commented that the requirement in this section, to conduct “MDA H Soil and Rock Sampling,” is inconsistent with work previously conducted under an NMED-approved plan and submitted to NMED. Soil and rock sample collection was completed in December 2001, based on the NMED-approved “Plan for Supplemental Sampling for the RCRA Facility Investigation at Material Disposal Area H,” and NMED correspondence regarding “Additional Fieldwork at MDA H, 54-004,” and dated December 3, 2001. Results of the supplemental sampling were reported in the MDA H RFI Addendum submitted to NMED in June 2002.


N

R345 SectionIV.C.1.d.iv

38 MDA HSediment Sampling

LANL commented the requirement in this section, to conduct “MDA H Sediment Sampling,” is inconsistent with work previously conducted under

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not

N

Subject



Section/ Attachment

Unique No.


Y/N an NMED-approved plan and submitted to NMED. Sediment sampling was completed in June 2001, based on the NMED-approved “Plan for Supplemental Sampling for the RCRA Facility Investigation at Material Disposal Area H,” and NMED correspondence regarding “Additional Fieldwork at MDA H, 54-004,” dated December 3, 2001. The MDA H RFI Report Addendum, documenting the supplemental sampling results, was submitted in draft to the MDA High Performing Team, in June 2002.

expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work.

R346 SectionIV.C.1.d.v

38 MDA H Vapor Monitoring

LANL commented the requirement in this section, to “…collect subsurface vapor samples at MDA H for field and laboratory analyses in accordance with Section IX.B of this Order,” is inconsistent with an agreement with NMED for the Laboratory to propose a long-term subsurface vapor monitoring and sampling program as part of the MDA H CMS report. The Laboratory expects to submit this report to NMED in September 2002. The MDA High Performing Team, which includes NMED as a member, has agreed to this approach.

At the time of issuance of the draft Order on May 2, 2002, LANL had not submitted the results of its additional investigation at MDA H NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work.

N

R347 SectionIV.C.1.d.vi

38 MDA HGroundwater Well Installation

LANL commented the requirement in this section, to construct new groundwater monitoring wells at MDA H, is inconsistent with a prior agreement between the Laboratory and NMED. The Laboratory’s approach is to accomplish groundwater monitoring

Section IV.C.1.d.vi of the Order states that LANL is to construct monitoring wells in the adjacent canyons if groundwater is encountered during subsurface investigations conducted at MDA H. Section IV.C.1.d.vi of the Order also states that if no groundwater is encountered during subsurface investigations at MDA H, then LANL shall defer

N

Subject



Section/ Attachment

Unique No.


Y/N requirements for MDAs, G, H and L by monitoring TA-54 as a whole. Consistent with establishing a point of compliance, a groundwater monitoring system capable of detecting and measuring hazardous constituents at the TA-54 aggregate boundary will meet the intent of 40 C.F.R. 264.91-264.100.

groundwater monitoring until the groundwater investigations at MDAs G and L are completed.

R348 SectionIV.C.1.d.vii

38 MDA HInvestigation Report

LANL commented the requirement in this section is inconsistent with work previously conducted under an NMED-approved plan and submitted to NMED. THE MDA H RFI Addendum was submitted to NMED in June 2002. This report documented site investigation activities completed in accordance with the NMED-approved “Plan for Supplemental Sampling for the RCRA Facility Investigation at Material Disposal Area H,” and NMED correspondence regarding “Additional Fieldwork at MDA H, 54-004,” and dated December 3, 2001.


N

R349 SectionIV.C.1.e and Table XII-2

4 TA-54, SWMU54-006 (MDA L)

One commenter noted that TA-54 contains MDAs G, H, and L which are RCRA-regulated units for which NMED has required submission and execution of RCRA closure plans; a RFI Report for channel sediment pathways from MDAs G, H, J, and L was [submitted] in 1996; RFI reports were [submitted]on tritium in surface soils at MDA G in 1997; a RFI report concerning MDAs G, H, and L was [submitted] in March 2000; a CMS plan for MDA H was [submitted] in

Closure plans for MDAs G and L will be included with LANL’s renewed RCRA operating permit currently in preparation. MDA H is being closed under the corrective action CMS process. The schedule in Section XII of the Order outlines the deliverables and dates for MDAs G, H, and L. According to Table XII-2, all corrective measures studies work plans for these three MDAs will be submitted to NMED no later than October 2004, with reports scheduled for submittal no later than October 2005. NMED believes that this schedule is appropriate for the amount of work that is anticipated to be required. MDA J is not a RCRA

N

Subject



Section/ Attachment

Unique No.


Y/N March 2001; a RFI report and a plan for supplemental sampling were [submitted] in May 2001; a RFI report addendum was scheduled for submission in April 2002 but was not [submitted]; and a monitoring Compliance Demonstration for MDA H and a RCRA closure plan for MDA L were [submitted] in April 2002. This commenter suggests that NMED should require that RFI reporting concerning MDAs G, H, and L be completed in 2002 and that a CMS be conducted and reports submitted before the end of 2003.

Subtitle C unit. MDA J is a RCRA Subtitle D unit and is being closed under NMED Solid Waste Regulations.

R350 SectionIV.C.1.e.ii

38 MDA L Surveyof Disposal Units

LANL commented that this section, requiring the Laboratory to conduct a prescribed survey of the MDA L Disposal Units, is unreasonably burdensome. The only information required to model the site is the inventory and dimensions of each pit and shaft. A base profile does not provide information to support modeling contaminant fate and transport. The Laboratory’s approach is to use existing information and engineering drawings to determine the dimensions of the pits and shafts at MDA L.

NMED requires the base profile for each pit at MDA L in order to determine the low elevation point(s) in each pit. NMED makes the assumption that construction activities may have reduced the permeability of the base of the pits and that liquid releases, if they occurred, may have migrated to areas of lower elevation in the pits. The purpose is to reduce the number of borings required to investigate for releases. NMED has not approved any model generated for MDA L. LANL has the opportunity to suggest alternate methods for determining the base profile of the pits in the site-specific investigation work plan for the MDA L or to suggest advancing borings in a grid pattern at each pit location. In addition, in LANL’s comment number 67 in Attachment 6 of its July 31, 2002 comments on the draft Order, LANL cites having conducted an integrated geophysical survey at MDA C that employed terrain conductivity (EM 31), high sensitivity metal detector (EM61) and ground-penetrating radar to

N

Subject



Section/ Attachment

Unique No.


Y/N determine the locations and dimensions of the pits and shafts. NMED expects that LANL will provide an explanation in the MDA L-specific work plan required in the Order as to why LANL asserts that this approach is effective at MDA C but would not be effective at MDA L

R351 SectionIV.C.1.e.iii

38 MDA L Drilling Exploration

The requirements in paragraphs one through four of this section, if conducted by the Laboratory, would result in the isolation of the Laboratory’s current RCRA permits. The paved surface of MDA L is a permitted hazardous and radioactive waste storage area. Thus, drilling through the sealed asphalt would compromise the Laboratory’s Hazardous Waste Facility Permit.

The asphalt at MDA L is not a RCRA cap nor does it meet the requirements for secondary containment. NMED does not intend to require LANL to advance borings at locations where containers are currently being stored unless the location is considered to be essential to the site investigation at MDA L. In the unlikely case that the proposed borings are located at container storage areas either the containers would have to be moved or the proposed boring moved to an alternate location. In addition, advancing borings, well construction and borehole abandonment can, with proper precautions, be conducted through asphalt in a manner that prevents the introduction of contaminants to the subsurface.

N

R352 SectionIV.C.1.e.v

38 MDA L CanyonAlluvium and Sediment Sampling

LANL commented the requirements in this section, regarding “MDA L Canyon Alluvial Sediment sampling,” is inconsistent with USEPA RCRA Guidance, and work conducted under NMED-approved work plans. The RFI Report for Channel Sediment Pathways from MDAs G, H, J, and L and TA-54, was completed in 1996. The results of this work were included in the RFI Report for MDAs G, H, and L submitted to NMED in March 2000. The Laboratory’s investigation followed the DQO process pursuant to RCRA guidance. The DQO process

NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at MDA L. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work site-specific

N

Subject



Section/ Attachment

Unique No.


Y/N was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions. The requirements in this section are overly prescriptive and unsupported by any evidence, including the absence of any reference to the DQO process, or to how existing data in the 1996 and 2000 RFI reports was used to identify the need for this additional work.

work plan for MDA L required in the Order. NMED expects LANL to investigate for the presence of contamination in those areas where it is most likely to be present as a way of evaluating the need for further action. As stated in the comment, the DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard.

R353 SectionIV.C.1.e.viii

38 MDA LIntermediate Groundwater Well Installation

LANL commented the requirement in this section to ”…construct [at a minimum] one intermediate depth well at MDA L to evaluate for the presence of perched groundwater and vapor-phase contamination at depths between 150 and 700 feet below the ground surface…,” is overly prescriptive and unsupported by evidence in the administrative record. The Laboratory has conducted quarterly pore-gas monitoring in 28 wells since 1985, pursuant to an NMED compliance order. This data provides substantial evidence to conclude that the organic vapor plume source is coincident with the disposal shafts in Area L, and that the plume has not grown at a detectable rate over the past three years. Two of

Vapor-phase sampling and monitoring was not conducted at boring R-22 either during or after the drilling of R-22. NMED requested that vapor sampling and monitoring be conducted during the drilling of regional wells in the vicinity of TA-54 in an email communication from John Young of NMED to Charlie Nylander and other LANL personnel dated May 14, 2002. LANL declined to conduct the requested vapor-phase monitoring in an email communication from David Broxton of LANL to John Young of NMED dated May 16, 2002. LANL has not conducted vapor-phase monitoring beneath MDA L to the depths required in the Order. LANL has also not drilled to depths below the base of the organic vapor plume at MDA L. NMED expects LANL to evaluate for the presence of intermediate perched groundwater while investigating the extent of vapor-phase contamination beneath MDA L. An opportunity is

N

Subject



Section/ Attachment

Unique No.


Y/N these wells indicate no detectable organics, thus demonstrating, with a high degree of confidence, that the vertical boundaries of the plume are known. Further, a revision to the 2000 draft RCRA Facility Investigation report is currently in progress. This report will provide a description of nature and extent of the vapor plume, and include the last two years of monitoring data. It will also include recommendations for further data collection. The Laboratory expects that the lateral extent of the vapor plum has been adequately defined, and the future data needs are expected to be in the source area. Evidence from completed well R-22 indicates an absence of perched water under the mesa, and planned regional wells for fiscal year 2002, including wells R-20, R-21, R-23 and R-32, will provide further data regarding the existence of perched water in the vicinity of MDA L.

provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA L required in the Order. NMED does not expect LANL to duplicate work already performed that meets the requirements of the Order. Section III.N of the Order addresses duplication of work.

R354 SectionIV.C.1.e.ix

38 MDA L Vapor Monitoring

LANL commented the requirement in paragraph three of this section, to monitor well borings “…for the presence of vapor-phase contaminants prior to well construction,” is impracticable to perform as required, because regional aquifer well locations are an inefficient method for the investigation of vapor transport from MDAs. Vapor sampling, relative to disposal areas is planned and performed by the MDA activity of the

NMED requested that vapor sampling and monitoring be conducted during the drilling of wells in the vicinity of TA-54 in an email communication from John Young of NMED to Charlie Nylander and other LANL personnel dated May 14, 2002. LANL declined to conduct the requested vapor-phase monitoring in an email communication from David Broxton of LANL to John Young of NMED dated May 16, 2002. NMED is aware that additional regional wells have been or are currently being installed in Pajarito Canyon and Cañada del Buey in advance

N

Subject



Section/ Attachment

Unique No.


Y/N Laboratory’s Environmental Restoration Project. However, a more effective course is to conduct vapor phase investigation independent of the regional aquifer investigation because the drilling methods for regional aquifer wells are not amenable to collecting vapor samples. To collect such samples would require an expensive process of removing drilling equipment, cleaning out the borehole and inserting vapor sampling equipment. Even the quality and representativeness of a vapor sample collected form this type of borehole would be questionable. Shallow boreholes drilled for the express purpose of collecting vapor samples are less costly and provide superior data quality. In determining the need for additional vapor data, the DQO process must be applied to determine what data is needed. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions. Laboratory and NMED personnel should participate in DQO meetings designed to determine data collection requirements for each borehole.

of the issuance of the final Order. NMED will postpone the requirement for vapor-phase sampling and monitoring in Pajarito Canyon and Cañada del Buey until after the mesa top investigation is completed. NMED may require vadose zone vapor-phase investigations to be conducted in Pajarito Canyon and Cañada del Buey based on the results of the mesa top investigations. The DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard.

R355 SectionIV.C.1.e.x

38 MDA LGroundwater Monitoring

LANL commented the requirement in this section, to conduct intermediate and regional groundwater monitoring at all wells that intersect groundwater, is unreasonably burdensome. Rather than monitor every intermediate-depth

An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA L. LANL makes the assertion in comment number 331 that, based on investigations at MDA L, intermediate

N

Subject



Section/ Attachment

Unique No.


Y/N saturated zone encountered, as required by NMED here, monitoring should instead be focused on the larger saturated zones. By focusing on these larger zones, monitoring resources are appropriately concentrated on bodies that are likely to supply sufficient water and contaminants, and thus potentially impact underlying regional groundwater. The requirement to monitor every intermediate-depth saturated zone, fails to recognize that the larger saturated zones pose the greatest concern for water quality. This particularly true, given that many intermediate-depth saturated zones encounters in the drilling at Los Alamos were thin and not extensive, and thus contained minute volumes of water. NMED fails to provide any explanation why monitoring all intermediate and regional groundwater well in the canyon is necessary of reasonable. Finally, the RFI for MDA L should be completed prior to determining any monitoring requirement. Both intermediate and regional groundwater monitoring should be determined by the results of the hydrological investigations performed during installation and sampling of intermediate groundwater monitoring wells. All relevant information from the RFI should be considered prior to developing monitoring requirements.

groundwater is not present beneath the site. In this comment (355), LANL states that intermediate ground water monitoring “should be determined by the results of hydrological investigations performed during installation and sampling of intermediate groundwater wells”. LANL has not evaluated for, or characterized intermediate perched groundwater at MDA L to the depths required in the Order. In addition, LANL sent a letter to NMED dated April 7, 1995 indicating the observed presence of perched groundwater at 592 feet below ground surface in boring 54-1016 titled “Notification of Groundwater Encountered Below Material Disposal Area (MDA) L”. NMED agrees that groundwater monitoring requirements should be determined based on investigation results. LANL has the opportunity to propose a groundwater monitoring and sampling strategy in the long-term groundwater monitoring and sampling work plan required in Order Section IV.C.1.e.x. Item 3.

Subject



Section/ Attachment

Unique No.


Y/N R356 Section

IV.C.1.e.x 38 MDA L


LANL commented the requirement in paragraph one of this section, for full suite analysis of groundwater samples during the monitoring phase, is overly prescriptive, and without adequate corresponding support in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific COCs in the vicinity of the monitoring locations, and a thorough review of existing data, including the location of contaminant sources and groundwater occurrences. However, NMED provides no reference to this, or any other such information, in the administrative record in support of this requirement. The Laboratory’s approach is to propose further groundwater monitoring in accordance with the Laboratory’s ongoing re-evaluation for the current monitoring program and following the DQO process. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decision.

An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA L. In addition, after the MDA L site investigation report is submitted to NMED for review, LANL has the opportunity to propose a groundwater monitoring and sampling strategy in the long-term groundwater monitoring and sampling work plan required in Order Section IV.C.1.e.x. Item 3. The DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard.

N

R357 SectionIV.C.1.e.x

38 MDA LGroundwater Monitoring

LANL commented the requirement in paragraph four of this section, to submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, prior to the completion of the hydrogeologic characterization required by NMED. The Hydrogeologic

The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. LANL had installed 13 of the wells as of the issuance of the draft Order on May 2, 2002, four years later. Twelve of the wells are useful for data collection. At that pace, it will take LANL nearly seven more years to complete the HWP well installations.

N

Subject



Section/ Attachment

Unique No.


Y/N Workplan, currently in progress, provides for a groundwater quality characterization phase and thus will provide data useful for the development of a ground water monitoring plan. The Laboratory approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual MDA L RFI investigations.

NMED believes it is unreasonable to wait until the completion of the HWP for LANL to propose long-term groundwater monitoring as outlined in Section IV.C.1.c.x of the Order. NMED expects that long term monitoring plans will be updated as new wells are installed and as new information is acquired that affects the monitoring requirements.


36 TA-21 HistoricalInvestigation

One commenter supported NMED’s concerted focus on TA-21 and recommended that LANL be required to determine what proportion of tritium contamination might be reactor-produced vs. accelerator-produced. NMED would then approve or disapprove of that determination and require another, if necessary.

The Order will be revised to request that the Respondents provide the known or suspected source of any groundwater contaminants.

Y

R359 SectionIV.C.2.c and Table XII-2

4 TA-21, SWMU21-014 (MDA A)

One commenter noted that TA-21 includes MDAs T, U, B, A, and V and several major outfalls; that NMED has advised LANL several times that the material disposal areas in TA-21 have high priority; even though the RFI work plan for these areas was approved in 1992, a Phase Report 1A was [submitted] in 1993, Phases 1B and 1C were [submitted] in 1993 and 1994, and other reports have been [submitted], NMED was still reviewing sampling plans and overseeing sampling in 1997-98 and the completion of the sampling and submission of a final report has not been accomplished. This commenter suggests that LANL be required to

The schedule in Section XII of the Order outlines the deliverables and dates for MDAs A, B, T, U, and V. NMED believes that this schedule reflects its priorities at TA-21 and is appropriate for the amount of work that is required.

N

Subject



Section/ Attachment

Unique No.


Y/N complete all planned sampling in 2002-2003 and finish the investigatory reports in 2003-2004.

R360 SectionIV.C.2.c.vii

38 MDA AIntermediate Groundwater Well Installation

LANL commented the requirement in this section, to install intermediate groundwater well(s) “…if geophysical or other evidence suggests the presence of intermediate perched groundwater…” during subsurface investigations for MDA A, is not justified by any evidence in administrative record. There is currently no evidence of perched groundwater beneath MDA A. There is sufficient existing data to conclude that perched water would not be encountered in the suggested drilling location. Drill Hole LADP-3 in Los Alamos Canyon, provides evidence of alluvial saturation and saturation in the Guaje Pumice Bed – and regional well R-7, in Los Alamos Canyon, encountered saturation in the upper Puye Formation below the Guaje Pumice Bed. In contrast, however, drill hole LADP-4 in DP Canyon, encountered no perched groundwater down to a depth of 800 feet. Moreover, drill hole 21-2523 within MDA V was drilled to a depth of 707 feet and did not encounter any perched groundwater. Collectively this information indicates the presence of localized perched groundwater, near the Guaje/Puye contact, only beneath the axis of Los Alamos Canyon.

There is not sufficient evidence in the administrative record to rule out the possibility of encountering localized intermediate perched water during drilling activities. The Order clearly states that if geophysical or other evidence suggest the presence of intermediate perched groundwater during the required subsurface investigation at MDA A, NMED may require that intermediate groundwater monitoring well(s) be installed. If intermediate water is not encountered during drilling, LANL will not be required to install intermediate groundwater monitoring well(s). The administrative record does not support delaying groundwater monitoring until completion of the Hydrogeologic Work Plan. In addition, the wells outlined in Section IV.C.2.c.ix are appropriate to monitor possible impacts to groundwater from MDA A. It is not the intent of NMED to require duplicative groundwater monitoring at the Facility. Therefore, if LANL can satisfy Section IV.C.2.c.ix by providing groundwater monitoring data collected from the Los Alamos Canyon monitoring (Section IV.B.1.e.vii of the Order), the Los Alamos Canyon monitoring data may be provided to NMED to fulfill monitoring requirements for MDA A. LANL may implement voluntary investigation and cleanup and monitoring at risk. However, NMED must approve all corrective action and LANL must fulfill all requirements included in the Order.

N

Subject



Section/ Attachment

Unique No.


Y/N Numerous drill holes at TA-21 also provide no evidence of perched groundwater at any higher stratigraphic horizon, including the Cerro Toledo interval. LANL also commented on the Draft Order, Section IV.C.2.c.ix. The requirement in paragraph one of this section, to obtain groundwater samples from numerous monitoring wells in Los Alamos Canyon regarding MDA A, is overly prescriptive and without support in the administrative record. The monitoring requirements in this section are duplicative of those specified for Los Alamos Canyon, because both require monitoring in the same wells. This requirement is also inconsistent with prior NMED-approved work. Specifically, NMED’s hydrogeologic evaluation of the Laboratory, proposes two regional monitor wells in Los Alamos Canyon. Inconsistently, however, the Draft Order requires monitoring from at least five regional wells. The Hydrogeologic Workplan will provide essential data for the development of a ground water monitoring requirement. The Laboratory’s approach is to determine furthering monitoring requirements following completion of the HWP, and the RFI for MDA A.


38 MDA AGroundwater

LANL commented the requirement in paragraph three of this section, for full

NMED does not believe a limited sampling suite is currently supported by the administrative record.

N

Subject



Section/ Attachment

Unique No.


Y/N Monitoring suite analysis of groundwater samples

during the monitoring phase, is overly prescriptive and burdensome, and NMED has not explained or justified the need for it in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific COCs in the vicinity of the monitoring locations, and a thorough review of existing data, including the location of contaminant sources and groundwater occurrences. However, NMED provides no reference to this, or any other such information, in the administrative record in support of this requirement. The Laboratory’s approach is to propose further groundwater monitoring in accordance with the Laboratory’s ongoing re-evaluation for the current monitoring program and following the DQO process. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decision.

The Order provides an opportunity to justify a more limited suite of analytical testing in required site-specific workplans. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process (G-4) – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation. Should the Facility propose that EPA guidance is required without modification for any reason, then DOE internal procedures would not be available for use in Environmental Management activities. The Facility would therefore be precluded from using its SOPs developed to conduct environmental characterization activities unless it was identical to the procedures outlined in the EPA guidance. The Facility may exercise its option to withdraw its SOPs from consideration during implementation of the Order.


38 MDA AGroundwater Monitoring

LANL commented the requirement in paragraph four of this section, to submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, and impracticable, prior to the completion of the hydrogeologic characterization required by NMED. The Hydrogeologic Workplan,

NMED does not believe the submittal of a long–term groundwater monitoring and sampling work plan as outlined in Section IV.C.2.c.ix to be unreasonably burdensome and impracticable. The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. The Facility has installed 13 wells as of the issuance of the Draft Order on May 2, 2002, four years later. Twelve of

N

Subject



Section/ Attachment

Unique No.


Y/N currently in progress, provides for a groundwater quality characterization phase and thus will provide data useful for the development of a ground water monitoring plan. The Laboratory approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual MDA A RFI investigations.

the thirteen wells installed are useful for data collection. At this pace, it will take the Facility seven additional years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the Hydrogeologic Work Plan for LANL to propose long-term groundwater monitoring and sampling as outlined in Section IV.C.2.c.ix of the Order. Submittal of a long-term groundwater monitoring and sampling work plan, as outlined in Section IV.C.2.c.ix of the Order, is required.

R363 SectionIV.C.2.d and Table XII-2

4 TA-21, SWMU21-015 (MDA B)

One commenter noted that a SAP was [submitted] for MDA B in September 1998, but there has been little activity since. This commenter suggests that LANL be required to complete all planned sampling in 2002 -2003 and finish the investigatory reports in 2003-2004.

The schedule in Section XII of the Order outlines the deliverables and dates for MDA B. NMED believes that this schedule reflects its priorities at TA-21 and is appropriate for the amount of work that is anticipated to be required.

N

R364 SectionIV.C.2.d.i

38 MDA BInvestigation Work Plan

LANL commented the requirement in this section to submit an “MDA B Investigation Work Plan,” is inconsistent with work previously conducted under USEPA and NMED-approved work plans. The investigation work plan for MDA B was included in the USEPA-approved OU 1106 RFI Work Plan. The investigation work plan presented data from previous investigations conducted at MDA B in 1966, early 1972, 1977, 1982, 1983 and 1990. The surface investigation of MDA B was implemented in 1994 and these results were reported in the “RFI Report for PRS 21-015 at TA-21”. A

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for results of previous investigation activities conducted at MDA B to be included in the required MDA B Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.d of the Order.

N

Subject



Section/ Attachment

Unique No.


Y/N supplemental Sampling and Analysis Plan for the subsurface investigation of MDA B was submitted to NMED in 1998, and was subsequently implemented in 1998 and 2001 after incorporation of NMED comments and approval of the plan. The Laboratory’s approach is to present the investigation results in the MDA B RFI Report, scheduled to be submitted to NMED during the first quarter of FY2003.

R365 SectionIV.C.2.d.ii

38 MDA B Survey of Disposal Units

LANL commented the requirements in this section are inconsistent with, and duplicative of, work that is currently being conducted. A geophysical survey of MDA B was completed in 1998. The results of this survey will be presented in the MDA B RFI report that is scheduled for submission to NMED during the first quarter of FY2003.

Results of previous investigation activities conducted at MDA B may be included in the required MDA B Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.d of the Order. NMED does not expect LANL to duplicate work already performed that meets the requirements of the Order. Section III.N of the Order addresses duplication of work.

N

R366 SectionIV.C.2.d.iii

38 MDA B Drilling Explorations

LANL commented the requirements in this section, to conduct “MDA B Drilling Exploration”, is inconsistent with work previously conducted under an NMED-approved plan, and now in the process of submission to NMED-approved 1998 MDA B Sampling and Analysis Plan. The results will be presented in the MDA B RFI report that is scheduled for submittal to NMED during the first quarter of FY2003.

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order to provide results of previous investigation activities conducted at MDA B in the required MDA B Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.d of the Order.

N

R367 SectionIV.C.2.d.iv

38 MDA B Soil and Rock Sampling

LANL commented the requirements in this section are inconsistent with work previously conducted under an NMED-

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted

N

Subject



Section/ Attachment

Unique No.


Y/N approved plan, and now in the process of submission to NMED. Soil and rock sampling was completed in 1998 and 2001, in accordance with the NMED-approved 1998 MDA B Sampling and Analysis Plan. The results will be presented in the MDA B RFI report that is scheduled for submittal to NMED during the first quarter of FY2003.

information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order to provide results of previous investigation activities conducted at MDA B in the required MDA B Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.d of the Order.

R368 SectionIV.C.2.d.vi

38 MDA B Vapor Monitoring

LANL commented the requirements in this section are inconsistent with work previously conducted under an NMED-approved plan, and now in the process of submission to NMED. Pore gas samples were collected during the implementation of the approved 1998 MDA B Sampling and Analysis Plan. The results will be presented in the MDA B RFI report that is scheduled for submittal to NMED during the first quarter of FY2003.

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order to provide results of previous investigation activities conducted at MDA B in the required MDA B Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.d of the Order.

N

R369 SectionIV.C.2.d.vii

38 MDA BIntermediate Groundwater Well Installation

LANL commented the requirement in this section, to install intermediate groundwater well(s) “…if geophysical or other evidence suggests the presence of intermediate perched groundwater…” during subsurface investigations for MDA B, is not justified by any evidence in administrative record. There is currently no evidence of perched groundwater beneath MDA B. There is sufficient existing data to conclude that perched water would not be

There is not sufficient evidence in the administrative record to rule out the possibility of encountering localized intermediate perched water during drilling activities beneath MDA B. The Order clearly states that if geophysical or other evidence suggest the presence of intermediate perched groundwater during the required subsurface investigation at MDA B, NMED may require intermediate groundwater monitoring well(s) be installed. If intermediate water is not encountered during drilling, LANL will not be required to install intermediate groundwater monitoring well(s).

N

Subject



Section/ Attachment

Unique No.


Y/N encountered in the suggested drilling location. Drill Hole LADP-3 in Los Alamos Canyon, provides evidence of alluvial saturation and saturation in the Guaje Pumice Bed – and regional well R-7, in Los Alamos Canyon, encountered saturation in the upper Puye Formation below the Guaje Pumice Bed. In contrast, however, drill hole LADP-4 in DP Canyon, encountered no perched groundwater down to a depth of 800 feet. Moreover, drill hole 21-2523 within MDA V was drilled to a depth of 707 feet and did not encounter any perched groundwater. Collectively this information indicates the presence of localized perched groundwater, near the Guaje/Puye contact, only beneath the axis of Los Alamos Canyon. Numerous drill holes at TA-21 also provide no evidence of perched groundwater at any higher stratigraphic horizon, including the Cerro Toledo interval.

R370 SectionIV.C.2.d.ix

38 MDA BGroundwater Monitoring

LANL commented the requirement in this section of the Order, to obtain groundwater samples from numerous monitoring wells in Los Alamos Canyon regarding MDA B, is overly prescriptive and without support in the administrative record. The monitoring requirements in this section are duplicative of those specified for Los Alamos Canyon, because both require monitoring in the same wells. This

The administrative record does supports conducting groundwater monitoring at MDA B. In addition, NMED believes the wells outlined in Section IV.C.2.d.ix are appropriate to monitor possible impacts to groundwater from MDA B. It is not the intent of NMED to require duplicative groundwater monitoring at the Facility. Therefore, if LANL can satisfy Section IV.C.2.d.ix by providing groundwater monitoring data collected from the Los Alamos Canyon monitoring (Section IV.B.1.e.vii of the Order), the Los Alamos Canyon

N

Subject



Section/ Attachment

Unique No.


Y/N requirement is also inconsistent with prior NMED-approved work. NMED’s hydrogeologic evaluation of the Laboratory (NMED-HRMB 96/1, T. Davis, S. Hoines, and K. Hill), proposes two regional monitoring wells in Los Alamos Canyon. Inconsistently, however, the Draft Order requires monitoring from at least five regional wells. The Hydrogeologic Workplan will provide essential data for the development of a ground water monitoring requirement. Thus, any further monitoring requirements must reasonably be determined only after completion of the HWP and the RFI for MDA B.

monitoring data may be provided to NMED to fulfill monitoring requirements for MDA B. The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. The Facility has installed 13 wells as of the issuance of the Draft Order on May 2, 2002, four years later. Twelve of the 13 wells installed are useful for data collection. At this pace, it will take the Facility seven additional years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the Hydrogeologic Work Plan for LANL to propose long-term groundwater monitoring and sampling as outlined in Section IV.C.2.d.ix of the Order.



