January 15, 2002

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

Re: We request cessation of nuclear waste disposal at Los Alamos National Laboratory's

"Area G" landfill and formal closure of the site, as required by law.

Dear Secretary Maggiore -

The "Area G" nuclear and chemical waste landfill is located one mile west of White Rock, NM, on Mesita del Buey in Los Alamos County. With the exception of two waste categories, essentially all the nuclear waste produced at Los Alamos National Laboratory (LANL) is permanently buried at Area G. ⁽¹⁾

Area G, like the rest of LANL, is managed by the University of California (UC) for the Department of Energy (DOE). UC has held the operating contract for LANL since 1943, and since that time has disposed of nuclear and chemical waste at LANL in approximately 26 official material disposal areas (MDAs, of which Area G is the largest) and at hundreds of outfalls, firing sites, and other locations.

Area G is the only nuclear/chemical waste landfill at LANL still operating at this time. It began receiving waste in 1957, and so far has accumulated approximately 11 million cubic feet of waste.

Further background information regarding Area G can be found in Attachment 1.

Secretary Maggiore, we are writing to respectfully remind you of your long-standing obligation to close Area G to further nuclear waste disposal and begin a process of selecting remedies for the site that meet, in both process and substance, all applicable legal requirements of the Resource Conservation and Recovery Act (RCRA).

Why Area G must close

As you know, Area G admittedly received, for at least the first 28 years of its operation if not also since then, a broad spectrum of RCRA-regulated chemical wastes, as well as a wide variety of nuclear wastes. In 1980, LANL and DOE submitted a "Part A" application for a RCRA hazardous waste disposal permit for all of Area G and for all other sites within TA-54. First the federal Environmental Protection Agency (EPA), and later the New Mexico Environmental Improvement Division (EID), the predecessor of the New Mexico Environment Department (NMED), granted LANL temporary "interim status" permission to continue disposal of RCRA waste anywhere in Area G, pending application and subsequent issuance of a full operating permit for the site. This was done despite a number of fundamental defects in LANL's application for interim status, including the absence of the required closure plan and of groundwater monitoring at the site.

This 1980 declaration on the part of LANL and DOE, which was resubmitted with modifications on other occasions between 1980 and 1985, and the long record of agency actions taken pursuant to that declaration since 1980, has made this site in its entirety subject to the permitting and closure requirements of RCRA.

No full permit application ("Part B") was ever submitted by LANL for approval, however, and Area G was never permitted for operation. Instead, in 1985, LANL withdrew its "Part A" application for interim status for Area G, triggering RCRA's closure requirements for the site. But instead of immediately closing the site as required by law, state and federal regulators allowed Area G to fall into a legal "limbo" from which it has never recovered.

Since 1985, EID, now NMED, having granted an "interim" permit to LANL to operate the site as a chemical waste dump for the 1980 to 1985 period, has been under an obligation to either permit the site - which is impossible, given the lack of an application -- or to formally close it.

The question of whether Area G is or is not currently receiving regulated chemical waste, in addition to nuclear waste, does not bear on this clear requirement under RCRA to promptly, formally and fully close Area G, and to develop, with full public participation, binding plans and commitments to remove, partially remove, or to permanently stabilize Area G's wastes, as RCRA provides. The argument that neither permitting nor closure is necessary because this site allegedly stopped receiving RCRA-regulated waste in 1985 is simply not germane, given that for 28 years RCRA-regulated wastes, amounting to millions of cubic feet in total volume, were disposed at the site. ⁽²⁾

This regulatory history is summarized with some additional details in Attachment 2 to this letter.

In addition to RCRA-regulated wastes, Area G has received and may still be receiving for permanent disposal other toxic chemical wastes, such as pesticides, herbicides, and polychlorinated biphenols (PCBs), which are regulated under the Toxic Substances Control Act (TSCA). While NMED does not regulate these substances at Area G directly, they do add significantly to the overall risk posed by the site and must be taken into account in site closure plans. Many of these substances bioaccumulate in the food chain; PCBs have already been found at levels dangerous to humans in fish caught in Cochiti Lake and in Bandelier National Monument.

