Attorney Charles de Saillan, standing, questions Erin English, expert witness for Communities for Clean Water at Thursday’s New Mexico Environment Department hearing in Los Alamos. Photo by Maire O’Neill/losalamosreporter.com
BY MAIRE O’NEILL
A public hearing being conducted by the New Mexico Environment to consider the ground water discharge permit for Los Alamos National Laboratory began Wednesday and continued through Thursday afternoon in the Los Alamos Magistrate Courtroom.
Wednesday’s hearing consisted of hours of public comment (New Mexico Environment Department Conducts Hearing On LANL Groundwater Discharge Permit In Los Alamos) followed by testimony from attorney Louis Rose of the Montgomery & Rose Law Firm and Charles Maupin, regulatory compliance specialist for environmental cleanup contractor N3B which along with LANL is the groundwater discharge permitee.
The Los Alamos Reporter was not on hand Wednesday afternoon or Thursday morning but was present for the opening statement of Charles de Saillan, a staff attorney with the New Mexico Environmental Law Center and the testimony of de Saillan’s expert witness Erin English.
De Saillan said he recalled about 20 years ago sitting in a courtroom in Albuquerque before U.S. Magistrate Judge Robert J. Giaccomo who opened the hearing by stating, “This case is about water without which life would not be possible”.
“And this case, too, is about water. Mostly about water. But it is about more than that,” he said. “It is about hexavalent chromium, a known carcinogen. It’s about perchlorate, which can cause thyroid disease. It’s about RDX, a high explosive with the wonderful chemical name hexahydro-1,3,5-trinitro-1,3,5-triazine.” He said it is about people who obtain their drinking water from the Pajarito Plateau, the San Ildefonso Pueblo which borders the Los Alamos National Laboratory, the other communities mostly native and minority that live downwind, downstream and downgradient of the Laboratory, the Buckman Diversion which is downstream of Mortandad Canyon and public participation in government decisions that affect peoples’ lives.
De Sallian said the discharge permit is one piece in a much larger puzzle. He said over the years the Laboratory has created groundwater contamination beneath the facility and that there is a large hexavalent chromium, a perchlorate plume and an RDX plume. He said cleanup of that contamination generates a large quantity of wastewater which must be disposed of and that the permit allows the DOE to dispose of it by applying it to the land.
De Sallian expressed concern that the DOE and its contractor with NMED’s approval is conducting the cleanup by an interim measure.
“Normally, an interim measure is a discrete, finite task done to contain contamination while a long-term final remedy is developed. And that’s usually a good thing. But here, it looks more and more like the interim measure is the remedy,” he said. He went on to ask why the DOE and its contractor would want to do that and said maybe it’s because an interim measure unlike an actual remedy can be conducted without public involvement.
“There is no public notice requirement, no opportunity for public comments, no opportunity to request a hearing and no public hearing like this one. With an interim measure DOE and N3B can dispense with all that and that’s exactly what they’ve done here.” De Sallian said.
He said there has been no opportunity for public participation and that thinks that’s why so many people turned out during the two-day hearing.
“This is the first opportunity that members of the public have had to comment on, to get involved in and to voice their concerns about this groundwater cleanup effort. And so I think it’s understandable that some folks have wanted to comment beyond the arguably narrow confines of this discharge permit,” De Sallian said.
He said Citizens for Clean Water are troubled by the way the interim measures plan was adopted with no public participation and that they question whether the remedy options were adequately considered. He said CCW has some significant issues with the discharge permit and believe that it is “flawed in several respects”. He said Erin English, his expert witness would discuss some of the problems and make some recommendations on how to improve it adding that CCW staff are ready to work with the NMED, DOE and N3B, to address the permit problems and draft revised permit conditions for their consideration.
English immediately identified some ways in which the permit fails to establish in her view some key design and monitoring parameters such as: the requirement to establish a basis of design for land application; the requirement to conduct a site soils investigation; the requirements to consider placement, treatment performance and potential augmentation practices; and the requirement to utilize baseline and progress soil monitoring for early detection and notifications of problems.
