Exhibit_D_Appendix_D-12_NMED_Consent_Order.pdf

STATE OF NEW MEXICO

ENVIRONMENT DEPARTMENT

COMPLIANCE ORDER ON CONSENT

U.S. DEPARTMENT OF ENERGY

Los Alamos National Laboratory

June 2016 (Modified February 2017)

LANL COMPLIANCE ORDER ON CONSENT

Table of Contents

I. JURISDICTION

II. PURPOSE AND SCOPE OF CONSENT ORDER

III. DEFINITIONS

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

V. PARTIES

VI. WORK ALREADY COMPLETED / SUBMITTED

VII. RELATIONSHIP TO PERMITS

VIII. CAMPAIGN APPROACH

IX. CLEANUP OBJECTIVES AND CLEANUP LEVELS

X. NEWLY DISCOVERED RELEASES

XI. DEFERRED SITES

XII. GROUNDWATER MONITORING

XIII. FACILITY INVESTIGATION

XIV. AREAS OF CONTAMINATION

XV. INTERIM MEASURES/EMERGENCY INTERIM MEASURES

XVI. CORRECTIVE MEASURES EVALUATION

XVII. STATEMENT OF BASIS / SELECTION OF REMEDIES

XVIII. CORRECTIVE MEASURES IMPLEMENTATION

XIX. ACCELERATED CORRECTIVE ACTION AND PRESUMPTIVE

REMEDIES

XX. AT RISK WORK

XXI. CERTIFICATION OF COMPLETION OF CORRECTIVE ACTION

XXII. DESIGNATED AGENCY MANAGERS

XXIII. PREPARATION / REVIEW / COMMENT ON DOCUMENTS

XXIV. NOTIFICATION AND SUBMISSION

XXV. DISPUTE RESOLUTION

XXVI. QUALITY ASSURANCE/DATA MANAGEMENT/DATA REVIEW .. 61

XXVII. ACCESS / DATA/ DOCUMENT AVAILABILITY

XXVIII. EXTENSIONS

XXIX. RETENTION OF RECORDS

XXX. FUNDING

XXXI. COMPLIANCE WITH LAWS

XXXII. FORCE MAJEURE

XXXIII. MODIFICATION

XXXIV. COVENANT NOT TO SUE / RESERVATION OF RIGHTS

XXXV. STIPULATED PENALTIES

XXXVI. ENFORCEABILITY

XXXVII. TERMINATION

XXXVIII. EFFECTIVE DATE

I. JURISDICTION

Each Party enters into this Consent Order pursuant to the following authorities:

A. The New Mexico Environment Department (NMED) issues this Consent Order to the U.S. Department of Energy (DOE or Respondent) pursuant to Section 74-4-10 of New

Mexico’s Hazardous Waste Act (HWA). This Consent Order is also issued under Section 74-9-

36(D) of New Mexico’s Solid Waste Act (SWA) and 20.9.9.14 NMAC, for the limited purpose of addressing the corrective action activities, including requirements, concerning groundwater contaminants listed at 20.6.2.3103 New Mexico Administrative Code (NMAC), toxic pollutants listed at 20.6.2.7.WW NMAC, and Explosive Compounds as defined herein. Although DOE consents to SWA jurisdiction for enforcement of the corrective action activities, including requirements, of this Consent Order relating to groundwater contaminants listed at 20.6.2.3103

NMAC, toxic pollutants listed at 20.6.2.7.WW NMAC, and Explosive Compounds, DOE otherwise reserves any and all rights, claims, and defenses with respect to the applicability of the requirements of the SWA, including the defenses enumerated in Section 74-9-34.

B. DOE enters into this Consent Order pursuant to its authorities and responsibilities under the Atomic Energy Act of 1954 (AEA), as amended, 42 U.S.C. § 2011 et seq.

C. The requirements of this Consent Order do not apply to radionuclides, including, but not limited to, source, special nuclear, or byproduct material as defined in the AEA, or the radioactive portion of mixed waste. The requirements of this Consent Order do apply, however, to the hazardous waste component of mixed waste. As stated in Section 1006 of the Resource

Conservation and Recovery Act (RCRA), 42 U.S.C. § 6905, nothing in this Consent Order shall be construed to require DOE to take any action pursuant to RCRA which is inconsistent with the requirements of the AEA, as amended. In the event DOE asserts that it cannot comply with any provisions of this Consent Order under RCRA based on an alleged inconsistency between the requirements of RCRA and the AEA, as amended, it shall provide the basis for the inconsistency assertion in writing. Notwithstanding the foregoing, DOE may voluntarily include in any plan, report or other document submitted pursuant to this Consent Order, including work plans, references to, or information concerning, radionuclides or the radioactive portion of mixed waste. The voluntary inclusion of such radionuclide information by DOE in any plan, report or other document shall not be enforceable by any entity, including the State, under this

Consent Order, because such information falls wholly outside the requirements of this Consent

Order.

II. PURPOSE AND SCOPE OF CONSENT ORDER

A. This Consent Order supersedes the 2005 Compliance Order on Consent (2005

Consent Order) and settles any outstanding alleged violations under the 2005 Consent Order.