Environmentally, Area G is a poor site, and should close

The waste interred at Area G is now buried, as it was in 1957, in shallow unlined pits and shafts. When the pits are nearly full, they are covered by about three feet of crushed volcanic tuff, a sand-like material; the shafts are topped off with a concrete plug. Most of the waste has little or no primary containment. There is no secondary containment, no cap, and no liner. The total inventory of chemical and nuclear waste at the site is unknown; its volume already exceeds the ultimate capacity of WIPP.

Secretary Maggiore, we would like to emphasize that Area G is directly adjacent to springs and wetlands, and is both directly upstream and upwind from White Rock, NM. Surface water in Pajarito Canyon, immediately adjoining and topographically below the dump, has been used as a potable water supply from Anasazi times until the establishment of the lab, and the site is ringed with ancient pueblo ruins and grave sites. Shallow, as well as intermediate, aquifers are found beneath Pajarito and surrounding canyons. Groundwater is percolating downward from these aquifers to the regional aquifer below, to springs along the Rio Grande, and to public water supply wells, one of which is directly south of Area G. As you know, analyses of public water supply wells in Los Alamos have begun to show evidence of contamination by man-made radionuclides such as tritium and strontium-90. A test well directly adjacent to Area G ("R-22") shows contamination of the regional aquifer by low levels of tritium and technetium-99. The site lithology is not the best, either: below the tuff, the rock consists largely of fractured basalt, which is highly unfavorable for retention and attenuation of contaminants, should they reach groundwater.

In sum, Area G's natural setting is not favorable for the disposal of nuclear waste. It is highly unlikely that Area G or for that matter, any chemical or nuclear waste disposal facility, could ever be permitted today at TA-54. The same is true for the rest of the Pajarito Plateau, which receives too much precipitation, is too dissected by canyons with streams, and is too permeable for the permitted disposal of chemical and long-lived nuclear wastes.

The New Mexico Attorney General's office has asked you to close the site

For many of these reasons, Lindsay Lovejoy of the New Mexico Attorney General's office wrote to James Bearzi, Chief of the NMED Hazardous Waste Bureau, on July 12 of this year, asking him, among other requests, to close Area G. That letter states, in relevant part,

We have pointed out to NMED that these MDAs [Material Disposal Areas G, H, and L] were long ago required to stop receiving waste, have an approved closure plan, and close, but this has not happened. MDAs G and L were required to close under 40 CFR §§ 265.112(d)(3) and 265.113 (b) after NMED accepted LANL's withdrawal of its request for a permit for these areas in April 1985, terminating interim status under 40 CFR § 270.73(a). MDAs G, H, and L, were also required to close based on loss of interim status in November 1985, under 42 U.S.C. § 3005(e)(2) and 40 CFR § 270.73(c). However, to date they have neither been closed nor permitted.

Your agency has made no reply to this letter.

Many New Mexicans have requested closure

Secretary Maggiore, in addition to the imperatives of law and of science, approximately 2,000 New Mexicans have written to Governor Johnson and to you, respectfully requesting that you close Area G. They have requested that you hold public hearings, as required by law, regarding what is to be done with the site and the waste in it, as well as regarding the cleanup and stabilization of contamination at LANL generally.

We refer to the participants in the Los Alamos Study Group's "Can-Paign." What is more, these people have not merely signed a petition, but have paid $3.00 for the privilege of placing that letter on a food can that could display the letter in a way likely to be noticed and truly read by the Governor and yourself. We have read that appeal, appended here as Attachment 3, and we endorse it. We urge you to consider these requests carefully, as indeed you are required to do by law.