LANL commented the requirement in paragraph three of this section, for full suite analysis of groundwater samples during the monitoring phase, is overly prescriptive, and without adequate corresponding support in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific COCs in the vicinity of the monitoring locations, and a thorough review of existing data, including the location of contaminant sources and groundwater occurrences. However, NMED provides no reference to this, or any other such information, in the administrative record in support of this requirement. The Laboratory’s approach is to

A limited analytical suite is not currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in required site-specific work plans. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process (G-4) – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation. Should the Facility propose that EPA guidance is required without modification for any reason, then DOE internal procedures would not be available for use in Environmental Management activities.

N

Subject



Section/ Attachment

Unique No.


Y/N propose further groundwater monitoring in accordance with the Laboratory’s ongoing re-evaluation for the current monitoring program and following the DQO process. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decision.

The Facility would therefore be precluded from using its SOPs developed to conduct environmental characterization activities unless it was identical to the procedures outlined in the EPA guidance. The Facility may exercise its option to withdraw its SOPs from consideration during implementation of the Order.



LANL commented the requirement in paragraph four of this section, to submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, and impracticable, prior to the completion of the hydrogeologic characterization required by NMED. The Hydrogeologic Workplan, currently in progress, provides for a groundwater quality characterization phase and thus will provide data useful for the development of a ground water monitoring plan. The Laboratory approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual MDA B RFI investigations.

Submittal of a long–term groundwater monitoring and sampling work plan as outlined in Section IV.C.2.d.ix is not unreasonably burdensome and impracticable. The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. The Facility has installed 13 wells as of the issuance of the Draft Order on May 2, 2002, four years later. Twelve of the 13 wells installed are useful for data collection. At this pace, it will take the Facility seven additional years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the Hydrogeologic Work plan for LANL to propose long-term groundwater monitoring and sampling as outlined in Section IV.C.2.d.ix of the Order.

N

R373 SectionIV.C.2.e and Table XII-2

4 TA-21, SWMU21-016(a-c) (MDA T)

One commenter noted that a SAP was [submitted] for MDA T in March 1996, but there has been little activity since. This commenter suggests that LANL be required to complete all planned sampling in 2002-2003 and finish the investigatory reports in 2003-2004.

According to Table XII-2 of the Order, the MDA T investigation work plan is due in May 2003 and the investigation report is due in August 2004.

N

R374 Section 38 MDA T Drilling LANL commented the borehole NMED recognizes that LANL may have N

Subject



Section/ Attachment

Unique No.


Y/N IV.C.2.e.iii Explorations characterization requirements included

in this section, are overly prescriptive, and inconsistent with prior, NMED-approved work. The requirements in this section make no reference to the NMED-approved RFI Work Plan for OU TA-21, implemented by the Laboratory in 1995. NMED also makes no reference to a sampling and analysis plan to fill data gaps identified during the RFI, which was included in a 1996 RFI Report for MDA T. The RFI report for MDA T will present the results of the RFI and, using the DQO process, the Laboratory will identify any potential data gaps. The DQO process was developed by the EPA as a planning tool to ensure that data colleted is adequate to resolve decision. The Laboratory’s approach is to determine future monitoring requirements following this process, and the review of data described above.

conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order to provide results of previous investigation activities conducted at MDA T in the required MDA T Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.e of the Order. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process (G-4) – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) – January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation. Should the Facility propose that EPA guidance is required without modification for any reason, then DOE internal procedures would not be available for use in Environmental Management activities. The Facility would therefore be precluded from using its SOPs developed to conduct environmental characterization activities unless it was identical to the procedures outlined in the EPA guidance. The Facility may exercise its option to withdraw its SOPs from consideration during implementation of the Order.

R375 Section 38 MDA T Drilling LANL commented the requirements in NMED recognizes that LANL may have N

Subject



Section/ Attachment

Unique No.


Y/N IV.C.2.e.iii Explorations this section are inconsistent with

USEPA RCRA guidance, and work previously conducted under USEPA-approved work plans. The Laboratory has based its investigations for MDA T on the DQOs process detailed in the approved OU 1106 RFI Work Plan. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions. The Laboratory’s approach is to use the results of the RFI report to plan additional work. In contrast, the characterization program in this section does not present scientific DQOs as required by RCRA guidance, does not follow NMED’s position paper on the Determination of Extent of Contamination (March 2, 2000), nor provide any reference the approved RFI Work Plan for OU 1106, which includes the investigation work plan for MDA T, and the results of the investigations already conducted by the Laboratory.

conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order to provide results of previous investigation activities conducted at MDA T in the required MDA T Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.e of the Order. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation. Should the Facility propose that EPA guidance is required without modification for any reason, then DOE internal procedures would not be available for use in Environmental Management activities. The Facility would therefore be precluded from using its SOPs developed to conduct environmental characterization activities unless it was identical to the procedures outlined in the EPA guidance. The Facility may exercise its option to withdraw its SOPs from consideration during implementation of the Order. The approach for site investigations required in the Order is in

Subject



Section/ Attachment

Unique No.


Y/N accordance with NMED’s position paper “Determination of Nature and Extent of Contamination” (March 2, 2000).

R376 SectionIV.C.2.e.iv

38 MDA T Soil and Rock Sampling

LANL commented the requirement in the final paragraph of this section, to analyze samples from MDA T for HE compounds, is overly prescriptive and without support in the administrative record. While HE wastes were routinely flashed at one of the Laboratory firing sites, and other classified, HE-contaminated shapes, were disposed of at MDA H, there is no historic information or other evidence indicating the disposal of HE compounds at MDA T. No sampling for HE compounds has been conducted to-date pursuant to the DQO process contained in the approved RFI Work Plan for TA-21 and the RFI report, with a supplemental sampling and analysis plan. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions.

According to the TA-21 Operable Unit RFI Work Plan for Environmental Restoration (LA-UR-91-962) provided to NMED by LANL, the exact composition of wastewater disposed at MDA T is unknown; therefore, HE compounds may be present in the subsurface at MDA T. If investigation sampling results indicate HE compounds are not present in the subsurface at MDA T, LANL may request analytical analyses of HE compounds be eliminated from the analytical suite. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation. Should the Facility propose that EPA guidance is required without modification for any reason, then DOE internal procedures would not be available for use in Environmental Management activities. The Facility would therefore be precluded from using its SOPs developed to conduct environmental characterization activities unless it was identical to the procedures outlined in the EPA guidance. The Facility may exercise its option to withdraw its SOPs from consideration

N

Subject



Section/ Attachment

Unique No.


Y/N during implementation of the Order.

R377 SectionIV.C.2.e.vii

38 MDA TIntermediate Groundwater Well Installation

LANL commented the requirement in this section, to install intermediate groundwater well(s) “…if geophysical or other evidence suggests the presence of intermediate perched groundwater…” during subsurface investigations for MDA T, is not justified by any evidence in administrative record. There is currently no evidence of perched groundwater beneath MDA T. There is sufficient existing data to conclude that perched water would not be encountered in the suggested drilling location. Drill Hole LADP-3 in Los Alamos Canyon, provides evidence of alluvial saturation and saturation in the Guaje Pumice Bed – and regional well R-7, in Los Alamos Canyon, encountered saturation in the upper Puye Formation below the Guaje Pumice Bed. In contrast, however, drill hole LADP-4 in DP Canyon, encountered no perched groundwater down to a depth of 800 feet. Moreover, drill hole 21-2523 within MDA V was drilled to a depth of 707 feet and did not encounter any perched groundwater. Collectively this information indicates the presence of localized perched groundwater, near the Guaje/Puye contact, only beneath the axis of Los Alamos Canyon. Numerous drill holes at TA-21 also provide no evidence of perched

There is not sufficient evidence in the administrative record to rule out the possibility of encountering localized intermediate perched water during drilling activities. The Order clearly states that if geophysical or other evidence suggest the presence of intermediate perched groundwater during the required subsurface investigation at MDA T, NMED may require intermediate groundwater monitoring well(s) be installed. If intermediate water is not encountered during drilling, LANL will not be required to install intermediate groundwater monitoring well(s).

N

Subject



Section/ Attachment

Unique No.


Y/N groundwater at any higher stratigraphic horizon, including the Cerro Toledo interval.


38 MDA TGroundwater Monitoring

LANL commented the requirement in this section, to obtain groundwater samples from numerous monitoring wells in Los Alamos Canyon is overly prescriptive and without support in the administrative record. The Hydrogeologic Workplan, currently in progress, will provide essential data for the development of a ground water monitoring plan. Any monitoring requirements should reasonably be determined only after completion of the HWP, and the RFI for MDA T. The requirements in this section are also inconsistent with prior NMED action. For example, NMED’s hydrogeologic evaluation of the Laboratory proposes two regional monitoring wells in Los Alamos Canyon. Inconsistently, however, the Draft Order requires monitoring from at least five regional wells.

The administrative record supports conducting shallow groundwater monitoring at MDA T. In addition, NMED believes the wells outlined in Section IV.C.2.e.ix are appropriate to monitor possible impacts to groundwater from MDA T. The HWP, dated May 1998, was prepared three years after NMED’s Hydrogeologic Evaluation, is based on more recent information, and requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. The Facility has installed 13 wells as of the issuance of the Draft Order on May 2, 2002, four years later. Twelve of the 13 wells installed are useful for data collection. At this pace, it will take the Facility seven additional years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the Hydrogeologic Work plan for LANL to propose long-term groundwater monitoring and sampling as outlined in Section IV.C.2.d.ix of the Order.

N



LANL commented the requirement in paragraph three of this section, for full suite analysis of groundwater samples during the monitoring phase, is overly prescriptive, and without adequate corresponding support in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific COCs in the

A limited analytical suite is not currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in the required site-specific work plans. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process (G-4) - August 2000,

N

Subject



Section/ Attachment

Unique No.


Y/N vicinity of the monitoring locations, and a thorough review of existing data, including the location of contaminant sources and groundwater occurrences. However, NMED provides no reference to this, or any other such information, in the administrative record in support of this requirement. The Laboratory’s approach is to propose further groundwater monitoring in accordance with the Laboratory’s ongoing re-evaluation for the current monitoring program and following the DQO process. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decision.

EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.



LANL commented the requirement in paragraph four of this section, to submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, and impracticable, prior to the completion of the hydrogeologic characterization required by NMED. The Hydrogeologic Workplan, currently in progress, provides for a groundwater quality characterization phase and thus will provide data useful for the development of a ground water monitoring plan. The Laboratory approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual MDA and RFI

Submittal of a long–term groundwater monitoring and sampling work plan as outlined in Section IV.C.2.e.ix is not unreasonably burdensome and impracticable. The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. The Facility has installed 13 wells as of the issuance of the Draft Order on May 2, 2002, four years later. Twelve of the 13 wells installed are useful for data collection. At this pace, it will take the Facility seven additional years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the Hydrogeologic Work plan for LANL to propose long-term groundwater monitoring and sampling as outlined in Section IV.C.2.e.ix of the Order.

N

Subject



Section/ Attachment

Unique No.


Y/N investigations.

R381 SectionIV.C.2.f and Table XII-2

4 TA-21, SWMUs21-017(a-c) and 21-022(f) (MDA U)

One commenter noted that a SAP was [submitted] for MDA U in September 1998, but there has been little activity since then. This commenter suggests that LANL be required to complete all planned sampling in 2002-2003 and finish the investigatory reports in 2003-2004.

The schedule in Section XII of the Order outlines the deliverables and dates for MDA U. NMED believes that this schedule reflects its priorities at TA-21 and is appropriate for the amount of work that is required.

N

R382 SectionIV.C.2.f.i

38 MDA UInvestigation Work Plan

LANL commented the requirements in this section are inconsistent with work previously conducted under USEPA-approved work plans, and now in the process of submission to NMED. The Investigation Work Plan for MDA U was previously included in the NMED-approved OU 1106 RFI Work Plan. The RFI Work Plan was implemented in 1993, to determine if contamination was migrating from MDA U in surface soils. The results were reported in the supplemental Sampling and Analysis Plan for MDA U. The Sampling and Analysis Plan was submitted to NMED in 1998 and was subsequently implemented in 1998 and 2001, after incorporation of NMED comments and approval of the plan. The 1998 investigation results will be presented in the MDA U RFI Report, scheduled for submittal to NMED in early FY2003.

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for results of previous investigation activities conducted at MDA U to be included in the required MDA U Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.f of the Order.

N

R383 SectionIV.C.2.f.ii

38 MDA U Survey of Disposal Units

LANL commented the requirement in this section is duplicative of work previously submitted to NMED. The dimensions of the absorption beds and

NMED requires the base profile for each pit at MDA U in order to determine the low elevation point (s) in each pit. NMED makes the assumption that construction activities may have

N

Subject



Section/ Attachment

Unique No.


Y/N influent lines were presented in the 1998 Sampling and Analysis Plan for MDA U based on as-built engineering drawings. A waste inventory and the dimensions of each the pit and shaft, is sufficient to model fate and transport at this site. Information regarding base profile is not necessary to model fate and transport and should not be required.

reduced the permeability of the base of the pits and that liquid releases, if they occurred, may have migrated to areas of lower elevation in the pits. The purpose of determining base profiles is to reduce the number of borings required to investigate for releases. The Facility has the opportunity to suggest alternate methods for determining the base profile of the pits in the site-specific investigation work plan for MDA U or to suggest advancing borings in a grid pattern at each pit location. NMED has not approved any model generated for MDA U.

R384 SectionIV.C.2.f.iii

38 MDA U Drilling Explorations

LANL commented the requirements in this section are inconsistent with work previously conducted under an NMED-approved work plan, and now in the process of submission to NMED. Drilling exploration work for MDA U was completed in 1998 and 2001, in accordance with the NMED approved 1998 MDA U Sampling and Analysis Plan. The results will be presented in the MDA U RFI report scheduled to be submitted to NMED in early FY2003.


N

R385 SectionIV.C.2.f.iv

38 MDA U Soil and Rock Sampling

LANL commented the requirement in this section is inconsistent with work previously conducted under an NMED-approved work plan, and now in the process of submission to NMED. Soil and rock sampling was completed in 1998 and 2001, in accordance with the NMED-approved 1998 MDA U Sampling and Analysis Plan. The results will be presented in the MDA U RFI report scheduled to be submitted to

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for results of previous investigation activities conducted at MDA U to be included in the required MDA U Investigation Work Plan, if they fulfill

N

Subject



Section/ Attachment

Unique No.


Y/N NMED in early FY2003. requirements outlined in Section IV.C.2.f of the

Order. R386 Section

IV.C.2.f.vi 38 MDA U Vapor

Monitoring LANL commented the requirements in this section are inconsistent with work previously conducted under an NMED-approved plan, and now in the process of submission to NMED. Pore gas samples were collected during the implementation of the approved 1998 MDA U Sampling and Analysis Plan. The results will be presented in the MDA U RFI report that is scheduled for submittal to NMED during the first quarter of FY2003.


N

R387 SectionIV.C.2.f.vii

38 MDA U Soil and Rock Sampling

LANL commented the requirement in this section, to install intermediate groundwater well(s) “…if geophysical or other evidence suggests the presence of intermediate perched groundwater…” during subsurface investigations for MDA U, is not justified by any evidence in administrative record. There is currently no evidence of perched groundwater beneath MDA U. There is sufficient existing data to conclude that perched water would not be encountered in the suggested drilling location. Drill Hole LADP-3 in Los Alamos Canyon, provides evidence of alluvial saturation and saturation in the Guaje Pumice Bed – and regional well R-7, in Los Alamos Canyon, encountered saturation in the upper Puye Formation below the Guaje

There is not sufficient evidence in the administrative record to rule out the possibility of encountering localized intermediate perch water during drilling activities. The Order clearly states that if geophysical or other evidence suggest the presence of intermediate perched groundwater during the required subsurface investigation at MDA U, NMED may require intermediate groundwater monitoring well(s) be installed. If, intermediate water is not encountered during drilling, LANL will not be required to install intermediate groundwater monitoring well(s).

N

Subject



Section/ Attachment

Unique No.


Y/N Pumice Bed. In contrast, however, drill hole LADP-4 in DP Canyon, encountered no perched groundwater down to a depth of 800 feet. Moreover, drill hole 21-2523 within MDA V was drilled to a depth of 707 feet and did not encounter any perched groundwater. Collectively this information indicates the presence of localized perched groundwater, near the Guaje/Puye contact, only beneath the axis of Los Alamos Canyon. Numerous drill holes at TA-21 also provide no evidence of perched groundwater at any higher stratigraphic horizon, including the Cerro Toledo interval.

R388 SectionIV.C.2.f.ix

38 MDA UGroundwater Monitoring

LANL commented the requirement in this section, to obtain groundwater samples from numerous monitoring wells in Los Alamos Canyon regarding MDA U, is overly prescriptive and without support in the administrative record. The monitoring requirements in this section are duplicative of those specified for Los Alamos Canyon because both require monitoring in the same wells. This requirement is also inconsistent with prior NMED-approved action. For example, NMED’s hydrogeologic evaluation of the Laboratory proposes two regional monitor wells in Los Alamo Canyon. Inconsistently, however, the Draft Order requires monitoring from at least five regional wells. The Hydrogeologic

The administrative record does supports conducting groundwater monitoring at MDA U. In addition, the wells outlined in Section IV.C.2.f.x are appropriate to monitor possible impacts to groundwater from MDA U. It is not the intent of NMED to require duplicative groundwater monitoring at the Facility. Therefore, if LANL can satisfy Section IV.C.2.f.x by providing groundwater monitoring data collected from the Los Alamos Canyon monitoring (Section IV.B.1.e.vii of the Order), the Los Alamos Canyon monitoring data may be provided to NMED to fulfill monitoring requirements for MDA U. The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. The Facility has installed 13 wells as of the issuance of the Draft Order on May 2, 2002, four years later. Twelve of the 13 wells installed are useful for data

N

Subject



Section/ Attachment

Unique No.


Y/N Workplan, currently in progress, will provide essential data for the development of a ground water monitoring plan. Thus any monitoring requirements should reasonably be determined only after completion of the HWP, and the RFI for MDA U.

collection. At this pace, it will take the Facility seven additional years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the Hydrogeologic Work plan for LANL to propose long-term groundwater monitoring and sampling as outlined in Section IV.C.2.f.ix of the Order

R389 SectionIV.C.2.f.ix

38 MDA UGroundwater Monitoring

LANL commented the requirement in paragraph three of this section, for full suite analysis of groundwater samples during the monitoring phase, is overly prescriptive, and without adequate corresponding support in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific COCs in the vicinity of the monitoring locations, and a thorough review of existing data, including the location of contaminant sources and groundwater occurrences. However, NMED provides no reference to this, or any other such information, in the administrative record in support of this requirement. The Laboratory’s approach is to propose further groundwater monitoring in accordance with the Laboratory’s ongoing re-evaluation for the current monitoring program and following the DQO process. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decision.

A limited analytical suite is not currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in required site-specific work plans. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.

N

R390 Section 38 MDA U LANL commented the requirement in NMED does not believe the submittal of a long– N

Subject



Section/ Attachment

Unique No.


Y/N IV.C.2.f.ix Groundwater

Monitoring paragraph four of this section, to

submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, and impracticable, prior to the completion of the hydrogeologic characterization required by NMED. The Hydrogeologic Workplan, currently in progress, provides for a groundwater quality characterization phase and thus will provide data useful for the development of a ground water monitoring plan. The Laboratory approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual MDA U RFI investigations.

term groundwater monitoring and sampling work plan as outlined in Section IV.C.2.e.ix to be unreasonably burdensome and impracticable. The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. The Facility has installed 13 wells as of the issuance of the Draft Order on May 2, 2002, four years later. Twelve of the 13 wells installed are useful for data collection. At this pace, it will take the Facility seven additional years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the Hydrogeologic Work Plan for LANL to propose long-term groundwater monitoring and sampling as outlined in Section IV.C.2.f.ix of the Order.

R391 SectionIV.C.2.g and Table XII-2

4 TA-21, SWMUs21-013(b,g) and 21-018(a,b) (MDA V)

One commenter noted that a RFI report on MDA V was [submitted] in 1996, a response to a NOD in 1997, and an Interim Measures Plan in 2000; but there is no indication that the interim measures were implemented. This commenter suggests that LANL be required to complete the interim measures and complete any further needed investigations in 2002.

The Interim Measures Plan was implemented at MDA V in 2001. Additional confirmatory sampling related to the interim measures was conducted in 2002. Additional investigation requirements are outlined in Section IV.C.2.g of the Order.

N

R392 SectionIV.C.2.g

38 MDA VInvestigation

LANL commented the requirement in this section, to provide a report to NMED by December 2002 “…for the ‘hot’ demonstration interim measure for the Non-Traditional in-Situ Vitrification (NTISV) demonstration performed in November 2000,” is impracticable to perform in the time

The Non-Traditional in-Situ Vitrification (NTISV) demonstration was performed in April 2000, and additional sampling was performed in June 2002. NMED believes LANL has had sufficient time to submit results of the NTISV. NMED believes the submittal date outlined in Section IV.C.2.g of the Order to be reasonable and achievable.

N

Subject



Section/ Attachment

Unique No.


Y/N frame required. Although, the Laboratory ER project has completed a draft report, summarizing the work completed to-date, the final work of sampling the vitrified material is currently underway, and the analytical results must be received before the report can be completed. Sample collection was completed in June 2002. However, given the complexity of analysis, the complete results are not expected until the end of calendar year 2002. Thus, the December 2002 due date does not provide sufficient time to complete data assessment, report writing, and internal review prior to submittal.

R393 SectionIV.C.2.g

38 MDA VInvestigation

LANL commented that the statement in the first sentence of this section is inaccurate. The NTISV “hot” test demonstration was performed in Apri12000, not “November 2000,” as cited therein.

The NMED will correct the Order to reflect the demonstration date of April 2000.

Y

R394 SectionIV.C.2.g.i

38 MDA VInvestigation Work Plan

LANL commented the requirements in this section are inconsistent with work previously conducted under USEPA-approved work plans, and now in the process of submission to NMED. The Investigation Work Plan for MDA V was previously included in the NMED-approved OU 1106 RFI Work Plan. The RFI Work Plan was implemented in 1992 and 1993. Investigation results were presented in several documents submitted to NMED in August 1996. A supplemental

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for results of previous investigation activities conducted at MDA V to be included in the required MDA V Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.g of the Order.

N

Subject



Section/ Attachment

Unique No.


Y/N sampling and analysis plan, prepared to fill remaining data gaps, was also submitted to NMED in 1996. In October 1999 an Interim Measures (IM) Plan was submitted to NMED for the demonstration of non-traditional in-situ vitrification (NTISV) regarding one of the absorption beds at MDA V. The IM Plan was approved and subsequently implemented in 2000. The vitrified glass product is currently being sampled to verify the technology and integrity of vitrified product. Results will be reported in the IM completion report to be submitted to NMED in mid-FY2003.

Results of the NTISV demonstration at MDA V are required to be submitted to NMED in accordance with the schedule outlined in Sections IV.C.2.g and Section XII of the Order. The deliverable due date to NMED of the NTISV report is December 30, 2002.

R395 SectionIV.C.2.g.ii

38 MDA V Survey of Disposal Units

LANL commented the requirement in this section has been completed. Existing engineering drawings and drilling results have been used to determine the dimensions of the absorption beds at MDA V. A waste inventory and the dimensions of each the pit and shaft, is sufficient to model fate and transport at the site. Information regarding base profile is not necessary to model fate and transport and should not be required.

NMED requires the base profile for each pit at MDA V in order to determine the low elevation point (s) in each pit. NMED makes the assumption that construction activities may have reduced the permeability of the base of the pits and that liquid releases, if they occurred, may have migrated to areas of lower elevation in the pits. The purpose of determining base profiles is to reduce the number of borings required to investigate for releases. LANL has the opportunity to suggest alternate methods for determining the base profile of the pits in the site-specific investigation work plan for MDA V or to suggest advancing borings in a grid pattern at each pit location. NMED has not approved any model generated for MDA V.

N

R396 SectionIV.C.2.g.iii

38 MDA V Drilling Explorations

LANL commented the borehole characterization program required for MDA V under this section, is overly prescriptive and unsupported by

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not

N

Subject



Section/ Attachment

Unique No.


Y/N evidence in the administrative record. It is also inconsistent with prior NMED-approved action. The Laboratory has based prior investigations of MDA V on the DQO process detailed in the NMED-approved RFI Work Plan for OU TA-21. The investigation work plan for MDA V was included in the approved TA-21 OU RFI Work Plan, and was implemented in 1992 and 1993. The investigation results were presented in the Phase Report 1C for OU 1106, TA-21: Facility Investigation: Outfalls Investigation; the RFI Phase Report Addendum 1B and 1C for OU 1106; and the RFI Report for PRS 21-018(a), submitted to NMED in August 1996. DQO work was conducted in 1995-1996. A supplemental sampling and analysis plan (to fill remaining data gaps) was also submitted to NMED in 1996. The RFI report for MDA V will present all results and identify potential data gaps, as required by the DQO process. In contrast, the prescriptive characterization program required in this section, does not utilize or discuss the DQO process, as required by RCRA guidance, nor is it supported by any reference to the RFI Work Plan for OU TA-21 or the results of any investigation or work previously conducted by the Laboratory.

expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for results of previous investigation activities conducted at MDA V to be including in the required MDA V Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.g of the Order. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.

R397 SectionIV.C.2.g.iii

38 MDA V Drilling Explorations

LANL commented the requirements in this section are inconsistent with

NMED recognizes that LANL may have conducted additional work that has not been

N

Subject



Section/ Attachment

Unique No.


Y/N NMED and USEPA RCRA guidance, and work previously conducted under USEPA-approved work plans. The Laboratory has based its investigations for MDA V on the DQOs process detailed in the approved OU T1106 RFI Work Plan. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions. The RFI report for MDA V will present all results and identify potential data gaps, as required by the DQO process. The Laboratory’s approach is to use the results of the RFI report to plan additional work. In contrast, the characterization program in this section does not present scientific DQOs as required by RCRA guidance, does not follow NMED’s position paper on the Determination of Extent of Contamination (March 2, 2000), nor provide any reference the approved RFI Work Plan for OU 1106, which includes the investigation work plan for MDA T, and the results of the investigations already conducted by the Laboratory.

reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order to provide results of previous investigation activities conducted at MDA V in the required MDA V Investigation Work Plan, if they fulfill requirements outlined in Section IV.C.2.g of the Order. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation. Should the Facility propose that EPA guidance is required without modification for any reason, then DOE internal procedures would not be available for use in Environmental Management activities. The Facility would therefore be precluded from using its SOPs developed to conduct environmental characterization activities unless it was identical to the procedures outlined in the EPA guidance. LANL may exercise its option to withdraw its SOPs from consideration during implementation of the Order. The approach for site investigations required in the

Subject



Section/ Attachment

Unique No.


Y/N Order is in accordance with NMED’s position paper “Determination of Nature and Extent of Contamination” (March 2, 2000).

R398 SectionIV.C.2.g.iv

38 MDA V Soil and Rock Sampling

LANL commented the requirement in paragraph six of this section, to sample for the presence of high explosives (“HE”) at MDA V, is overly prescriptive and unsupported by evidence in the administrative record. Although HE compounds were routinely flashed at one of the Laboratory firing site, and some classified HE-contaminated shapes were disposed of at MDA H, there is no historic information of other documentation indicating the disposal of HE compounds at MDA V. In addition, no sampling for HE compounds has been required, or conducted, to date, in the NMED-approved RFI Work Plan for TA-21. HE is not a potential contaminant at MDA V, and thus should not be included in the analytical suite for soil and rock samples.

According to the RFI Report for MDA V Potential Release Site 21-018(a) in TA-21 (LA-UR-96-2735 page 37) provided to NMED by LANL, “little is known about the waste streams...”; therefore, HE compounds may be present in the subsurface at MDA V. If investigation sampling results indicate HE compounds are not present in the subsurface at MDA V, LANL may request that analyses of HE compounds be eliminated from the analytical suite.

N

R399 SectionIV.C.2.g.vii

38 MDA VIntermediate Groundwater Well Installation

LANL commented the requirement in this section, to install intermediate groundwater well(s) “…if geophysical or other evidence suggests the presence of intermediate perched groundwater…” during subsurface investigations for MDA V, is not justified by any evidence in administrative record. There is currently no evidence of perched groundwater beneath MDA V. There is

There is not sufficient evidence in the administrative record to rule out the possibility of encountering localized intermediate perched water during drilling activities. The Order clearly states that if geophysical or other evidence suggest the presence of intermediate perched groundwater during the required subsurface investigation at MDA V, NMED may require intermediate groundwater monitoring well(s) be installed. If, intermediate water is not encountered during drilling, LANL will not be required to install

N

Subject



Section/ Attachment

Unique No.


Y/N sufficient existing data to conclude that perched water would not be encountered in the suggested drilling location. Drill Hole LADP-3 in Los Alamos Canyon, provides evidence of alluvial saturation and saturation in the Guaje Pumice Bed – and regional well R-7, in Los Alamos Canyon, encountered saturation in the upper Puye Formation below the Guaje Pumice Bed. In contrast, however, drill hole LADP-4 in DP Canyon, encountered no perched groundwater down to a depth of 800 feet. Moreover, drill hole 21-2523 within MDA V was drilled to a depth of 707 feet and did not encounter any perched groundwater. Collectively this information indicates the presence of localized perched groundwater, near the Guaje/Puye contact, only beneath the axis of Los Alamos Canyon. Numerous drill holes at TA-21 also provide no evidence of perched groundwater at any higher stratigraphic horizon, including the Cerro Toledo interval.

intermediate groundwater monitoring well(s).

R400 SectionIV.C.2.g.ix

38 MDA VGroundwater Monitoring

LANL commented the requirement in paragraph one of this section, to obtain groundwater samples from numerous monitoring wells in Los Alamos Canyon regarding MDA V, is overly prescriptive and without support in the administrative record. This requirement is also inconsistent with prior NMED-approved action.

The administrative record supports conducting groundwater monitoring at MDA V. In addition, the wells outlined in Section IV.C.2.g.ix are appropriate to monitor possible impacts to groundwater from MDA V. The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. The Facility has installed 13 wells as of the issuance of the Draft Order on May 2, 2002,

N

Subject



Section/ Attachment

Unique No.


