EPA Denies Public Participation in Negotiating Surface Water Monitoring Requirements at LANL

* The Environmental Protection Agency (EPA) is rejecting attempts at public participation in negotiating an agreement for surface water monitoring requirements at Los Alamos National Laboratory (LANL).

EPA, the Department of Energy (DOE), the University of California (UC) and the New Mexico Environment Department (NMED) have been negotiating a Federal Facilities Compliance Agreement under the Clean Water Act. The agreement comes as a result of negotiations regarding the Corrective Action Order issued by NMED in 2002.

The order, which required LANL to investigate its contamination sources and develop a cleanup strategy, included a section detailing surface water monitoring requirements. In lieu of these requirements, DOE proposed the agreement. Thus, the recently issued Order on Consent, which was developed to settle the disputes created by the Corrective Action Order, does not include surface water monitoring requirements.

NMED Secretary Ron Curry has said that he will not finalize the Order on Consent until EPA and DOE finalize the agreement. NMED expects the draft agreement to be completed in October.

Although DOE, UC and NMED are in favor of releasing the agreement for public comment, EPA argues that there are no requirements under the Clean Water Act for public participation in developing such an agreement. EPA also argues that to open this document for public comment would set a precedent for future agreements.

Activist groups, including Concerned Citizens for Nuclear Safety (CCNS), argue that a precedent for public participation in such an agreement has been set. CCNS cites a similar agreement completed in 1995 regarding Clean Air Act requirements at LANL, for which was provided a 60-day public comment period. CCNS says that although the 1995 agreement was inadequate nevertheless, it incorporated community concerns about air monitoring at LANL.

CCNS argues that the agreement under the Clean Air Act made exemptions for monitoring requirements at certain areas and is concerned that areas that may contribute to surface water contamination may be overlooked in a similar manner. Further, the agreement may establish inadequate requirements for monitoring schedules that would allow for infrequent monitoring by LANL.

CCNS has issued a letter to EPA requesting that the agreement be open for public comment. The letter argues that EPA should err on the side of caution and allow for comment despite the fact that no regulation requires it. CCNS cites the example of NMED, which released the Corrective Action Order for a lengthy comment period although there is no legal requirement to do so.

CCNS cites increased concerns about surface water quality in northern New Mexico when arguing for a public comment period for the agreement, saying, "The citizens of northern New Mexico have been impacted by the May 2000 Cerro Grande fire and are concerned about increased runoff, flooding and erosion as a result of the fire. Recent findings indicate that increased levels of plutonium and other contaminants are moving through surface and storm water pathways in the canyon systems and toward the Rio Grande."

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