Comment Presented at Haz. Waste Permit Hearing

This comment was was presented at the NMED/LANL Hazardous Waste Permit Hearing, held on Friday, April 16, 2010 in the Pojoaque Cities of Gold Hotel Conference Center. The Hearing was then in its tenth full day.

I am a PhD physicist, retired for the last four years, following twenty years of employment at Los Alamos National Laboratory, in the Applied Physics Division (X-Division). Prior to my LANL years, I worked for seven years as a Research Associate Professor of physics at the University of Connecticut. I have lived in Española, NM for seventeen years.

During the past two years I volunteered my time to the DOE’s Northern New Mexico Citizens Advisory Board (NNMCAB), where I became familiar with issues concerning hazardous waste generation, storage, and treatment at LANL. While with the NNMCAB I also learned about the sometimes difficult relations between the present regulator, the Hazardous Waste Bureau (HWB), an arm of the New Mexico Environment Department (NMED), and LANL’s present owner, the National Nuclear Security Administration (NNSA), as well as LANL’s current management contractor, Los Alamos National Security Limited Liability Company (LANS-LLC). I also learned about the role played in these relations by local citizens groups such as Concerned Citizens for Nuclear Safety (CCNS), Nuclear Watch of Northern New Mexico (NWNNM), and Citizens Action of Albuquerque (CAA), as well as local pueblos, especially those allied into the Eight Northern Pueblos; e.g., Pojoaque, Santa Clara, Ohkay Ohwingeh, San Idelfonso, Tesuque, Nambe, Taos, and Picuris.

It was with much interest that I heard testimony presented at this hearing. I have also listened with interest to comments presented by many private citizens.

I have been particularly struck by the emphasis placed by private citizens on the call for an information repository, to be located on the campus of Northern New Mexico College (NNMC). As conceived, this repository would be for the purpose of accumulating and making available to local residents information relating to the history of the generation, storage, and treatment of hazardous waste at LANL, as well as relating to the history of relations between the local communities and the DOE, the NNSA, and LANS-LLC, and to relations with the previous management contractor, the University of California (UC).

It appears that NMED is well aware of a desire on the part of local citizens for such an information repository. In fact, Mr. James Bearzi, head of the HWB/NMED, addressed this issue in Sect. IV. D. of his written testimony. However, he said in that testimony that it is the opinion of NMED that an electronic information repository should suffice.

Even so, he also says in his written testimony (Sect. IV. C.) that NMED is attempting to adhere to Environmental Protection Agency (EPA) concerns for the promotion of environmental justice among local communities. Such concerns require that local communities be provided with all possible opportunities to participate in decisions related to local environmental matters; e.g., matters resulting from the actions of government in New Mexico, especially the federal government.

In this regard, environmental justice concerns would be better met, in my opinion, by the establishment of a permanent information repository at NNMC, than with a simple electronic repository. In my view, if such a repository is to serve the purpose for which it is intended, it must have an on-site staff, trained in its maintenance, and able to assist local citizens in their quest for information.

Mr. Bearzi also refers to the RACER database in his written testimony (Sect. IV. G.) He points out that RACER is a compendium, in electronic form, of environmental data recorded in and around the Pajarito Plateau. He notes too that this database is already fully accessible to the general public (at least that part of the general public that has access to a PC and a high-speed data link) and is being well-maintained by the Los Alamos Community Foundation. He does not mention that it is currently a part of the RACER plan that RACER shall eventually be maintained by a staff located at NNMC.

I would like also to recall a critical public comment made at this Hearing, this past Tuesday, regarding the influence of LANL on the local economy. In this remark it was suggested that an unfortunate dependency had been created in the local community on the economic benefits brought here by LANL, over the last sixty years.

It is in this context that I would like to speak briefly about the last few months of my two years of service on the DOE’s NNMCAB. It was during this time that I first recognized the presence of a tension between Board members who believed that economic benefits brought by LANL to the local communities were always of paramount concern, when dealing with regulatory matters, and other Board members who felt that health matters were much more important. In an attempt to quantify the strength of such opposing opinions, and the degree to which such opposed opinions were wide-spread in the local community, I conducted a public opinion survey.

This survey was conducted in the fall of 2009 in the towns of Santa Fe and Española, and accumulated responses from 225 persons. The questions in the survey were written, the survey administered, and the results analyzed entirely by myself. In an effort to obtain, some technical guidance in this matter, I did consult briefly with a staff member from Research and Polling, Inc. of Albuquerque.

The results of the survey can be perused in my attached report. In quick summary, these results show that there are indeed two strong attitudes about LANL to be found within the local community. One attitude is of appreciation for the economic benefits brought here by LANL. The other attitude is one of worry about possible environmental hazards arising from the type of work done at LANL. This second attitude is combined with an uneasiness about the nature of that work itself; i.e., the R&D of nuclear weapons.

Simplifying somewhat, approximately 25% of respondents felt that the economic benefits brought by LANL were great, while environmental hazards were of little concern, and uneasiness about nuclear weapons R&D was just not a factor. Approximately 25% of respondents felt just the opposite; i.e., while economic benefits did not impress them, the threat arising from environmental hazard was great, and the culture of nuclear weapons was rejected strongly. Interestingly, ~50% of respondents displayed both attitudes simultaneously. For these conflicted individuals, there was an awareness of a clear economic benefit brought by LANL to the local community. At the same time, however, worry about possible environmental hazards due to the business of LANL, and uneasiness about the nuclear weapons industry was also great.