Alternatives to disposal at Area G exist and are environmentally superior to current practice

Secretary Maggiore, we recognize that there is no perfect answer to the question of what to do with the nuclear waste that continues to be generated by Los Alamos programs. Certainly, making less new nuclear waste is an option, and it is one that is engaging considerable attention at DOE and LANL. While LANL's stated desire to be a "zero-discharge" facility may not be practical, there is certainly room for improvement.

A number of other alternatives for sequestration of waste could also be mentioned, many of which, like generating less waste from LANL programs, are environmentally superior to disposal at Area G. In any lineup of alternatives, common sense dictates that under no circumstances should the dumping of nuclear waste in shallow unlined pits directly above our streams and drinking water supplies be an option that is seriously considered. Although it seems obvious enough, it is highly likely such poor practice will be the only alternative seriously considered until Area G is closed.

This letter is not the place to exhaustively list these alternatives or to discuss their relative merits. Certainly NMED has no statutory responsibility for the generation and ultimate disposal of LANL's non-RCRA-regulated nuclear waste, unless of course that waste is being disposed at Area G, a site subject to RCRA regulation.

One option DOE may select is to open a new nuclear landfill at LANL. As you know, a sequence of four new nuclear waste disposal sites have already been planned for LANL, whether or not Area G is formally closed. The closure and post-closure commitments chosen by you for Area G, with ample and substantive public involvement, will undoubtedly help establish the precedent for the design and operating standards for any new disposal facility at LANL.

Environmentally speaking, there is no downside to closure of Area G. When - and how - you close Area G will help determine the standard of environmental protection for any new nuclear landfills at LANL.

We appreciate your attentiveness to this matter, which has gone without regulatory attention for so long. We respectfully request that you formally close Area G, as required by law.

Sincerely,

[signature pages follow]

cc: Governor Gary Johnson
Patricia Madrid, Attorney General
Senator Jeff Bingaman
Senator Pete Domenici
Congressman Tom Udall
Governor Harry Martinez, San Ildefonso Pueblo
Governor Regis Pecos, Cochiti Pueblo
Secretary Spencer Abraham, Department of Energy
Rick Glass, Manager, DOE Albuquerque Operations Office
President Richard Atkinson, University of California
Senator Richard Polanco, Majority Leader, California State Legislature
John Browne, Director, Los Alamos National Laboratory
James Bearzi, NMED Hazardous Waste Bureau Chief
Mary McInerny, Los Alamos County Administrator

*****************************

Dolores S. Herrera, Executive Director
Albuquerque San Jose Community Awareness Council, Inc.
P.O. Box 12297
Albuquerque, NM 87195-2297

Dorelen F. Bunting, Coordinator
Albuquerque Peace & Justice Center
144 Harvard SE
Albuquerque, NM 87106

Brian Shields, Executive Director
Amigos Bravos
P.O. Box 238
Taos, NM 87571

Michael J. Robinson
Center for Biological Diversity
New Mexico Office
P.O. Box 53166
Pinos Altos, NM 88053

Sue Dayton, Director/Coordinator
Citizen Action of Albuquerque
P.O. Box 1133
Sandia Park, NM 87047-1133

Deborah Reade, Research Director
Citizens for Alternatives to Radioactive Dumping
144 Harvard SE
Albuquerque, NM 87106

Joni Arends
Waste Programs Director
Concerned Citizens for Nuclear Safety
107 Cienega Street
Santa Fe, NM 87501

Hilario Romero, President
El Rio Arriba Environmental Health Association
P.O. Box 1699
Santa Cruz, NM 87567

Eulynda Toledo Benalli (from the Dine' Nation), President
First Nations North and South
609 Candelaria NW
Albuquerque, NM 87107

John Horning, Conservation Director
Forest Guardians
312 Montezuma Avenue, Suite A
Santa Fe, NM 87501

Harry Brown, Executive Director
Gila Resources Information Project
306 North Cooper Street
Silver City, NM