Y/N NMED’s hydrogeologic evaluation of the Laboratory proposes two regional monitor wells in Los Alamo Canyon. Inconsistently, however, the Draft Order requires monitoring from at least five regional wells. The Hydrogeologic Workplan, currently in progress, will provide essential data for the development of a ground water monitoring plan. Thus any monitoring requirements should reasonably be determined only after completion of the HWP and the RFI for MDA V. NMED provides no reference to this, or any other information in the administrative record in support of this requirement.

four years later. Twelve of the 13 wells installed are useful for data collection. At this pace, it will take the Facility seven additional years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the Hydrogeologic Work Plan for LANL to propose long-term groundwater monitoring and sampling as outlined in Section IV.C.2.f.ix of the Order

R401 SectionIV.C.2.g.ix

38 MDA VGroundwater Monitoring

LANL commented the requirement in paragraph three of this section, for full suite analysis of groundwater samples during the monitoring phase, is overly prescriptive, and without adequate corresponding support in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific COCs in the vicinity of the monitoring locations, and a thorough review of existing data, including the location of contaminant sources and groundwater occurrences. However, NMED provides no reference to this, or any other such information, in the administrative record in support of this requirement. The Laboratory’s approach is to propose further groundwater

A limited sampling suite is not currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in required site-specific work plans. LANL may implement voluntary investigation, cleanup and monitoring at risk. However, NMED must approve all corrective action and LANL must fulfill all requirements included in the Order. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as

N

Subject



Section/ Attachment

Unique No.


Y/N monitoring in accordance with the Laboratory’s ongoing re-evaluation for the current monitoring program and following the DQO process. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions.

determining compliance with a standard. The DQO process is guidance and not regulation.

R402 SectionIV.C.3 and Table XII-2

4, 35, 36 TA-50, SWMU 50-009 (MDA C)

There were several comments regarding TA-50. One commenter noted that TA-50 contains MDA C, PRS 50-009, a major waste disposal area; drilling pursuant to the RFI Work Plan was conducted in 1995; RFI Reports were [submitted] in 1995 and 1996 concerning PRSs investigated through soil sampling but no RFI report and no recommendation as to further action have been submitted concerning MDA C; drilling results contained in materials produced in response to an NMED document demand show significant contamination emanating from MDA C. This commenter suggests a RFI report should be completed in 2002-2003 with a recommendation for further action soon thereafter. Another commenter noted that TA-50, MDA C, has operated without a state permit and discharged effluent that likely significantly contaminated the perched aquifers in Mortandad Canyon. This commenter recommended that the Final Order expressly address this

According to Table XII-2 of the Order, the MDA C investigation report is due in May 2004. The report will include the results of soil and groundwater (including any perched zones) sampling and LANL’s recommendations for any further actions. If NMED deems it necessary, LANL will perform a corrective measures study for MDA C. The remaining contamination at TA-50 will be addressed in the Mortandad Canyon investigation or as part of the Mortandad Canyon Watershed. The TA-50 permit is beyond the scope of the Order. The Order will be revised to require that the Respondents provide the known or suspected source of any groundwater contaminants. The TA-50 RLWTF outfall is an NPDES permitted outfall. The NMED Groundwater Quality Bureau is currently preparing a discharge plan for the RLWTF. NMED requires that LANL report the presence and concentrations of radionuclides in its existing HSWA permit and also in the Order. It is NMED’s position that risk cannot be properly evaluated at any site where radionuclide contamination is present without that information, regardless of the source of contamination. NMED requested information on accelerator-produced

Y

Subject



Section/ Attachment

Unique No.


Y/N situation, and others like it at Area G, TA-49, and TA-16, and outline an immediate mitigation strategy. Another commenter noted that there are a number of important TA-50 environmental issues not defined to MDA C. In particular, TA-50’s Radioactive Liquid Waste Treatment Facility (RLWTF) has operated without a state permit while its discharged effluent exceeded State nitrate discharge levels and DOE Derived Concentration Guidelines for radionuclides. This commenter noted that a process for issuing a state permit for RLWTF was initiated four years ago, but was aborted. This commenter recommended that the Final Order address the need for this permit and that the permit should incorporate a remediation plan for the RLWTF’s past discharges that have resulted in extensive contamination of Mortandad Canyon’s perched aquifers. In addition, this commenter recommends that LANL be required to determine what proportion of groundwater tritium contamination might be reactor-produced vs. accelerator-produced in order to assist NMED to clarify its jurisdictional authority over tritium contamination at LANL.

waste from LANL in a letter dated August 21, 2002.


38 MDA CHistorical Investigation

LANL commented the requirement in this section is duplicative of prior work under USEPA-approved work plans.

NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents

N

Subject



Section/ Attachment

Unique No.


Y/N Nearly all of the historical information requested for MDA C was provided in the RFI Work Plan for Operable Unit1147. A detailed assessment of all the waste disposal logs and historical investigations of MDA C is currently underway. Information provided in the initial OU 1147 Work Plan submission, will be updated and provided in the MDA C RFI report, scheduled for submission to NMED in early FY2003.

provided insufficient information to adequately characterize the nature and extent of contamination at the sites identified in the Order. If LANL is currently conducting a detailed assessment of all waste disposal logs and historical investigations of MDA C as stated in this comment, then it is unlikely that the requirements in the Order are duplicative. The investigation of MDA C must be conducted in accordance with the requirements of the Order and submittals for site investigations conducted at MDA C also must comply with the requirements of the Order. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in each site-specific work plan required in the Order.

R404 SectionIV.C.3.c.ii

38 MDA C Survey of Disposal Units

LANL commented the requirements in this section, to conduct extensive subsurface investigations at MDA C, are overly prescriptive and without adequate corresponding support in the administrative record. The requirements in this section make no reference to required, known data quality objectives, nor do they reference any existing data to focus additional investigation requirements. Instead, this section includes a random list of requirements, without regard to the size or layout of disposal units, or

The investigation of MDA C must be conducted in accordance with the requirements of the Order and submittals for site investigations conducted at MDA C also must comply with the requirements of the Order. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in each site-

N

Subject



Section/ Attachment

Unique No.


Y/N placement of existing boreholes. In FY2003, the Laboratory will submit the MDA C RFI report, which is based on the DQO process, and detailed in the approved OU1147 Work Plan. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions.

specific work plan required in the Order.

SectionIV.C.3.c.ii

38 MDA CSubsurface Investigations

LANL commented that the requirements in this section, to conduct extensive subsurface investigations at MDA C, are overly prescriptive and without adequate corresponding support in the administrative record. The requirements in this section make no reference to required, known data quality objectives, nor do they reference any existing data to focus additional investigation requirements. Instead, this section includes a random list of requirements, without regard to the size or layout of disposal units, or placement of existing boreholes. In FY2003, the Laboratory will submit the MDA C RFI report, which is based on the DQO process, and detailed in the approved OU1147 Work Plan. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions.

NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at the sites identified in the Order. The investigation of MDA C must be conducted in accordance with the requirements of the Order and submittals for site investigations conducted at MDA C also must comply with the requirements of the Order. The DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to determine compliance with a standard. The DQO process developed by USEPA is guidance and not regulation.

N

SectionIV.C.3.c.iii

38 MDA C Drilling Explorations

LANL commented the requirements in this section are inconsistent with USEPA, RCRA and NMED guidance, and current Laboratory work under a

LANL does not specify which guidance is being referred to in the first sentence of this comment (LANL Draft Order Comments Attachment 6 number 68, July 31, 2002). The approach for site

Subject

R405

R406 N



Section/ Attachment

Unique No.


Y/N USEPA-approved work plan. The Laboratory has based investigations for MDA C on the DQO process detailed in the approved RFI Work Plan for OU1147. The DQO process was developed by EPA as a planning tool to ensure that data collected is adequate to resolve decisions. The Laboratory’s approach is to submit the MDA C RFI report to NMED in FY2003. Under this approach, a supplemental sampling plan will be submitted if data gaps are identified in the RFI report. This report will be based on NMED’s position paper on Determination of Extent of Contamination (March 2, 2000). In contrast, the characterization program in this section does not present the DQOs required by RCRA guidance, does not follow NMED’s position paper on the Determination of Extent of Contamination and does not reference the approved RFI Work Plan for OU TA 1147, or the results of the investigations previously conducted by the Laboratory.

investigations required in the Order is in accordance with NMED’s position paper “Determination of Extent of Contamination” (March 2, 2000). NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at MDA C. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA C required in the Order. The DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to determine compliance with a standard. The DQO process developed by USEPA is guidance and not regulation.

R407 SectionIV.C.3.c.iv

38 MDA C Soil and Rock Sampling

LANL commented the requirement in paragraph four of this section, to sample for the presence of “HE compounds” at MDA C, is unsupported

In comment number 403 above, LANL states that “A detailed assessment of all the waste disposal logs and historical investigations of MDA C is currently underway”. This statement indicates that

Subject

N



Section/ Attachment

Unique No.


Y/N by evidence in the administrative record. Based on a review of all currently available disposal logs for MDA C, there is no basis for the analysis of samples for the presence of HE compounds. In addition, the approved RFI Work Plan for OU1147 specifically states that no HE disposal occurred in the chemical pit. Laboratory Sup. AR, at 13. High explosives (HE) are not a potential contaminant at MDA C, and thus need not be included in the analytical suite for soil and rock samples.

LANL has not completed its review of all disposal logs for MDA C and therefore cannot substantiate its assertion that HE is not a potential contaminant at MDA C. If investigation sampling results indicate that HE compounds are not present at MDA C, the Facility may request analytical analyses of HE compounds be eliminated from the analytical suite.

R408 SectionIV.C.3.c.v

38 MDA C Vapor Monitoring

LANL commented the requirements in this section are inconsistent with work previously conducted under an NMED-approved plan, and currently being reported to NMED. Vapor sampling, at two locations within MDA C, is currently being conducted as part of the MDA C RFI. This data is being submitted in ER quarterly reports to NMED. The Laboratory’s approach is to evaluate vapor monitoring data for the MDA C RFI report, to address potential data gaps, and to determine the nature and extent of contamination at MDA C. The Laboratory’s approach includes further evaluation of long-term vapor monitoring at MDA C, during the CMS process.

NMED conducted a review of documents submitted by LANL and concluded that the historical vapor sampling and vapor monitoring conducted at MDA C is inadequate to characterize and monitor the site. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA C required in the Order.

N


38 MDA CRegional Groundwater Well Installation

LANL commented the requirement in the first sentence of this section, to construct a monitoring well intersecting the regional aquifer, is impracticable at

N

Subject

NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents provided insufficient information to adequately



Section/ Attachment

Unique No.


Y/N this time, in light of ongoing, related work. Existing MDA C data, including subsurface data to a depth of 315 feet, is currently being evaluated as part of the MDA C RFI work plan, to determine if the nature and extent of contamination MDA C are sufficiently characterized. A RFI report summarizing the completed work is in preparation and will include recommendations regarding additional characterization needs. The Laboratory’s approach is to propose construction of a regional aquifer well at MDA C, if needed, following the evaluation of data collected for the RFI work plan.


38 MDA CRegional Groundwater Well Installation

An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA C required in the Order. Depending on the drilling method, vapor sampling during drilling of deep borings may be practicable and preferable to drilling a second borehole explicitly for vapor phase investigation. NMED recognizes that conditions may not be amenable to vapor sample collection during certain types of drilling or under some drilling conditions in which case additional deep boreholes will be required to complete the investigation of vapor-phase contamination. NMED does not separate LANL’s ER project from other entities at the Facility that conduct environmental work. The DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA

N

Subject

characterize the nature and extent of contamination at MDA C. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA C required in the Order.

LANL commented the requirement in paragraph two of this section, to monitor well borings “…for the presence of vapor-phase contaminants prior to well construction,” is impracticable to perform as required, because regional aquifer well locations are an inefficient method for the investigation of vapor transport from MDAs. Vapor sampling relative to disposal areas is, and continues to be, planned and performed by the MDA activity of the Laboratory’s Environmental Restoration Project. However, for technical and efficiency reasons, a more effective course is to conduct vapor phase investigation independent of the regional aquifer investigation, because the drilling



Section/ Attachment

Unique No.


Y/N recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to determine compliance with a standard. The DQO process developed by USEPA is guidance and not regulation.


MDA CGroundwater Monitoring

LANL commented the requirement in paragraph one of this section, to conduct sampling from each saturated zone, at all wells that intersect groundwater, is unreasonably burdensome without providing a corresponding and commensurate benefit. Rather than monitor every intermediate-depth saturated zone encountered, as required by NMED, monitoring should instead be focused

An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for MDA C. NMED agrees that groundwater monitoring requirements should be determined based on investigation results. LANL has the opportunity to propose a groundwater monitoring and sampling strategy in the long-term groundwater monitoring and sampling work plan required in Order Section IV.C.3.c.viii. Items 2 and 3.

N

Subject

methods for regional aquifer wells are not amendable to collecting vapor samples. The collection of such samples would require an expensive process of removing drilling equipment, cleaning out the borehole, and inserting vapor sampling equipment. Even then, the quality and representativeness of a vapor sample collected from this type of borehole would be questionable. Shallow boreholes drilled for the express purpose of collecting vapor samples are less costly and provide superior data quality. In determining the need for additional vapor data, the DQO process must be applied to determine what data is needed. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decision. Laboratory and NMED personnel should participate in DQO meetings designed to determine data collection requirements for each borehole.

38



Section/ Attachment

Unique No.


Y/N on the larger saturated zones. By focusing on these larger zones, monitoring resources are appropriately concentrated on bodies that are likely to supply sufficient water and contaminants, and thus potentially impact underlying regional groundwater. Thus, the requirement to monitor every intermediate-depth saturated zone, fails to recognize that the larger saturated zones pose the greatest concern for water quality. This particularly true, given that many intermediate-depth saturated zones encountered in the drilling at Los Alamos were thin and not extensive, and thus contained minute volumes of water. NMED fails to provide any explanation why monitoring all intermediate and regional groundwater wells in the canyon is necessary or reasonable. The RFI for MDA C should be completed prior to determining any monitoring requirements. Both intermediate and regional groundwater monitoring should be determined by the results of the hydrological investigations performed during installation and sampling of intermediate groundwater monitoring wells. All relevant information from the RFI should be considered prior to developing monitoring requirements.

R412 SectionIV.C.4 and

TA-49, SWMUs 49-001(a-g) and

There were several comments regarding TA-49. One commenter

The schedule in Section XII of the Order outlines the deliverables and dates for TA-49. NMED

N

Subject

4, 35, 36



Section/ Attachment

Unique No.


Y/N Table XII-2 49-003, and

AOC C-49-008(d) (MDA AB, Areas 1, 3, 4, 11, 12)

noted that TA-49 contains the Frijoles Mesa hydronuclear experiment sites; in 1996 NMED determined that MDA AB, PRSs 49-001(a-g) had high priority; organics had been detected in the regional aquifer in well DT-9; NMED requested LANL to accelerate the RFI; a stabilization plan for MDA AB was submitted in late 1998; a best management practices report filed in 1999; and a RFI report dated August 1997 was filed for PRSs in Areas 5, 6, 10, and 11. This commenter questioned why the completion of investigations and submission of reports on them should be delayed beyond 2003. Another commenter recommended that the Final Order expressly address TA-49 and outline an immediate mitigation strategy. Another commenter supported NMED for addressing environmental restoration issues at TA-49. This commenter expressed concern that LANL may attempt to take advantage of cost and feasibility escape clauses incorporated in the Order for this situation and strongly argues for the most judicious granting of them by NMED.

believes that this schedule reflects its priorities at TA-49 and is appropriate for the amount of work that is required. Section IV.C.4 of the Order addresses the investigation requirements for TA-49. Section III.M of the Order addresses the penalties associated with violations of any enforceable requirement of the Order.


38 Technical Area49 Drilling Explorations

NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents

N

Subject

LANL commented the requirements listed in this section, to conduct subsurface explorations to characterize



Section/ Attachment

Unique No.


Y/N provided insufficient information to adequately characterize the nature and extent of contamination at TA-49. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for TA-49 required in the Order. In addition, the approach for site investigation required in the Order is in accordance the NMED’s position paper “Determination of Nature and Extent of Contamination” (March 2, 2000). NMED does not believe the investigation requirements will cause the Facility to generate transuranic waste.

Subject

Technical Area 49 and including subsurface explorations at MDA AB, and Areas 1, 3, 4 and 11, are overly prescriptive and without justification in the administrative record. In addition, these requirements are inconsistent with applicable NMED, USEPA and RCRA regulations. Regarding DQOs, NMED’s requirements in this section do not follow the DQOs established in the approved RFI Work Plan for OU 1144. In addition, these requirements are inconsistent with NMED’s guidance entitled “Determination of Extent of Contamination” (March 2, 2000). In place of the prescriptive requirements in this section, the Laboratory’s approach is to complete and submit the supplemental sampling and analysis plan for Areas 1, 2, 2A, 2B, 3, 4, 11 and 12. Each of these documents will be prepared in accordance with the DQO process in the approved OU1144 RFI Work Plan, and in accordance with the NMED position paper on Determination of Extent of Contamination. In addition, the Laboratory’s approach would include the submission of a hydrogeologic characterization report for the MDA AB area, based on the existing 700-foot borehole. Such a report should resolve discrepancies in stratigraphic unit technology that has changed over time. Construction of the 900-foot borehole should occur only if



Section/ Attachment

Unique No.


Y/N


Technical Area49 Intermediate Groundwater Well Installation

LANL commented that the requirement in paragraphs nine and eleven of this section, to conduct monitoring in the “Bottle House” at Area 12, is inconsistent with a USEPA-approved work plan, and unsupported by evidenced in the administrative record. The VCA completion report confirmed that the surface contamination at Area 12 originated from the unplanned release of radioactivity from MDA AB during construction of shaft 2-M. Information regarding historic use also indicates no need for this sampling. MDA AB, directly west of the Bottle House, was used from 1959 to 1961 for underground hydronuclear safety test experiments. The primary historic activities conducted at Area 12 were confinement experiments in 1960 and 1961, that were related to the MDA AM hydronuclear safety program. Several experiments involved a few kilograms of unranium-238. Six

NMED conducted a review of documents submitted by LANL and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at TA-49. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan for TA-49 required in the Order. NMED does not believe the investigation requirements will cause the Facility to generate transuranic waste.

N

Subject

data from the 700-foot borehole is insufficient. Drilling proposed in the supplemental sampling would be based on a review of information from existing drilling and sampling data in these areas. The depth and distance of the boreholes would be based on a review of historical hydronuclear test information, and seek to gather samples to determine nature and extent of contamination yet also avoid generating transuranic waste.

38



Section/ Attachment

Unique No.


Y/N experiments involved few microcuries of irradiated uranium tracer. In each experiment, after the HE was detonated, the containment vessel was unsealed, and the salt was removed. During the Area 12 containment experiments, the area was monitored routinely for the release of radiation, and there were no documented releases of radiation. After the containment experiments were concluded in 1961, Area 12 structures were used to support operations at the Cable Pull Test Facility, which was constructed in the early 1960s just across the access road from the Bottle House.

R415 SectionIV.C.4.c.vi

Technical Area49 Intermediate Groundwater Well Installation

LANL commented the requirement to “…install one groundwater monitoring well that intersects perched groundwater, if such groundwater is present beneath the site…,” should be contingent on encountering perched water in regional aquifer characterization well R-30. Notwithstanding, this is unlikely because existing data indicates no perched intervals to a depth of 700 feet at TA-49. Well 49-2-700-1 was previously drilled to 700 feet at TA-49, through the Cerro Toledo interval and into Otowi ash flows, and did not encounter perched water. The best determination of potential perched water at TA-49 will occur with the drilling of regional well R-30. Additional data will also be obtained

There is not sufficient evidence in the administrative record to rule out the possibility of encountering localized intermediate perched groundwater during drilling activities. The Order clearly states that if geophysical or other evidence suggest the presence of intermediate perched groundwater during the required subsurface investigation at TA-49, NMED may require intermediate groundwater monitoring. If intermediate groundwater is not encountered during drilling, LANL will not be required to install intermediate groundwater monitoring well(s).

N

Subject

38



Section/ Attachment

Unique No.


Y/N with the drilling of regional well R-27 in Water Canyon. However, if perched water is not found in either of these well, and intermediate well within the boundaries of TA-49 is unnecessary.


Technical Area49 Groundwater Monitoring

LANL commented the requirement in paragraph four of this section, to submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, and impracticable, prior to the completion of the hydrogeologic characterization required by NMED. The Hydrogeologic Workplan, currently in progress, provides for a groundwater quality characterization phase and thus will provide data useful for the development of a ground water monitoring plan. The Laboratory approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual RFI investigations at TA-49.

NMED does not consider the submittal of a long-term groundwater monitoring and sampling work plan as outlined in Section IV.C.4.c.viii to be unreasonably burdensome or impracticable. The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. The Facility had installed 13 wells as of the issuance of the Draft Order on May 2, 2002, four years later. Twelve of the 13 wells are useful for data collection. At this pace, it will take the Facility seven additional years to complete the HWP well installation. NMED believes it is unreasonable to wait until the completion of the HWP for LANL to propose long-term groundwater monitoring and sampling as outlined in Section IV.C.4.c.viii of the Order.

N

R417 38 Technical Area 49 Groundwater Monitoring

Draft Order, Section IV.C.4.c.viii, (p.118): The requirement in paragraph four of this section, for full suite analysis of groundwater samples during the monitoring phase, is overly prescriptive and without justification in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific contaminants of concern (COCs) in the vicinity of the monitoring locations,

NMED does not believe that a limited sampling suite is currently supported by the administrative record. An opportunity is provided in the Order for LANL to justify a more limited suite of analytical testing in the canyon-specific work plan. Data Quality Objectives (DQO) are not required under EPA's quality system. EPA recommends using the DQO Process (Guidance for the Data Quality Objectives Process (G-4) - August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste

N

Subject

38

SectionIV.C.4.c.viii



Section/ Attachment

Unique No.


Y/N and a thorough review of existing data, including the location of contaminant sources and groundwater occurrences. However, NMED provides no reference to this, or any other related information, in the administrative record in support of this requirement. The Laboratory’s approach is to propose further groundwater monitoring, if needed, in accordance with the Laboratory’s ongoing reevaluation of the current monitoring program, and following the DQO process. The DQO process was developed by the Environmental Protection Agency as a planning tool to ensure that data collected is adequate to resolve decisions; Id. Environmental Protection Agency, 1994, “Guidance for the Data Quality Objectives Process,” USEPA QA/G04.

Sites (G-4HW) - January 2000, EPA/600/R-00/007) when data are being used to select between two opposing conditions, such as determining compliance with a standard. The DQO process is guidance and not regulation.

Subject



Section/ Attachment

Unique No.


Y/N R418 Section

IV.C.5 and Table XII-2

4, 36 TA-10, SWMUs 10-003(a) and 10-007

There were several comments regarding TA-10. One commenter noted that TA-10 is now largely public; there have been at least four RFI reports concerning various PRSs in TA-10, but none have been approved; there was a Voluntary Corrective Action in Bayo Canyon in approximately 1995; but NMED does not seem to have told LANL if these sites require further action. This commenter suggests that NMED direct the completion of any additional sampling that needs to be done in these PRSs in 2002 and, if necessary, the submission of CMS work plans and implementation in 2003-2004. Another commenter supported NMED for addressing environmental restoration issues at TA-10.

N

Subject

The schedule in Section XII of the Order outlines the deliverables and dates for TA-10. The schedule directs the completion of additional investigation at TA-10 by September 2005. NMED believes that this schedule reflects its priorities at TA-10 and is appropriate for the amount of work that is required.



Section/ Attachment

Unique No.


Y/N R419 Section

IV.C.5.b 38 Historical

Investigation LANL commented the requirements in this section, regarding “Historical Investigation” information for SWMUs 10-002(a and b), 10-003(a-o), 10-004(b), and 10-007, is duplicative of work previously submitted to NMED. Historical information for these SWMUs has been submitted in the 1990 SWMU Report and the OU 1079 Work Plan. Subsequent activities have been reported in various RCRA Facilities Investigation, Interim Measure and Voluntary Corrective Action Reports. This information will be summarized again in the planned VAC/VCM under the current format.

N

Subject

NMED conducted a review of documents submitted by LANL regarding TA-10 and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at the sites identified in the Order. The investigation of TA-10 must be conducted in accordance with the requirements of the Order and submittals for site investigations conducted at TA-10 also must comply with the requirements of the Order. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan required in the Order.



Section/ Attachment

Unique No.


Y/N R420 Section

IV.C.5.b 38 Historical

Investigation LANL commented that the requirements in this section, regarding “…review and confirm the construction details and historical uses of all existing and demolished former TA-10 buildings and other structures…” is impracticable, if not impossible, to conduct and unreasonable burdensome without any corresponding benefit. TA-10 has been out of service since 1963. It is unreasonable to require the Laboratory to “review and confirm” details regarding a site that has been out of service for so long, and has undergone extensive work during that period.

N

Subject

NMED conducted a review of documents submitted by LANL regarding TA-10 and concluded that the site investigations summarized in those documents provided insufficient information to adequately characterize the nature and extent of contamination at the sites identified in the Order. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED also recognizes that LANL may not be able to locate all records of past activities at the site; however, NMED requires that LANL practice due diligence in conducting its review of historical documents and in identifying those areas most likely to contain residual contamination at TA-10. NMED expects LANL to provide an explanation as to why it was unable to obtain required data in the site-specific investigation work plans and investigation reports required in the Order.



Section/ Attachment

Unique No.


Y/N R421 Section

IV.C.5.c 38 Technical Area

10 Investigation LANL commented the requirement in this section is inconsistent with current voluntary corrective action/measures for TA-10, and does not reflect a cost-effective approach to characterization and remediation. The current ER Project baseline schedule contains a Voluntary Corrective Action/measure for TA-10. This activity proposes refining any outstanding extent issues not previously resolved, and to conduct appropriate remediation based on the review of existing and supplemental data. The Draft Order prescribes breaking this effort into many discrete activities, using redundant actions to accomplish the same goal. The document preparation required will aggravate the already burdensome documentation requirements mandated by NMED.

N



LANL commented that the statement that requires the Laboratory to characterize “types and concentrations of contaminants” found through “drilling explorations” and the accompanying provision is overbroad. NMED does not have the authority to regulate radionuclides. This provision is preempted by and otherwise contrary to federal law.

N

Subject

NMED requires that a thorough investigation of TA-10 be conducted to determine whether residual contamination is present at concentrations greater than residential risk levels. NMED requires that ecological risk also be considered at TA-10. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan required in the Order. NMED does not expect LANL to duplicate work already performed that meets the requirements of this Order. Section III.N of the Order addresses duplication of work. The document preparation requirements outlined in the Order attempt to streamline report preparation and submittal. The report format outlined in the Order is designed to help expedite NMED document review.




Section/ Attachment

Unique No.


Y/N R423 Section

IV.C.5.c.iii 38 Technical Area

10 Drilling Explorations

LANL commented the requirement in this section that “[t]he methods and locations for collecting data shall be approved by NMED prior to data collection,” is impracticable to perform, and unreasonably burdensome without providing a corresponding or commensurate benefit. Field investigations do not lend themselves to predetermined, pre-approved locations. For example, subsurface features may require slight shifts in proposed locations in order to collect the desired data. Under the requirement here, such changes would apparently require NMED pre-approval, presumably in writing. Such a requirement would be costly, impracticable and, possibly, lead to delays in conducting needed work.

NMED is not aware that LANL proceeds with field investigations without work plans in place. LANL’s past record of conducting field investigations contradicts this comment. LANL has routinely submitted work plans to NMED for approval. NMED understands that decisions must be made in the field during investigation activities to adjust to the conditions encountered. NMED does not consider LANL’s past performance for making decisions in the field to be adequate; therefore, NMED requires that LANL keep NMED informed of changes in the planned work during field investigations in order to try to avoid the need for LANL to return to complete or supplement investigation work, where possible.

N



The number of borings is considered by NMED to provide adequate coverage to ensure that a thorough investigation has been conducted to provide the basis for NMED to make a no further action determination, if appropriate. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan required in the Order.

N

Subject

LANL commented the requirement in paragraph one of this section, that “…minimum of 10 borings shall be advanced to depth of 25 ft bgs in the vicinity of the former disposal pit,” is overly prescriptive and not supported with evidence in the administrative record. NMED makes no reference to previously submitted Laboratory reports related to this work, but instead simply prescribes “a minimum of ten borings,” and the required depth, with no apparent technical basis for this requirement.



Section/ Attachment

Unique No.


Y/N R425 Section

IV.C.5.c.iii 38 Technical Area

10 Drilling Exploration

NMED is not aware that LANL proceeds with field investigations without a work plan in place. LANL’s past record of conducting field investigations contradicts this comment. LANL has routinely submitted work plans to NMED, and before 1996, to EPA for approval. NMED understands that decisions must be made in the field during investigation activities to adjust to the conditions encountered. NMED does not consider LANL’s past performance for making decisions in the field to be adequate; therefore, NMED requires that LANL keep NMED informed of changes in the planned work during field investigations in an attempt to try to avoid the need for LANL to return to investigation sites to complete or supplement investigation work, where possible.

N

R426 SectionIV.C.5.c.iv

38 Technical Area10 Drilling Exploration

The reference to depths in Section IV.C.5.c.iv paragraph three of the Order is for the collection of two core samples for permeability testing.

N

Subject

LANL commented the requirement in paragraph five of this section that “[t]he boring locations shall be approved by the Department prior to the start of drilling activities,” is impracticable to perform, and unreasonably burdensome. Field investigations do not lend themselves to predetermined, pre-approved, locations. Subsurface features may require slight shifts in proposed locations, to enable the collection of required data. Under the requirement here, such changes would apparently require NMED pre-approval, presumably in writing. Such a requirement would be costly, impracticable and, possibly, lead to delays in conducting needed work. LANL commented that the requirement in paragraph three of this section, that boring “…depths [must be] approved by the Department…,” is impracticable to perform, and unreasonably burdensome. Field investigations do not lend themselves to predetermined, pre-approved, locations. Subsurface features may require slight shifts in proposed locations, to enable the collection of required data. Under the requirement here, such changes would apparently require NMED pre-approval, presumably in writing. Such a requirement would be costly, impracticable and, possibly, lead to delays in conducting needed work.



Section/ Attachment

Unique No.


Y/N R427 Section

IV.C.5.c.iv 38 Technical Area

10 Drilling Exploration

LANL commented the requirement in paragraph four of this section, for full suite analysis of soil samples, is overly prescriptive and without justification in the administrative record. Consistent with current ER processes, and as mandated in the Draft Order, the evaluation of existing data is integral to the plan development process, and it is inappropriate to prescribe an analytical suite before this process is complete. NMED provides no reference to previously submitted the Laboratory reports, or to any other information in the administrative record, in support of this requirement. The Laboratory’s approach is to complete the data review process prior the selection of an analytic suite.

