A map of the DP Road development area prepared by DOE/EM-LA. The parcel where The Bluffs is to be developed, A8-b, is located above A8-a./Screenshot

BY MAIRE O’NEILL
maire@losalamosreporter.com

What’s happening on DP Road that could cause concern for possible future residents of “The Bluffs”, a four-story, 64-unit apartment building designed to provide affordable housing for seniors 55 and older? Members of the Los Alamos County Planning & Zoning Commission voted 4-2 Wednesday evening to approve the site plan for The Bluffs despite concerns raised about possible radiological contamination on an adjacent parcel of land which had also been transferred to the County by the Department of Energy National Nuclear Security Administration. Two commissioners were absent and a third declined to vote because technical issues with wi-fi caused her to miss some of the discussion.

While there has been no public presentation by DOE before the Los Alamos County Council about DP Road since contaminated materials were excavated there earlier this year and the issue has not been placed on the Council agenda, County Manager Harry Burgess has provided updates during his reports at Council meetings. Burgess also gave a presentation to the Regional Coalition of LANL Communities board June 21. Council Chair Sara Scott told the Los Alamos Reporter Friday that the County has requested from DOE-NNSA a briefing to Council regarding “the path forward for DP Road once it is available”.

When the Planning & Zoning (P&Z) Commission met virtually Wednesday, the agenda packet included comments from DOE Environmental Management Los Alamos Field Office (DOE-EM) consisting of a few typed paragraphs and EM-LA Federal Cleanup Director Cheryl Rodriguez was on the Zoom call to address the commission. Ironically, just hours earlier members of the Northern New Mexico Citizens Advisory board during their virtual meeting viewed a series of slides presented by EM-LA Senior Health Physicist Brian Harcek entitled “DP Road Discoveries and Path Forward” which was several pages long and featured maps and photos of the DP Road area.

At the P&Z meeting, the commission heard from Daniel Terlecki, president of Bethel Development, that the project is being developed under a low income housing tax credit program administered by the New Mexico Finance Authority with the syndication and sale of tax credits. Terlecki said one-bedroom apartments will range from $558 to $850 per month and two-bedroom apartments will range from $775 to $975 per month, with utilities included. Because Bethel is willing to commit to those affordable rents the developer was granted tax credits which it will sell to major investors, possibly Wells Fargo Bank, to earn money to offset the equity that would normally be required to develop the project, Terlecki said.

Bethel anticipates starting the project in the second or third quarter of 2021 and finishing it hopefully by the end of 2021 but probably by the end of the second quarter of 2022, Terlecki said.

P&Z Commissioner and candidate for Los Alamos County Council Sean Williams asked Terlecki what is his view “on the plutonium”.  Terlecki responded that it was Bethel’s understanding that the situation is being monitored and abated by DOE.

“We had an environmental report done. The site was deemed as environmentally cleared for residential use. There were representations made by Los Alamos County that they had a clearance on the site and I believe that there was some radiological material discovered on the adjacent site to our east but we have since had testing done on the site we now own. We have had a significant amount of testing, and additional testing to still be done, that has shown no evidence of anything radiological,” Terlecki said.

In response to questions, he said the testing was done by DOE.

Acting P&Z Chair Beverly Neal-Clinton noted that she, Chair Terry Priestley (who was not present) and a few other commissioners had proposed to staff that this would be a good opportunity to have a conversation about the site being cleaned “because the optics of putting low income and elderly in dirty site, there’s no getting around that”.

“It was my understanding when we initially had the conversation we were all clear that this site was in fact clean and habitable for people to live on,” she said.

County Senior Planner Margaret Ambrosino said Rodriguez and Lee Ocker are on the County’s Inter Department Review Committee for the site plan and had provided comments and feedback that were included in the staff report.  

Williams asked why environmental wasn’t included in the staff report or the presentation. Ambrosini said quite simply that was not provided by the applicant. She said the only history that was provided to staff was the Middle DP Road weekly report which she very briefly summarized and that for the environmental history and questions she had to defer to Rodriguez because they were not within the e general health/safety welfare staff had evaluated based on the information provided to them.

“We’re looking at a myriad of issues on the site and environmental remediation that are definitely of interest to us but that’s not a level of detail that I can give,” Ambrosini said.

County Community Development Department Director Paul Andrus explained that Rodriguez and her staff would be providing information on what the activities have been on the adjacent parcel and in some degree what the history of the transfer of The Bluffs parcel to fill in some gaps.

“I would just say to the commission, that recognizing the fact that there are some concerns, the County still owns substantial property down on DP Road and we still have plans to move forward for redevelopment for DP Road. One parcel in particular is A8a and it will be a project that we will move forward for residential potentially for market rate, potentially for workforce, we don’t know. I do want you folks to understand that those are our current plans and those haven’t changed,” Andrus said.