Melissa McDonald, Co-Chair
Xubi Wilson, Co Chair
Green Party of NM
P.O. Box 22485
Santa Fe, NM 87502

Greg Mello, Director
Los Alamos Study Group
212 E. Marcy, Suite 10
Santa Fe, NM 87501

Peter Neils, Director
Native Forests Network
3136-3 Glenwood Drive, NW
Albuquerque, NM 87107

Geoffrey H. Fettus, Attorney
Natural Resources Defense Council
1200 New York Avenue, N.W., Suite 400
Washington, D.C. 20025

Kurt Ulrich
Nizhoni School for Global Consciousness
HC 75 Box 72
Galisteo, NM 87540

Helga Schimkat, Executive Director
New Mexico Conservation Voters Alliance
P.O. Box 40497
Albuquerque, NM 87195

Coila Ash, Director, Executive Director
New Mexico Toxics Coalition
325 E. Coronado Road #2
Santa Fe, New Mexico 87505

Jay Coghlan, Director
Nuclear Watch of New Mexico
551 W. Cordova Road, #808
Santa Fe, NM 87501

Melinda Smith, Director
1000 Friends of New Mexico
1001 Marquette NW
Albuquerque, NM 87102

Marsha Mason, President
Resting in the River
528 Don Gaspar
Santa Fe, NM 87505-2626

David Bacon, President
Southwest Energy Institute
54 San Marcos Road West
Santa Fe, NM 87508

Michael Guerrero, Executive Director
Southwest Organizing Project
211 10th SW
Albuquerque, NM

Don Hancock
Nuclear Waste Program Coordinator
Southwest Research & Information Center
P.O. Box 4524
Albuquerque, NM 87106

Jorge Garcia, Strategy & Planning Director
Tonantzin Land Institute
P.O. Box 7889
Albuquerque, NM 87194

Jaime Chavez
Regional Coordinator
Water Information Network
P.O. Box 4524
Albuquerque, NM 87106

Sam Hitt, Founder
Wild Watershed
P.O. Box 1943
Santa Fe, NM 87504

Letter from Organizations to Secretary Maggiore, January 15, 2002

Attachment 1: Background Concerning LANL's "Area G" Nuclear Landfill

Prepared by the Los Alamos Study Group

According to DOE, Area G is slated to annually receive 44,000 drums' worth of nuclear waste for permanent disposal. ⁽³⁾ While actual disposal rates are at present about only 43% of this amount, the rate of waste generation and disposal is expected to increase as LANL begins its planned production of plutonium "pits," the cores of nuclear weapons, and as ambitious nuclear weapons testing programs come on line at Los Alamos. ⁽⁴⁾

Area G lies in LANL's Technical Area (TA-) 54, and is 63 acres in size. It contains at least 39 disposal pits and more than 209 shafts, which together cover most of the site. When it is completely filled, LANL anticipates dedicating four more sites to permanent nuclear waste disposal, three in TA-54 and one on another mesa, in TA-67.

Historically, Area G has been a disposal site for dangerous wastes of all types, including a wide range of toxic chemicals, pesticides, PCBs, transuranic (TRU) wastes of the kind now destined for WIPP, spent nuclear fuel and components of small nuclear reactors, and other radioactive wastes of every description. Both liquids and solids have been disposed at the site. LANL claims to have only disposed of radioactive, and not chemical wastes, at the site since April, 1985, although the New Mexico Environment Department (NMED) has fined LANL for the subsequent disposal of hazardous waste at the site, and LANL's own inventory of wastes disposed lists "chemical waste of unknown nature and concentration" for every pit used between 1985 and 1992 (see note 5, next page).

Beneath the mesa surface, plumes of hazardous waste vapors and radioactive tritium have mingled to cover much of the site. These plumes are close to permanent springs and surface water, which are located immediately adjacent to and below Area G, in Pajarito Canyon. A recent deep test well drilled at the site ("R-22") shows traces of two man-made radionuclides (tritium and technetium-99). Small amounts of plutonium and other radionuclides have been documented in water- and wind-born sediment leaving the site, and in the bodies of burrowing animals.