A limited sampling suite is not currently supported by the administrative record. The Order provides an opportunity to justify a more limited suite of analytical testing in required site-specific work plans. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. An opportunity is provided in the Order for LANL to provide additional information or justify a modification of the required work in the site-specific work plan required in the Order.

N

Subject



Section/ Attachment

Unique No.


Y/N R428 Section

IV.C.5.iv 38 Technical Area

10 Soil and Rock Sampling

LANL commented that this section of the Draft Order unlawfully regulates radionuclides by requiring rock and soil samples and prescribing sampling and screening specifications. DOE’s nuclear safety requirements include operating procedures to ensure the quality, consistency and safety necessary to successfully conduct drilling activities. The Draft Order conflicts with DOE’s nuclear safety requirement and also burdens DOE’s resources and creates unsafe conditions making it impossible to comply with DOE nuclear safety requirements. The unlawful regulation of radionuclides and imposition of conflicting analytical approach thwart the full purposes and objectives of Congress, by threatening Congress’ objectives that DOE regulate nuclear safety and make it impossible for DOE to also comply with its nuclear safety requirements.

See Response to Legal Comments, Comment Numbers 26, 28, and 44.

N

Subject



Section/ Attachment

Unique No.


Y/N R429 Section

IV.C.5.c.vi 38 Technical Area

10 Groundwater Monitoring

LANL commented the requirement in paragraph one of this section, to conduct intermediate and regional groundwater monitoring at specific wells that intersect groundwater is overly prescriptive and without any support in the administrative record. NMED fails to provide any explanation as to why this monitoring is necessary or reasonable. Instead, both intermediate and regional groundwater monitoring should be determined by the results of the hydrological investigations performed during installation and sampling of intermediate groundwater monitoring wells. The RFI for Bayo Canyon should also be completed prior to determining any further monitoring requirements. All relevant information should be reviewed and analyzed in support of any new monitoring requirements, and not simply prescribed without a technical basis, as NMED does here.

The Order Section IV.C.5.c.v states that LANL shall construct intermediation zone groundwater monitoring wells if groundwater is observed in zones above the regional aquifer. NMED expects LANL to monitor and sample intermediate zone groundwater if intermediate zone groundwater is encountered. NMED agrees that groundwater monitoring requirements should be determined based on investigation results. LANL has the opportunity to propose a groundwater monitoring and sampling strategy in the long-term groundwater monitoring and sampling work plan required in Order Section IV.C.5.c.vi. Item 3.

N

Subject



Section/ Attachment

Unique No.


Y/N R430 38 Technical Area


LANL commented the requirement in paragraph three of this section, for full suite analysis of groundwater samples during the monitoring phase, is overly prescriptive, and without adequate corresponding support in the administrative record. The analytical suite for groundwater monitoring should reasonably be determined by reference to the specific COCs in the vicinity of the monitoring locations. Decisions regarding groundwater monitoring should be based on a thorough review of existing data, and other relevant information, such as the location of contaminant sources and groundwater occurrences. NMED provides no basis for the analyte suites or frequency of sampling. The Laboratory’s approach is to propose further groundwater monitoring in accordance with the Laboratory’s ongoing re-evaluation for the current monitoring program and following the DQO process. The DQO process was developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions.

NMED agrees that groundwater monitoring requirements should be determined based on investigation results. LANL has the opportunity to propose a groundwater monitoring and sampling strategy in the long-term groundwater monitoring and sampling work plan required in Order Section IV.C.5.c.vi. Item 3. The DQO process was developed by EPA as a planning tool and is to be used as guidance. EPA recommends using the DQO process (Guidance for the Data Quality Objectives Process [G-4] – August 2000, EPA/600/R-96/055 and Guidance for the Data Quality Objectives Process for Hazardous Waste Sites [G-4HW] – January 2000, EPA/600/R-00/007) when data are being used to determine compliance with a standard. The DQO process developed by USEPA is guidance and not regulation.

N

Subject

SectionIV.C.5.c.vi



Section/ Attachment

Unique No.


Y/N R431 Section

IV.C.5.c.vi 38 Technical Area


LANL commented the requirement in paragraph three of this section, to submit “[a] long-term groundwater monitoring and sampling work plan…,” is unreasonably burdensome, and impracticable, prior to the completion of the hydrogeologic characterization required by NMED. The Hydrogeologic Workplan, currently in progress, provides for a groundwater quality characterization phase and thus will provide data useful for the development of a ground water monitoring plan. The Laboratory’s approach is to prepare a long-term groundwater monitoring plan following completion of the HWP, and activities for individual RFI investigations.

The HWP, dated May 1998, requires that 32 regional wells be installed to characterize the regional aquifer beneath the Facility. LANL had installed 13 of the wells as of the issuance of the draft Order on May 2, 2002, four years later. Twelve of the wells are useful for data collection. At that pace, it will take LANL nearly seven more years to complete the HWP well installations. NMED believes it is unreasonable to wait until the completion of the HWP for LANL to propose long-term groundwater monitoring as outlined in Section IV.C.5.c.vi of the Order. NMED expects that long term monitoring plans will be updated as new wells are installed and as new information is acquired that affects the monitoring requirements.

N

R432 35, 36 Investigation for Other SWMUs and AOCs

There were several comments regarding investigation for other SWMUs and AOCs. One commenter noted that details of the compliance activities and deliverables can be found in Sections IV, V.H, and VI, but also noted the Respondents’ history of failing to meet deadlines and compliance schedules. This commenter recommended that NMED make it clear what are the highest priorities and that failure to adequately address those priorities will result in immediate enforcement action. Another commenter noted that there are many other Technical Areas that need to be addressed including TA-16, TA-

Section V of the Order refers to SWMUs and AOCs not addressed in Sections IV and VI and to newly identified SWMUs and AOCs or to newly identified releases from SWMUs and AOCs. Because these sites will be identified at some future time, NMED cannot address in the Order which of these sites will be of higher priority.

N

Subject

Section V

Section XII of the Order outlines the deliverables and dates for investigation and reporting for each SWMU, AOC, and canyon at LANL. All sites are included in the Order either individually or as part of an aggregate. As stated on Section III.M of the Order, any requirement listed in the Order is enforceable and any violations are subject to penalties. The requirements in the final Order will be referenced in LANL’s renewed operating permit.



Section/ Attachment

Unique No.


Y/N 3, and TA-55. This commenter recommends that the Final Order specifically address TA-16 and explain how other critical TAs will be addressed in the future, if not specifically addressed. This commenter also requests that the Final Order explain how issues pertaining to these TAs may or may not intersect with the pending renewed LANL RCRA permit.

R433 Section V.B 38 Aggregate Areas LANL commented the requirement in this section, to submit “…a list of all Aggregate Areas identifying each SWMU and AOC located within each Aggregate Area…,” is ambiguous in its application. It is unclear whether this requirement is intended to include PRSs previously submitted for No Further Action (NFA) and approved, but not yet through the permit modification process. It is also unclear whether this section should include AOCs approved for NFA by the DOE or another regulatory agency.

The requirement is clear. LANL is to submit to NMED a list of aggregate areas identifying all SWMUs and AOCs within the aggregate areas. This shall include SWMUs that have been

for NFA but are still on LANL’s HSWA module. Until the public participation process is complete or the new operating permit is final, NMED cannot make a NFA determination at these sites. This shall also include all AOCs that may have been “approved” by another agency for NFA.

N

R434 Section V.C 16 Newly Identified SWMUs or AOCs

One commenter expressed concern that the draft Order is so restrictive of DOE and LANL operations that rapid response will not be available should future sites be discovered.

N

R435 Section V.E 38 SiteInvestigations

The requirements in this section, regarding “Site Investigations,” are inconsistent with existing Work Elements within the ER Project

It is unclear how the site investigation requirements will affect the LANL ER Project baseline. According to LANL’s FY00 baseline, the specific work elements are so broad and vague

N

Subject

proposed

The current requirement in LANL’s RCRA Permit Module VIII (see section G), which has been in place since 1994, is to notify the administrative authority of any newly identified SWMUs within 15 calendar days after discovery. The requirement in the Order is no more restrictive than what has been required for the past eight years.



Section/ Attachment

Unique No.


Y/N baseline. The Draft Order prescribes the re-grouping of PRSs and activities that already exist in the ER Project baseline. Reworking the ER Project baseline to parallel the Draft Order would not result in work accomplished faster or result in additional efficiencies.

that they will not be impacted by the requirements in this section. It is also unclear how these requirements regroup LANL PRSs and activities. In addition, LANL’s current baseline is not a concern to NMED because, as stated in its FY00 baseline, one of the work elements is to support rebaselining efforts.

R436 Section V.D 36 NewlyDiscovered Releases from SWMUs or AOCs

One commenter recommends that NMED pay particular attention to and mandate action as needed for storm water runoff flows that could possibly induce contaminant migration, given potential post-Cerro Grande Fire effects.

The work plans required in Section IV and VI, investigate the migration of contaminants by storm water runoff at sites where releases have been identified. Section V.D refers to newly discovered releases from SWMUs or AOCs not identified at this time. Section IV.A.4 of the Order requires LANL to evaluate the effects of the Cerro Grande Fire on canyon sediments and surface water quality.

N

R437 Section V.E 16 SiteInvestigations

One commenter questioned how NMED will enforce timely investigation and corrective action at SWMUs and AOCs not listed in the draft Order.

As stated in Section V.E.1 of the Order, if NMED determines that further investigation of a newly discovered SWMU or AOC is required, the Facility’s Operating Permit will be modified to include this SWMU or AOC on the list of SWMUs requiring further investigation.

N

R438 Section V.G 36 InterimMeasures

One commenter strongly recommends that interim measures for known RCRA violations be incorporated into the Final Order so that it points toward real and tangible remediation. This commenter also noted that there may be evidence that EPA’s Preliminary Remediation Goals for radionuclides may be exceeded in certain LANL locations and that NMED should look into this possibility, reach a preliminary judgment, and order interim measures as needed in order “to reduce or

Interim measures are site-specific and have to be developed for individual sites. NMED agrees that a list of sites where interim measures are needed should be developed, based on current knowledge, and included in the Order.

Subject

Y



Section/ Attachment

Unique No.


Y/N prevent migration of contaminants or human and environmental exposures to contaminants while long range corrective action remedies are evaluated and implemented.”

R439 Section VI 35, 36 On-Going Investigations

There were several comments on on-going investigations. One commenter noted that details of the compliance activities and deliverables can be found in Sections IV, V.H, and VI, but also noted the Respondents’ history of failing to meet deadlines and compliance schedules. This commenter recommended that NMED make it clear what are the highest priorities and that failure to adequately address those priorities will result in immediate enforcement action.

NMED intends to enforce the requirements of the Order and will charge appropriate penalties, if necessary, as outlined in Section III.M.

N

R440 SectionVI.B and Table XII-2

4 TA-3 The schedule in Section XII of the Order outlines the deliverables and dates for PRS 3-010(a). The schedule directs the completion of additional groundwater investigation by May 2004. NMED believes that this schedule reflects its priorities at the Facility and is appropriate for the amount of work that is required.

N

R441 Section 38 SWMU 3- LANL commented that the information NMED disagrees with this comment. The Order N

Subject

Another commenter complimented NMED on the apparent thoroughness of the draft requirements. One commenter noted that PRS 3-010(a) is a site of releases of lead, mercury, and radionuclides. A Phase II RFI Work Plan was submitted in 1994; a RFI report was [submitted] in 1995; a response to a NOD was [submitted] in 1996; and in 1999 NMED requested further characterization of groundwater impacts for which LANL submitted a plan. This commenter suggests this characterization should be completed in 2002 and the report submitted promptly.



Section/ Attachment

Unique No.


Y/N VI.B.1 010(a) included in this “Background” section

regarding SWMU 3-010(a), fails to acknowledge prior agreements between the Laboratory and NMED and fails to fully describe work previously completed at this site. Although groundwater has been contaminated at this site, contaminant levels are very low. The extent of contamination has been determined, and evidence has been presented to NMED that the affected zone of groundwater is limited. Agreements for additional work were reached in 1999 between LANL, DOE and NMED, and included the development and sampling of borehole B1/MW1, and surface water and sediment sampling in the channel. This work was completed in 1999/2000, and an addendum to the previous report was submitted to NMED. NMED made a request for supplemental information and required further work at the site. The Laboratory’s response to the RWSI was accepted by NMED and it was agreed that additional groundwater activities, using a phased approach, would be the next step. If additional wells are not needed, the results of the geophysical investigations will be submitted to NMED no later than December 31, 2002. The Draft Order fails to acknowledge the work completed at this site, and the agreements reached between the Laboratory and NMED discussed

does acknowledge the previous work done at the site. The most recent agreement between LANL and NMED is reflected in Section VI.B.2, which outlines the continued investigation at the site. Regardless of the abstract background description, the requirements for the site remain the same.

Subject

Background



Section/ Attachment

Unique No.


Y/N above.

R442 SectionVI.B.1

38 LANL commented that the fifth sentence of the second paragraph is inaccurate and incomplete. It states that a “water sample was collected that contained concentrations of VOCs and tritium above SALs.” Tritium has not been found in water samples at SWMU 03-010(a) above SAL (or more appropriately, the drinking water standard, which is 20,000 pCi/L). The maximum concentration found was 2,710 pCi/L in an unfiltered sample from the undeveloped well, collected in 1994. The filtered sample collected at the request of NMED in 1999/2000 from the developed well was 1,780 pCi/L, which is well below the SAL.

Background Section VI.B.1, second paragraph will be changed to read, “Water samples were collected from the well, which showed VOCs above SALs and tritium.”

Y

R443 SectionVI.B.1

SWMU 3-010(a) LANL commented that the last two sentences of the second paragraph state: “The Respondents also collected water samples from a seep that was identified in the tributary. Metals (lead, mercury, chromium) were detected in several of those water samples.” These statements are inaccurate. Site characterization activities performed in 1999 and 2000 in accordance with the “Response to Response to the Notice of Deficiency for the Resource Conservation and Recovery Act Facility Investigation Report for SWMU 3-010(a),” dated December 21, 1999, required by NMED, demonstrated that the “seep” is not a see

Background

p, but rather surface water present in

LANL is wrong in assuming that, because the “seep” issue has not been raised, NMED agrees that it does not exist. The contaminants (lead and mercury) were not of significant levels to warrant any further investigation of the seep.

N

Subject

SWMU 3-010(a)

38



Section/ Attachment

Unique No.


Y/N the channel after precipitation events. Although NMED has not yet approved this RFI Report, the fact that the seep issue has not been raised by NMED in subsequent communications with the Laboratory implies that this issue was satisfactorily addressed by the Laboratory.

R444 38 SWMU 3-010(a) LANL commented that the last two sentences of the second paragraph state: “The Respondents also collected water samples from a seep that was identified in the tributary. Metals (lead, mercury, chromium) were detected in several of those water samples.” These statements are inaccurate. First, chromium was not detected in that water sample. Chromium was not analyzed in the surface water samples because NMED had previously agreed that chromium was not a contaminant of concern. Therefore, as agreed by NMED, the suite used for analysis of surface water was a limited suite for metals. Second, the determined lead and mercury levels were well within water quality standards. Results of samples collected in 1999/2000 in accordance with the “NMED Response to Response to the Notice of Deficiency for the Resource Conservation and Recovery Act Facility Investigation Report for SWMU 3-010(a),” dated December 21, 1999, for lead analysis (14.6 ug/L for-the non filtered sample, and 10.2 u

Background

g/L for the filtered sample)

Section VI.B.1, second paragraph, will be changed to read, “Metals (lead and mercury) were detected in several of those water samples.” In future sampling activities at this site, LANL must sample for all TAL metals, including chromium.

Y

Subject

SectionVI.B.1



Section/ Attachment

Unique No.


Y/N and mercury analysis (0.21 ug/L for the non filtered, and 0.14 (J) ug/L for the filtered sample) from the surface water in the channel (from the alleged seep) yield concentrations of lead and mercury below New Mexico Water Quality Control Commission Ground Water Standards (50 ug/L and 2 ug/L respectively).

R445 38 SWMU 3-010(a) LANL commented that this section, regarding the continued investigation of SWMU 3-010(a), contradicts prior agreements between the Laboratory and NMED. In correspondence dated April 1, 2002, NMED outlines an agreement to conduct additional groundwater characterization activities using a phased approach. The correspondence states that phase one of this work will involve the use of geophysical instruments. This correspondence further contemplates that additional wells may not be needed.

Continued Investigation

This section briefly describes, rather than contradicts, the prior written agreement for this site dated April 1, 2002. The agreement states that if an investigation work plan is needed, it will be submitted no later than April 30, 2003. If NMED determines that an investigation work plan is needed, Section VI.B.2 of the Order describes the requirements for preparing such a document.

N

SectionVI.C and Table XII-2

4, 35 TA-16, SWMU 16-003(o)

There were several comments regarding TA-16. One commenter noted that the TA-16 area, known as the Fish Ladder, was investigated in 1995 and 1997, but data were not reported. This commenter suggests that this existing information be reported in 2002 and used for further planning. Another commenter recommended that the Final Order expressly address TA-16 and outline an immediate mitigation strategy.

The schedule in Section XII of the Order outlines the deliverables and dates for SWMUs at TA-16 either individually or as part of an aggregate. Any necessary mitigation at TA-16 is either in progress or has not yet been determined. NMED believes that this schedule reflects its priorities at TA-16 and is appropriate for the amount of work that is required.

N

Subject

SectionVI.B.2

R446



Section/ Attachment

Unique No.


Y/N R447 38 SWMU 16-

003(o) Background

LANL commented the requirement in this section, regarding the continued investigation of SWMU 16-003(O), is inconsistent with a phased remediation approach to this site, in accordance with USEPA RCRA guidance. The Laboratory has performed the approved Phase I investigations at this site, and has determined that a VCA/VCM is probably necessary. Moderate levels of HE and metals were found on the surface and shallow subsurface. The Laboratory anticipates that the next document prepared for this site will be a VCA/VCM plan, which will also include a sampling plan to determine the nature and extent of contamination. Further, given that building TA-16-340 is scheduled for decontamination and decommissioning in FY2003, it would also make sense, from a logistics and resource efficiency point of view, to complete the cleanup and characterization of this site in concert with these decontamination and decommissioning activities.

LANL may implement voluntary investigation, cleanup and monitoring at risk. However, NMED must approve all corrective action and the Laboratory must fulfill all requirements included in the Order.

N

R448 SectionVI.C.1

38 Technical Area54

Section VI.C.1, first paragraph, will be changed to read, “The operations in the building ceased in October 1999.”

Y

R449 SectionVI.D and Table XII-2

4, 35 TA-16, SWMU 16-008(a)

The schedule in Section XII of the Order outlines the deliverables and dates for SWMUs at TA-16 either individually or as part of an aggregate. Any

N

Subject

SectionVI.C

LANL commented that the third sentence of the first paragraph stating that: “[t]he building is still operating,” in reference to “Building TA-16-340,” is incorrect because Building TA-16-340 and its associated sumps ceased operations in October 1999. There were several comments regarding TA-16. One commenter noted that the TA-16 area, known as



Section/ Attachment

Unique No.


Y/N

Another commenter recommended that the Final Order expressly address TA-16 and outline an immediate mitigation strategy.

necessary mitigation at TA-16 is either in progress or has not yet been determined. NMED believes that this schedule reflects its priorities at TA-16 and is appropriate for the amount of work that is required.

R450 SectionVI.D.2

38 SWMU 16-008(a) Continued Investigation

LANL may implement voluntary investigation, cleanup and monitoring at risk. However, NMED must approve all corrective actions and the Laboratory must fulfill all requirements included in the Order. The Laboratory will have the opportunity to propose any modifications to the requirements in the Order in its investigation work plan.

N

R451 Section VI.Eand Table XII-2

4, 35 TA-16, SWMU 16-018 (MDA P) and TA-16-387

Another commenter recommended that the Final Order expressly address TA-16 and outline an immediate mitigation strategy.

The schedule for MDA P (SWMU 16-018 and TA-16-387) was incorrect in the Order and has been changed to reflect closure activities currently ongoing at the site. The schedule in Section XII of the Order outlines the deliverables and dates for SWMUs at TA-16 either individually or as part of an aggregate. Any necessary mitigation at TA-16 is either in progress or has not yet been determined. NMED believes that this schedule reflects its priorities at TA-16 and is appropriate

Y

Subject

the 90s Line Pond, was investigated in 1998 and 1999, but data were not reported. This commenter suggests that this existing information be reported in 2002 and used for further planning.

LANL commented the requirement in this section, to submit an investigation work plan for SWMU 16-008(a), is inconsistent with work previously submitted to USEPA. The Laboratory has previously submitted an OU 1082 RFI Work Plan for PRS 16-008(a) (approved by USEPA), and the Laboratory’s approach is to implement that plan to scope out a VCM activity for this site. The site will very likely require a VCM. The Laboratory anticipates that this will be the next document submitted, and will address both cleanup and further characterization of the site. There were several comments regarding TA-16. One commenter noted that MDA P is in the closure process and supported the proposed schedule.



Section/ Attachment

Unique No.


Y/N for the amount of work that is required.

R452 Section VI.E TA-16, SWMU 16-018 (MDA P) and TA-16-387

LANL commented the statement in paragraph two of this section, that “…MDA P cannot be clean closed,” is inconsistent with prior commitments by NMED. In fact, the Laboratory is currently working at MDA P pursuant to an NMED-approved closure Plan. Further, in correspondence dated May 30, 2002, NMED approved the Laboratory proposed modifications for the MDA P Closure Plan.

The statement “… MDA P cannot be clean closed,” is incorrect. NMED is aware that the Facility is currently in the process of clean closing MDA P under an approved closure plan. The Order will be corrected to reflect clean closure activities currently ongoing at MDA P.

Y

R453 SectionVI.E.2

TA-16, SWMU16-018 (MDA P) and TA-16-387

LANL commented the requirement in paragraph two of this section, directing the submission of an “investigation work plan,” including a “storm water and groundwater monitoring plan” for MDA P, is impracticable in the time frame required, and may be unnecessary following NMED review of the Final MDA P Closure Report. The deliverable date for the investigation work plan is 90 days after the current delivery date of the Final MDA P Closure Report. However, until NMED has received and reviewed the final MDA P Closure Report, NMED will have no information on which to base the need for additional monitoring. In fact, based on the results of the Final MDA P Closure Report, no investigation work plan or monitoring plan may be needed. Current data suggest this is true. All surface contamination was removed from the site during Phase I excavation

NMED will not require an investigation work plan to be submitted for MDA P. The Order will be corrected to reflect clean closure activities currently ongoing at MDA P. NMED will require storm water and groundwater monitoring at MDA P. NMED recognizes that the Facility may have conducted additional work that has not yet been reported to NMED. If, based on information obtained during closure activities, there is sufficient evidence to indicate that groundwater and storm water monitoring will not be required at MDA P, the Facility may propose eliminating groundwater and storm water monitoring at MDA P in the MDA P Investigation Report required to fulfill Section VI.E of the Order.

Y

Subject

38

38



Section/ Attachment

Unique No.


Y/N and disposal. Therefore, there is no contamination source for storm water. Preliminary data from Phase II sampling also indicates that there is no groundwater contamination attributable to MDA-P/387 Burn Pad.

R454 SectionVI.E.2


LANL commented the requirement in this section, to submit an “…investigation work plan for MDA P,” is inconsistent with, and duplicative of, work plans previously submitted to NMED. The Laboratory has previously submitted an RFI Work Plan for PRS 16-003(o) and has completed the USEPA-approved Phase I investigation. The data from that investigation has been provided to NMED, although no full report on the investigation has been prepared. The Laboratory’s approach is to prepare a VCM Plan as the next document for this site. This document would include both a plan for soil removal, and further characterization, including intermediate depth drilling.

This comment is unclear. The PRS referenced in the comment, PRS 16-003(o), is not part of MDA P or the 16-387 flash pad. However, paragraph 2 of Section VI.E.2 is incorrect and will be corrected to reflect current clean closure activities currently ongoing at MDA P. In addition, 16-387 will be investigated as part of the MDA P closure activities and will not require submittal of an investigation work plan as stated in Section VI.E.2 of the Order.

Y

R455 SectionVI.E.2


LANL commented the requirement in this section, to continue the investigation of MDA P, including to “…fully characterize the vertical and lateral extent of groundwater contamination, including…through fracture flow at MDA P, is inconsistent with work previously conducted, and now in the process of submission to NMED. This requirement apparently assumes the existence of groundwater

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. LANL may provide results of investigation activities in the MDA P Investigation Report.

N

Subject

38

38



Section/ Attachment

Unique No.


Y/N contamination originating from MDA-P and/or the 3897 Burn Pad. Geophysical characterization and fracture mapping and characterization have been accomplished as part of Phase II conformity sampling. During Phase II sampling, six boreholes were drilled across the site to obtain geophysical data, and to sample for contamination at depth. Preliminary data indicates that there is no groundwater contamination attributable to MDA-P/387 Burn Pad. This data will be presented in the Final Report.

R456 SectionVI.E.2


LANL commented the requirement in this section, to continue the investigation of MDA P, including the submission of an “investigation work plan” for NMED approval, is inconsistent with the existence of a prior NMED-approved closure plan. Clean Closure of MDA-P has been on-going under a Closure Plan approved by NMED in 1997. Clean Closure of the 387 Burn Pad is being conducted under a closure Plan approved by NMED in 2000.

The Order will be corrected to reflect the approved clean closure activities currently ongoing at MDA P and 16-387.

Y

R457 SectionVI.E.2

TA-16, SWMU16-018 (MDA P) and TA-16-387 Continued Investigation

LANL commented the requirement in this section, to prepare an “investigation report” for MDA P “…in accordance with Section XI.C of this Order…,” is inconsistent with USEPA RCRA guidance, and prior commitments by NMED. NMED requires an “investigation report” in the format prescribed in Section XI.C of

At the time the Order was issued, on May 2, 2002, NMED had not approved the MDA P Class 1 Closure Plan Modification. The MDA P Class I Closure Plan Modification was approved by NMED on May 30, 2002 and included a Closure Report submittal due date of January 31, 2003. The Order will be changed to reflect the approved MDA P Closure Report submittal date of January 31, 2003.

Y

Subject

38

38



Section/ Attachment

Unique No.


Y/N the Compliance Order. However, this format is not consistent with the USEPA-prescribed format for a RCRA closure Report. The format NMED is requiring in Section XI.C does not meet the RCRA requirements. The schedule for delivery of the MDA-P/387 Burn Pad Final Report is being modified at the direction of NMED personnel overseeing the MDA P Closure. The revised schedule is not consistent with the date specified in Section II of the Compliance Order. Closure Plan Modification was submitted to NMED in December 2001, with an October 2002 delivery date for the Final Report, as is shown in Section XII. However, NMED rejected this modification because NMED did not believe that the October deadline could be met. A revised Modification had been submitted with the delivery of the Final Report scheduled for January 31, 2003.

In addition, the Order does not outline specific requirements for RCRA Clean Closure Reports. NMED has met with the Facility on numerous occasions to discuss closure reporting for MDA P and TA-16-387, and VCA completion reporting for SWMU 16-016(c)-99. NMED will amend Section VI.E.2, paragraph 4, of the Order to allow the Facility to submit an Integrated Closure Report for MDA P containing MDA P and TA-16-387 closure activities and VCA results for SWMU 16-016(c)-99. The Integrated Closure Report format for MDA P (including 16-387 and SWMU 16-016(c)-99) shall be submitted to NMED for approval prior to report submittal. The final Integrated Closure Report, in the approved format will be required to be submitted to NMED on or before January 31, 2003. Section XII of the Order will also be amended to reflect the approved Integrated Closure Report submittal date.

R458 Section VI.Fand Table XII-2

4, 35 TA-16, SWMUs 16-021(c) and 16-003(k)

There were several comments regarding TA-16. One commenter noted that TA-16 has various high explosive problem areas; that the 260 outfall, PRS 16-021(c), is now undergoing CMS, which includes the effects upon regional ground water; and that these problems are among the most serious at the facility. This commenter strongly suggests that a schedule be set that includes wells penetrating the regional aquifer as are called for to measure the extent of contamination

The schedule in Section XII of the Order outlines the deliverables and dates for SWMUs 16-021(c) and 16-003(k). The schedule directs further characterization of intermediate and regional groundwater as well as corrective measures studies for the surface system and groundwater remediation. NMED believes that this schedule reflects its priorities at these sites and is appropriate for the amount of work that is required.

N

Subject



Section/ Attachment

Unique No.


Y/N and that a deadline of no later than 2003 be established for the completion of the investigations and a deadline of 2004 for the preparation of the CMS report. Another commenter recommended that the Final Order expressly address TA-16 and outline an immediate mitigation strategy.

R459 SectionVI.F.2

38 LANL commented the requirement in this section, to submit a “…Corrective Measure Study [CMS] Report addressing intermediate and regional groundwater,” is inconsistent with a prior understanding with NMED. The Laboratory and NMED had discussed submitting a very brief addendum to the CMS Plan to outline the plans for intermediate depth boreholes. The detailed requirements in Section XI.B are not consistent with the Laboratory’s understanding that this information was to be outlined in a very brief CMS addendum. The HPT has been striving to simplify reporting requirements in the CMS, and this requirement contradicts these efforts. The prescribed plan will result in increased costs of preparation with no additional protection to the environment.

As agreed, the CMS plan addressing intermediate groundwater will be an addendum to existing CMS plan. However, a CMS report summarizing the study is still required as part of the RCRA corrective action process.

N

R460 SectionVI.G and Table XII-2

TA-21, SWMU21-011(k)

One commenter suggested that any approved interim action in connection with outfalls 21-024(i) and 21-011(k) be carried out in 2002.

The schedule in Section XII of the Order outlines the deliverables and dates for SWMUs 21-024(i) and 21-011(k). NMED believes that this schedule reflects its priorities at these sites and is appropriate for the amount of work that is

N

Subject

SWMU 16-021(c) and 16-003(k) Continued Investigation

4



Section/ Attachment

Unique No.


Y/N required.

R461 SectionVI.H and Table XII-2

4 TA-21, SWMU21-024(i)

The schedule in Section XII of the Order outlines the deliverables and dates for SWMUs 21-024(i) and 21-011(k). NMED believes that this schedule reflects its priorities at these sites and is appropriate for the amount of work that is required.