In closing, I make the claim that it is the effect of LANL’s business on the local community which should be the subject of further study. Evidently, this effect is perceived to be wholly positive by some, and wholly negative by others but, generally, both positive and negative effects are experienced simultaneously by at least half the members of the local community.

Thank you for your attention.

Ken LaGattuta

(My "Community Survey Report for Northern New Mexico" appears as the first post in this blog.)

NMED/LANL Hazardous Waste Permit Hearing

9:00 AM (Monday, April 5, 2010)
The NMED/LANL Hazardous Waste Permit Hearing began this morning in the Jemez Room at Santa Fe Community College, in Santa Fe, NM. Approximately 50 people were in attendance. Among the attendees were representatives of the three main parties and their supporters, as well as members of the general public. The parties were: 1) Los Alamos National Laboratory (LANL), and its owner the National Nuclear Security Administration (NNSA), an arm of the United States Department of Energy (USDOE), and its current management contractor Los Alamos National Security Limited Liability Company (LANS-LLC); 2) the Hazardous Waste Bureau (HWB), an arm of the New Mexico Environment Department (NMED); 3) a coalition of citizen activists' groups and citizen activists; viz., Concerned Citizens for Nuclear Safety (CCNS), Nuclear Watch of New Mexico (NWNM), Citizens Action of New Mexico (CANM), Honor Our Pueblo Existence (HOPE), Southwest Information Research Center (SIRC), and Robert Gilkeson, a registered geologist.

Lawyers in attendance, representing the three parties, were: 1) Pete Domenici, Jr. for NNSA/LANS-LLC; 2) Mr. Lovejoy and Mr. DeSaillan for HWB/NMED; 3) Joni Arends, the head of CCNS, and Dave McCoy, the head of CANM.

The presiding judge was Joseph Alarid, Jr., a retired New Mexico Court of Appeals judge, and experienced hearing officer. According to Judge Alarid's self-assessment, he has no particular scientific or engineering expertise, but does have an extensive legal experience.

The Hearing will be conducted according to standard rules of evidence. Testimony will be presented by witnesses for the parties, one party at a time. NNSA/LANS-LLC will go first, followed by HWB/NMED, and the citizens groups will be last. Testimony will be presented for each party by panels of witnesses, and each panel will focus on a particular matter at issue. A witness' testimony may be elicited directly by a lawyer for the witness' party; i.e., the lawyer may ask the witness a series of leading questions. Following testimony, witnesses may be cross-examined by lawyers for the opposing parties; redirect examination will then be solicited, led by the lawyers for the party testifying. Recross-examination will then occur. Evidence may be submitted for the record, provided no objection to the submission is sustained by the judge. Questions during cross, redirect, and recross exmaination are all subject to the objections of opposing counsel.

The Hearing, as scheduled, will last two or more weeks, after which the hearing officer will issue a ruling on all matters at issue. That ruling will only be advisory. Evidently, the Hearing was originally requested by Joni Arends and Robert Gilkeson in a letter to NMED dated Feb. 1, 2008; the letter may be found on NMED's public website.

Matters at issue relate to a Hazardous Waste Permit, which HWB/NMED proposes to issue to LANL/NNSA/LANS-LLC for work being done at LANL. The Hazardous Waste Permit will regulate the handling and above-ground storage of hazardous waste at 24 separated above-ground waste storage facilities at LANL. Presently, a draft permit exists.

An hazardous waste permit was first issued by HWB/NMED in 1989, and was valid for a period of ten years. However, since late-1990, when application for a renewal permit was denied, the handling and above-ground storage of hazardous waste at LANL has been permitted by HWB/NMED only on an interim basis.

The issuing of a Hazardous Waste Permit by HWB/NMED, for NNSA/LANS-LLC hazardous waste operations at LANL, is allowed by federal statute; viz., the Resource Conservation and Recovery Act (RCRA) of 1976. Moreover, NNSA/LANS-LLC hazardous waste operations at LANL are also explicitly permitted by RCRA.

RCRA was originally enacted by Congress in 1976, and is currently a law of the United States, codified in the US Code of Federal Regulations (CFR). The goals of RCRA are to: protect the public from harm caused by waste disposal; encourage reuse, reduction, and recycling of waste materials; clean up spilled or improperly stored wastes. RCRA was enacted as an amendment to the Solid Waste Disposal Act of 1965, and was intended to regulate waste handling from cradle-to-grave. Unlike the superfund act (CERCLA), RCRA only regulates the handling of wastes at active sites, (sites which continue to receive waste) but not at historical or legacy sites.