While Area G is likely to retain most of its buried waste for many centuries, waste will escape through a number of processes. The infiltration of rain and snowmelt, which percolates unimpeded through the waste, is enhanced by the greater permeability of waste relative to the surrounding tuff and will be accelerated by future waste subsidence. Infiltration is also enhanced by impervious structures built on the portions of the surface. Liquid and vapor transport through the fractured rock beneath the site, which varies from one place to another in an unknown and unknowable manner, cannot be predicted. Contaminants will also leave the site through wind erosion, and through the cumulative actions of plant roots and burrowing animals, both of which deposit radionuclides at the surface. These natural processes, while small in any given year, will have a cumulatively large effect over the course of centuries. Human intrusion, both intentional and inadvertent, cannot be ruled out, and could lead to massive breaches of containment. The rate of leakage is unknown; what is known is that the leakage will eventually be total.

In addition to the waste permanently disposed, Area G now stores some 46,000 drums' worth of TRU waste destined for WIPP. DOE hopes to ship all this waste, along with newly-generated TRU waste, over the next three decades. In 1994, DOE estimated that the nuclear waste at Los Alamos contained about 610 kilograms of plutonium. Most of this is at Area G. The fraction of this plutonium that is "permanently" buried is unknown, since early LANL and DOE disposal records are sketchy, but it is likely that hundreds of kilograms are so buried, making Area G a sort of unpermitted "WIPP site."

Letter from Organizations to Secretary Maggiore, January 15, 2002

Attachment 2: Summary of the Regulatory History of LANL's "Area G" Nuclear Landfill

Prepared by the Los Alamos Study Group

On November 19,1980, almost exactly twenty-one years ago, LANL began the application process for permitting its existing and planned hazardous waste disposal sites on Mesita del Buey, including Areas G, H, and L, under the Resource Conservation and Recovery Act (RCRA) and, later, the New Mexico Hazardous Waste Act. The disposal area for which LANL sought its first permit included all of what is called "Technical Area 54" (TA-54), which contains Areas G, H, and L and other sites, along with expansion space for all the disposal sites.

That permitting process has never come close to being completed; nor has it been conducted in the manner required by law, with opportunity for public comment.

In its initial application, LANL filed what is known as a "Part A" notification of hazardous waste activity, a simple application no more than a few pages in length, which purported to cover all hazardous waste activity at LANL. Despite the deficiencies subsequently uncovered by inspectors (which included the total absence of any plan for closure of the sites, or for any ground-water monitoring whatsoever), "interim status" - a kind of temporary, standardized, stripped-down operating permit - was granted to LANL for its active hazardous waste disposal sites, including Area G in its entirety (63 acres).

This "interim status" lasted for five years, despite enforcement actions first initiated by the U.S. Environmental Protection Agency (EPA) and the New Mexico State Environmental Improvement Division (now the Environment Department, or NMED) beginning in June of 1983 and then, with somewhat greater effect, in May of 1984.

By May 1, 1985, LANL's complete application for an operating permit ("Part B") for these disposal sites was due. But instead of submitting a permit application, which would have required expensive monitoring provisions, as well as stricter requirements on disposal that would have halted the use of unlined pits, LANL withdrew its "Part A" application for Area G, ending interim status for that site.

The loss of interim status normally should have triggered RCRA closure requirements, including public hearings on closure, but LANL had been allowed to operate without an approved closure plan for Area G, and so there was no plan to implement. Right up to the present day, no serious closure plan for Area G has ever been submitted, none has been approved, none has been implemented, and no public hearings on the future of this site have ever been held.