N

R462 SectionVI.H.1

38 SWMU 21-024(i) Background

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. LANL may provide results of investigation activities in the 21-024(i) Investigation Report. NMED will require an Investigation Report to be submitted by the date stated in Section XII of the Order.

N

R463 SectionVI.H.2

38 SWMU 21-024(i) Continued Investigation

LANL commented the requirement in this section, regarding the continued investigation of SWMU 21-024(i), is inconsistent with work previously conducted pursuant to the NMED-approved Interim Action Plan and on-going coordination with NMED. Appropriate corrective measures have been implemented at SWMU 21-024(i). Confirmation samples were collected throughout the corrective measure implementation. The Laboratory’s

NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. LANL may provide results of investigation activities in the 21-024(i) Investigation Report. NMED will require an Investigation Report to be submitted by the date stated in Section XII of the Order. Additional investigation and cleanup may be required by NMED based on information provided to NMED in the required 21-024(i) investigation report.

N

Subject

One commenter suggested that any approved interim action in connection with outfalls 21-024(i) and 21-011(k) be carried out in 2002.

LANL commented that the second sentence of the fourth paragraph states that Respondents are proposing and “planning to remove the contents of the tank.” This sentence is inaccurate because the septic tank was removed in 2001. The Laboratory identified a waste disposal path for the septic tank contents and removed and disposed of the sludge at a permitted off-site TSDF in February 2001. The Laboratory removed the septic tank, outlet line, and 15 feet of inlet line in August 2001. The Interim Action Completion Report documenting these activities is tentatively scheduled for completion in FY2003.



Section/ Attachment

Unique No.


Y/N approach is to prepare a corrective measures report for submission to NMED, if the data indicates that no further removal action or other corrective measures are required for this site. If further corrective measures are necessary, a corrective measures plan will be produced and submitted to NMED. If additional work is required at this site, the submittal date in Section XII is premature, because the production of a corrective measures report, following additional field work, and collection and analysis of confirmation samples, will require additional time.

SectionVI.I.2

38 TA-35Continued Investigation

LANL commented the requirement in this section is inconsistent with an outline previously developed by the TA-35 HPT, on which NMED actively participates. Section VI.I.2 requires the use of the Investigation Work Plan to develop its SAP addendum. However, this requirement directly conflicts with, and negates, the recent successful efforts of the TA-35 HPT to develop a SAP for TA-35, the TA-35 HPT continually made improvements to the TA-35 Integrated SAP during frequent HPT meetings. Relevant information is contained in meeting minutes, and High Performing Team TA-35 Integrated SAP Outlines.

LANL shall use the investigation work plan format outlined in Section XI of the Order.

N

R465 38 TA-35 Continued Investigation

LANL commented the requirement in this section is inconsistent with work previously submitted to NMED. The

This document does not need to be resubmitted. N

Subject

R464

SectionVI.I.2



Section/ Attachment

Unique No.


Y/N TA-35 Integrated SAP was developed in conjunction with NMED as part of a HPT. The TA-35 Integrated SAP was submitted to NMED in final form in March 2002.

R466 4 TA-49, SWMUs49-005(a) and 49-006, AOCs C-49-002m C-49-005(b), C-49-008(a,b) (Areas 5, 6, 10)

One commenter noted that TA-49 contains the Frijoles Mesa hydronuclear experiment sites; in 1996 NMED determined that MDA AB, PRSs 49-001(a-g) had high priority; organics had been detected in the regional aquifer in well DT-9; NMED requested LANL to accelerate the RFI; a stabilization plan for MDA AB was submitted in late 1998; a best management practices report [submitted] in 1999; and a RFI report dated August 1997 was [submitted] for PRSs in Areas 5, 6, 10, and 11. This commenter questioned why the completion of investigations and submission of reports on them should be delayed beyond 2003.

The schedule in Section XII of the Order outlines the deliverables and dates for TA-49. NMED believes that this schedule reflects its priorities at TA-49 and is appropriate for the amount of work that is required.

N

R467 4 TA-53, SWMU53-002(a,b)

One commenter noted that TA-53 contains three surface impoundments; a combined RFI Work Plan and SAP were submitted in 1998 and were approved in August 2000. This commenter suggests completion of any sampling and analysis and submission of a RFI report should be scheduled for 2002-2003.

The schedule in Section XII of the Order outlines the deliverables and dates for TA-53. The schedule directs the completion of the surface impoundments remediation by July 2003. NMED believes that this schedule reflects its priorities at TA-53 and is appropriate for the amount of work that is anticipated to be required.

N

R468 38 SWMU 53-002(a,b)

LANL commented that the fourth sentence of the third paragraph states, “… samples in the impoundment sludge detected hot spots of

Section VI.K.1 will be changed to read, “samples in the impoundment sludge detected hot spots of radioactivity, and SVOCs and metals concentrations below SALs. Samples were

Y

Subject

Section VI.Jand Table XII-2

SectionVI.K and Table XII-2

SectionVI.K.1



Section/ Attachment

Unique No.


Y/N radioactivity, PCBs above SALs, and SVOCs and metals concentrations below SALs.” That statement is incorrect. PCBs were not detected in any of the samples collected from the south impoundment sludge at SWMUs 53-002(a and b). This information was verbally conveyed to NMED at the February 16, 2000 monthly meeting, but has not yet been transmitted in a formal report to NMED.

analyzed for PCBs, but the data have not been submitted to NMED.”

R469 38 SWMU 53-002(a,b) Continued Investigation

LANL commented the requirement in this section is inconsistent with work previously submitted to NMED. As accurately noted in Draft Order Section VI.K.1, “[a] SAP for all three impoundments was approved by NMED on August 8, 2000,” and thus this information should not require resubmission.

This information does not require resubmission. N

R470 4 TA-73, SWMUs73-001(a-d) and 73-004(d) (Airport Landfill) (Drainages and Mesa Top)

One commenter noted that a RFI report was submitted by LANL for PRSs 73-001(a-d) and 73-004(d) in November 1998 and reviewed by EPA; this area is partially open to the public therefore corrective measures should not be delayed; however, a CMS has not been carried out nor has an implementation plan been prepared. This commenter recommends that sufficient planning, risk assessment, and fieldwork, including a CMS and interim measures to reduce the public hazards, be completed in 2002.

The schedule in Section XII of the Order outlines the deliverables and dates for the airport landfill. An interim measures plan for the drainages has been submitted and a remedy for the mesa top has been proposed to NMED. The schedule directs all work to be completed by December 2006. Work will begin in 2002.

N

R471 38 SWMUs 73-001(a-d) and 73-

LANL commented the requirement in this section is inconsistent with

All references in Section VI.L to a “corrective measures implementation plan” will be changed to

Y

Subject

SectionVI.K.2

Section VI.Land Table XII-2

Section VI.L



Section/ Attachment

Unique No.


Y/N 004(d) ongoing work developed with the

participation of NMED. This work is currently being conducted by the HPT and exists in the ER Project’s baseline with a scheduled of deliverables that has been developed with NMED input.

“voluntary corrective measures” to directly reflect the agreement made by the HPT.

R472 4 TA-73, SWMU73-002

One commenter noted that a RFI report was submitted by LANL for PRSs 73-001(a-d) and 73-004(d) in November 1998 and reviewed by EPA; this area is partially open to the public therefore corrective measures should not be delayed; however, a CMS has not been carried out nor has an implementation plan been prepared. This commenter recommends that sufficient planning, risk assessment, and fieldwork, including a CMS and interim measures to reduce the public hazards, be completed in 2002.

This comment does not relate to SWMU 73-002. NMED does not want to interpret what the commenter means in this statement; therefore, NMED has no response.

N

R473 38 SWMU 73-002 Background

LANL commented that the first sentence of the second paragraph states that “[w]aste characterization data has been collected from the ash pile; however, these results have not been provided to the Department.” That statement is in error. The analytical results were included in the data set for SWMU 73-002 given to NMED on July 26, 2001. The submittal contained data files for 70 samples collected between 1996 and 1998.

Section VI.M.1, second paragraph, will be changed to read, “Waste characterization data has been collected from the ash pile and has been provided to NMED.”

Y

R474 38 SWMU 73-002Continued Investigation

LANL commented the requirement in this section is inconsistent with ongoing work. A Voluntary Corrective Action/Measure for this SWMU is

LANL may implement voluntary investigation, cleanup and monitoring at risk. However, NMED must approve all corrective actions and the Laboratory must fulfill all requirements included

N

Subject

SectionVI.M and Table XII-2

SectionVI.M.1

SectionVI.M.2



Section/ Attachment

Unique No.


Y/N currently included in the ER Project baseline.

in the Order.

R475 17 Erosion Controland Monitoring

One commenter recommends inserting the following language just before the last sentence of the first paragraph: “The plan shall address the erosion control measures/interim measure inspection and maintenance schedule and the criteria used to determine the need for erosion control measure maintenance and/or upgrades. The plan shall include a storm water monitoring program to be implemented at each SWMU, AOC, unit, and Aggregate Area including the frequency of storm water monitoring. Of the approximately 250 high to medium erosion potential sites identified by SOP 2.01, those sites scoring high (erosion matrix score greater than 60) shall be monitored yearly until stabilization has been verified. Medium range scoring sites (erosion matrix score 40-60) shall be monitored on a rotating basis so that all are monitored over a 2-year period. All site-specific monitoring shall be conducted at appropriate locations that meet the definition of representative sampling as defined by the Surface Water Assessment DQO Team (2002). All monitoring stations shall be located upstream of confluence with other surface water(s) of the state (20.6.4 NMAC, 20.6.4.7, RR). Constituents to

The Order will be revised to include the language suggested in the first paragraph. The language included in the second paragraph (referring to analytical methods) is covered in Section IX.C of the Order.

Y

Subject

SectionVII.A



Section/ Attachment

Unique No.


Y/N be monitored at each site shall at a minimum be representative of those identified by previous investigations to be present above background levels. All monitoring results shall be submitted as outlined in Section XI.D and Table XII-2. A contingency plan shall be included as part of the stabilization plan to address releases that may be identified during monitoring.” This commenter also recommends inserting the following language just before the last sentence of the second paragraph:

“The analytical methods used shall be any EPA accepted method (e.g., 40 C.F.R. 136 methods, SW-846 methods, Method 1668A [PCB congeners]}. See Section 3107 of Ground and Surface Water Quality Protection Regulations (20.6.2 NMAC Nov. 15, 1996) for appropriate language template.”

R476 SectionVII.A

38 LANL commented that the requirement in this section regarding the submission of a plan to NMED outlining “…the general approach to erosion control and the facility wide erosion control and monitoring program to be implemented at each site,” duplicative of work previously submitted to NMED. Several documents have been previously provided to NMED and provide guidance on erosion control

LANL has not submitted an erosion control and monitoring plan to the NMED Hazardous Waste Bureau that addresses its approach to erosion control and monitoring at SWMUs and AOCs at the Facility. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. LANL must

N

Subject

Erosion Controland Monitoring



Section/ Attachment

Unique No.


Y/N methods and applications used at the Laboratory, including both pre-fire and post-fire information.

review its submittals regarding erosion control and monitoring, including its surface water sampling strategy for the Facility and provide a plan for continued erosion control and monitoring at Facility SWMUs and AOCs to the NMED Hazardous Waste Bureau as required in the Order.

R477 SectionVII.A

38 LANL commented that this section, requiring that “[a]ll sites shall be evaluated in accordance with the Facility’s Environment Safety, Health (ESH) Standard Operating Procedure (SOP) 2.01” is duplicative of current and ongoing work. Surface Water Site Assessments are conducted at SWMUs to assess site erosion potential, using criteria including: proximity to watercourse, percent of slope, percent of vegetative cover, runoff, and run-on factors. Using a scale of zero to 100, each site is prioritized for SWAT evaluations. To-date, over 1,400 sites have had surface Water Site Evaluations, and 340 sites have scored greater than 40 on the assessment. In these cases, subsequent review has led to the implementation of erosion controls at 220 sites. This effort represents a completion rate of approximately 90 percent.

LANL has not submitted an erosion control and monitoring plan to the NMED Hazardous Waste Bureau that addresses its approach to erosion control and monitoring at SWMUs and AOCs at the Facility. NMED recognizes that LANL may have conducted additional work that has not been reported to NMED or may have omitted information in its submittals. NMED does not expect LANL to duplicate work that meets the requirements of the Order. Section III.N of the Order addresses duplication of work. LANL must review its submittals regarding erosion control and monitoring, including its surface water sampling strategy for the Facility and provide a plan for continued erosion control and monitoring at Facility SWMUs and AOCs to the NMED Hazardous Waste Bureau as required in the Order.

N

R478 SectionVII.C.1

Risk Analysis General

There were several comments regarding risk analysis in general. One commenter noted that this section states that “[T]he Respondents shall attain the cleanup goals outlined in Section VIII of this Order” and that Section VIII is too vague in a number of cases. (See

NMED believes cleanup goals are adequately addressed in the Order. Considering site-specific factors and constraints, a cleanup goal would be considered technically infeasible if such goal poses unacceptable energy, economic, and environmental impacts. Energy

Subject

Erosion Controland Monitoring

36, 37 N



Section/ Attachment

Unique No.


Y/N additional comments on Section VIII.) Another commenter requested that NMED define “technically infeasible” and provide “technically infeasible” criteria in the draft order and submit such language to the public for a 30-day comment period.

impacts include, but are not limited to, energy efficiency impacts, fuel cycle efficiency, and fuel availability. Environmental impacts include, but are not limited to, groundwater and water impacts, solid and hazardous waste impacts, air quality impacts, and ecological communities impacts. Economic impacts include, but are not limited to, the sum of up-front capital costs and annual operation and maintenance costs. Since the determination of a goal being technically infeasible is very site-specific, “technically infeasible” criteria cannot be provided. The Respondent will be responsible for providing basis for assessing technical feasibility in the CMS process. NMED must approve a determination of technical infeasibility.

R479 SectionVII.C.2.a

36 Conceptual SiteModel

One commenter strongly endorsed the application of residential land use as the standard for corrective action measures, with some caveats, but noted that the clause for consideration for “site-specific future land use” could be gigantic loophole. This commenter recommended that the standard of residential land use be universally applied at LANL, with due allowance for possible agricultural uses also.

Section VII.C.2.a of the Order is very clear that the conceptual site model will use the residential land use in all risk assessments. Site-specific land use will be considered in risk assessments only after written approval from NMED. The decision to use a site-specific land use other than residential will be made by NMED based on site conditions, site locations, present land use, etc. Risk assessment reports will be available for the public to view at the Hazardous Waste Bureau’s office at 2905 Rodeo Park Drive, Building 1, Santa Fe. Determinations for no further action, based on risk and land use scenarios, are subject to public participation through the permit modification process.

N

Subject

This commenter also questioned how the public would be informed of consideration of other site-specific future land uses, how would the decision be made, and how might this intersect with the LANL RCRA permit process, which has clear public process requirements. This commenter



Section/ Attachment

Unique No.


Y/N

R480 SectionVII.C.2.b

36 Risk ScreeningLevels

One commenter referenced his comments for Section VIII.

N

R481 SectionVII.C.2.b


LANL commented that this section, requiring screening for ecological risk to be conducted with the Laboratory ESLs, “…if the Laboratory’s ESLs have received written approval from the Department,” will result in inconsistent and/or delayed action under the Draft Order, if the required NMED approval of the Laboratory ESLs prior to finalization of the Order, if the required NMED approval is not immediately forthcoming.

N

R482 SectionVII.D.2

37 CorrectiveMeasures Evaluation Report

One commenter recommended that the Respondents should be required to state the applicable cleanup standards or regulatory criteria with its postings on the Facility web site.

N

R483 SectionVII.D.2

38 CorrectiveMeasures Evaluation Report

LANL commented that Paragraph 12 requires that the Corrective Measures Evaluation Report provide “[a] detailed evaluation and rating of each of the remedy alternatives, applying the criteria set forth in Section VII.C.4.” This requirement is in error. No “Section VII.C.4” can be found in the Draft Order.

Y

R484 SectionVII.D.3

35, 36 Cleanup Standards

There were several comments regarding cleanup standards. One commenter recommended that NMED

N

Subject

believes the Final Order should address these questions.

No response needed.

NMED is currently reviewing the LANL ESLs for ecological risk and anticipates that the review will be completed by the end of 2002.

The Respondents are required to provide a description of the cleanup standards or other regulatory criteria when submitting the Investigation Reports, Monitoring Reports, and Corrective Measures Evaluation Reports. Copies of these reports will be available for review at the Hazardous Waste Bureau at 2905 Rodeo Park Drive East, Building 1, Santa Fe. The correction has been made in Section VII.D.2 Item 12 to reference Section VII.D.4.

NMED requires that LANL use the cleanup goals outlined in Section VIII of the Order. Section VIII.E of the Order describes the methods for



Section/ Attachment

Unique No.


Y/N should rewrite the provision which states that “if cleanup standards or goals cannot be achieved, approved risk-based cleanup goals established by a risk analysis” shall be selected as a corrective measure. NMED should also define precise numerical decision-making criteria. This commenter noted that NMED has an obligation under RCRA to err on the side of conservative and protective environmental restoration and the appropriate technical methods to achieve such ends. Another commenter referenced his comments for Section VIII but also questioned at which point is it impossible to achieve a cleanup standard or goal. This commenter also strongly recommended that NMED define a precise and numerical decision criteria process for this and NMED must err on the side of ensuring genuine environmental restoration and the needed technical means to get there.

R485 SectionVII.D.4

36 RemedyEvaluation Criteria

One commenter noted that the DOE/LANL/UC approach to future lab cleanup is directly contrary to the draft Order’s purpose expressed in this section. This commenter recommends that the Final Order take aggressive measures to eliminate those differences and that NMED should require DOE/LANL/US to detail its Long Term Stewardship program plan for

The approach used in the Order is in accordance with NMED’s priorities. Long-term monitoring will be required where appropriate. All criteria outlined in the corrective measures evaluation process outlined in Sections VII and XI of the Order will be considered during remedy selection.

N

Subject

obtaining a risk-based variance from these goals. Considering site-specific factors and constraints, a cleanup goal would be considered technically infeasible if such goal poses unacceptable energy, economic, and environmental impacts. Energy impacts include, but are not limited to, energy efficiency impacts, fuel cycle efficiency, and fuel availability. Environmental impacts include, but are not limited to, groundwater and water impacts, solid and hazardous waste impacts, air quality impacts, and ecological communities impacts. Economic impacts include, but are not limited to, the sum of up-front capital costs and annual operation and maintenance costs. Since the determination of a goal being technically infeasible is very site-specific, “technically infeasible” criteria cannot be provided. The Respondent will be responsible for providing basis for assessing technical feasibility in the CMS process. NMED must approve a determination of technical infeasibility.



Section/ Attachment

Unique No.


Y/N LANL, since that plan will directly impact cleanup. This commenter also recommended that ease of implementability and cost be relegated to a lower level as criteria.

R486 SectionVII.D.4

38 RemedyEvaluation Criteria

LANL commented that the requirement in this section, regarding a specific remedy evaluation “threshold Criteria,” is inconsistent with Module VIII of the Laboratory’s RCRA permit, and contradicts prior agreements between the Laboratory and NMED. The evaluation criteria are not consistent with the criteria included in HSWA Module VIII of the Laboratory’s Hazardous Waste Facility Permit, and the criteria for the MDA H CMS Report, as part of the MDA HPT, and agreed to by NMED. The MDA H CMS Report is scheduled to be submitted to NMED in September 2002 and will recommend a corrective measure for MDA H that meets the target corrective action objectives listed below, and passes the technology screening process provided in the approved MDA H CMS Plan, in accordance with the Laboratory’s HSWA Module VIII. Each corrective measure alternative will be evaluated against the following site-specific corrective action objectives: (A) Protection of human health; (B) Protection of environment; (C) Attainment of action levels; (D) Provide source control to reduce or

Section VII.D.4 of the Order is consistent with the existing LANL Permit HSWA Module Task VIII. The MDA H CMS report has not been reviewed by NMED; therefore, NMED cannot comment on its content.

N

Subject



Section/ Attachment

Unique No.


Y/N eliminate releases that may pose a threat; and (E) Waste management Compliance. The Laboratory will conduct screening of corrective measure technologies. This screening process will examine the following: (1) Site Characteristics, (2) Waste Characteristics, and (3) Technology Limitations. The level of technological development, the performance record, and the construction, operation and maintenance problems will be identified for each technology considered.

R487 SectionVII.D.4.a

ThresholdCriteria

One commenter recommended the threshold criteria should cite references or standards or provide definitions.

The threshold criteria are described in Section VIII of the Order. Waste management standards are described in LANL’s operating permit.

N

R488 SectionVII.D.4.b.i

35 One commenter concurs with the statement in this section that a remedy that reduces risks with little long-term management, and that has proven effective under similar conditions, shall be preferred. However, the Respondents’ draft Performance Management Plan shows plans for cleanup essentially consist of capping and covering MDAs, monitoring the attenuation of groundwater contamination, and relying on as yet unformed and unfounded Long Term Stewardship Program. This commenter strongly encourages NMED to address this discrepancy between the State and the Respondents by selecting the most restrictive usage scenarios.

NMED has to approve of the remedy alternatives, proposed by LANL. Capping is one of these alternatives. NMED will consider the remedy evaluation criteria when evaluating remediation alternatives, as stated in Section VII.D.4 of the Order. The PMP is beyond the scope of the Order; therefore a response to this comment is not warranted.

N

R489 35, 36 Implement- There were several comments Every remedy alternative is tailored to fit the site- N

Subject

37

Long-TermReliability and Effectiveness

Section



Section/ Attachment

Unique No.


Y/N ability regarding implementability. One

commenter recommended that NMED rewrite the statement “[T]he remedy shall be evaluated for its implementability” and define precise numerical decision criteria. This commenter noted that NMED has an obligation under RCRA to err on the side of conservative and protective environmental restoration and the appropriate technical methods to achieve such ends. Another commenter questioned what the limits of implementability were and strongly recommended that NMED define a precise and numerical decision criteria process for this and NMED must err on the side of ensuring genuine environmental restoration and the needed technical means to get there.

specific situation; therefore, numerical decision criteria cannot be implemented. However, the Respondents must show that the remedies selected attain the media cleanup standards and goals, which is a numerical criterion (see Section VII.D.4.a of the Order).

R490 SectionVII.D.5

36 Approval ofCorrective Measures Report

One commenter questioned what access the public will have to the CMS reports.

All documents submitted by LANL are available for review by the public at Hazardous Waste Bureau office at 2905 Rodeo Park Drive East, Building 1, Santa Fe.

N

R491 SectionVII.D.6

Relationship toCorrective Action Requirements

One commenter recommended that the Final Order better explain the relationship between the Order and the pending renewed LANL RCRA permit.

The renewed LANL RCRA permit will reference the requirements of the Order.

N

R492 SectionVII.E.2

CorrectiveMeasures Implementation Plan

What role or opportunity to comment will the public have in NMED’s final selection of remedies?

NMED will follow the requirements 20.4.1.901 NMAC for public participation.

N

R493 SectionVII.E.4

CommunityRelations Plan

One commenter suggested that the Respondents be required to place relevant documents on the LANL ESH

If the Respondents want to place documents on the LANL website, they may do so. However, NMED will not require it. There are no regulations that

N

Subject

VII.D.4.b.iv

36

36

36



Section/ Attachment

Unique No.


Y/N web site. This commenter also questioned what NMED’s community relations plan for ongoing public involvement during the implementation of the Final Order would be.

govern making documents electronically accessible to the public. NMED follows the requirements of 20.4.1.900 NMAC (incorporating 40 C.F.R. 270) for public involvement in corrective measures selection and determinations of no further action. There is no public involvement during the finalizing of the Order.

R494 SectionVII.E.6.a

37 RemedyCompletion Report

NMED disagrees with this comment. N



NMED considers 90 days to be sufficient time to prepare a Remedy Completion Report. NMED does not believe that requiring a Remedy Completion Report at the completion of corrective measures is overly prescriptive.

N



The requirement to supply a certification of remedy completion signed by UC and DOE and by a registered professional engineer and to supply supporting documentation for the registered professional engineer’s certification is in accordance with 20.4.1.500 NMAC incorporating 40 C.F.R. 264.120; therefore NMED considers this to be a standard practice for RCRA-regulated facilities.

N

Subject

One commenter recommended that after “this report is true, accurate, and complete” language in the remedy completion report certification, NMED should insert “and that if Facility classifiers have changed any information that forms the basis for the report, that that information would not change the final determination.” LANL commented that the requirement in this section to submit a Remedy Completion Report, “[w]ithin ninety (90) days after completion of remedy…,” is impracticable and overly prescriptive. A ninety-day period is inadequate to generate, review, and submit a Remedy Completion Report. LANL commented that the requirement in paragraph two of this section, to include, with every Remedy Completion Report, “[a] statement, signed by a registered professional engineer, that the remedy has been completed…,” is unreasonably burdensome and prescriptive. For many projects, the services of a registered professional engineer are not reasonably needed because many remedies require no engineering



Section/ Attachment

Unique No.


Y/N



NMED requires as-built drawings for every remediation system or activity requiring construction activities at the LANL Facility. NMED considers that maintaining accurate records of activities conducted at the Facility is essential to the presentation of accurate information during reporting and to provide accurate records for future users or developers of sites where investigation and cleanup have been conducted.

N

R498 Section VIII 16, 35, 36 Cleanup and Screening Levels

This commenter also recommends that, if the Respondents must report all detected concentrations of radionuclides above U.S. EPA

NMED has selected a hazard quotient of one for individual noncarcinogenic chemicals and a cumulative hazard index of one for two or more noncarcinogenic chemicals, as stated in Section VIII of the Order. This section also states that the total excess cancer risk from all carcinogens should not exceed 1 in 10 . –5

The Order requires the Respondent to report the background concentrations when reporting any constituents as stated in Section VIII. For sites where tritium is a potential contaminant, LANL will use its already-established background value for soil and sediment. For sites where tritium is not a potential contaminant, or after the preliminary screening process tritium is not considered a potential contaminant, the subsequent sampling and analysis will not include concentrations of tritium.

N

Subject

analysis. The Laboratory’s approach would be to apply this requirement only to those projects where professional engineering services are reasonably necessary for a project. LANL commented the requirement in paragraph three of this section, to include “as-built drawings” with every Remedy Completion Report, is impracticable and overly prescriptive, because, in many cases, “as-built drawings” are simply not needed. The Laboratory’s approach is to include “as-built” drawings only when required in the performance of a particular project. There were several comments regarding cleanup and screening levels. One commenter suggests that the Final Order require quantitative consideration of the cumulative risks from multiple chemicals for locations where more than one chemical of concern is detected in soil or ground water. This commenter recommends using NMED’s Technical Background Document for Development of Soil Screening Levels, December 18, 2000, or another scientifically defensible and accepted approach to considering cumulative risks.



Section/ Attachment

Unique No.


Y/N Preliminary Remediation Goals (PRGs), the Final Order should require reporting background concentrations for comparison to avoid raising public concerns over detection of radionuclides at background levels. This commenter also noted that the reporting levels for radionuclides do not include any values for tritium, a contaminant of concern at LANL and in the community. Two commenters supported the cleanup target lifetime risk level of 10 for individuals, equivalent to about 0.2 mrem/year Committed Effective Dose Equivalent (CEDE), but recommended that NMED adopt EPA’s screening level of 10 risk from single pollutants in addition to a total target risk to individuals of 10 .

-5

-5

Another commenter supports the selected target risk level of 10 , but is concerned that this risk factor may be skewed over the application of residential vs. industrial standards in the determination of environmental restoration remedies at LANL. This commenter recommends strongly that NMED must vigorously pursue the application of residential standards at LANL, with the consideration of agricultural standards as well, and that this section in the Final Order must

-5

NMED has selected a target total excess cancer risk level of 10 for establishing cleanup levels for regulated substances. Use of a target level for total risk allows levels for individual contaminants to be adjusted to compensate for the number of contaminants at a site while ensuring that the overall residual risk has a consistent cap from site to site. As stated in Section VII.C.2.a of the Order, the conceptual site model will include residential land use for all risk assessments. Following guidance presented in OSWER directive 9200.4-31P (EPA540/R/99/006), NMED assesses potential harm from radionuclides on the basis of carcinogenic risk, not radiation dose. The residential scenario is sufficiently protective for most expected future land use. If information indicated that this scenario was not protective of the expected land use at a particular site, site-specific allowable residual levels would be calculated for that site.

Subject

-5

-6

According to Section VIII.A.1.a of the Order, NMED has adopted the EPA provisional drinking water equivalent level of 1 ppb for perchlorate. This standard may change based on EPA’s drinking water standard when it is published.



Section/ Attachment

Unique No.


Y/N more strongly reiterate the statement made in Section VII.C.2.a that “the conceptual site model shall use residential land use as the future land use for all risk assessments. This commenter also recommended that the cleanup target risk level of 10 for individuals be appended by limiting the maximum annual dose to 1 mrem/year CEDE.

-5

This commenter also recommended that NMED establish a collective dose target risk for radioactive and non-radioactive pollutants by limiting the cumulative population exposure of populations, in addition to the risk to individuals. NMED could set a target collective risk over the next 500 years from all the cleanup operations in New Mexico. This commenter recommends that the potential hazards associated with the reuse of LANL property should be determined in the course of cleanup activities while accounting for continuing operations at LANL. This commenter also noted that NMED did not provide cleanup levels for non-radioactive pollutants for the agricultural scenario and recommended that NMED do so. This commenter also noted that NMED does not set cleanup levels for radioactive carcinogens, but refers to “reporting

Subject



Section/ Attachment

Unique No.


Y/N levels” or PRGs. Because NMED’s cleanup levels for non-radioactive pollutants do not contain values for “agricultural soil”, it is likely that “residential soil” will be selected for radioactive pollutants. However, the “agricultural soil” scenario more frequently represents stricter values for radionuclides than “residential soils.” This commenter recommends the Final Order should contain an outline of the rationale that will be used to resolve these discrepancies and that it should select the most restrictive usage scenario for all substances under review. This commenter also noted that the cleanup level for PCBs of 1 mg/kg is not strict enough and should be lowered to 0.22 mg/kg, the EPA value based on a risk target of 10 which is more protective of human and ecological health. This commenter also recommended that a preliminary screening criterion for perchlorate should be set to 1 ppb since the EPA has not yet determined perchlorate cleanup levels. This commenter also recommended, that since EPA has not yet set a drinking water standard for perchlorate, NMED should adopt the EPA provisional drinking water equivalent of 1 µ/L or ppb as its permanent standard.