There are numerous matters at issue here, all to be explored during the course of the Hearing. These are controversial matters to be contended between: 1) LANL and HWB; 2) LANL and the citizens groups; 3) HWB and the citizens groups. A sampling of these matters is as follows:

1) a) HWB/NMED is aggrieved by a past tendency of NNSA/LANS-LLC to underfund cleanup tasks at LANL, the schedule and pace of which was previously agreed upon by HWB/NMED and NNSA/LANS-LLC, but only after an arduous year-long negotiation. The agreement took the form of a Consent Order, issued on March 1, 2005. The underfunding, typically by a factor of ~2, has continued over the last several years; i.e., essentially since the inception of the CO. HWB/NMED would like the new Hazardous Waste Permit to contain a financial assurance clause which would help, they say, to guarantee future NNSA/LANS-LLC budgets for LANL cleanup. In contrast, NNSA claims that its budgets are guaranteed by the full faith and credit of the federal government and need no further guarantee. Indeed, they say, the Code of Federal Regulations (CFR) stipulates that government entities cannot be subjected to financial assurance constraints.

1) b) HWB/NMED has also stated that it intends to deny NNSA/LANS-LLC's application for an Open Burn (OB) permit, a small part of the proposed new Hazardous Waste Permit; i.e., for the open burning of explosives residues at TA-16. NNSA/LANS-LLC is incensed by this threatened denial of an OB permit, and will contest the matter vigorously.

2) a) The citizens groups are sure that the OB permit should be denied, because of alleged dangers to the health of surrounding communities, and they support HWB/NMED in its intent to deny the OB permit.

2) b) The citizens groups would very much like to see a financial assurance clause included in the proposed new Hazardous Waste Permit.

2) c) The citizens groups will argue that NNSA/LANS-LLC is not in full compliance with the 1992 Resource Conservation and Recovery Act (RCRA) rules governing the treatment and storage of hazardous waste. The citizens groups will argue that the Consent Order(CO)is now being used by HWB/NMED to regulate the treatment and storage of hazardous waste at LANL, although the RCRA rules should have precedence. They will further argue that the CO is not legally binding since it: a) was negotiated without input from the general public; b) should not supercede the RCRA rules.

3) a) The citizens groups are upset that HWB/NMED has withheld hundreds of documents from the general public which relate to cleanup at LANL. Apparently, many of these documents bear on the question of whether LANL is in compliance with the RCRA rules, especially as they pertain to groundwater monitoring.

3) b) The citizens groups will argue that the LANL groundwater monitoring program is inadequate scientifically, and that HWB/NMED has failed to censure NNSA/LANS-LLC for this failure. The citizens groups will point out that problems with LANL's groundwater monitoring program have been described over the past several years both in reports by the National Academy of Sciences and by the Environmental Protection Agency's (EPA)Kerr Lab, and should be well-known to HWB/NMED.

Opening statements were invited from lawyers for the parties by Judge Alarid. Pete Domenici, Jr. spoke for NNSA/LANS-LLC: He began by talking about the legal basis upon which the hearing rests, and upon which the authority of NMED to regulate LANL's treatment and storage of hazardous waste depends; i.e., the RCRA rules and regulations, and the New Mexico Hazardous Waste Act. He continued by asserting that much, if not most, of the language in the proposed new Hazardous Waste Permit was agreed upon by HWB/NMED and NNSA/LANS-LLC, and that there were only a limited number of areas of disagreement. One such area involved the Radioactive Liquid Waste Treatment Facility (RLWTF) at TA-50., which will be partly regulated by language in the proposed new Hazardous Waste Permit. Domenici contended that the RLWTF should not be so regulated since waste water outfalls from this facility are already being regulated by EPA under the Clean Water Act. He also claimed that the planned Destruction and Demolition (D&D) of certain buildings at LANL should not be regulated by the propoosed new Hazardous Waste Permit. He opined that the primary business of the Hazardous Waste Permit should be only to regulate the above-ground storage of certain "mixed waste"; e.g., part RCRA regulated waste and part radioactive waste. He pointed out that such mixed waste was already being stored at many DOE sites throughout the country. He also stated that "an important goal of this hearing will be to reassure the general public that NNSA/LANS-LLC will adhere to the scheduled cleanup and closure schedule for TA-54, as set forth in the 2005 Consent Order". He was emphatic that language in the proposed new Hazardous Waste Permit "should not be duplicative of that in the Consent Order". Hence, he said, "closure and corrective actions at MDA's and SMU's should be allowed to proceed unimpeded under the CO and should not be further regulated by the Hazardous Waste Permit". He also asserted that the Hazardous Waste Permit should not contain financial assurance language, binding upon LANS-LLC. He claimed that "a Maintenance and Operations (M&O) contractor such as LANS-LLC has never before been required to provide financial assurance for work supported by the federal government". Finally, he expanded at length upon the claim being made by NNSA/LANS-LLC that there is no danger to human health or the environment arising from open burning at TA-16.

When queried by Judge Alarid, HWB/NMED declined to make an opening statement.

The second opening statement was offered by Dave McCoy of Citizens Action of New Mexico (CANM). McCoy began by saying that the wastes being stored at LANL "contain the potential for genocide", and that "possible seismic activity would threaten nearby residents with catastrophe". He went on to say that the CO seemed to over-ride existing federal regulations governing closure, post-closure, and the groundwater monitoring of hazardous waste sites, but that the CO had no firm legal basis, and was unenforceable. He said further that the CO could not be an enforceable document because the general public was never offered an opportunity to particpate in negotiations leading up to its creation; this was a violation, he said, of federal law. He finished by stating that "21 million cubic feet of stored hazardous waste at LANL is an illegal operation".