He said A16 which is to the east of The Bluffs parcel, is where some of the legacy waste issues present themselves.

“That’s put Cheryl (Rodriguez) on the spot and that’s why she’s here to give us some basic information. We do intend from that perspective to develop that parcel in its entirety up to the gate of TA-21. At this stage the plan is to mirror what’s happening on the north side of DP Road to be compatible and also to provide some other uses that the community needs,” Andrus said.

He warned that there might be some questions that can’t be answered just because the data doesn’t exist and there may be some conjecture into the future that no one has a crystal ball about.

“I think is important to recognize that there may not be definitive data that can be provided to you tonight,” Andrus said.

Rodriguez noted that the property was approved by the New Mexico Environment for release as part of the Consent Order when it was transferred by DOE-NNSA to the County. She noted that she works for DOE/EM-LA.

“Given the events that have occurred since February, we have now gone back to do characterization of A8b (The Bluffs) parcel to account for buried debris since that’s a new finding, because historically that property was mostly used for coal storage – a big old stockpiling of coal – and later for a trailer park. EM has gone back and we trenched along the proposed sewer line just to make sure that if there was any debris it would not be similar to what was discovered in February,” she said.

Rodriguez said that to further supplement the information that’s been provided already, EM-LA is also going to be going back out there in October to assess portions of the property where the footers or deeper ground excavating activities will occur.

“That is going to supplement any of the radiological information provided to date. That’s what we’re doing for A8b and to date there’s been no radiological contamination found on that parcel. We will under the Consent Order be preparing a preliminary screening plan to focus on what was discovered in February and then going out to determine extent, similar to assessments we have performed elsewhere. We are preparing the plan and scheduled to present that to the stat Environment Department for improvement in early December,” she said.

Rodriguez said EM-LA is also currently planning to do geophysics assessment of the area to see if they can identify any buried debris because the nature of A8b is different to a lot of the other sites that EM-LA looked at for legacy waste.

“It’s not a nice homogenous site – it seems like perhaps there’s little areas where debris was placed and then buried and so using geophysics, we hope to identify buried debris. Also, our approach for sampling will be a little different than what we typically do and it will probably largely include potholing and trenching so that we have a better visualization of debris,” she said.

Commissioner Williams said the $64,000 question is really what assurance the commission has that the maps presented should really be relied on considering what the commission was talking about was “the lives of our citizens”.

Rodriguez noted that the footprint of a planned landfill that had been located on the property was pretty well defined given the tuff in that area, however she said EM-LA only knows what it knows about previous Lab practices. She noted that if the Lab had known historically that the contamination was there, it would have investigated the area.

Commissioner Jean Dewart asked if the property for the Bluffs would be assessed seeing as it’s so close to the property being assessed now. Rodriguez said additional characterization will be done for the site and that EM-LA is examining the plans and looking to bias characterization locations on where dirt movement will occur greater than four feet from the surface.

“This will be a visual confirmation of debris and if debris is identified we will also be doing radiological screening. For the trenching, we screened every bucket of soil that came out of the trench,” Rodriguez said.

Commissioner Neal Martin asked why radiological surveys prior to the transfer to the County had not caught the contamination. Andrus interjected that “none of us were there” and that some aspects are not going to be answerable. Assistant County Attorney Kevin Powers explained the indemnity provisions of the land transfer and how DOE is held responsible for situations where issues are discovered following transfer to the County. He said the contamination on adjacent property affects the Bluffs  property is to be considered but until evidence is found that there’s further contamination on the Bluffs property he knows the P&Z is getting a little out of bounds.

Martin expressed concern as to whether all the certifications and approvals are meaningful or not.

“To me it is very concerning that we had land that seemed to have been deemed safe and they start digging in it and they dig up all kinds of radioactive waste. I just want it made very very certain that there’s zero percent chance that the processes that have been put in place by NMED and DOE and everybody else are ironclad and it would really help me to hear the story or explanation for what happened here,” Martin said.

Powers said as legal certainty goes, it’s a difficult thing to establish that there’s 100 percent chance that there is no liability relate and that removing all risk to a zero percent level is impossible.

Martin said clear failure of the processes and asked if he could trust this given the failures that occurred.

Andrus again interjected.

“I’m not a scientist. I don’t deal with environmental cleanup but Commissioner Martin, are you? Then I think the way you’re inferring in this discussion that there’s something that is detrimental to health and safety – and I will make an argument that you don’t know that, aside from the fact that it’s on an adjacent parcel,” he said.

Andrus read the indemnification clause noting that DOE is in perpetuity responsible to address any issues discovered.

“I think Planning and Zoning and any of us here living in this community ought to know that that is the responsibility of the Department of Energy,” he said.

Martin asked what had been found on the Bluffs parcel. Andrus explained that the reason that information was not available for discussion at the meeting is that although it is information that’s out there and has been provided to the public, it “doesn’t pertain to this property”, that it’s not part of the development, not Bethel’s property and not their concern.