-6

Subject



Section/ Attachment

Unique No.


Y/N

R499 SectionVIII.A.1.a

38 GroundwaterPerchlorate Screening Levels

The Final Q & A document on perchlorate distributed by USEPA on 1/18/02 to accompany the release of the toxicological review (NCEA-1-0503) states that “the draft assessment contains a draft reference dose of 0.00003 mg/kg/day”. The text in the Order uses “established” as a verb, not as an adjective modifying “reference dose”. The text clearly describes the reference dose as draft. Although a draft reference dose is subject to future modification, it is considered to be guidance from USEPA and as such may be used by NMED.

N

R500 SectionVIII.A.2

38 GroundwaterRadionuclide Reporting Levels

See Response to Legal Comments, Comment Numbers 26, 28 and 44.

N

Subject

This commenter also noted that the degree of knowledge regarding risks from radioactive and non-radioactive pollutants should be documented and target values should be continually revised as more information becomes available. This commenter recommends that NMED outline the updating process for risk information. LANL commented that the first sentence states “EPA has established a draft reference dose for perchlorate in drinking water.” This sentence is incorrect. USEPA has not “established” a reference dose, but has simply proposed a provisional reference dose in a draft document entitled “Perchlorate Environmental Contamination: Toxicological Review and Risk Characterization based on Emerging Information”. Because this “reference dose” is a provisional standard, it is not an “established” reference dose available for adoption by NMED. LANL commented that the Draft Order unlawfully requires the Laboratory to determine “the nature and extent of radionuclide contamination and implement groundwater monitoring at sites where radionuclide contamination is suspected or has been detected;” to “report to the Department all radionuclide concentrations in ground water exceeding background, and, of those, all radionuclide concentrations



Section/ Attachment

Unique No.


Y/N

The unlawful regulation of radionuclides and imposition of extensive time-consuming, resource-draining requirements thwart the full purposes and objectives of Congress, by threatening Congress’ objectives that DOE regulate nuclear safety and make it impossible for DOE to also comply with its nuclear safety requirements.

R501 SectionVIII.B.1

38 LANL commented that the Draft Order imposes conflicting regulatory requirements on the Laboratory by requiring soil cleanup levels to be based on the total risk target of 10 . LANL also feels that the different approaches under AEA and RCRA to calculating acceptable levels of radioactive materials in the environment will lead to conflicting regulatory cleanup methods, re

-5

quirement sand levels. The unlawful


N

Subject

exceeding the most current versions of the EPA preliminary remediation goals or the maximum contaminant level;” and to “submit to the Department the results of all investigations and testing for the presence of radionuclides,” Each provision constitutes an unlawful regulation of radionuclides and is therefore invalid. LANL also feels that inappropriate division of DOE resources to comply with the Draft Order’s extensive regulations would harm DOE’s ability to also comply with its nuclear safety requirement.

Soil CleanupLevels



Section/ Attachment

Unique No.


Y/N regulation of radionuclides and imposition of conflicting approach thwart the full purposes and objectives of Congress, by threatening Congress’ objectives that DOE regulate nuclear safety and make it impossible for DOE to also comply with its nuclear safety requirements.


Soil CleanupLevels

LANL commented the statement by NMED in this section, that “[t]he target soil cleanup levels for selected substances listed in the Department’s Technical Background document for Development of Soil Screening Levels,” are inconsistent with NMED’s own guidance, because soil screening levels are not established “cleanup levels”.

The NMED Soil Screening Levels were developed for risk-based screening of RCRA facilities throughout New Mexico and are not promulgated soil standards. NMED has decided that these screening levels are adequate for use as cleanup levels for a residential scenario.

N

R503 SectionVIII.B.1.b

38 Soil PerchlorateCleanup Levels

The November 2001 USEPA soil screening values for perchlorate predate the 2002 draft reference dose. NMED will determine an appropriate soil cleanup level after finalization of the new draft reference dose by USEPA.

N


38 SoilRadionuclide Reporting Levels

LANL commented that the requirement that the Laboratory “determine the nature and extent of radioactive contamination in soil or other solid-


Subject

38

LANL commented that this section, stating that “[t]he soil cleanup level for perchlorate will be updated if USEPA revises the reference dose for perchlorate in the future,” should be revised to incorporate USEPA action regarding same. The November 2001 version of USEPA Region 6 Human Health Medium Specific Screening Levels includes a soil screening value for perchlorate of 7.8 mg/kg for residential, and 130 mg/kg for outdoor industrial. This soil screening level should thus be adopted by NMED.

N



Section/ Attachment

Unique No.


Y/N phase media and implement monitoring programs at sites where radiological contamination is suspected or has been detected” constitutes unlawful regulation of radionuclides. The provision that the Laboratory “report all radionuclide concentrations in soil exceeding background and the most current EPA preliminary remediation goals for the residential and agricultural scenarios to the Department” also constitutes unlawful regulation of radionuclides. By requiring the Laboratory to “submit the results of all investigations and testing for the presence of radionuclides to the Department”, the Draft Order constitutes unlawful regulation of radionuclides. LANL also stated that the implied requirement that “the total excess risk from radionuclides will not exceed the Department total excess risk goal of 10 ,” constitutes unlawful regulation of radionuclides. DOE and RCRA’s different approaches to calculating acceptable levels of radioactive materials in the environment will lead to conflicting regulatory cleanup methods, requirement and levels. The unlawful regulation of radionuclides and imposition of conflicting approach thwart the full purposes and objectives of Congress, by threatening Congress’ objectives that DOE regulate nuclear safet

-5

y and make it impossible for DOE

Subject



Section/ Attachment

Unique No.


Y/N to also comply with its nuclear safety requirements.

R505 SectionVIII.C.1.a

38 Surface WaterPerchlorate Cleanup Levels

LANL commented that this section, stating that NMED has adopted the “...[US]EPA provisional drinking water equivalent level as an interim groundwater cleanup level” for perchlorate, appears incorrect, because this section of the Draft Order applies to “surface water,” and not to groundwater.

It is NMED’s intent to apply the drinking water equivalent level for perchlorate to both ground and surface water.

R506 SectionVIII.E

35, 36 Risk-Based Variance from Cleanup Standards or Levels

There were several comments regarding risk-based variance from cleanup standards or levels. One commenter recommended that NMED rewrite the statement “if attainment of the established cleanup level is demonstrated to be technically infeasible, the Respondents may perform a risk-based evaluation to establish alternative cleanup levels for specific media at individual corrective action units” and define precise numerical decision criteria. This commenter noted that NMED has an obligation under RCRA to err on the side of conservative and protective environmental restoration and the appropriate technical methods to achieve such ends. Another commenter questioned at what point is attainment “technically” infeasible rather than simply “too expensive.” This commenter strongly recommends that NMED define a

The NMED position paper on human health risk adequately addresses calculation of risk to human health under the standard residential and industrial risk. The residential scenario is sufficiently protective for most expected future land use. If information indicated that this scenario was not protective of the expected land use at a particular site, site-specific allowable residual levels would be calculated for that site. USEPA Risk Assessment Guidance for Superfund (RAGs), which is cited in the NMED position paper, provides the additional equations necessary for calculation of site-specific risk under an agricultural scenario. Scenario designation is not considered in ecological risk assessment. Both documents address uncertainty analysis.

N

Subject

N



Section/ Attachment

Unique No.


Y/N precise and numerical decision criteria process for this and NMED must err on the side of ensuring genuine environmental restoration and the needed technical means to get there.

This commenter also noted that the NMED position paper on human and ecological risk assessment referred to in this section is deficient and recommended that NMED consider the agricultural use scenario and require a mandatory, full-scope uncertainty analysis of the risk posed by non-radioactive and radioactive pollutants.

Section IX 36 Investigationsand Sampling Methods and Procedures

One commenter complimented NMED on its apparent thoroughness.


SectionIX.A

38 LANL StandardOperating Procedures

LANL commented that the requirement in this section for the Laboratory to use the most current Standard Operating Procedure, only if the most current version (i.e. revision number) is “listed” by NMED, is unreasonably burdensome and impracticable.

Investigations must be conducted according to SOPs. It is NMED’s policy to approve facility SOPs before they are implemented. The approval process was not intended to be part of this Order. The Respondent may use the NMED approved SOPs listed in Section IX.A and any other LANL SOPs approved by NMED in the future.

N

SectionIX.B

38 Investigation,Sampling and analyses Methods

LANL commented that the requirements in this section are inconsistent with the consensus reached by the TA-35 HPT, which includes the participation of NMED, to develop a Sampling and Analysis Plan (SAP) for TA-35. The Investigation Work Plan is currently stipulated as the required outline for the preparation of a SAP, when required. Further, the HPT was

The requirements in Section [XI].B (p. 19[6]) do not refer to documents that have been already submitted to NMED. These requirements must be applied to all future work plans (SAPs).

N

Subject

R507

R508

R509



Section/ Attachment

Unique No.


Y/N also tasked with the development of a “model” SAP to be used for aggregate SAPs, which comprise the majority of SAPs that remain to be completed.

SectionIX.B.2

38 FieldExploration Activities

LANL commented that this section regarding “Soil, Rock, and Sediment Field Screening,” is overly prescriptive, and inconsistent with the practice of conducting this activity under approved Sampling and Analysis Plans. In this section, NMED prescribes ad hoc sampling screening methodologies (for several types of sampling), and also prescribes the collection of samples under certain conditions, but does not define a quantitative sample selection. The Laboratory’s approach is collecting screening samples according to an approved site-specific Sampling and Analysis Plan and following a prescribed process that ensures consistency, and adheres to the Laboratory’s Quality Assurance Plan in Chapter three of the Laboratory’s Investigation Work Plan.

The purpose of Section IX.B.2[d] is to cover every possible field screening technique that may be applicable at LANL’s sites. Site-specific field screening and sample collection must be presented in a SAP for each site and the NMED approved SAP will be implemented. It is NMED policy to approve work plans (SAP) before field investigations begin. The work plan outline and the required field procedures provided in the Order are designed to ensure consistency and to be aligned with industry-wide accepted practices.

N

R511 38 SubsurfaceFeatures/ Utility Geophysical Surveys

LANL commented that the requirement in this section, to “…conduct surveys to locate underground utilities, pipelines, structures, drums, debris and other buried features in the shallow subsurface prior to the start of field exploration activities,” and to include these results in investigation reports submitted to NMED, is unreasonably burdensome. For example if utility locations are known, conducting a

The purpose of Section IX.B.2.a is to cover possible field surveys for locating subsurface features that may be applicable at LANL’s sites. The section also states, that “ the methods used shall be selected based on characteristics of the site and the possible or suspected underground structures”. It is not uncommon that records of underground structures are inaccurate. For health and safety reasons, accurately locating subsurface features is especially important when subsurface explorations are being conducted. The

N

Subject

R510

SectionIX.B.2.a



Section/ Attachment

Unique No.


Y/N subsurface survey is simply not needed. Many sites at the laboratory are in remote locations away from utility lines. If there are no known or suspected subsurface features in the areas, it is not prudent to do such a survey. In addition, requiring magnetometer, ground penetrating radar or other surveys for subsurface features, before any field exploration can begin, is time consuming and costly. The Laboratory’s approach is to conduct pre-exploration, subsurface surveys on a site-specific, as needed, basis.

Respondent must follow the requirements for subsurface surveys as stated in Section IX.B.2.a.

R512 10 VarianceCriteria

One commenter commented on the statement: “The field screening results shall be considered acceptable if there is not greater than a 20 percent variance between the measurements. The instrument(s) shall be checked each day for proper operation and calibration using a National Institute of Standards and Testing traceable source. Field screening of the sample shall be repeated if there is greater than a 20 percent variance between field screening measurements for any sample.” This commenter noted that there is a redundant mention of the 20 percent variance criteria and that the requirement for NIST traceability is vague. This commenter recommends that the above be replaced with the following language: “The instruments shall be calibrated using a

The mentioned 20 percent variance is not redundant. The first variance refers to the three measurements of one sample and the second variance refers to measurements between samples. NMED considers the instrument calibration procedures described in Section IX of the Order to be adequate.

N

Subject

SectionIX.B.2.d, ¶3



Section/ Attachment

Unique No.


Y/N representative soil matrix containing NIST traceable quantities of the emitter (alpha, beta, or gamma) to be measured. The instrument(s) shall be checked each day for proper operation based on statistical process control using a NIST traceable source.” This commenter also recommends consideration be given to the specification of explicit alpha, beta, and gamma emitters since inconsistent emitters will introduce bias in the measurements.

R513 SectionIX.B.2.d

38 Soil, Rock, and Sediment Sample Field Screening

LANL commented that the requirement in paragraph one of this section, that “[s]amples obtained from borings shall be screened in the field for the evidence of the potential presence of contaminants,” is overly prescriptive and unreasonably burdensome. This section of the Draft Order requires visual, gross radiation screening, headspace VOC screening, and XRF screening, for all field soil, rock and sediment samples. Such requirements are, in many cases, simply not necessary. These prescriptive requirements would also be time-consuming and costly in relation to any benefit gained. The Laboratory’s approach is to base the selection of appropriate field screening methodologies on site-specific conditions, expected contamination, and the reliability of available technologies.

LANL can propose the appropriate field screening methods for each site in the required site-specific work plans based on site-specific characteristics and potential contamination. The work plans must be approved by NMED before implementation.

N

Subject



Section/ Attachment

Unique No.


Y/N R514 Section

IX.B.2.d 38 Soil, Rock, and

Sediment Sample Field Screening

LANL commented that the requirement in paragraph three of this page, that radionuclide screening shall include “[a] minimum of three measurements, obtained at a minimum of one-minute count rate, for each screening sample,” is unreasonably burdensome. Field screening results have very limited data uses, for example they are not used for risk assessment. In addition, repeating each measurement adds little, or no data value, because a properly calibrated instrument will perform well within the instrument operational specifications, and thus produce reliable results. Finally the repetition required by NMED is very costly (the Laboratory estimates the total additional cost of repeating these measurement to be at least $120,000 annually, based on 2,000 annual soil/sediment samples taken).

LANL has a history of using field screening for radionuclides with improperly calibrated instruments. The requirements in the Order ensure that data acquired in the field is reliable. In addition, repeated measurements using field instrumentation, aside from requiring less than a few minutes per sample to obtain, will increase the reliability of sample results that potentially could eliminate the costs of re-mobilizing to obtain additional samples to verify unreliable data.

N

R515 SectionIX.B.2.d

38 Soil, Rock, and Sediment Sample Field Screening

LANL commented that the requirement in paragraph three of this page, that radionuclide “…field screening results shall be considered acceptable if there is no greater than a 20 percent variance between the measurements” is impracticable, if not impossible, for certain types of field screening measurements. For example, field screening for alpha radiation at sites very near instrument background, will likely yield results that have more than 20 percent variance (e.g., observed counts of [0,2,2] would fail this test).

Instruments for radionuclides must perform within 20 percent for repeated measurements when the measurements are greater than the background noise. Background range must be established prior to field screening of a potentially contaminated site. Properly calibrated instruments will perform satisfactory to this requirement. The Order was changed to clarify Section.IX.B.2.d.

Y

Subject



Section/ Attachment

Unique No.


Y/N In order to accomplish this, the field team would have to repeat the test until the natural randomness of radioactive decay gave them the desired results.

R516 SectionIX.B.2.e

38 Soil, Rock, and Sediment Sample Types

LANL commented the requirement in this section that “[f]ield duplicates will be collected at a rate of ten percent” is both unreasonably burdensome, and inconsistent with the Laboratory’s NMED-approved ER Project Procedure, Laboratory Supp. AR, at 108, Data Quality Objectives Process, USEPA Guidance, Laboratory Supp. AR at 109, and general industry practice. The Laboratory’s approach, to collect field duplicates at a rate of one in 20, is consistent with USEPA guidance and general industry practice.

The Order requires that field duplicates be collected at the more frequent rate of 10 percent. The Respondent will follow the requirements in Section IX.B.2.e. This requirement may be modified in the future based on the results of field measurements obtained during field investigations conducted in fulfillment of the Order.

R517 SectionIX.B.2.e

38 Soil, Rock, and Sediment Sample Types

LANL commented the requirement in this section that the Laboratory “…shall collect field blanks at a frequency of one per day for each medium (with the exception of air samples)…” is impracticable, if not impossible, to perform in many cases. For example, the Laboratory is not aware of appropriate field “blank” materials that can be used for metals or tritium analyses of soil, rock and sediment samples. The Laboratory’s approach is to apply the data quality objectives process to determine the appropriate type and frequency of field blank samples, if any, for each sampling campaign, on a case-by-case basis. The DQO process was

“Field blanks should be collected at specified N

Subject

N

frequencies, which will vary according to the probability of contamination or cross-contamination. Field blanks are often metal- and/or organic-free water aliquots that contact sampling equipment under field conditions and are analyzed to detect any contamination from sampling equipment, cross contamination from previously collected samples, or contamination from conditions during sampling (e.g., airborne contaminants that are not from the waste being sampled)” (see SW-846, Chapter 9, Section 9.2.2.5).



Section/ Attachment

Unique No.


Y/N developed by the EPA as a planning tool to ensure that data collected is adequate to resolve decisions.

R518 SectionIX.B.2.f

38 Sample Pointand Structure Location Surveying

LANL commented the requirement in this section, for “registered New Mexico professional land surveyors” to participate in sample point and structure location surveying, is unreasonably burdensome. To require that professional land surveyors perform all land surveys for locations, structures, and other features, is neither cost effective, nor beneficial. The Laboratory’s approach is to prepare maps using hand-held GPS instruments and sophisticated GIS software applications. The spatial data used for preparing maps are contained in file structures that include meta-data pertaining to the origin and quality of the spatial data. The Laboratory prepares hundreds of maps each year for submittal with reports using an institutional set of electronic spatial data files. Requiring certification of each map by a professional surveyor is unnecessary and will greatly increase the length of the schedule and the cost of reporting.

N

R519 SectionIX.B.2.g

38 SubsurfaceVapor-phase Monitoring and Sampling

LANL commented the requirements in this section, to “…collect vapor samples for field measurement…” of a number of factors, is impracticable, if not impossible, to perform for a number of the required measurements. Regarding the field measurement of

Y

Subject

It is NMED policy that facilities in the State of New Mexico comply with NMSA 47-1-49 through 56 which includes the requirement that certified land surveyors conduct land surveys for the purposes of preparing maps for inclusion in reports. Surveys shall be conducted in accordance with Sections 500.1 through 500.12 of the Regulations and Rules of the Board of Registration for Professional Engineers and Surveyors Minimum Standards for Surveying in New Mexico. Site maps previously submitted by LANL appear to use the State Plane Coordinate System. The GPS methods used by LANL may not achieve the accuracy required by NMED as listed in Section IX.B.2.f.

Section IX.B.2.g in the Order was changed as follows: the “percent moisture” was removed from the bullet list, and the “radionuclides” in the bullet list were replaced with “tritium (gross beta)”.



Section/ Attachment

Unique No.


Y/N “percent moisture,” vapor is not measured for percent moisture, because gas in soil is in equilibrium with available moisture and remains constant at approximately 98% relative humidity. The Laboratory is unaware of the existence of an instrument capable of conducting field measurements of radionuclides in vapor. “Static Subsurface pressure,” has been previously characterized by the MDA L Pilot extraction Study Plan, and is easily interpreted by barometric pressure. The laboratory analysis of vapor sample for “percent moisture,” is highly impracticable.

R520 SectionIX.B.2.h.i

38 GroundwaterLevels

The requirements in Section IX.b.2.h.i were meant to be general. An opportunity is provided in the Order for modifying groundwater monitoring requirements in the watershed-specific long-term groundwater monitoring work plans that LANL must submit in fulfillment of the Order requirements.

N

Subject

LANL commented the requirement in this section, to obtain groundwater level measurements “… at intervals required by the Department and after significant seasonal and weather events…,” is unreasonably burdensome, because such measurements are of limited value in learning about the hydrologic system in relation to groundwater contamination. These requirements are overly prescriptive and without justification in the administrative record. The Laboratory’s approach is to conduct groundwater level measurements on a case-by-case basis, where a specific data need exits. The Laboratory has decades of data documenting water levels and behavior regarding water level collection after seasonal weather



Section/ Attachment

Unique No.


Y/N

R521 SectionIX.B.2.i

38 Groundwaterand Surface Water Sampling

The commented paragraph clearly states that the surface water will be sampled in conjunction with ground water if the surface water is present. NMED considers this practice to be very practical since sampling efforts will be conveniently integrated and cost-effective. LANL also conducted similar practices as shown in the examples below even for canyons with little or no

Subject

events, and impact on alluvial groundwater. Additional water level data collection, on the scale proposed by NMED, will not reasonably resolve questions about the hydrological system at the Laboratory, or shed additional light on contaminant movement. The regional aquifer beneath the Laboratory is isolated from the surface by over 900 feet of unsaturated rock and sediments. The Laboratory also has decades of water level data form the regional aquifer. This data indicates that the regional aquifer has never been shown to be influenced, on a scale of weeks or months, by seasonal events at the land surface. Instead, evidence indicates that minimum travel times for water from the surface to the regional aquifer are about 10 to 20 years. Since 1992, the Laboratory has operated an extensive automated water level measurement system. The Laboratory’s approach is to rely upon this existing data, plus additional future data to be collected when a specific data need exits. LANL commented the requirement in paragraph two of this section, that “[s]urface water samples shall be obtained in conjunction with routine groundwater sampling, where present …,” is impracticable, if not impossible, to perform, except at stations that have base flow or snowmelt present.

N



Section/ Attachment

Unique No.


Y/N perennial surface water. The WP for Mortandad Canyon (Sep-97, Section 7.3) states, “[s]urface water sampling and analysis is included with groundwater investigation because surface water in the canyon recharges the alluvial groundwater”. The WP for Sandia Canyon and Cañada del Buey (Sep-99, Section 7.1.3.3.1) states, “[s]urface water flow will be measured concurrently with surface water sampling activities and groundwater sampling activities on a quarterly basis for one year to provide a snapshot of hydrologic conditions throughout the canyon”. The WP for Pajarito Canyon (Sep-98, Section 7.3.1) states, “[s]urface water investigations will be performed coincident with groundwater investigation to develop an integrated hydrogeologic conceptual model of the Pajarito Canyon”.

R522 SectionIX.B.2.i.iv

38 Groundwaterand Surface Water Sample Types

LANL commented that the requirement in paragraph two of this section, “[f]ield duplicate surface water and groundwater samples shall be obtained at a frequency of ten percent,” is both unreasonably burdensome and inconsistent with USEPA guidance. USEPA guidance (SW-846) recommends collection of one field duplicate and one equipment reinstate blank quality control sample per 20 samples, or per day. The Laboratory’s current procedure-conforms to USEPA guidance.

The Order requires that field duplicates be collected at the more frequent rate of 10 percent. The Respondent will follow the requirements in Section IX.B.2.i.iv. This requirement may be modified in the future based on the results of field measurements obtained during field investigations conducted in fulfillment of the Order.

Subject

Sampling surface water with groundwater will not work in most canyons at the Laboratory, because only short-lived storm runoff is usually present. Most surface water sampling at the Laboratory is transient storm water runoff rather than persistent surface water. Thus, sampling of surface water in conjunction with groundwater can only be done in those sections of canyons where persistent surface water is present.

N



Section/ Attachment

Unique No.


Y/N R523 Section

IX.B.2.j 38 Sample

Handling LANL commented that the detailed requirements in this section, regarding sample collection and handling are overly prescriptive without a corresponding and commensurate benefit. LANL’s approach is to follow the existing QAPP, previously submitted to NMED as part of the IWP and every SAP.

The sample collection and handling procedures described in Section IX.B.2.j are standard procedures practiced in the environmental industry across the United States. LANL must comply with the requirements in Section IX.B.2.j as stated.

R524 SectionIX.B.2.j

38 SampleHandling

LANL commented that the requirement in paragraph three of this section, “…all samples shall be submitted to the laboratory within 48 hours after their collection,” is unreasonably burdensome and often impractical. In sample collection, LANL’s approach is to follow all applicable EPA guidance and regulations.

The requirement of collected samples to be delivered to the analytical laboratory within 48 hours is not unreasonable. Delivery companies provide overnight and Saturday delivery services; therefore, this requirement is not only practical, but is easily met.

R525 SectionIX.C, ¶ 1

10 ChemicalAnalyses

One commenter noted that the three sentences of the following paragraph were redundant:

Although this paragraph may sound redundant, it covers the whole spectrum of the chemical analyses. The first sentence in this paragraph refers to the most recent analytical methods for all analytes in each media (groundwater, surface water, sediments, air, soil). The second sentence refers to the methodologies and extraction methods for non-radionuclides, and the third sentence requires the use of the most recent methods for radionuclides.

N

Subject

N

N

“The Respondents shall use the most recent standard EPA and industry-accepted analytical methods for chemical and radiological analyses for target analytes as the testing methods for each media sampled. Chemical analyses shall be performed in accordance with the most recent EPA standard analytical methodologies and extraction methods. In addition, the Respondents shall use the most recent EPA and accepted industry-wide standard, accurate and dependable methods for detecting the presence of



Section/ Attachment

Unique No.


Y/N

R526 SectionIX.C

38 ChemicalAnalysis

The first paragraph of Section IX.C is intended to have the general meaning that the Respondent will use standard and up-to-date EPA and industry-accepted extraction and analytical methods for all constituents. The determination of the best analytical method, EPA approved or not, for individual constituents or class of constituents will be proposed by the Respondent in the site-specific work plans. NMED will consider alternative method; however, alternative methods cannot be used without prior NMED approval.

N


10 ChemicalAnalyses

This commenter also questioned what the analytical result should be within two sigma uncertainty to be considered a detection. This commenter also noted that it is uncharacteristic to report uncertainties

NMED requires that the radiochemical analysis report the activity concentration with the corresponding MDC (minimum detectable concentration), not the total propagated uncertainty. Detection will be considered an analytical result with no qualifiers “U” (not detected above detection limit) or “UJ” (not detected above detection limit; the value is inaccurate or imprecise) as reported by the analytical laboratory, not including (i.e. not adding or subtracting) the measurement uncertainty. A specific measurement uncertainty is required to be

Subject

radionuclides.” LANL commented that the requirement in this section that LANL use the “most recent USEPA and industry-accepted” standards and methods, implies that the release date of a given procedure is the sole determinant in selecting an analytical method. LANL notes that: 1) the “most recent” release date is not always the best method available; 2) there are very few EPA procedures for radionuclide determinations, and those that exist apply only to drinking water; 3) LANL believes this stated requirement permits the use of non-promulgated methods/technologies, as required by data quality objectives and/or recommended by current technological advances, and requests NMED to confirm this; 4) LANL currently selects analytical methods from a list approved by DOE, that is reviewed and updated on an annual basis. One commenter questioned whether the “two sigma uncertainty” represents only counting uncertainty or total propagated uncertainty.

Y



Section/ Attachment

Unique No.


Y/N for inorganic and organic analyte results and questioned how the detection criteria would apply when no uncertainty is reported.

reported only for radionuclides (the above mentioned MDC) but not for organic or inorganic analytes. NMED has revised the text in Section IX.C to clarify how the analytical results will be reported.


10 Detection Limits One commenter questioned whether NMED had a preference or desire for uniformity in calculating detection limits.

1) Analytical Detection Limit Guidance & Laboratory Guide for Determining Method Detection Limits, Wisconsin Department of Natural Resources Laboratory Certification Program, April 1996, PUBL-TS-056-96

2) Guidance on Data Quality Indicators, EPA QA/G-5i, Peer Review Draft, September 2001, Section 3.5 (Sensitivity).

The certified analytical laboratory is responsible for calculating the detection limits during the measurements. For example, high concentrations of some constituents will result in dilution and therefore elevated detection limits for this particular analysis. The detection limits are required to be less than the background concentrations, and screening or regulatory cleanup levels, as stated in Section IX.C.

N

R529 SectionIX.C.1

10 LaboratoryQA/QC Requirements

One commenter questions whether the language in this section precludes the usage of the Respondents’ own internal analytical capabilities for the analysis of samples.

This commenter also expressed disappointment that there is no stated requirement for analytical laboratories to participate in performance evaluation programs in which single-blind samples

The language in Section IX.C will be changed to preclude LANL’s use of non-accredited analytical laboratories and require the use of contract analytical laboratories.

Y

Subject

This commenter also provided two references from a large number in the literature that could be of use:



Section/ Attachment

Unique No.


Y/N are distributed for analysis. This commenter suggests consideration be given to requiring the participation in at least two of these programs to provide independent assurance of the quality of these laboratories.

R530 38 LaboratoryQA/QC Requirements

LANL commented that this section is unreasonably burdensome and impracticable. LANL’s approach is to required laboratory detection limits based on a method detection level (MDL) study, using water collected from LANL. It is impractical to perform MDL studies for every possible parameter and matrix combination. The analytical laboratories should be allowed to accomplish this using DI water according to 40 C.F.R. 136, Appendix B, unless there is a specific reason to suspect a problem, and thus do otherwise.

It is unclear which section in the Order that LANL is referring to in this comment; therefore, NMED has no response.

N

R531 38 LaboratoryQA/QC Requirements

LANL commented that the requirement in the second sentence of paragraph one for LANL to “provide” laboratory QA manuals to NMED “…within forty-five (45) days of awarding a contract for analytical services to any contract laboratory,” is unreasonably burdensome. LANL follows EPA analytical protocols that are already in NMED’s possession.

It is a standard practice to provide the contract laboratory QA manuals to regulatory agencies. LANL will likely use the same analytical laboratories repeatedly; therefore, LANL will need to submit these manuals only once for each laboratory it uses, unless a laboratory revises its QA manual.

N

R532 10, 36 Quality Assurance Procedures

There were several comments regarding QA. One commenter noted that the efficacy of the requirements of this section would better if there were

N

Subject

SectionIX.C.1

SectionIX.C.1

SectionIX.C.1.a

LANL is required to follow its Quality Assurance Project Plan under its approved Installation Work Plan. NMED uses EPA guidance and regulations as outlined in RCRA and the HWA in its review


NMED Response to Comments Received through July 31, 2002 by NMED on the Los Alamos National Laboratory (LANL) Draft Order Order

Section/ Attachment

Unique No.