The third opening statement was made by Bob Gilkeson, a licensed geologist working in concert with CCNS. Gilkeson began by stating his opposition to sections of the proposed new Hazardous Waste Permit dealing with groundwater protection practices at LANL. He also noted the recent discovery of a volcanic vent, and a volcanic dike, beneath Area G (TA-54) which, he said, "presents a serious threat to surrounding communities".

The fourth opening statement was made by Marian Naranjo from Santa Clara Pueblo. Ms. Naranjo pointed out that "Area G is the site of an ancestral Santa Clara kiva which was dug up and replaced with a toxic waste dump".

The fifth opening statement was made by Don Hancock of SIRC. Hancock stated that the proposed new Hazardous Waste Permit "must protect the environment from future LANL operations". Such future operations, he said, "may include pit production".

1:35 PM (Monday, April 5, 2010; still the first day) -

The first of six LANL panels of witnesses was seated, and their testimony began.
This panel of witnesses described the history of the permitting process at LANL, starting with the first Hazardous Waste Permit in 1989.

The second LANL panel of witnesses was seated. They described the structure of the present proposed new Hazardous Waste Permit. Emergency opearations and fire protection managers then described the capabilites of their areas of responsibility, and their relevance to the Hazardous Waste Permit. Finally, an expert on the geology of the Pajarito Plateau talked at length about newly discovered underground faulting which, however, she said, did not constitute a hazard to LANL operations.

2:00 PM (Tuesday, April 6, 2010; the second full day began at 9:00 AM; I arrived late today in the hearing room) -

The third of six LANL panels of witnesses was in progress. This panel was describing issues relating to the RLWTF, and presenting reasons why the RLWTF should not be regulated by the Hazardous Waste Permit.

The remaining three LANL panels will deal with the issues of: a) closure of permitted facilities; b) financial assurance for future cleanup operations; c) open burning of explosives residues at TA-16.

(Wednesday, April 7, 2010; the third full day; I was absent for this entire day) -

2:00 PM (Thursday, April 8, 2010; the fourth full day began at 9:00 AM; I arrived late in the hearing room) -

The fourth LANL panel had testified about closure and post-closure matters and was undergoing cross-examination. Danny Katzman, LANL manager for groundwater monitoring programs, was being queried by Dave McCoy about the adequacy of these programs, and the extent to which they complied with RCRA rules. This was a vey extensive cross-examination.

11:00 AM (Friday, April 9, 2010; the fifth full day began at 9:00 AM; I arrived late in the hearing room) -

The fifth LANL panel had finished testifying about financial assurance matters and was undergoing cross-examination. Dave McCoy asked LANL witness Mr.Turner if the CO addresses financial assurance matters, and Turner said emphatically that it did not.

1:15 PM (Friday) Following a lunch break the hearing resumed with a period of comments solicited from the general public.

Penny McMullen, member of the Sisters of Loretto, asked that a public information center be set up somewhere in the Espanola Valley. She said that such a center would be to ensure better access for local residents to information relating to LANL's work for the DOE, both past and present. [Later, in a private conversation with Marian Naranjo, I learned that this information center was being proposed by CCNS, to be located at Northern New Mexico College, and would complement the RACER data base, which would eventually also be located at NNMC.]

1:30 PM (Friday) The sixth and final LANL panel of witnesses was seated. This panel would address the open burning of explosives residues at TA-16, as well as the intent of HWB/NMED to deny NNSA/LANS-LLC's application for an OB permit. Initial testimony attempted to persuade that the OB permit was essential to the performance at LANL of R&D required by the ongoing wars in Iraq and Afghanistan; viz., by the need for greater knowledge of techniques employed in the fabrication and use of Improvised Explosives Devices (IEDs). Subsequently, testimony was provided about the generation of dioxins and furans during the open burning of explosives residues at TA-16. These were the chemicals about which both HWB/NMED and the citizens groups have expressed concern, and because of which the OB permit may be denied. The LANL witness asserted that dioxins and furans could only be generated if: a) the material being burned contained chlorine; b) the material was burned in an oxygen poor atmosphere; c) the material was burned at temperatures between 400 and 1400 degrees Fahrenheit. The witness further asserted that none of these conditions held for the explosives residues being burned at TA-16 which: a) did not contain chlorine; b) were burned in an oxygen rich atmosphere; were burned at temperatures above 1800 degrees Fahrenheit.

(Monday, April 12, 2010; the sixth full day; I was absent for this entire day) -

Evidently, cross-examination of witnesses for NNSA/LANS-LLC continued into Monday morning. Then testimony of James Bearzi, head of HWB/NMED began. His testimony was expected to continue into tomorrow, Tuesday.

3:20 PM (Tuesday, April 13, 2010; the seventh full day began at 9:00 AM; the hearing has been moved for today to the Ohkay Owingeh Conference Center in Española; I arrived late in the hearing room) -

Evidently, Mr. Bearzi's testimony continued all through this morning. However, Mr. Bearzi was unable to be present this afternoon, so that his testimony and/or cross-examination, will be put off until Wednesday.