“The permit fails to take a preventative approach and I fear it may result in the contingency plan being used to cure problems down the road,” English said.
She said she has two recommendations which include the implementation of a basis design approach for selecting, sizing and monitoring land application systems and the consideration of more stringent discharge standards in the permit to match the proven performance of best available treatment technologies.
“I believe that these modifications if implemented will result in a permit that is more protective of groundwater, more proactive. Higher levels of protection also for surface water, site soils and public health,” English said. She added that this approach may even be more cost effective in the long run.
She said the permit is general in nature even though coverage is over a large and diverse site and that it allows for a wide range of land application over the entirety of the property and potentially beyond since it covers approximately 55 square miles but includes only very basic requirements for determining site suitability within that large area. She said the discharge permit workplan requirements are “silent” about the establishment of a basis of design as well as site-specific investigations for any of the proposed land application sites.
“The lack of site-specific investigation amplifies my concern with the general nature of the permit as it covers such a wide potential range of places and also pollutants,” English said. “To me it was unclear reading it if the permit insufficiently protects against unintended consequences. I don’t think it’s intentionally going this direction but I think there might be some unintended consequences such as soil or surface water contamination or even potentially the inhalation of contaminated dust from use of this water on roadways.”
She said the workplans are the elements that get more specific in the discharge permit and need to include descriptions of the land application process, maps of where this will occur, relevant groundwater data, details on the treatment system and flow data and establish a sampling plan and schedule.
English said the permit is missing the establishment of mass loading rates, hydraulic loading rates, projected removal or treatment rates, as well as establishment of maximum allowable mass or hydraulic application rates.
“Overall my impression from reading it is that the discharge permit assumes that applied water is clean enough to simply be discharged to groundwater without consideration of what happens after it is applied,” she said. “In other places in my experience the land application process is often used as a final step. It’s actually considered in many cases a final filter and is used to provide additional protection of groundwater when compared to discharging directly to surface water or even considering underground injection. In my experience, this idea of using land application not just as a means to dispose of water but as part of a systematic holistic approach, there’s some benefit there.”
English said she would expect to see requirements of developing an understanding of the treatment potential of the soils on the site itself, an understanding of the geochemistry, the microbiology and the impacts of vegetation. She went on to discuss soil testing requirements EPA imposes for the disposal of waste water.
“In this case we’re dealing with the application of carcinogenic and toxic compounds and so I think these recommendations are a minimum and the toxic nature of what is being applied here might indicate the need for even more care and additional monitoring,” she said.
English said in her opinion, the permit lacks the requirement to establish reviews of the basis of design approach for selecting and sizing the land application system. She said there are no requirements or limitations indicated in the permit or the workplans for mass loading or hydraulic loading or to determine or contemplate a limiting design parameter.
“There’s nothing in there that asks the permittee to calculate how much chromium or RDX might be land applied over any particular amount of time. The permit also does not provide any requirement for selecting the size of the proposed land application areas. It’s silent on that issue and as far as I can tell, the permit does not include any mechanism to prevent under-sizing the land application areas which means they could be overloaded from either a mass or hydraulic basis,” she said.
She said the only things she sees in the permit that helps to determine where the process stands is with soils sampling that can be included and often is included in the workplans not in the permit. She said grabbing a soil sample very close to the end of the discharge period and after it is completed is “a hindsight style of testing”.
English said the permit does not require setbacks from the 100-year, 500- or even 1,000-year floodplains.
“Some workplans indicate some buffer data including 20 feet buffers from water courses but it’s unclear to me when examining this how the maps in the workplans relate to the actual floodplains in the canyon,” she said.
She said there have been some recent large storm events here on the Pajarito such as the September 2013 1,000-year event and the 1,000-year event that happened in Santa Fe this summer.
