CCNS and IEER Fight for Fourth Audit of LANL's Compliance with Clean Air Act

* The Risk Assessment Corporation (or RAC) this week released its final report for the third Clean Air Act audit of Los Alamos National Laboratory (or LANL). According to Dr. John Till, president of RAC, his team found LANL in compliance with the radiological emission regulations of the Clean Air Act for 2001. However, CCNS and its consultants from the Institute for Energy and Environmental Research (or IEER) disagree with the findings, claiming that RAC is overlooking compliance and technical deficiencies with LANL's air monitoring practices.

In 1994, CCNS filed a citizens' suit against the Department of Energy (or DOE) for Clean Air Act violations at LANL. The Consent Decree settling the case requires up to four independent technical audits of LANL, to be performed by RAC, with IEER monitoring the process on behalf of CCNS. A fourth audit is required in the event that the third audit finds "substantive deficiencies with compliance ... that the auditor believes require corrective actions."

Till said, "No substantive deficiencies [have been found] requiring corrective actions that justify having a fourth audit under the consent decree, therefore the requirements under the consent decree have been met and are concluded with this report."

However, CCNS and IEER's Dr. Arjun Makhijani and Bernd Franke disagree, pointing out what they consider to be substantive deficiencies requiring correction and, therefore, a fourth audit. One such regulatory deficiency relates to the requirement for periodic emission measurements for facilities with low emissions. In 1996, the Environmental Protection Agency (or EPA) gave LANL a limited exemption from such measurements and associated quality assurance requirements, allowing LANL to substitute estimates for actual measurements.

At LANL, air emissions data and estimates are submitted to and analyzed by the Meteorology and Air Quality (or MAQ) group, and in turn reviewed by the audit and monitoring teams. But LANL procedures allow facilities with low emissions to provide data and estimates that have not been checked through quality assurance programs. Makhijani says that quality assurance programs are required by the regulations and that LANL must develop such programs in order to assure that data and estimates submitted to MAQ are an accurate account of facility emissions. Because of the lack of quality assurance programs, CCNS and IEER questioned the validity of the data and estimates throughout the audit process. LANL did not disagree with their concerns. At the conclusion of the second audit, RAC recommended that LANL develop a site-wide quality assurance program for reporting emissions data to MAQ, which LANL failed to adopt.

In the early 1990s, EPA issued of two Notices of Noncompliance to LANL for Clean Air Act violations. EPA and DOE then negotiated a Federal Facilities Compliance Agreement which, for a limited time, exempted LANL from having to take measurements at facilities with low emissions as required by the regulations and allowed LANL to make emissions estimates. CCNS believes the exemption has expired.

During the CCNS litigation, DOE claimed that due to the Agreement there was no need to question DOE's monitoring at LANL. However, Senior U.S. District Court Judge Mechem declared that the EPA and DOE Agreement did not hinder CCNS's claims. He stated that CCNS "and all the citizens of New Mexico, quite properly expect LANL to be utterly scrupulous in its observance of federal environmental regulations."

CCNS and IEER do not believe DOE and LANL have fulfilled Judge Mechem's expectations thus far. In order to begin to resolve these issues, CCNS will be issuing a notice to DOE of its intent to invoke the dispute resolution provisions of the Consent Decree.

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