A period for comments by the general public has been alloted, to run from 2:00 PM to 4:00 PM. The leader of the Embudo Valley Environmental Monitoring Group (EVEMG) is speaking. She endorsed the information center being proposed for NNMC; i.e., a center in which information describing the business of LANL, and the history of that business, would be provided for perusal by the general public. These comments were followed by those of a private citizen who lamented the growth of greed and consumerism in Northern New Mexico, which had resulted, she said, from the flood of money that had been dumped by LANL into the local economy. She also said that this flood of money had caused the local economy to become dependent on LANL, in such a way as to inhibit the development of a normal mix of local businesses.

4:15 PM Testimony of HWB/NMED witness Steve Pulen began, facilitated by leading questions posed by Mr. Lovejoy, lawyer for NMED. This testimony related to instances of language in the proposed new Hazardous Waste Permit which is being disputed by NNSA/LANS-LLC. Mr. Pulen is the first of eight NMED witnesses scheduled to present testimiony in the coming days.

5:00 PM Testimony ends for today, and will resume tomorrow at 9:00 AM, back in the Jemez Room at SFCC.

(Wednesday, April 15, 2010; the eighth full day; I was absent for this entire day) -

However, I received by email this morning, from John Kieling of HWB/NMED, a copy of James Bearzi's 80 page written testimony; I perused this document with much interest. The Summary section (on pages 4 and 5) displays the following topic headings; the topics are addressed later in the document:

"III. Factual background"

"A. Regulatory structure; B. Permit history; C. Units to be permitted; D. Open detonation units; E. Permit organization; F. Permit terms; G. Enforcement history."

"IV. Issues at this hearing"

"A. Relation of Proposed Permit to Consent Order; B. Outreach and community participation in the permitting process; C. Community relations and environmental justice; D. Information repository; E. E-mail notification; F. Community relations plan; G. RACER; H. Seismic location standards; I. Radioactive liquid Waste Treatment Facility regulation; J. Risk level for closure and corrective action; K. The "enforceable document" regulations; L. Closure provisions for regulated units and surface units - post-closure care; M. Closure of regulated units - specific issues; N. Groundwater monitoring; O. Financial assurance; P. Open burning at TA-16 - notice of intent to deny; Q. Closure plans for TA-16 open burn units."

1:30 PM (Thursday, April 15, 2010; the ninth full day began at 9:00 AM; I arrived late in the hearing room) -

Public comments were proceeding. A woman who introduced herself as a librarian endorsed the idea that there be a physical repository for information relating to the Permit, and that this be set up at NNMC. Then James Bearzi was reseated as a witness for HWB/NMED , and his cross-examination by Dave McCoy continued. Referring to 40 CFR 264.90F, DM said that this rule allowed for the replacement of the RCRA rules appearing in 40 CFR 264.(90-100) by other "enforceable rules". He also said that JB assumed that the CO was an enforceable document and used it to replace the RCRA rules. JB said "that is not an assumption, it is a fact." Cross-examination by DM was followed by Scott Kovacs, for NWNM, and Bob Gilkeson, for CCNS. At 3:00 PM, JB was excused and John Ahlquist, a private citizen was allowed to give testimony. Mr. Ahlquist, a retired LANL health physicist, stated that he believed the hearing to be a waste of time and money, and that LANL's cleanup should be allowed to proceed unimpeded by such administrative wrangling. At 4:00 PM, Rebecca Cram, a HWB/NMED witness, began her testimony. She talked about the 24 closure plans that will regulate the closure of the 24 LANL facilities subjected to the Proposed Permit.

2:00 PM (Friday, April 16, 2010; the tenth full day began at 9:00 AM; I arrived late in the hearing room) -

A public comment period began. I submitted an oral comment which: a) endorsed the idea of an information repository to be located at NNMC; b) endorsed a previous comment suggesting that economic benefits brought to the local community by LANL dollars was not an unalloyed benefit. I also submitted a written version of my comment, and a written copy of my "Community Survey Report for Northern New Mexico", for the hearing record. My written comment also appears in the next post in this blog (dated April 17, 2010); my "Community Survey Report for Northern New Mexico" appears as the very first post in this blog (dated Dec., 2009).

A series of public comments then followed, until 3:00 PM, when Mr. Bearzi was reseated and his cross-examination continued (until 6:15 PM).

2:00 PM (Friday, April 23, 2010; the eleventh full day began at 9:00 AM; I arrived late in the hearing room. The Hearing was held today on the campus of UNM-LA, in Room 230) -

During the ensuing public comment period, ~15 comments were presented by current LANS-LLC employees, by LANL-UC retirees, and by Los Alamos residents unafilliated with LANL, or with LANS-LLC. These comments were all very supportive of LANL and its doings. This group of commenters was also uniformly indignant about the intent of NMED to deny LANL an Open Burning Permit for its work at TA-15, several commenters striking patriotic themes in their effort to convince the Hearing Officer of the righteousness of their views.

Other comments were presented by citizens who had no economic ties to LANS-LLC, or to LANL, and who did not live in Los Alamos. These comments were uniformly critical of LANL, and expressed much uneasiness about the potential for negative human health and environmental impacts due to Open Burning at TA-16.

I then presented a comment in which I first reminded listeners of my "Community Survey Report for Northern New Mexico", described at last Friday's Hearing, during the comment session. I then pointed out that, although we had just heard many comments that could fairly be summarized as lying on a bimodal distribution of opinion, in fact, in Northern New Mexico a much more smoothly varying spectrum of opinion existed. That is, as my survey of 225 individuals had shown, while ~25% of responders had strong positive opinions about LANL, and ~25% had strong negative opinions, there was a near-majority of ~50% who held both strong positive and strong negative opinions about LANL.