Y/N specific reference to EPA’s laboratory certification requirements. This commenter also suggested it would be more appropriate for control limits to be established based on the data quality objectives required by the decisions NMED envisions making based on the resulting data. Another commenter noted a major omission in the draft Order. The Order does not include spelled-out QA procedures required of DOE/LANL/UC in the fulfillment of data requests, reports, etc. nor procedures for NMED in its review and approval process. This commenter recommended that this subject should have its own section in the Final Order.

and approval process.

R533 SectionIX.C.1.a

10 Control Limits One commenter suggested it would be more appropriate for control limits to be established based on the data quality objectives required by the decisions NMED envisions making based on the resulting data.

Some control limits are established by the individual laboratory internally (for example, instrument calibration procedures) and are different for individual chemicals or groups of chemicals. Other control limits, such as surrogate recovery or MS/MSD recovery, are set a priori by USEPA.

N


38 QualityAssurance Procedures

LANL commented that the requirement that the Laboratory “maintain internal quality assurance programs in accordance with EPA and industry-wide accepted practices and procedures” constitutes unlawful regulation of radionuclides and conflicts with DOE nuclear safety requirements under DOE Order 414.1.

It is not unlawful for the NMED to expect LANL to conform to EPA and industry-wide accepted practices with regard to its practices and procedures when conducting environmental work. LANL routinely conducts environmental work at Laboratory sites where radionuclides are present.

See Response to Legal Comments, Comment Number 44.

N

No.



Section/ Attachment

Unique No.


Y/N R535 Section

IX.C.1.a 38 Quality

Assurance Procedures

LANL commented that this section is unreasonably burdensome. QC techniques that are appropriate to the analytical methods should be used. Not all of the QC techniques listed in this requirement are applicable to all analyses. Laboratory control samples (LCSs or blank spikes) are only duplicated when insufficient sample exists for replicating a field sample or a spiked field sample. Surrogates are used only in GC, GC/MS, HPLC, and LC/MS – they do not apply to radiochemistry, atomic spectroscopy, or wet chemistry.

The analytical laboratory shall use the listed QA/QC procedures in Section IX.C.1.a wherever applicable to the analytical method in accordance with EPA and industry-wide accepted practices.

N


38 QualityAssurance Procedures

LANL commented that requiring that contract analytical laboratories shall “…establish internal QA/QC that meets EPA’s laboratory certification requirements,” is unreasonably burdensome and should allow for fixed control criteria when required by the EPA methods and apply those criteria to methods when no applicable industry standards exist. The DOE/Albuquerque Operations Office Model SOW for Analytical Laboratories specifies fixed control criteria when required by the EPA methods and extrapolates to apply those criteria to methods for which no industry standards exist. This approach has been accepted and used by all DOE/Albuquerque Operations Office facilities or the past several years.

The contract analytical laboratory can apply fixed control criteria when established and required by the EPA methods. In addition to this, every lab establishes internal QA/QC procedures to assure its own quality and compliance as an EPA-certified laboratory.

N

R537 Section 38 Equipment LANL commented that requiring Equipment calibration is performed by standard N

No.



Section/ Attachment

Unique No.


Y/N IX.C.1.b Calibration

Procedures and Frequency

laboratory “…equipment calibration procedures…be documented in the laboratories’ quality assurance and SOP manuals,” is unreasonably burdensome. Both QA and SOP manuals are acceptable for documenting calibration.

procedures that are strictly followed according to written corresponding laboratory SOPs and the manufacturer’s guidelines; therefore, these procedures must be documented in the laboratory’s QA and/or SOP manuals. Because these manuals are required to be submitted only once for each laboratory, NMED does not consider this requirement to be burdensome.

R538 SectionIX.C.1.b

38 EquipmentCalibration Procedures and Frequency

LANL commented that requiring that “[a]ll instruments and equipment used by the laboratory shall be operated, calibrated and maintained according to manufacturers’ guidelines and recommendations,” is unreasonably restrictive. Each analytical laboratory’s QA plan and SOPs specify the operations, calibration, and maintenance of the instruments and equipment. These analytical laboratory documents have evaluated and selected the most appropriate procedures with respect to EPA methods requirements, or the DOE/Albuquerque Operations Office Model SOW for Analytical Laboratories. Also, the manufacturer’s specifications are less rigorous than those specified by EPA and the DOE/Albuquerque Operations Office model SOW for Analytical Laboratories.

All instruments and equipment used by the contract laboratory must be operated and maintained according to the manufacturer’s guidelines and recommendations (see EPA SW-846, Chapter 1, Section 4.3.5). Failure to do so may result in faulty equipment and unreliable data. The LANL comment, as written, is unclear. From one side, the requirement to follow the manufacturer’s guidelines is “unreasonably restrictive”; but from another side, “the manufacturer’s specifications are less rigorous”. Therefore, NMED cannot respond to this part of the comment.

N

R539 SectionIX.C.1.c

38 LaboratoryQA/QC Samples

LANL commented that requiring that laboratory “[a]nalytical procedures shall be evaluated by analyzing radiogenic NIST” standards, is unreasonably restrictive and should permit analytical laboratories to

NIST standards are nationally accepted and reliable. It is a standard practice for the contract laboratory to use NIST standards. NMED did not intend to cover every single QC type. As stated in Section IX.C.1.c, “[l]aboratory batch QA/QC samples shall be specific to the project”.

N

No.



Section/ Attachment

Unique No.


Y/N conduct QC in routine analysis in accordance with either NIST, or the DOE/Albuquerque Operations Office Model SOW for Analytical Laboratories. The QC types listed by NMED in this section include many that are not typically analyzed and omit many other types that are typically analyzed. Analytical laboratories used by LANL are currently required to conduct QC in accordance with the DOE/Albuquerque Operations Office Model SOW for Analytical Laboratories.


38 LaboratoryQA/QC Samples

LANL commented that requiring that each laboratory “…analyze at a frequency of one in twenty for all batch runs requiring USEPA test methods and at a frequency of one in ten for non-USEPA test methods,” is unreasonably burdensome and inconsistent with applicable guidance and industry practice. This requirement should be in accordance with the applicable method or the DOE/Albuquerque Operations Model SOW for Analytical Laboratories. The requirement for analyzing one-in-ten QC samples for non-EPA methods represents a doubling of current EPA requirements. The industry standard for the frequency of analyzing preparation blanks is one per batch, or one in twenty, whichever is more frequent.

NMED does not consider the requirement of using 10 percent laboratory QA/QC samples for non-EPA test methods to be unreasonable.

N

R541 Section 38 Laboratory LANL commented that the requirement NMED will accept the Level IV analytical support N

No.



Section/ Attachment

Unique No.


Y/N IX.C.1.d Deliverables in the first sentence of this section, that

the laboratory analytical data package shall be prepared in accordance with “…USEPA-established Level III analytical support protocol,” is unreasonably restrictive and should indicate that the required analytical support protocol is Level III or higher. The Level III analytical support protocol package cannot be validated completely under EPA Functional Guidelines for Data Validation, and LANL’s accepted data validation procedures. LANL requires Level IV analytical support package, which also includes raw data, and other laboratory documents necessary for comprehensive data validation.

package. A Level IV analytical data package also meets the requirements of Level III analytical support protocol.

R542 SectionIX.C.1.d

38 LaboratoryDeliverables

LANL commented that the laboratory deliverables required by LANL to submit to NMED are unreasonably burdensome. This requirement would result in more costly deliverables, and result in no increase in protectiveness to human health and the environment. LANL’s approach would be to maintain these files at LANL and make them available to NMED upon request. The last paragraph of this section permits LANL to provide summary tables, but suggests that the tables have to include every item listed in the deliverable section. LANL’s approach would be to offer the Form Is and the data validation memoranda in lieu of this requirement.

It is a standard NMED policy to require that all regulated facilities in the State of New Mexico provide the original laboratory reports in the form of an Appendix or Attachment to the report.

N

No.



Section/ Attachment

Unique No.


Y/N R543 Section

IX.C.1.d 38 Laboratory

Deliverables LANL commented that the requirement in paragraph one of this section regarding transmittal letter contents is unreasonably burdensome. The required “[i]nformation about the receipt of samples, the testing methodology performed, any deviations from the required procedures, any problems encountered in the analysis of the samples, any data quality exceptions, and any corrective actions taken by the laboratory…” is found elsewhere in data packages, and thus the requirement to include this same information in the transmittal letter is duplicative and unnecessary.

The transmittal letter, which includes interpretation of the QA/QC procedures, is a standard part of the documentation included in laboratory reports and must accompany the reports. This letter presents the laboratory interpretation of the QA/QC data. The letter must also show compliance with the requirement in Section IX.B.2.j (3) for which the letter provides confirmation of fulfillment of this requirement.

N



LANL commented that the requirement in paragraph five of this section is unreasonably restrictive. It is inappropriate to restrict the reported QC analyses reported to the list in paragraph five.

The Respondent will provide the QC analyses, as reported by the contract laboratory, which apply to the specific analytical method.

N



LANL commented that the requirement in paragraph 11 of this section regarding instrument calibration is unreasonably restrictive and should not include radiochemistry calibration data. Calibration data are present in the Level IV packages that LANL routinely requires for atomic spectroscopy, wet chemistry, and organic chemistry. Radiochemistry counting instrument calibration data remain unchanged for long periods of time and are voluminous and are references in LANL data packages and

LANL must provide instrument calibration for radiochemistry instrumentation whenever the procedures are performed. NMED does not specify the frequency of calibration although LANL must meet the EPA and industry-accepted standards for instrument calibration.

N

No.



Section/ Attachment

Unique No.


Y/N maintained as records by the laboratories.



LANL commented that the requirement in paragraph 14 of this section regarding “[r]ecoveries of surrogates and/or matrix spikes” is unreasonably burdensome and should be deleted because it duplicates items four and five in this section.

The duplicate phrase has been deleted in the Order. Y



LANL commented that the requirement in paragraph 15 of this section regarding “[v]ariability for duplicate analyses” is unreasonably restrictive. The requirement does not adequately address all variability indicators in duplicate samples.

The numbered item 15 refers to field and laboratory duplicate samples. NMED is unclear about which variability indicators LANL is addressing in its comment.

N



LANL commented that the requirements in paragraphs 18, 19, and 20 of this section regarding data deliverables for organic compounds, inorganic compounds, and radionuclides are overly prescriptive and should be revised to follow the data deliverables in the DOE/Albuquerque Operations Office Model SOW for Analytical Laboratories. The data deliverables in these paragraphs are redundant with respect to paragraph 17, are incomplete, and are incorrect. The data qualification included in these paragraphs requires EPA CLP program documents. The QC forms required under the DOE/Albuquerque Operations Office Model SOW for Analytical Laboratories, currently used by LANL, are not identical to EPA

LANL will follow the required deliverables as stated in Section IX.C.1.d. NMED does not consider these sections to be redundant with respect to numbered item 17. The discussion of [ICV], CCV, and LCS is presented under numbered item 11, which is common to all analyses, not only to organics. Bullet ten in paragraph 20 was changed. For data qualification, LANL will use the EPA CLP definitions. LANL may provide any additional information, if necessary, to clarify data quality exceptions. NMED will not accept alternative definitions for data qualifiers. NMED expects LANL to use the same reporting practices as required industry-wide, and will not accept internal DOE standards.

Y

No.



Section/ Attachment

Unique No.


Y/N CLP documents, but provide additional information compared to the CLP.

R549 SectionIX.C.2

38 Review of Fieldand Laboratory QA/QC Data

LANL commented that the requirement in this section that LANL notify the facility project manager of all “data quality exceptions” is unreasonably burdensome because the phrase “data quality exceptions” is undefined by NMED, and potentially overbroad in scope. Only rarely does no flaw of any kind exist in a data package. Validation memoranda are prepared for each data package, but only after delivery of the data package and completion of the validation work. Because “data quality exceptions” is not defined, it would apparently require the preparation of numerous separate memoranda and nearly constant communication. This phrase should be clearly defined.

The meaning of “data quality exception” as used in the Draft Order is meant to refer to all data with qualifiers “UJ”, “J”, or “R” due to DQOs not being met. These include, but are not limited to, blank contamination, improper calibration, MS/MSD, LCS and RPD out of control limits, interference problems, and dilution recovery. This information is readily prepared by the analytical laboratory and submitted with the report for every batch of samples. For example, blank contamination could result in re-sampling or re-testing; MS/MDS out of control limits may or may not result in re-sampling or re-testing of the samples. It is NMED’s experience that significant QA/QC problems arise more commonly with LANL’s analytical data than in the data generated by other regulated facilities within New Mexico. The objective of the Order is to attempt to reduce the occurrence of data loss due to poor analytical QA/QC.

N


38 Field Duplicates LANL commented that this section regarding “field duplicate” collection is both unreasonably burdensome and inconsistent with existing guidance. LANL’s approach is to follow the field duplicate requirements in the DOE/Albuquerque Operations Office Model SOW for Analytical Laboratories, which does not provide field duplicate frequency or acceptance criteria; the criteria there apply to laboratory replicates, which are splits of single samples. This section should

NMED’s reason for collecting field duplicates in Section IX.C.3.b is to assess the quality of LANL’s sampling procedures. The requirement for 20 percent precision in this section refers to field duplicates, not to laboratory duplicates and replicates. The Respondents will follow the procedure as stated in Section IX.C.3.b.

N

No.



Section/ Attachment

Unique No.


Y/N also clarify whether it is intended to be 20% RPD. The data validation procedures currently used by LANL provide for examination of the field duplicate results and for the qualification of the associated sample data, if necessary.


38 Field Duplicates LANL commented that the requirement in this section that “[a] precision of not less than 80 percent for duplicates shall be considered acceptable…” is unreasonably burdensome. It is unreasonable to require a precision of 80% for all contaminants. This is a data validation matter, not a question of the acceptance of analytical data.

NMED has set a precision of 20 percent for field duplicates, as stated in Section IX.C.3.b. NMED considers this to be acceptance criterion of the analytical data, not only a validation matter. The text has been changed to clarify the precision of 20 percent.

Y


38 MethodReporting Limits

LANL commented that the requirement that the Laboratory establish method reporting limits for sample analyses for each media “at the lowest level practicable for the method and analyte concentrations” constitutes unlawful regulation of radionuclides. LANL also feels that this technically questionable requirement may conflict with DOE’s detection limits.

DOE’s practices do not always correspond with EPA and industry-wide accepted practices for environmental projects. NMED will only accept EPA and industry-wide accepted practices or those practices that provide a more stringent standard or higher quality data than EPA and industry-wide accepted practices. Method reporting limits for analytical methods must be lower than applicable screening levels, cleanup standards or background values for all types analyses to be of use for more than preliminary screening purposes. See also Response to Legal Comments, Comment Number 24.

N


38 MethodReporting Limits

LANL commented that the requirement in this section to establish method reporting limits “…at the lowest level practicable for the method and analyte concentrations” is unreasonably burdensome, inconsistent with existing guidance, and overly prescriptive. This

The requirement in Section IX.C.3.c is consistent with the recommendations in EPA Guidance for Data Usability in Risk Assessment (Part A, Chapter 5, 1992). This guidance recommends detection limits to be no more than 20% of the concentration of concern. Section IX.C.3.c does not constrain the detection limit as much as the

N

No.



Section/ Attachment

Unique No.


Y/N section should incorporate the DOE/Albuquerque Operations Office Model SOW Attachments 1, 2, and 3, as adapted for laboratory programs.

mentioned guidance with the understanding that this requirement cannot always be achieved for some constituents.


38 Comparability LANL commented that this section regarding data “comparability” and requiring LANL to “…report analytical results in appropriate units for comparison with other data” is unreasonably restrictive. The requirement for common units of measure does not provide a complete description of data comparability Analytical laboratories currently retained by LANL are required to report in specified units of measure. These laboratories use common sample preparation methods and QC criteria to the greatest extent possible and are required to participate in the same performance evaluation programs, as appropriate to the chemistry being performed.

NMED requires that all analytical laboratories retained by LANL report the concentrations of each constituent in the same units for each matrix. For example, tritium reported in pCi/cm3 and pCi/L cannot be compared directly without conversion. In addition, LANL must report analytical results in units that are directly comparable to the units used in established screening, background or cleanup levels.

N

R555 SectionIX.C.5

38 LaboratoryReporting, Documentation, Data Reduction, and Corrective Action

LANL commented that the requirement in this section to submit “[a] full review and discussion of analytical QA/QC and all data qualifiers” is unreasonably burdensome. It is unreasonable to require a full review and discussion of every analytical result obtained, in all investigation and monitoring reports. LANL currently provides industry-standard data qualifiers with every report.

Partial review is already submitted when the analytical laboratory provides the laboratory report for the batch of samples. This review discusses any problems and out-of-control QC types. LANL must complete this review with explanations of blank contamination and out-of-control field duplicates. NMED does not consider this requirement to be unreasonable.

N

R556 SectionIX.C.5

38 LaboratoryReporting,

LANL commented that the requirement in paragraph 13 of this section to

NMED does not require running LCS/LCS duplicates every time as LANL’s comment

N

No.



Section/ Attachment

Unique No.


Y/N Documentation, Data Reduction, and Corrective Action

require data validation procedures to include “[l]aboratory blank spike duplicates when appropriate” is unreasonably burdensome and is not common practice in the industry, or LANL work. The practice of running LCS/LCS duplicates is appropriate only in the cases where there is insufficient sample for a laboratory replicate or matrix spike duplicate.

suggests. Section IX.C.5 states “[d]ata validation procedures for all samples shall include checking the following, when appropriate”.

R557 Section X 36 Monitoring Well Construction Requirements

One commenter complimented NMED on its apparent thoroughness.


R558 Section X.B 16 DrillingMethods

One commenter strongly encouraged NMED to carefully review proposed drilling methods and well construction methods to assure compliance with the requirement that monitoring wells and piezometers must be designed and constructed in a manner that will ensure that the well will not serve as a conduit for contaminants to migrate between different stratigraphic units. This commenter noted that ground water is the only source of potable water for the community and LANL.

NMED reviews LANL’s boring logs and monitoring well diagrams in order to confirm proper construction and design, with the goal of ensuring that no contaminants will be transported to potable aquifers. LANL will follow the requirements described in Section X of the Order during monitoring well construction.

N

R559 SectionX.C.3

38 Well Screen and Filter Pack Design

LANL commented that the requirement in the last sentence of paragraph one of this section that “[a]ll well screens shall be factory machine slotted” is impracticable as applied. LANL switched to pipe-based screens because of the failure of standard wire screens to withstand the forces encountered during installation and construction of the deep regional wells. The rationale

NMED will consider an allowance for use of alternative well construction materials, provided LANL submits to NMED the justification and rationale for using such materials.

N

No.



Section/ Attachment

Unique No.


Y/N for use of pipe-based screen was provided to NMED in a letter dated March 29, 2002.

R560 Section XI 11, 16, 36 Reporting Requirements

There were several comments regarding reporting requirements. One commenter noted that the format guidance appears clumsy, with placeholders for information that is irrelevant for individual reports. This commenter also noted that this guidance deviates from the current format that would require rewriting of all reports currently in preparation. This commenter urged NMED to be clear and efficient in its reporting demands and avoid demands for explanations for obvious typographical errors. Another commenter recommended that the Final Order should indicate for each deliverable the amount of time allotted for NMED review and, where applicable, for public review and comment. What will be the public’s access to critical information, reports, and documents, such as risk assessment and corrective action reports, the type of future land use scenarios used, actual screening values used, uncertainly analyses, and conclusions and recommendations? How may all of the above be used or incorporated into the LANL RCRA permit renewal process?

The reporting requirements in Section XI of the Order are designed to provide a general approach to document organization and information presentation. The reporting requirements presented in this section are not intended to encompass all site-specific needs nor were they meant to apply to every reporting situation. The reporting requirements in the Order replace the existing report format; however, NMED does not intend to require documents currently in preparation to be rewritten. The amount of time allotted for NMED to review each type of deliverable is dictated by the New Mexico Hazardous Waste fee regulations (20.4.2 NMAC). The public can review reports and supporting information at the Hazardous Waste Bureau office located at 2905 Rodeo Road Park East, Building 1, Santa Fe. NMED will follow the requirements in 20.4.1.901 NMAC for public participation. The LANL RCRA operating permit will reference the requirements of the Order. NMED uses EPA guidance and regulations as outlined in RCRA and the HSWA in its review and approval process.

N

No.



Section/ Attachment

Unique No.


Y/N What is the quality assurance process for both LANL’s preparation of the requested information and NMED’s review and approval of it?

R561 Section XI 38 ReportingRequirements

LANL commented that, in general, the reporting requirements in this section are unreasonably burdensome and will result in reports that are more voluminous and repetitive than reports following the current outlines in use by the project. In addition the outline makes no distinction between RFI and VCA/VCM reports. LANL believes these new reporting requirements will result in longer reports, bogged down in details that may actually confuse the reviewer and the public. Additionally VCA/VCM reports document a series of events that vary from RFI events. To use the same outline for both will result in reports that document events out of sequence and thus confusing. The current outlines could benefit from revision; however, complete revision is unnecessary and will result in additional costs to LANL/DOE.

Specific details are not presented in the comment. It is NMED’s opinion that the requirements in this section will produce reports that are designed to present data in a more consistent and streamlined format that includes all information necessary to evaluate sites at the Facility. The requirements of the Order are not voluntary; therefore, VCA/VCM reports are not applicable.

N

R562 SectionXI.A

38 General LANL commented that this section prescribing general “reporting requirements and report formats for corrective action activities… under this Order” is unreasonably burdensome, overly prescriptive, and inconsistent with EPA RCRA reporting format currently required for all LANL NMED-regulated RCRA activities. Requiring an entirely new reporting

NMED considers that the new reporting formats will produce streamlined and consistent reports and reduce the need for RSIs and NODs, which have been common in the past. In this context, the previous LANL reporting format was unsuccessful and therefore needed change. The new reporting formats will not increase the volume or the workload. On contrary, the information requested is focused on only necessary and complete information or assessments.

N

No.



Section/ Attachment

Unique No.


Y/N format, when an alternative and acceptable format currently exists, provides no additional benefit and needlessly increases the workload and cost of report writing.

R563 SectionXI.A

38 General LANL commented that this section although providing for the inclusion of “additional sections [that] may be needed to address additional site-specific issues or information” is unreasonably burdensome because it makes no provision for the deletion of sections that are not relevant or reasonably required for a given report.

LANL should address every section of the required report, as listed in Section XI.B-F. If a section is not relevant, the Respondent will give an explanation why this section is not relevant for the corresponding site.

N

R564 SectionXI.A

38 General LANL commented that this section requiring LANL “to submit variations of the general report format and the formats for reports not listed in this section in outline form to the department for approval prior to submittal of the reports” is unreasonably burdensome because it does not indicate how ongoing projects, and those which may not be completed prior to final Order issuance, are to comply with the reporting requirements. Additional costs and significant delays will result while additional data is collected, or recovered, to fit the new requirements.

Reports already submitted to NMED will not be required to be rewritten. Reports to be submitted for on-going investigations will be required to follow the formats in Section XI. The collection of additional data is not determined by the format of the report but by the completeness of the investigation.

N

R565 SectionXI.A

38 General LANL commented the requirements in this section that “[t]he described reporting] formats include site-specific investigation work plans, investigation reports, periodic monitoring reports, risk analysis reports, and corrective

Section XI.A does not address or imply how the units will be investigated. Table XII-2 lists deliverables for SWMUs, AOCs, or aggregate areas, which may consist of different numbers of units. NMED and LANL have reached an agreement on this subject.

N

No.



Section/ Attachment

Unique No.


Y/N measures evaluations,” is not clear as to whether multiple sites may be addressed in a single reporting document. This section of the Draft Order implies that each PRS (or “site”) may be required to have a stand-alone document set, as opposed to the multiple PRS documents the Laboratory currently prepares. A one-to-one document-to-PRS relationship would significantly, and unreasonably, increase the cost of corrective action, and delay the review and approval process.

R566 SectionXI.B

38 InvestigationWork Plan

LANL commented that the requirements in this section regarding the format of the IWP are unreasonably burdensome. These requirements will result in documents that are overly detailed, very costly, and thus result in unnecessary delays in conducting needed work. The requirements outlined in the “Tables” and ‘Figures” sections are far too extensive for many plans including IM Plans and VCA/VCM plans, where the goal is to get out to the field and complete cleanup activities in a timely and cost-effective manner. In addition, historical groundwater data and surface water data are not germane for an IM or a VCA and would add significant cost to a VCA/VCM or IM plan.

NMED does not consider the formats required by Section XI of the Order to be unreasonable, but basic and complete. Incomplete VCA/VCM plans ultimately result in more costly and untimely cleanups. Historic data is extremely relevant to present investigations; such data can reveal constituents of potential concern, or new releases (non-detects historically but detects in recent investigations). Historic data is often used for estimating the number of samples necessary to obtain statistically confident volume of data.

N

R567 SectionXI.B.1

38 ExecutiveSummary (Abstract)

LANL commented that the requirement in this section that the title page of all reporting documents include “[a]

NMED requires that representatives of LANL responsible parties, DOE and UC, sign the corresponding document in accordance with

Y

No.



Section/ Attachment

Unique No.


Y/N signature block providing spaces for the name, title, and organization of the preparer, and the responsible…UC representative” is unreasonable and inappropriate because report documents are submittals from LANL and not from individual members of LANL staff.

20.4.1.900 NMAC incorporating 40 C.F.R. 270.11(d)(1). The Order was changed to clarify this point.

R568 SectionXI.B.5

38 Background LANL commented that the requirement in this section to summarize historical site uses by the U.S. Government “ and any other entity since 1940, including the locations of current and former site structures and features” is unreasonably burdensome. Because of multiple transfers of ownership, variable use, and uncontrolled and undocumented installation and removal of features, the preparation of figures with totally accurate and complete features is impracticable, if not impossible. There are potential release sites on property transferred by DOE decades ago, such as the town site. For formerly DOE-owned property, the land use post-transfer to private ownership may not be complete, and this information may not be readily obtainable. Most of this information is not reasonably relevant to the investigation and/or remediation of LANL.

NMED does not make distinction between present and past ownership of LANL sites. LANL must provide information about “the locations of current and former site structures and features” without regard for ownership. When figures with “totally accurate” features are impossible to prepare, then approximate locations and dimensions of these features should be used. The relevance of this information should be determined during the investigation but not assumed a priori.

N

R569 SectionXI.B.8

38 InvestigationMethods

LANL commented that the requirement for this section that “[a] section in investigation methods” be included in every report is unreasonably burdensome. This section requires that

Section XI.B.8 requires that “a description of all anticipated locations and methods for conducting the activities” be provided. Methods that are not anticipated to be conducted during an investigation are not expected to be described.

N

No.



Section/ Attachment

Unique No.


Y/N a lengthy list of items be included in all reports, many of which are inapplicable to a number of activities. For example, for most SWMU Investigation Reports, sections on well construction methods, drilling methods, geophysical survey methods, aquifer testing, etc., are not applicable.

R570 SectionXI.B.9

38 Monitoring andSampling Program

LANL commented that the requirement in this section to “describe the anticipated monitoring and sampling program to be implemented after the initial investigation activities are completed” is impracticable, if not impossible, to perform in the sequence required. To present a description of a monitoring and sampling program prior to implementation of the Work Plan is completely impracticable, premature, and inconsistent with the DQO process.

In cases where additional phases of investigation are planned, the results from the previous investigation may warrant the need for a monitoring program. Work plans that address an initial investigation at a site will likely not include a post-investigation monitoring program. In such a case, the monitoring and sampling program should be proposed in the investigation report based on the results of the initial site investigation. An explanation will be required in this section of the work plan in cases where this section is not relevant to the corresponding investigation.

N

R571 SectionXI.C

38 InvestigationReport

LANL commented that the requirements in this section regarding preparation of “investigation reports” are unreasonably burdensome because the format imposed by this section does not adequately distinguish between characterization and corrective action activities at a site. Using the same format for reporting these diverse activities will result in duplication and inefficiency in reporting.

Section XI.C presents the reporting format for site investigations, not for investigation and cleanup activities. The format for corrective action reports must be submitted to NMED for approval prior to submittal and must follow the general approach for document format outlined in Section XI of the Order.

N

R572 SectionXI.C

38 InvestigationReport

LANL commented that this section regarding investigation reports, which requires the preparation of an investigation report and risk assessment report for each site and investigation, is

NMED finds the LANL comment unclear. LANL asserts that, from one side, “the investigation should be risk-based”; but, from another side, “the preparation of an investigation report and risk assessment report for each site and investigation is

N

No.



Section/ Attachment

Unique No.


Y/N both unreasonably burdensome, inconsistent with EPA RCRA guidance, inefficient, and duplicative. Under relevant guidelines, the investigation should be risk-based, yet the report on risk is required to be contained in a separate document. The preparation of two reports will impose additional costs, consume additional time, and will prolong the timeframe required for completing remedial work at each site. Based on EPA’s Interim Final RCRA Facility Investigation Guidance, Volume I – Development of an RFI Work Plan and General Considerations for RCRA Facility Investigations, the risk assessment is an integral part of the investigation and should be part of the presentation, not provided in a separate document.

both unreasonably burdensome…”. NMED cannot answer this comment as stated. Section XI.C.10 explicitly states that the Risk Assessment Report can be included as an appendix to the investigation report, as long as it follows the format in Section XI.E. LANL may submit the Risk Assessment Report as a separate document as well. NMED does not require duplicate efforts. Section III.N of the Order addresses duplication of work. NMED agrees with LANL and the Interim Final RFI Guidance, Volume I (1989) that the risk “evaluation is crucial to the RCRA Corrective Action Process”. Risk evaluation must be conducted after the RFI is completed (according to the same guidance, Figure 1-1). NMED, as a regulatory agency, has to “ensure that data and information collected during the RFI adequately describe the release and can be used with high degree of confidence to make decisions regarding the need for a CMS” (Interim Final RFI Guidance, Volume I, pg 1-7). The main focus of an RFI Report is to present data with precision, accuracy, representativeness, completeness, and comparability quality (PARCC), to identify data that are useable for further risk evaluation.

R573 SectionXI.C.7.b

38 ExploratoryDrilling or Excavation Investigations

LANL commented that requiring that “[b]oring, test pit and excavation logs for all exploratory borings and excavation shall be presented in an appendix or attachment to the report” is unreasonably burdensome. This section provides no definition or clarification for how deep an

Section XI.C.7.b refers to subsurface investigations (below surface sample collection). Since these are exploratory investigations, LANL must log all excavations. Information that is obtained for investigation purposes should be appropriately documented.

N

No.



Section/ Attachment

Unique No.