“These kinds of events are real here and the kind of flows that we might be seeing in a 100-year floodplain are being questioned in my practices in general as to whether 100-year floodplains are reasonable in the face of existing climate potential impacts from climate change,” English said. “If the permit is allowing land application within floodplains it is possible that that soil could be washed off in a flood event. This is different to water running off during a land application event which is prohibited.”
English said the permit lacks definition of what buffers should be between sensitive sites such as cultural and archaeological sites and that she could see how this could upset native communities. She said the permit does not require stormwater run on and surface run off control strategies from the land application areas.
“In the face of high intensity storms that are common here and may be getting worse with climate change, water is running off, sediment is moving in ways that we have a harder time to predict,” she said, adding that she knows the Lab has a lot of experience on storm water best management practice because of the stormwater individual permit. She said she would think similar controls would be wanted for the land application sites.
English said the land applications areas themselves are not being selected as far as she can tell or managed for enhancing the treatment of applied chromium or other constituents.
“This is not a requirement of the permit right now and it’s also not happening. One thing I heard in public comment yesterday is this is a strong desire of the community and from my experience and from EPA references this is also within the realm of possibility because slow rate land application systems are very effective at treating and removing metals,” she said.
English said active establishment of vegetation and mulching practice will reduce erosion, lower the runoff potential, increase the retention of dust and potentially contribute to remediation. She said augmentation of soils planned for land application with organic matter such as compost has been shown to enhance the treatment capacity and support the conversion of chromium 6 to its much less toxic and more fixed form – chromium 3.
English expressed concern about the land application of chromium on the roads saying this is not a typical land application technology that would be used for treatment but more of a reuse activity. She said the use of that effluent for dust suppression which covers up to three miles of gravel roads in the canyon, ignores the general benefits of land application for the applied effluent and also creates a potential risk for dust re-suspension.
English said you can only monitor progress if you know where you’re starting and so this also inherently means that baseline reporting and monitoring goes hand in hand with progress monitoring so that there’s early detection of any problems and there’s frequent and transparent opportunities for reporting.
“Communities expressed concern that they might not know if there was a problem and they might not know for a while if there was a problem,” she said.
“From my view the permit fails to take a preventative approach and may inadvertently result in the contingency plan being used to cure problems down the road. So without a basis of design and more robust monitoring and sampling, I don’t think it’s possible to determine whether or not the proposed land application may cause a groundwater, surface water or soil issue over time,” English said. “The permit relies on contingency planning to address after the fact issues that may arise instead of using a preventative approach through implementation of design approach and more frequent transparent monitoring.”
She said she also thinks there’s a question of prevention too in that wind-blown dust migration could be a concern since applied water on the roadways will infiltrate or evaporate and that chromium will stay on the road and attach to soil particles and be kicked back up and inhaled by ongoing vehicle traffic particularly if a lot of trucks are being used to spray water or regularly being driven around.
I have two recommendations to strengthen the permit – the permit should seek to enhance the design and functionality of the land application systems. The permit should incorporate a basis of design for mass and hydraulic loading rates and require site-specific soil testing and frequent transparent reporting that is easily accessible to the public and understandable.
In conclusion, English said the permit should incorporate more specific prohibitions and buffers in the permit itself and not only in the workplans.
“The permit should require design of the systems to provide additional treatment and management of applied residual contaminants. This includes strategies for selecting sites to optimize the treatment potential of the soil. Augmenting the soils with organic materials, planting cover vegetation to avoid erosion and to minimize dust and constructing run on and run off controls using more conservative buffers and being more respectful of cultural sites and concerns,” she said.
English also suggested that within the permit there’s a consideration for reducing the maximum levels of chromium or other constituents that is permissible in the treated water to be land applied based on the proven performance of the “best available treatment technology”. She said If possible this level should be reduced to lower than 90 percent of the groundwater standard that is currently in the permit.
“I believe that N3B has been showing that they have absolutely the capacity and capability of achieving lower levels of chromium. That’s really, really good news,” she said adding that she believed this would reduce the concerns from the public.
The hearing officer is now expected to accept rebuttal testimony and make her recommendations to NMED. No decision is expected until the new year.