The New Mexico Environment Department (NMED) filed a unique lawsuit against the public interest group Citizen Action New Mexico on October 19. The lawsuit asks Santa Fe First District Court to keep the public, specifically Citizen Action, from obtaining a key document about nuclear and hazardous wastes buried at Sandia National Laboratories' Mixed Waste Landfill. The report is called the TechLaw report.
The Mixed Waste Landfill is a nuclear weapons waste dump that may contain over 700,000 cubic feet of radioactive and hazardous wastes in unlined pits and trenches that overlie Albuquerque's drinking water supplies. Citizen Action believes that the monitoring data supports the decision for removal of the wastes at the Mixed Waste Landfill. Sandia, with the approval of NMED, has opted to leave the waste intact and install a soil cover.
Dave McCoy, Director of Citizen Action, filed a request for the TechLaw document in January through NMED. James Bearzi, Chief of the NMED Hazardous Waste Bureau, denied the request, claiming that the document was not subject to public review under the Inspection of Public Records Act because the document is in draft form.
The TechLaw report was used by NMED to examine the possibility that radioactive and hazardous wastes could leak into the groundwater at the Mixed Waste Landfill. The report was received by NMED after its decision to place the soil cover over the dump's wastes. NMED referenced the report in relation to citizen concerns about travel of the wastes from the dump to groundwater, but then refused to provide the TechLaw report to the public. Citizen Action then filed a complaint with the Attorney General's office under the Inspection of Public Records Act.
On October 19, the New Mexico Attorney General's office once again affirmed an early October decision that the 2006 TechLaw report "fit squarely within the definition of a public record ... subject to inspection." Citizen Action argued to the Attorney General that there are strong laws in favor of the public's right to know whether adequate protection from the dump's dangers have been implemented. NMED previously furnished TechLaw reports from 2000 to Citizen Action, but now asserts "executive privilege" to withhold the 2006 report as a draft document.
Dave McCoy, Citizen Action Director stated, "We appreciate the Attorney General championing openness in government. What is in this nuclear weapons era dump that the government doesn't want us to know about? A mistaken decision for the soil cover was made that is now in coverup."
The Albuquerque Journal editors expressed their concern, stating, "Instead of 'executive privilege' this smacks of executive coverup. It would be much better policy to produce the public documents than to spend more tax money to argue against the public interest."
A court decision to grant the Environment Department's request for executive privilege to withhold the document would put into question the public's right and ability to monitor government agencies throughout New Mexico.
An NMED spokeperson said that the agency "can't remember anything similar" being filed against a non-governmental organization, such as Citizen Action.