“They don’t have an attachment to the issues on these other neighboring properties,” Andrus said.

Commissioner Williams said the concern is not limited to what happened on the adjacent properties but that is calls into question the legitimacy of the DOE’s maps and the remediation procedures already done and whether or not the Bluffs site radiologically contaminated.

“That’s the concern. There is legitimate reason to believe this site is radiologically contaminated without some sort of recertification to assuage at least some of our fears,” he said.

The legality under federal law of placing affordable housing on undesirable land was raised by Commissioner Neal Martin. Attorney Powers said funds can’t be used to place them in contaminated areas and that’s why the “NMED certifying them for residential standards – that would meet that requirement”.

“If in the process of their construction they discover more contamination, there’s a whole series of contractual legal requirements that happen at that point to try to figure out what’s going to happen next. Unfortunately when we look at the site plan, it doesn’t take in any of those considerations. It does to a certain degree to my opinion,” Powers said. “I think there’s always going to be that concern with any kind of contract or any kind of development in this community and all we can do is proceed with what we know now. And what we know is that this property has been cleaned up to the remediation standards according to the state and federal requirements. Unfortunately the adjacent property when we were developing the sewer line, we discovered an inadvertent waste barrel and those have been remediated and DOE has stood by their statements and their requirements under the contracts and the land transfer agreements that would address those issues. That’s all we really can do. If we dwell on speculation of there is going to be or may be further contamination that might be possible, but nothing would happen.”

Commissioner Williams noted that saying the contamination is on an adjacent property “is splitting that hair awfully fine” because the parcel delineations are artificial boundaries. He asked that the mapsmean and if they could be trusted.  

Rodriguez responded that documentation and aerial photo research supports the fact that there was a large coal stockpile over the Bluffs parcel and that she is fairly confident with the boundaries established.

Acting Chair Neal-Clinton said there are some things the commission is not going to be able to answer.

“It’s before me, before you today and we have to work with where we are forward,” she said.

“I do fully appreciate the need for housing within this County but I think this plan is reckless and dangerous and I think we do have the latitude to reject it,” Commissioner Williams responded. “I don’t think it is a good idea for this County to support putting the most vulnerable population imaginable – elderly poor people – on land where we have legitimate concern of radiological contamination… We have a housing crisis. We need to solve it. This isn’t the way.”

Commissioner Neal Martin said he thinks the optics of placing low income housing adjacent to a contaminated site are on “its face just horrible and present a clear reputational risk to the County itself”.

“Those concerns are just made exponentially worse given the fact that this site was ostensibly certified as clean before the transfer,” he said, noting to the developer that he loved everything that was proposed. “I just wish it wasn’t next to radioactive waste,” Martin continued.

“DOE can give us money related to damages, they can’t protect us from reputational risk – the trust that we as a community have in our government. It’s the trust of our neighbors, it’s the goodwill of the people of the United States that fund Los Alamos National Laboratory so generously to the tune of billions of dollars per year and they do that in part because they believe that we are good people – the right people for the job. If there were some scandal that would break out even just in terms of optics, that could present some real problems for the Laboratory,” Martin said.

Acting Chair Neal-Clinton said she actually shared some of those concerns in the very beginning when the project was initially proposed.

“I believe that part of the discussion that came up then was, and I like the phrasing of reputational risk, was this would be a good time for Los Alamos to be out ahead and do really good PR about this space so as to get in front of it and talk about how and why it’s available to be used as a living space. I believe that we did a lot of social media, some promotions, some pushing out of data and information so that we could limit the downside of again, we were putting poor people and the elderly people on a contaminated site,” she said.

Williams said the concern to him is not reputational damage but the real risk to lives involved.

“I did come into this wanting to find a reason to vote yes but all of the important answers have been, ‘We don’t know’. To me ‘We don’t know’ isn’t a good enough answer to put the lives of the elderly and the poor at risk,” Williams said.

“I could make the same argument that just by virtue of the number of PhDs and the amount of brain matter that we have here and the creativity that we have here, that we as a community have the potentiality to create lots of stuff that could go wrong,” Neal-Clinton responded. “Having said that, we have to start somewhere and I understand the concern that both you and Commissioner Neal Martin have about the optics. I also understand about the reality and where we start. We have to start where we are. We’re starting here.”

In response to questions from the Los Alamos Reporter County Manager Harry Burgess said the County has been in constant contact with the developer and his team since the contamination was initially discovered.  He noted that DOE does not actually have a representative on the County’s internal review committee but that there have been times when the committee has consulted with representatives of the Laboratory when there are Lab-related interests in a property due to adjacent or historical operations.

Burgess also noted that the County has had a legal firm in Washington, DC, provide review and oversight of every transfer of land from the Lab to the County for the past 20 years and that the firm has been involved in the DP Road issue since February.