[On April 20, 2010 a compendium of public comments appeared on NMED's public website. Among these were copies of letters from the Española City Council (by Alice Lucero, Mayor) and the Rio Arriba County Commission (by Alfredo Montoya, Chair) strongly condemning NMED's proposed denial of an OB Permit for LANL, and striking very patriotic themes.]

After the comment period ended, James A. Werner, an expert witness for NMED began his testimony. Mr. Werner described the qualifications which supported his claim to special knowledge about "financial assurance" matters, especially as regarded private contractors working for government agencies, on RCRA regulated projects, or on projects that were partly RCRA regulated and partly state regulated. This is a matter of importance to NMED, which intends to require financial assurance from LANS-LLC, for work to be completed under the Consent Order. On the other hand, LANS-LLC wishes to continue to be free of financial assurance requirements, as these will increase its cost of doing business.

The testimony of Mr. Werner, as facilitated by Mr. DeSaillan, counsel for NMED, seemed to make a plausible case for the legality of requiring financial assurance from LANS-LLC. However, the following cross-examination by Mr. Domenici, counsel for LANS-LLC, did seem somewhat to undermine this case. Not so successful was Domenici's attempt to argue that assignment of a financial assurance requirement to LANS-LLC was illegal because there were federal statutes explicitly forbidding such requirements; e.g., for contractors operating the Waste Isolation Pilot Project (WIPP)and Sandia National Laboratory (SNL). However, these two statutes had been created, and their passage through Congress engineered, by Pete Domenici, Sr. as a way of forestalling legal attempts by the State of New Mexico to obtain financial assurance from these contractors.

This cross-examination continued until 6:45 PM, when the Hearing was adjourned for the day.

(Monday, April 26, 2010; the twelfth full day; the Hearing was held at Smith Brasher Hall, 717 University NE, in Albuquerque; I was absent for this entire day) -

11:15 AM (Wednesday, May 5, 2010; the thirteenth full day began at 9:00 AM; I arrived late in the hearing room. The Hearing was held today in the Courtyard at Marriott, 3347 Cerrillos Rd, Santa Fe, NM) -

[This morning, Ralph Hayes of El Dorado Engineering spoke by telephone about alternatives to open burning of wastes. He asserted that confined burning is a well-developed and accepted technique used by many industries, in a variety of circumstances, which is now replacing open burning. Although I was not present for Mr. Hayes' remarks, I was informed about them by several people who were present.]

When I arrived this morning, Mr. Kulis, a witness for NMED, was finishing his testimony. Mr. Culis is a regulator at HWB/NMED, involved with overseeing the installation of wells at LANL. Mr. McCoy cross-examined Mr. Kulis. McCoy asked about the use of the word "shall" in the RCRA rules, coded in the CFR, asking Mr. Kulis to reflect upon the fact that, in his written testimony, Mr. Kulis used the word "should" when describing that section of the RCRA rules. Mr. McCoy suggested that "should" was less determinant than "shall". Mr. McCoy then asked if Stainless steel casing might not be subject to corrosion by the mixed waste present at MDA G, H, and L, and whether titanium might not be a better choice for the construction of well-screens. Kulis answered that corrosion would be a product of geochemical conditions, but would not result from any mixed waste that might be present at depth underground. He said too that he was unaware of any use or testing of titanium for well-screens, and that titanium might have worse absorptive properties than stainless-steel. Mr. McCoy then asserted that Mr. Kulis had not considered other possible materials for the construction of well-screens. Mr. Kulis answered that he had indeed considered many other materials, and that these were listed, along with their propoerties, in his report. He continued by saying that he judged all of these other materials to be unsuitable for the construction of well-screens, for a variety of reasons. Mr. McCoy ended his cross and Mr. Gilkeson began.

Mr. Gilkeson asked about the acceptability of pipe-based systems for well-screens. Mr. Kulis answered that pipe-based systems may be acceptable under certain circumstances. However, the use of pipe-based well-screens was not allowed under the Permit for the construction of new wells; wells already in place which use pipe-based screens may be retained. Mr. Gilkeson then asked if the use of no-purge Westbay sampling systems must no longer be used anywhere at LANL. Mr. Kulis answered that this was not true, but that the usefulness of data obtained from Westbay systems would be determined on a case-by-case basis by comparison with data taken from nearby wells fitted with purgeable Baskhi sampling ssytems. Mr. Gilkeson then asked if the Permit requires that background water-quality data be determined from upgradient site-specific wells. Mr. Kulis said that he was uncertain if such was the case.