Y/N excavation or boring must be for logs to be required, and thus, inappropriately requires that all excavations and borings, no matter how shallow, be logged.

R574 SectionXI.C.7.c

38 Exploratory andMonitoring Well Boring Geophysical Logging.

LANL commented that this section, which requires that “exploratory and monitoring well boring geophysical logging” be included in every report, is unreasonably burdensome. Many field campaigns do not require, and will not benefit from, the installation of monitoring wells. This section should not be applicable or required for all activities.

NMED could not find the citation in the Order to which LANL refers in this comment. If any particular activity is not conducted during investigations or cleanup, then it cannot be reported. NMED does expect LANL to explain in its reports why actions proposed in a work plan were not conducted.

N

R575 SectionXI.C.7.i

38 MaterialsTesting Results

LANL commented that this section requiring “material testing results” be included in every report is unreasonably burdensome. Under the corrective actions process, material testing data is not generally collected unless there is a specific need for the data to achieve the desired outcome of the project. Such data should not be required for all activities.

It is NMED’s experience that, in LANL’s previously submitted reports, LANL generally collected and reported material testing data during investigations. Moreover, some parts of the discussion process relate contamination to the materials’ properties (such as contamination transport as a function of grain size). Materials’ properties are also used in making sample location decisions. In this context, the results of materials testing, if conducted, must be properly documented and reported, as stated in Section XI.C.7.i.

N

R576 SectionXI.C.8

38 RegulatoryCriteria

LANL commented the requirement in this section is inconsistent and/or duplicative with other provisions of the Draft Order, will lead to confusing reports, and is unreasonably burdensome. By presenting cleanup levels in this section, it is implied that remediation is necessary, when none in fact may be required. Cleanup

Regulatory criteria are important to both site investigations and cleanup. The results of site investigations must be compared to relevant regulatory levels in order to determine the need for additional action at a site. LANL must include this information in its submittals to NMED. Section XI.F refers to a different report.

N

No.



Section/ Attachment

Unique No.


Y/N standards are similarly not relevant to the “investigation” phase, and thus should not be included in an investigation report. This data is appropriately and reasonably addressed in other relevant and applicable remediation plans or reports. The requirement is duplicative of information also required under Section XI.F.8.

R577 SectionXI.C.10

38 Conclusions LANL commented that, other than this “Conclusions” section, there appears to be no other section in which to discuss the “Nature and Extent of Contamination,” “Conceptual Model Development,” and “Uncertainty Analysis.” The conglomeration of these topics in the “Conclusions” will result in reports that are difficult to read.

LANL must present the results of its investigations before discussing the results and drawing conclusions based on those results. Data must not be dismissed or qualified before it is presented.

N

R578 SectionXI.C.10

38 Conclusions LANL commented that the requirement in this section that “[r]eferences to the risk analysis shall be presented only in the summary and conclusions sections of the investigation report” is arbitrary and unreasonable given that the goal of an investigation is to determine whether a potential risk exists. It is illogical and unsound to preclude discussion of risk in the body of the report, or only permit a summary of risk “conclusions” at the end of the report, without any discussion of risk in the body of the report. Risk analysis related to the IR should be included in the main part of the report.

The main goal of a RFI Report is to present data with precision, accuracy, representativeness, completeness, and comparability quality (PARCC) that is useable in further risk assessment evaluation (Interim Final RFI Guidance, Volume I (1989) that the risk “evaluation is crucial to the RCRA Corrective Action Process”). Premature risk analysis precludes the purpose of a RFI. Risk analysis is only logical and useful if the prerequisite RFI is complete. Data must not be dismissed or qualified before it is presented.

N

No.



Section/ Attachment

Unique No.


Y/N R579 Section

XI.C.10 38 Conclusions LANL commented the requirement in

this section, that “[p]otential receptors, including groundwater, shall be identified and discussed,” is not correct. Groundwater is not a potential receptor; it is a medium and contaminant transport mode.

NMED considers groundwater to be a receptor for the purposes of the Order.

N

R580 SectionXI.C.10

38 Conclusions LANL commented the Draft Order is inconsistent in its use of the terms “Risk Analysis” and “Risk Assessment” in Section XI.E.

The Order has been corrected to use the term “Risk Assessment” throughout the text.

Y

R581 SectionXI.C.11

38 Recommenda-tions

LANL commented that this section regarding “recommendations” is unreasonably restrictive because “no further action” is not listed as an alternative recommendation. In addition, including a schedule for “further action” is often impractical and unnecessary. Further, if additional action is required, it may not be imminent, and therefore a schedule is not applicable. The baseline may include action several years into the future and thus a schedule is not possible.

Section XI.C.11 states that this “section shall discuss the need for further investigation”. This paragraph as stated does not exclude “no further action” recommendation. NMED is not concerned with the LANL baseline. A schedule should be provided if any further action is recommended.

N

R582 SectionXI.C.14

38 Appendices LANL commented that this section requiring that each investigation report “shall include” numerous specific appendices is unreasonably burdensome. For many activities, many of the appendices are not relevant or necessary.

Appendices that are not relevant to the report need not be included. LANL does not have to report on activities that were both not proposed and not conducted during a site investigation.

N

R583 SectionXI.C.14.d

38 ChemicalAnalytical Reports

LANL commented that this section requiring that “chemical analytical reports” be prepared and included as an appendix to each report submitted is

NMED requires that summary tables be provided in the body of the report. The original Level III laboratory report should be submitted as an appendix. This is a NMED policy and is required

N

No.



Section/ Attachment

Unique No.


Y/N unreasonably burdensome. The volume of information contained in a single report can be enormous. LANL’s approach is to prepare summary level tables to provide the information needed.

for all regulated facilities in the State of New Mexico.

R584 SectionXI.D

38 PeriodicMonitoring Report

LANL commented that this section requiring “pilot testing results” be included in every report is unreasonably burdensome. Pilot testing is not a routine step in the ER process and should be reserved for specific instances where it can add value to the remediation.

NMED could not find, in Section XI.D, or on page 207, a statement on “pilot testing results”. However, there is mention of pilot testing results in Sections XI.C.7.j and XI.C.14.a; therefore, NMED will comment on those sections. The requirement is clear that any pilot testing results must be reported if pilot testing was conducted. LANL does not have to report on activities that were both not proposed and not conducted during a site investigation.

N

R585 SectionXI.D

38 PeriodicMonitoring Report

LANL commented that the requirement in this section for periodic monitoring reports is unreasonably burdensome. The reporting requirements in this section are configured for the reporting of RCRA monitoring data at specific SWMU, or remediation, sites, but much of the surface water monitoring at LANL is NPDES and MSGP, rather than RCRA. Currently, monitoring data is incorporated into the Water Quality Database when received, and NMED is provided access to this data.

Section XI.D does not specify what kind of monitoring data (RCRA, NPDES or MEGP) is to be reported. All monitoring results will be reported in the format specified in Section XI.D regardless of which type of site (SWMU, AOC or other site) at LANL. NMED does not separate risk from the presence of contaminants based on the type of report in which the data is anticipated to be presented.

N

R586 SectionXI.D.11 and D.12

38 Tables andFigures

LANL commented that the requirement in this section to place all “tables” and “figures” in sections of the report separate from the text is unreasonably burdensome because it makes it difficult for a reader/reviewer to follow the report. The ultimate audience for

It is NMED’s experience that, when tables and figures are placed in separate sections from the text, the document is easier to follow.

N

No.



Section/ Attachment

Unique No.


Y/N these reports is the public and reports should be relatively easy to follow, not cumbersome.

R587 Section XI.E 38 Risk AssessmentReport

LANL commented that the requirement in this section to prepare individual “risk assessment reports for sites requiring corrective action” is unreasonably burdensome. It is unreasonable to require the reporting of the assessment of risks to human health and to the environment in a document separate from one reporting the corrective action. The information should be combined in a single document. In cases where risk assessment is more appropriately conducted at an earlier phase, requiring a separate risk assessment report, at the later “corrective action” phase, is impracticable and duplicative. LANL’s approach would include flexibility to permit the inclusion of the risk assessment in the appropriate document, whether it is an IR, IMWP, or other document, and at the appropriate phase.

Section XI.C.10 states that the Risk Assessment Report may be submitted as an appendix to the investigation report. LANL also may submit Risk Assessment Report as a separate document. NMED does not require duplicate efforts. However, risk assessment reports shall follow the format in Section XI.E.

N

R588 SectionXI.E.5

38 Background LANL commented that the requirement in this section to summarize historical sites used by the U.S. Government “and any other entity since 1940, including the locations of current and former site structures and features” is unreasonably burdensome. Because of multiple transfers of ownership, variable use, and uncontrolled and undocumented installation and removal of features, the

NMED does not make a distinction between present and past ownership of LANL sites. LANL should provide information about “the locations of current and former site structures and features” with disregard of ownership. When figures with “totally accurate” features are impossible to prepare, then approximate locations and dimensions of these features will be used. The relevance of this information should be determined during the investigation but not assumed a priori.

N

No.



Section/ Attachment

Unique No.


Y/N preparation of figures with totally accurate and complete features is impracticable, if not impossible. There are potential release sites on property transferred by DOE decades ago, such as the town site. For formerly DOE-owned property, the land use post-transfer to private ownership may not be complete, and this information may not be readily obtainable. Most of this information is not reasonably relevant to the investigation and/or remediation of LANL.

R589 SectionXI.E.6

38 Conceptual SiteModel

LANL commented that the requirement in this section to include in each IR a discussion of the “anticipated cost of implementing the corrective measure(s)” is inappropriate and unreasonably burdensome. The costs associated with a corrective action are not relevant to NMED’s assessment and comment on the validity of recommended remedy.

Section XI.E.6 (pg. 216) does not include “discussion of the anticipated cost of implementing the corrective measure(s)”, as stated by the commenter; therefore, NMED cannot respond to this comment.

N

R590 SectionXI.E.7


LANL commented that it is unclear whether site-specific scenarios are applicable to risk screening or a baseline risk assessment. If this section of the Risk Assessment Report regarding site-specific scenarios refers to a baseline risk assessment, it should not be included in a section entitled Risk Screening Levels since the baseline risk assessment is the step following the risk screen. If the site-specific scenario is referring to the screening level assessment, then this

Section XI.E.7 refers to the screening process, not the baseline risk assessment. The NMED SSLs and screening criteria are calculated on basis of future use for residential exposure. LANL may use the EPA Region 6 values from the Human Health Medium Specific Screening Level document for residential exposure when screening contaminants not included on the NMED SSL tables. Screening against values for site-specific scenarios will require prior NMED approval.

N

No.



Section/ Attachment

Unique No.


Y/N requirement should permit the use or EPA Region 6 values from the Human Health Medium Specific Screening Level document for industrial exposure, where applicable. The use of industrial or other site-specific representative scenarios other than residential is currently not permitted by NMED in the assessment of risk at any site.

R591 SectionXI.E.7


LANL commented that the baseline risk assessment format in the “risk screen levels” section fails to reference all sections of the relevant EPA guidance, which include exposure assessment, toxicity assessment, and risk characterization.

The Draft Order was changed to provide a relevant EPA guidance reference.

Y

R592 SectionXI.E.8

38 Risk AssessmentResults

LANL commented that the requirement in this section to “present all risk values …and HIs for human health under projected future residential scenario” is overly prescriptive and unsupported by substantial evidence in the record. There is no need to include a residential scenario when it is not applicable to the site being assessed. Instead, a risk assessment should be conducted using the reasonable maximum exposure and applicable scenario for each site. Use of the residential scenario as a default is inappropriate and technically deficient. EPA risk assessment guidelines state that an assumption of future residential land use may not be justifiable if the probability that the site will support residential land use in the

The NMED policy regarding risk evaluation for NFA determinations is that an NFA determination will be made at a site, where residual contamination is present, if the concentrations of the remaining contaminants are at or below residential risk concentration levels for each of the affected media. Ecological risk also must be considered prior to NMED making an NFA determination. In the future, if covenant legislation is passed, other concentration levels may be approved by the NMED based on the site conditions and future use scenario. Currently, there is no mechanism available to NMED to allow the implementation of institutional controls in order to accept higher risk based contaminant concentrations.

N

No.



Section/ Attachment

Unique No.


Y/N future is exceedingly small. This is the case for most LANL sites, as well as some other areas used for recreational purposes. These areas will remain under LANL control indefinitely and/or are inappropriate for residential use.

R593 SectionXI.E.8.a

38 UncertaintyAnalysis

LANL commented that the requirement in this section to include “quantitative uncertainty analysis” in all risk assessments is overly prescriptive, unreasonably burdensome, and unnecessary. EPA guidance states that only rarely should a quantitative uncertainty analysis be undertaken. Such analysis is not practical because of the resource requirements needed to collect and analyze data in such a way that the results can be presented as valid probability distributions. It is already known that uncertainty about the numerical results of a risk assessment is large. It is more important to identify the key variables and assumptions that contribute most to the uncertainty, rather than to precisely quantify the degree of uncertainty. If such a risk assessment were to be performed at all sites, it would also be necessary to involve a statistician in the design and interpretation of that analysis. Quantitative techniques require definition of the distribution of all input parameters and knowledge of the degree of dependence among parameters. The value of the analyses diminishes if one or more parameter

NMED agrees that the quantitative uncertainty analysis might not be applicable if the probability distribution for some variable is not known. However, LANL already applies numerical quantitative uncertainty analysis in the sample allocation process in the reach investigation reports. Therefore, LANL has the resources (a statistician) and the methods (Monte Carlo simulation) to conduct such analysis in the risk assessment as well, if applicable to the corresponding set of data. The Order has been changed to include a semi-quantitative uncertainty analysis in Section XI.E.8.a. This analysis does not require parameter distributions, but only the range of values for the parameters. LANL will include every uncertainty analysis that is applicable to the available set of data.

Y

No.



Section/ Attachment

Unique No.


Y/N value distributions are poorly defined or must be assumed. These techniques become difficult to document and to review as the number of model parameters increase. Estimating a probability distribution can lead to a false sense of certainty about the analysis - even in the most comprehensive analysis, not all of the sources of uncertainty can be accounted for or all of the co-dependencies recognized.

R594 SectionXI.E.9

38 Conclusions andRecommenda-tions

LANL commented that in this section it is unclear whether NMED’s purpose is to require the “risk characterization” section of the risk assessment. If the risk assessment has to be presented separately, then the format should conform to the sections outlined in EPA’s risk assessment guidance, rather than an arbitrary format to service a limited purpose.

NMED’s “interpretation of the results of the risk assessment” is equivalent of the EPA term “risk characterization”, and NMED’s “recommendations for future disposition of the site” is equivalent to the EPA term “risk management”. Section XI.E.9 is designated for presenting the “risk characterization” and the “risk management” of the risk analysis process.

N

R595 SectionXI.E.10

38 Tables LANL commented that the requirement in this section to include background values” and “screening values” in the required tables is unreasonably burdensome. The text of the report should specify the sources of values used in the comparison. Inclusion of origin of background values and screening values in tables is duplicative and unnecessary.

NMED requires that the Respondent provide complete information. Any exception to this format must be discussed on a case-by-case basis.

N

R596 SectionXI.E.10

38 Tables The requirement in this section, to include in each Investigation Report, “summary tables” that include information on detection limits and

The meaning of “data quality exception” as used in the Draft Order is meant to refer to all data with qualifiers “UJ”, “J”, or “R” due to DQOs not being met. These include, but are not limited to, blank

N

No.



Section/ Attachment

Unique No.


Y/N “significant data quality exceptions,” is unclear and ambiguous in application, because NMED fails to define the phrase “significant data quality exceptions”.

contamination, improper calibration, MS/MSD, LCS and RPD out of control limits, interference problems, and dilution recovery. This information is readily prepared by the analytical laboratory and submitted with the report for every batch of samples. For examples, blank contamination could result in re-sampling or re-testing; MS/MDS out of control limits may or may not result in re-sampling or re-testing of the samples. As stated in the same paragraph in the Order, NMED requires reporting of data quality exceptions that may mask detections.

R597 SectionXI.E.11

38 Figures LANL commented that the requirement in paragraph one of this section, to provide “[a] vicinity map showing topography and…general location” is unreasonably burdensome because the vicinity map is also included as part of the investigation report section and would be duplicative if also required in this section.

NMED requires that LANL provide complete information. LANL is capable of including copies of maps in separate reports. Any exception of this format must be discussed on a case-by-case basis.

N

R598 SectionXI.E.11

38 Figures LANL commented that the requirement in paragraph 2 of this section to provide information regarding human health risk assessments, including “underground utilities, well locations, and remediation system location(s) and its details” is unreasonably burdensome. This information is not relevant to the human health risk assessment and thus should be deleted from this section.

NMED requires that LANL provide complete information. LANL is capable of including copies of maps in separate reports. Any exception of this format must be discussed on a case-by-case basis.

N

R599 SectionXI.E.11

38 Figures LANL commented that the requirement in paragraph 3 of this section to provide information regarding ecological risk assessment including ”a topographical

NMED requires that LANL provide complete information. Any exception of this format must be discussed on a case-by-case basis.

N

No.



Section/ Attachment

Unique No.


Y/N map of the site and vicinity of the site showing habitat types, [and] boundaries of each habitat” is unreasonably burdensome because habitat types and boundaries are often “artificial” lines on a map and thus are more useful and reasonably explained in textual form. Habitats may also overlap or be within other boundaries. Boundaries are not relevant to the risk assessment whereas the presence of receptors is the key relevant factor.

R600 Section XI.F 38 CorrectiveMeasures Evaluation

LANL commented that the requirements of this section are overly prescriptive and inconsistent with prior NMED-approved action and EPA RCRA guidance documents. These requirements are inconsistent with the CMS Report outline that NMED has previously approved and included as an Appendix to the 1998 CMS Plan for the 260 outfall site. The draft Order outline includes substantial site data and pathways information not required in the previously approved NMED outline. The outline does not require discussion of points of compliance, O&M requirements, performance standards and expectations, or a public-involvement plan. Other requirements are inconsistent with RCRA guidance.

The new corrective measure evaluation format is more complete and appropriate for its purposes. LANL does not specify which requirements in this format are inconsistent with EPA guidance; therefore, NMED cannot respond to this portion of the comment.

N

R601 SectionXI.F.5

38 Background LANL commented the requirement in this section, to summarize historical site uses by the US Government “…and any other entity since 1940, including the locations of current and former site

NMED does not make distinction between present and past ownership of LANL sites. LANL should provide information about “the locations of current and former site structures and features” with disregard of ownership. When figures with

N

No.



Section/ Attachment

Unique No.


Y/N structures and features,” is unreasonably burdensome. Because of multiple transfers of ownership, variable use, and uncontrolled and undocumented installation and removal of features, the preparation of figures with totally accurate and complete features is impracticable, if not impossible. There are potential release sites on property DOE transferred decades ago, such as the townsite. For non-DOE-owned property, the land use post-transfer to private ownership may not be complete, and thus this information would not be readily obtainable. Most of this information is not reasonably relevant to the investigation and/or remediation of Laboratory sites.

“totally accurate” features are impossible to prepare, then approximate locations and dimensions of these features will be used. The relevance of this information should be determined during the investigation but not assumed a priori.

R602 SectionXI.F.14

38 Tables LANL commented that the requirement in this section to present eleven categories of information in “table” form is inconsistent with prior NMED-requested action and unreasonably burdensome. The information requested here in “table” form is already required to be presented in the RFI work plans, RFI reports, and CMS plans. NMED has previously requested that report submittals be short, concise documents, and that information presented in previous plans and reports be limited to “references” in subsequent document submittals.

The Corrective Measure Evaluation must be a stand-alone document. The Corrective Measures Evaluation is the document that will be included with the public notice as part of the CMS remedy selection process. NMED requires that the Respondent provide complete information when presenting a corrective measures evaluation.

N

R603 SectionXI.F.15

38 Figures LANL commented that the requirement in this section to present 13 categories

The Corrective Measure Evaluation must be a stand-alone document. The Corrective Measures

N

No.



Section/ Attachment

Unique No.


Y/N of information in “figure” form is inconsistent with prior NMED-requested action and unreasonably burdensome. The information requested here in “figure“ form is already required to be presented in the RFI work plans, RFI reports, and CMS plans. NMED has previously requested that report submittals be short, concise documents, and that information presented in previous plans and reports be limited to “references” in subsequent document submittals.

Evaluation is the document that will be included with the public notice as part of the CMS remedy selection process. LANL is capable of including copies of maps in separate reports. NMED requires that LANL provide complete information

R604 Section XII 11, 15, 35, 36

Compliance Schedule Tables

There were several comments regarding the Compliance Schedule Tables. One commenter supported giving MDAs priority because they contain the most hazardous material, but noted that the schedule seems to be a continuation of the current SWMU-based incremental approach and questioned how this would accelerate cleanup. Another commenter noted that the compliance schedule tables in the permit address SWMUs, not MDAs as in the draft Order. This commenter recommends a matrix which distinguishes permit conditions and their compliance status for sites that are the subject of the draft Order and those sites that are the subject of the draft Order that are not regulated by the LANL permit.

The schedule in Section XII of the Order schedules sites, watersheds, and canyons based on NMED’s prioritization strategy. This strategy includes taking into account, among other things, a site’s contaminants, potential risk, and potential contaminant migration. These factors helped shift NMED’s priorities and accelerate work at those sites that NMED has determined need immediate attention. The schedule includes investigation at all SWMUs (including MDAs) and AOCs at LANL, either individually or as part of an aggregate or canyon investigation. As stated in Section VII.D.1, any investigation and cleanup deemed necessary following submittal of investigation reports and based on other information will be required by NMED. NMED must first make that determination in order to require and schedule any investigation and cleanup at a site. Failure to implement any requirement of the Order by the Respondents will result in penalties, as stated in Section III.M of the Order. The Facility is required to monitor storm water

N

No.



Section/ Attachment

Unique No.


Y/N Another commenter noted that while the compliance schedule tables provide specific dates for the delivery of investigation work-product, this listing does not include any mandated cleanup actions. This commenter also noted the Respondents’ history of failing to meet deadlines and compliance schedules, and recommended that NMED make it clear what are the highest priorities and that failure to adequately address those priorities will result in immediate enforcement action. NMED could improve the Order by prioritizing the massive amount of investigation and monitoring work based on its relevance to either the “imminent and substantial endangerment” determination or the near term cleanup plans, decisions, and actions. Another commenter stated that there should be zero tolerance for missed milestones (other than force majeure) and urges NMED to enforce milestones vigorously with appropriate penalties as needed. This commenter also recommended that the Final Order have a requirement for sampling storm water runoff, the number of samples to be determined by NMED and split with NMED.

under the Storm Water Multi-Sector General Permit, and various NPDES permits at outfalls located at the Facility. The NMED Surface Water Quality Bureau and EPA have regulatory authority over surface water issues; however, the Order includes requirements for storm water monitoring.

R605 Section XII,Table 1

38 GroundwaterMonitoring and

LANL commented that the requirement in this table, to require quarterly

As stated in Section IV.A.3.b of the Order, LANL may propose a different groundwater sampling

N

No.



Section/ Attachment

Unique No.


Y/N Sampling Schedule

sampling of springs in the Pajarito Watershed, is overly prescriptive and unsupported by evidence in the AR. Only two or three springs listed in this section of the table (Kieling, Bulldog, and TA-18) have shown any contamination and that has been sporadic (for HE). These springs should be sampled annually with no resulting decrease in protection of human health or the environment.

frequency in its initial interim Facility-wide groundwater monitoring plan. Any changes to the sampling frequency in Section XII of the Order or to any groundwater monitoring plan shall include justification and rationale for those changes, and shall be approved by NMED.

R606 Table XII-2 4 Schedule of Deliverables by TA, Canyon, or Watershed

Several comments were noted concerning Table XII-2: Well R-1cannot now be deleted,

but it would be sufficient if the well completion report were done in FY 04. Well R-2 is to characterize Pueblo

Canyon and should be completed by FY 03. Well R-3 is to characterize Pueblo

Canyon and should be completed by FY 03 Well R-4 is to characterize Pueblo

Canyon and should be completed by FY 03. Well R-6 is to characterize Los

Alamos Canyon and should be completed by FY 03. Well R-8 should be completed by

FY 03. Well R-13 should be completed by

FY 03. Well R-14 should be completed by

FY 03. Well R-16 is to characterize

The schedule in Table XII-2 directs the Respondents to complete drilling and submit well completion reports for eight regional wells in 2002, six regional wells in 2003, five regional wells in 2004, and four regional wells in 2005. The order in which these wells are completed is less important to NMED as the number of wells completed. Many of these wells have already been completed. The remaining canyons investigations have been prioritized and will be completed by the dates presented in Section XII of the Order.

N

No.



Section/ Attachment

Unique No.


Y/N Mortandad Canyon and should be completed by FY 04. Well R-23 is to characterize

Potrillo Canyon and should be completed by FY 04 Well R-24 is to characterize upper

Cañon de Valle and should be completed by FY 04. Well R-26 is to characterize Upper

Water Canyon and should be completed by FY 04. Well R-27 is to characterize Water

Canyon and should be completed by FY 02. Well R-28 is to characterize Water

Canyon and should be completed by FY 03 Well R-29 is to characterize Water

Canyon and should be completed by FY 04. Well R-10 is to characterize Sandia

Canyon and should be completed by FY 03. Well R-11 is to characterize Sandia

Canyon and should be completed by FY 02. Well R-17 is to characterize

Twomile Canyon and should be completed by FY 03. Well R-18 is to characterize

Pajarito Canyon and should be completed by FY 02. Well R-20 is to characterize

Pajarito Canyon and should be completed by FY 02. Well R-21 is to characterize

No.



Section/ Attachment

Unique No.


Y/N Pajarito Canyon and should be completed by FY 02. Well R-30 is to characterize the

TA-49 sites and should be completed by FY 03. Well R-32 is to characterize Ancho

Canyon sites and should be completed by FY 04. Canyons Core Document calls for

the completion of a report on Ancho, Chaquehui, and Indio Canyons by December 15, 2003, and NMED should require that this date be met. Canyons Core Document calls for

reports on reaches in Los Alamos/Pueblo Canyon by May 1998, some of which have been [submitted]. NMED should require that such reports be completed within one year of the date of the CAO. Mortandad Canyon Work Plan,

incorporating the Canyons Core Document, calls for a report by January 7, 2000, which has not been [submitted]. NMED should allow one year from the date of the CAO to complete such report. North Canyons Work Plan,

incorporating the Canyons Core Document, calls for a report on Guaje, Bayo, Barrancas, and Rendija Canyons by September 30, 2005. NMED should require that date be met.

No.



Section/ Attachment

Unique No.


Y/N Pajarito Work Plan, incorporating

the Canyons Core Document, calls for a report by December 27, 2000,which has not been [submitted]. NMED should allow report to be [submitted] one year from the date of the CAO. Canyon Core Document calls for

completion of a report on Potrillo and Fence Canyons by November 30, 2004. NMED should require that this date be met. Sandia Canyon/Cañada del Buey

Work Plan, incorporating the Canyons Core Document, calls for a report by December 31, 2001, which has not been [submitted]. NMED should allow such report to be [submitted] one year from the date of the CAO. Core Document calls for

completion of a report on Water Canyon and Cañon de Valle by January 3, 2003. NMED should allow such report to be [submitted] one year from the date of the CAO.


LANL commented that the Compliance Schedule XII-2 indicates that an Investigation Work Plan for the TA-57 Aggregate Area (Fenton Hill) is required. Although a TA-57 Aggregate plan is not currently in the ER Project baseline, the Lab has planned a comprehensive VCA/VCM for the entirety of TA-57. The date for this work is not consistent with the

LANL must meet the requirements of the Order for investigation of all SWMUs, AOCs, and aggregate areas.

N

No.



Section/ Attachment

Unique No.


Y/N Schedule XII-2 Table.


LANL commented that the Compliance Schedule XII-2 indicates two deliverables for SWMUs 10-003(a-o) and 10-007 (Bayo Canyon Site). A VCA/VCM is currently scheduled for the entirety of TA-10, and it is not cost efficient to conduct this limited work, as prescribed in the Draft Order. The VCA/VCM work has already been planned and is scheduled in the ER Project’s baseline.

LANL may propose additional work be performed under the investigation work plan for SWMUs 10-003 (a-o) and 10-007, or the remaining parts of TA-10 may be included in the Bayo Canyon Aggregate Area investigation. Either way, LANL must meet the requirements of the Order for investigation of all SWMUs, AOCs, and aggregate areas.

N


LANL commented that the Compliance Schedule XII-2 indicates an Investigation Work Plan for the Phase I, Investigation work Plan for SWMUs 73-001(a-d) and 73-004(d) Mesa Top, is September 30, 2002. However, this work is currently scheduled in the ER Project baseline for submission on November 27, 2002.

This schedule for this deliverable was agreed on by the Airport Landfill High Performing Team. The date reflects this agreement and has not been changed.

N


LANL commented that the Compliance Schedule XII-2 indicates that the SWMU 73-002 “deliverable” is an “Investigation Work Plan,” however this work is currently identified in the ER Project baseline as a VCA/VCM. The current version of the ER Project baseline has a VCA/VCM scheduled for consolidated unit 73-002-99, which includes SWMU 73-002, and four other PRSs.

The investigation work plan is equivalent in scope to the voluntary corrective action/measures plan, with the exception that it must be approved prior to the start of any field activities. LANL must fulfill all plan/report format and schedule requirements included in the Order for this site.

N

R611 Table XII-3 38 Schedule of Deliverables by Calendar year

LANL commented that the Compliance Schedule XII-3 indicates that the SWMU 73-002 “deliverable” is an “Investigation Work Plan”, however,

The investigation work plan is equivalent in scope to the voluntary corrective action/measures plan, with the exception that it must be approved prior to the start of any field activities. LANL must

N

No.



Section/ Attachment

Unique No.


Y/N this work is currently identified in the ER Project baseline as a VCA/VCM. The current version of the ER Project baseline has a VCA/VCM scheduled for consolidated unite 73-002-99, which includes SWMU 73-002, and four other PRSs.

fulfill all plan/report format and schedule requirements included in the Order for this site.

Notes: See companion table “Index of the Comments Received through July 31, 20021 by NMED on Los Alamos National Laboratory (LANL) Draft Order” for corresponding date of letters/comments and commenter/association for each unique number.

No.


hwbdocuments.env.nm.gov Alamos National Labs...Index of Comments Received through July 31, 2002 by...

Documents

Transcript of hwbdocuments.env.nm.gov Alamos National Labs...Index of Comments Received through July 31, 2002 by...