CCW Asks WQCC to Remand LANL Permit to NMED Secretary

On Tuesday, April 9^th, the Communities for Clean Water (CCW) will argue that the New Mexico Water Quality Control Commission remand a groundwater discharge permit proceeding back to the New Mexico Environment Department Secretary because the Hearing Officer and National Nuclear Security Administration (NNSA) corrupted the permit hearing process.  CCW questions the legal ethics of the Hearing Officer and the Department of Energy’s NNSA at Los Alamos National Laboratory (LANL) because during the permit proceedings, the Hearing Officer successfully applied for employment with the NNSA.  http://ccwnewmexico.org/

The permit proceeding involves a groundwater discharge permit for the 66-year old Radioactive Liquid Waste Treatment Facility, which treats liquid wastes contaminated with hazardous and toxic pollutants, plutonium, and low-level radiation.

CCW contested the permit because the New Mexico Water Quality Act states that if a facility handles hazardous waste and would be regulated by the New Mexico Hazardous Waste Act, and then no Water Quality Act permit may be issued.

Further, the permit will never come into effect.  The Water Quality Act states that a permit becomes effective when there is a discharge.  LANL stopped discharging in November 2010.  The permit would never become effective, thus, the permit is a nullity.

In March 2018, before the April 19^th permit hearing began, CCW filed a motion to dismiss because there is no discharge.  The Hearing Officer denied the motion without explanation.

In June, CCW renewed its motion to dismiss.  On July 19^th, the Hearing Officer issued a draft report, in which she rejected CCW’s argument, again without explanation.  The Parties provided comments on the draft report.  The Hearing Officer issued a revised report on August 29^th, and the Secretary approved the permit the same day.

In January, CCW learned that on June 15^th, 2018, NNSA had published a job opening for an attorney.  Applications were due by July 26^th.  Sometime before July 26^th, the Hearing Officer applied.

NNSA stated in its response brief, “The facts do not establish exactly when any interviews may have occurred.  Accordingly, it would be justified for the Commission to assume for these purposes that contact may well have occurred prior to the Hearing Officer’s issuance of her report and revised report.”

On September 18^th, NNSA offered the Hearing Officer the job.  She accepted and started work on November 25^th.

Under the law, a decisionmaker who has a personal interest that may be affected by his or her decision is disqualified.  In this situation, the Hearing Officer’s job application would have a better chance if she ruled in favor of the LANL.  She did rule in LANL’s favor, and then she got the job she had applied for.  CCW argues that the Hearing Officer’s decision was invalid and the case must go back to the Environment Department.

CCW is represented by Jon Block, of the New Mexico Environmental Law Center https://nmelc.org/, and Lindsay A. Lovejoy, Jr. http://lindsaylovejoy.com/.

PLEADINGS:

2-4-19    CCW Motion to Vacate Agency Decision and Remand the Petition for Review of DP-1132  –  CCW MOTION TO VACATE AND REMAND WQCC 18-05-A on DP-1132-20190204

2-5-19    CCW Exhibits A and B Motion to Vacate Agency Decision and Remand the Petition for Review of DP-1132  –   EXHIBIT A     EXHIBIT B

2-18-19  New Mexico Environment Department’s Response to CCW Motion to Vacate Agency Decision and Remand  –  190219 DP-1132 NMED Response WQCC 18-05(A) 02-19-19

2-19-19  U.S. Department of Energy and Triad National Security, LLC Response to CCW Motion to Vacate Agency Decision and Remand the Petition for Review of DP-1132  –   190219 DP-1132 WQCC No 18-05(A) Triad DOE’s Response to CCW’s Motion to Vacate (2-19-19) (W3369547x7A92D)

2-25-19  CCW Reply Brief on Motion to Vacate Agency Decision and Remand the Petition for Review of DP-1132  –   WQCC 18-05-A CCW reply brief 2019-02-25

Tags: CCW, Communities for Clean Water, DP-1132, Jon Block, LANL, Lindsay A. Lovejoy, Los Alamos National Laboratory, National Nuclear Security Administration, New Mexico Environment Department, New Mexico Environmental Law Center, New Mexico Hazardous Waste Act, New Mexico Water Quality Act, NMED, NNSA, Radioactive Liquid Waste Treatment Facility, RLWTF