1:00 PM; public comment period began. First speaker said that he had a PhD in linguistics, and that he was concerned by the trickery displayed by vested interests in defense of LANL, and in the minimization of citizens' concerns about toxic waste generated by LANL operations. Second speaker expressed concern about Pu in groundwater near the Buckman Diversion Project, especially in regard to modern standards for maximum allowed levels of contaminants; these standards are being continually reduced, as time goes on. Third speaker talked about the existence of elevated levels of cancers occurring throughout northern New Mexico; i.e., downwind of LANL. Fourth speaker expressed concern about OB at LANL, and said that the Sisters of Loretto had collected more than 500 signatures on a petition asking for confined burn at TA-16. The fifth speaker reads the text of that petition, and said that local residents wanted the security of knowing that they were not being poisoned by emissions from LANL operations. The sixth speaker talked about the chemical properties of PU, and referred to recent work which seemed to show that Pu was more mobile in soils than had previously been thought to be the case. The seventh speaker criticized NMED for not following its own Mission Statement, and for being dominated by a culture of secrecy. He described the successful lawsuit that Mr. McCoy and CANM filed against NMED, which resulted in the release of documents held secret by NMED; these related to the treatment of hazardous waste generated at LANL. He then said that the 21 million cubic feet of hazardous waste stored at LANL had the potential to create a worse environmental disaster than the current oil-spill off the coast of Louisiana. He further stated that the lack of a closure plan for hazardous waste dumps at LANL was a serious violation of NMED's mandate. the eighth speaker was a resident of Ojo Sarco who expressed concern about the elevated level of cancers in northern New Mexico. The ninth speaker was a retired St. John's College teacher. She expressed her concern that the involvement of private citizens in decision-making with regard to the treatment of hazardous waste at LANL was made difficult by the lack of an intelligible overview of the related problems. She emphasized that it was not sufficient to have relevant information be physically accessible to the public, but that it must also be intellectually accessible. The tenth speaker presents a petition with 7500 signatures asking for a confined burn facility at LANL, to replace their present OB facility at TA-16. The eleventh speaker is a writer from Santa fe who expressed her feelings of heart-break when presented with knowledge of the volume of hazardous waste being generated at LANL, from its nuclear weapons operations.

2:15PM; public comment period ends; Mr. Gilkeson resumed his cross of Mr. Kulis, who then admitted that the Permit did require that background data be collected at LANL from site-specific monitoring wells. Mr. Gilkeson then asked if it was true that water-quality studies underway at LANL would only determine if water-quality samples taken from no-purge wells were comparable to those taken from purgeable wells, and would not determine if such samples were representative of water in the surrounding formations. Mr. Kulis agreed that this was true. Mr. Gilkeson then asked if under-inflated packers installed between screens in Baskhi system wells might not allow water to pass between the regions surrounding the two screens, thus contaminating the lower region. Mr. Kulis said that this was a possible problem which was being addressed. Mr. Gilkeson then asked if the use of oragnic foams to expedite the drilling process might not result in a contamination of the regional aquifer. Mr. Kulis said that this might occur, but that it was a problem which was limited by the fact that current methods required that such foams not be used below a point that was 100 ft above the surface of the regional aquifer. Moreover, any foam which did leak down into the aquifer could be mostly removed during the subsequent well-develoment process, and that the remainder was, in any case, biodegradable. Mr. Gilkeson ended his cross and Joni Arends began.

Ms. Arends asked if casing advance techniques could not be used to replace the use of oragnic foams; i.e., as a method of keeping the upper parts of the bore-hole open during drilling, so that the drill string would not be captured by the bore-hole, which would then have to be abandoned. Mr. Kulis said that, generally, this was not possible since then the presence of perched water could not be detected; and it was important to learn about the presence of perched water. [I spoke to Mr. Gilkeson privately about this question. He said that the detection of perched water would also be impeded by the use of high pressure water as a drilling aid, something which was being done routinely by the well-drillers at LANL. He said further that the presence of perched water was NOT something that was being actively sought at LANL. The reason that perched water was not being sought, he said, was that the discovery of perched water would just mean more monitoring work for an already overworked monitoring staff. (Mr. Gilkeson has elaborated further on these themes in his written comment submitted to NMED on May 9, 2010.)]

5:25 PM; NMED rested their case. Dave McCoy began testimony. Mr. McCoy reprised views that he had already expressed during this Hearing. He was cross-examined by Mr. Domenici for LANL, Mr. DeSailian for NMED, and Ms. Arends for CCNS.

7:00 PM; I leave for the day.

2:15 PM (Thursday, May 6, 2010; the fourteenth full day began at 9:00 AM; I arrived late in the hearing room. The Hearing was held again today in the Courtyard at Marriott, 3347 Cerrillos Rd, Santa Fe, NM) -

LANL called Richard Joseph Miranda, a rebuttal witness. Mr. Miranda attempted to explain recent changes in a report, previously submitted as evidence but before any changes had been made, detailing effects of OB residues (dioxins and furans) on the local deer-mouse population. Evidently, LANL was attempting to submit this revised report in lieu of the the previous unrevised report. Objections to this aattempted replacement were made by NMED, by Mr. McCoy and by Ms. Arends. During cross-examination of Mr. Miranda, Mr. McCoy asked about methods being used to survey the deer-mouse population, apparently with a view to determining whether or not those methods were humane, and whether or not those methods minimized the expenditure of public money. 3:50 PM; I leave for the day.