Without an approved permit or even interim status, LANL was required to close the site by an early date certain, following a process set forth in federal regulations. Even starting from scratch, without a closure plan, all closure activities were to be completed and certified within 420 days (from 5/1/85); if a closure plan were in place, closure was to be complete within 270 days after the last truckload of hazardous waste was received at the site.

Under RCRA, hazardous waste disposal sites must either be fully permitted for operation under legally-binding, agreed-upon guidelines that protect public health, workers, and the environment, or else they must be formally closed. A central thrust of RCRA was, and remains, to make sure that there is no third option.

Any approved closure plan for Area G must by law include a number of protections for citizens and the environment, including commitments to long-term monitoring, financial assurance, creation of an accurate waste inventory, and careful selection of closure options. Such closure options range from long-term containment in place to removal of some or all of the waste.

Although LANL claimed in 1985 to have ceased disposal of chemical waste at Area G, later investigation by a LANL contractor, ⁽⁵⁾ and still later enforcement action by NMED, revealed that chemical wastes were at times disposed at Area G well into the 1990s - if indeed sporadic, inadvertent, hazardous waste disposal has ever fully stopped.

Disposal of nuclear waste at Area G continues today, with no plan to stop and no external regulation.

Letter from Organizations to Secretary Maggiore, January 15, 2002

Attachment 3: Text of Letter from the 2001 "Can-Paign" to Close Area G

Dear Governor Johnson:

Los Alamos National Laboratory continues to dispose of large quantities of radioactive waste in shallow pits and shafts in its "Area G" landfill near White Rock, NM. I respectfully request that you, through the New Mexico Environment Department (NMED), close Area G to further disposal of nuclear waste. I request that NMED hold formal public hearings on the required closure plan and subsequent cleanup and stabilization measures both for Area G, and for all other nuclear and chemical waste disposal sites in Los Alamos. If I am a New Mexico resident, put me on the mailing list for these hearings and all other opportunities for public comment on disposal and cleanup at Los Alamos. If I am a visitor to New Mexico, please note that I too care about the environment and people of this beautiful state. Don't waste New Mexico's future!

Sincerely,

[signed]

1. The first category excepted from local disposal today is waste known to contain chemical wastes regulated under RCRA, a determination made by LANL without external review. The second exception is waste which contains more than 100 nanocuries per gram of transuranic elements (those elements with atomic number greater than 92), which is called TRU waste. The first category of waste is shipped to commercial off-site treatment and disposal facilities; some of the radioactive portion of this RCRA waste is shipped off site for treatment and is then returned for final disposal at LANL. The TRU waste is placed in long-term above-ground storage at Area G for eventual shipment to the Waste Isolation Pilot Plant (WIPP), near Carlsbad, NM.

Prior to the mid-1970s, all transuranic waste produced at LANL was permanently buried at Area G and other LANL disposal sites.

2. In 1985, LANL claimed that Area G would receive no more RCRA-regulated chemical wastes. There has never been, however, any system of independent regulatory oversight to verify this claim, and in the 1990s there was at least one enforcement action by the NMED for the illegal disposal of RCRA-regulated hazardous waste at Area G. As discussed in the attachments below, LANL's most definitive Area G waste inventory lists "unknown chemical wastes" in every disposal pit used at Area G since 1985.

3. See Area G for a summary of official DOE disposal projections and maps of future LANL disposal sites from its Site-Wide Environmental Impact Statement (LANL SWEIS, 1999). All other background information cited in this letter is from DOE and LANL sources; most of it can also be found at the above web site and related pages.

4. According to the LANL "Comprehensive Site Plan 2000," more than $5 billion in new nuclear weapons facilities are being planned for LANL, many of which will create additional nuclear waste (see <http://www.lanl.gov/csp2000/>). As of this writing, this web site has been taken down by LANL; its content is available at the Los Alamos Study Group office.

5. IT Corporation for LANL, 1992, "Operable Unit 1148 Data Report." This document attempts to inventory wastes disposed at Areas J, H, L, and G by disposal pit and time period.