1:00 PM (Friday, May 7, 2010; the fifteenth and last day began at 1:00 PM. The Hearing was held again today in the Courtyard at Marriott, 3347 Cerrillos Rd, Santa Fe, NM) -

The Hearing began today with a public comment period. The first speaker was a ~25 year old male who spoke in favor of LANL operations, and of the OB Permit. He pointed out the imporatnce of LANL operations to the economy of northern New Mexico. The second speaker was a woman from Llano, NM. she blamed her diagnosed cancer on LANL's hazardous waste. She asked that LANL provide medical insurance to all of the residents of northern New Mexico, and that LANL also test all of the fruits and vegetables being grown in this area for the presence of hazardous chemicals.

1:20 PM; public comment period ended and J. Bearzi, rebuttal witness for NMED, was reseated. His testimony related to the financial assurance controversy which has been much discussed at this Hearing. Much of what he had to say was objected to by opposing counsel. Mr. Bearzi then talked about disputed data submitted by LANL relating to the temperatures of burners measured at TA-16 OB units. There were also many objections to this rebuttal testimony.

Mr. Bearzi then talked about the need to include new language in the proposed Permit to ensure that LANS/NNSA, in a timely fashion, would establish a physical repository for information relating to the Hazardous Waste Permit, and would establish a educational center aimed at improving public understanding of issues relating to the Permit, both (perhaps) at Northern New Mexico College; i.e., if Secretary Curry would see fit to approve of such a measure. He said that a period of six months would be specified in the proposed Permit, following the entry into force of the Permit itself, during which all arrangements for the establishment of such a physical information repository and educational center would have to be completed by LANS/NNSA.

Launching into another topic, Mr. Bearzi then stated emphatically that if Area G (TA-54) was to be closed, then all deposition of new low-level radioactive waste at this site would have to end immediately. Mr. Domenici asked if it was true that NMED has no mandate to regulate low-level radioactive waste, generally, and that the proposed Permit does not forbid the storage of new low-level radiaoactive waste at Area G. Mr. Bearzi admitted that this was true. Mr. Domenici then asked Mr. Bearzi if he was aware that the burners at TA-16 unit 388 were designed to burn at over 1400 degrees Fahnrenheit. (There is evidence that, above this temperature, dioxins and furans are consumed.) Mr. Bearzi answered that he did not contest the design of the burners.

5:10 PM; the NMED/LANL Hazardous Waste Permit Hearing ends!

Nuclear Posture Review 2010 Emerges

Finally, the Nuclear Posture Review for 2010 has emerged from the bowels of the Defense Dept. On Tuesday April 6,2010. Secretary Robert Gates, speaking for the Obama Administration, introduced the new NPR in a brief cover letter; it can all be found on the DOD's public website. In his letter, Gates notes that the $5 billion of new funding for the nuclear weapons complex, to be spread over the next ten years, and which was announced recently by the Obama Admin., is actually to come from the Defense Dept.; i.e., some DOD monies are to be transferred slowly to DOE coffers.

Now, hitting just a few of the high points from the NPR Executive Summary, under the heading "Sustaining a Safe, Secure, and Effective Nuclear Arsenal", several interesting features appear, from which I quote:

"The United States will not conduct nuclear testing and will pursue ratification and entry into force of the Comprehensive Test Ban Treaty."

"The United States will not develop new nuclear warheads. Life Extension Programs (LEPs) will use only nuclear components based on previously tested designs, and will not support new military missions or provide for new military capabilites."

"The United States will study options for ensuring the safety, security, and reliability of nuclear warheads on a case-by-case basis, consistent with the congressionally mandated Stockpile Management Program. The full range of LEP approaches will be considered: refurbishment of existing warheads, reuse of nuclear components from different warheads, and replacement of nuclear components."

"In any decision to proceed to engineering development for warhead LEPs, the United States will give strong preference to options for refurbishment or reuse. Replacement of nuclear components would be undertaken only if critical Stockpile Management Program goals could not otherwise be met, amd if specifically authorized by the President and approved by Congress."

Further, the new NPR asserts that:

"The science, technology and engineering base, vital for stockpile stewardship
as well as providing insights for non-proliferation, must be strengthened."

"Increased investments in the nuclear weapons complex of facilities and personnel are required to ensure the long-term safety, security, and effectiveness of our nuclear arsenal. New facilities will be sized to support the requirements of the stockpile stewardship and management plan being developed by the National Nuclear Security Administration."

"Increased funding is needed for the Chemistry and Metallurgy Research Replacement Project at Los Alamos National Laboratory to replace the existing 50-year old facility. and to develop a new Uranium Processing Facility at the Y-12 Plant in Oak Ridge, Tennesee."

There is also a description in the NPR of a new policy of "no use of nuclear weapons", by the United States, against nations not possessing nuclear weapons, if such nations were to be also "in compliance with their nuclear non-proliferation responsibilities". This new policy would not apply, however, to nuclear weapons armed states; i.e., for these, the previous policy which does not restrict use, or even first use, would continue in effect.

There are also remarks in the new NPR reminding us of the intention of the Obama Administration to enter into a new agreement with Russia, reducing by a small amount the size of the deployed nuclear arsenals on both sides, as well as reducing the number of allowed delivery vehicles.

Thus, and according to its own estimation, the Obama Administration moves forward toward its long-term goal of a world free of nuclear weapons. One would have to observe, however, that any motion along this line will not be so quick as to seriously discommode any of the important political players in Washington.

For more information on this topic, see my previous post entitled, "JASON's Report on LEP Strategies Revisited".