B. The general purposes of this Consent Order are to:

1) provide a framework for current and future actions to implement regulatory requirements;

2) establish an effective structure for accomplishing work on a priority basis through cleanup campaigns with achievable milestones and targets;

3) drive toward cost-effective work resulting in tangible, measurable environmental clean-up;

4) minimize the duplication of investigative and analytical work and documentation and ensure the quality of data management;

5) set a structure for the establishment of additional cleanup campaigns and milestones as new information becomes available and campaigns are completed;

6) facilitate cooperation, exchange of information, and participation of the Parties;

7) provide for effective public participation; and

8) define and clarify its relationship to other regulatory requirements.

C. Except as provided in Section VII (Relationship to Permits), the scope of this

Consent Order fulfills the requirements for: (1) corrective actions for releases of hazardous waste or hazardous waste constituents under Sections 3004(u) and (v) and 3008(h) of RCRA, 42

U.S.C. §§ 6924(u) and (v) and 6928(h), Sections 74-4-4(A)(5)(h) and (i), 74-4-4.2(B), and 74-4-

10(E) of the HWA, and their implementing regulations at 40 C.F.R. Part 264, subpart F

(incorporated by 20.4.1.500 NMAC); (2) corrective actions for releases of groundwater contaminants listed at 20.6.2.3103 NMAC, toxic pollutants listed at 20.6.2.7.WW NMAC, and

Explosive Compounds as defined herein, pursuant to section 74-9-36(D) of the SWA; (3) groundwater monitoring, groundwater characterization and groundwater corrective action activities, including requirements, for regulated units under Subpart F and for miscellaneous units under Subpart X of 40 C.F.R. Part 264 and 20.4.1.500 NMAC (incorporating 40 C.F.R.

Part 264); and (4) additional groundwater information required in Part B permit applications under 40 C.F.R. § 270.14(c) and (d)(3) and 40 C.F.R. § 270.23(b) (incorporated by 20.4.1.900

NMAC). The Parties agree that this Consent Order encompasses all scope included within the

2005 Consent Order, including that which has already been completed and that which has been identified subsequent to the effective date of the 2005 Consent Order.

D. Principles Governing Execution of the Scope/Furtherance of the Purpose:

1) To fulfill the above requirements, this Consent Order sets forth a process for characterizing the nature and extent of Contaminant releases, characterizing the risks to human health and the environment resulting from these releases, and mitigating unacceptable risks. This process includes the planning and implementation of corrective actions and the reporting of results.

2) The corrective action process reflected in this Consent Order replaces the process in the 2005 Consent Order using the following guiding principles:

a) Establishing an action-oriented approach to achieve mutually-agreed upon results that makes optimum use of available resources.

b) Performing work in a cost-effective and efficient way that provides full protection of human health and the environment.

c) Taking advantage of lessons learned both from previous work performed at the Facility and nationally.

d) Cooperatively engaging in effective planning of activities.

e) Employing a transparent annual planning process.

f) Following pertinent risk-informed guidance.

g) Conducting collaborative regular, periodic reviews of environmental remediation and clean-up practices.

h) Providing flexibility to conduct voluntary corrective actions.

i) Reducing the frequency of data collection and reporting where prior results indicate very low or no risk.

j) Reducing the volume of paperwork.

k) Clarifying commitments and/or requirements for investigation and remediation of constituents not attributable to the Facility or not attributable to a SWMU or AOC covered by this Consent Order.

E. Exclusions from Scope:

This Consent Order imposes no requirements on any areas of concern (AOCs) and solid waste management units (SWMUs) previously investigated by DOE and reviewed and determined by

EPA or NMED to require no further investigation or other action, except as provided for in

Section VII.E.

III. DEFINITIONS

Unless otherwise expressly provided herein, the terms used in this Consent Order have the meanings set forth in the HWA, RCRA, and their implementing regulations.

A. “Administrative Record” means the administrative record supporting and otherwise relating to the requirements of this Consent Order, compiled as of the effective date of this

Consent Order, which forms the basis for the terms of this Consent Order. The Administrative

Record includes the full record relating to DOE’s current Hazardous Waste Facility Permit

(permit No. NM0890010515), and those documents submitted in writing by NMED, DOE, or the public, as of the effective date of the Consent Order for inclusion in the Administrative

Record. The Administrative Record is available for review at NMED’s Hazardous Waste

Bureau.

B. “Area of Concern” or “AOC” means any area having a known or suspected release of hazardous waste or hazardous constituents that is not from a solid waste management unit and that the Secretary of NMED has determined may pose a current or potential threat to human health or the environment, pursuant to 20.4.1.500 NMAC (incorporating 40 CFR 270.32 (b)

(2)). An area of concern may include buildings, and structures at which releases of hazardous waste or constituents were not remediated, including one-time and accidental events.

C. “Area of Contamination” means a discrete area(s) with the potential for generally dispersed contamination located adjacent to or near a SWMU or AOC which may be requested to be part of a SWMU or AOC during corrective action activities.

D. “Atomic Energy Act” or “AEA” means the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011, et seq.

E. “Consent Order” or “Order” means this Compliance Order on Consent.

F. “Contaminant” means any hazardous waste listed or identified as characteristic in

40 C.F.R. Part 261 (incorporated by 20.4.1.200 NMAC); any hazardous constituent listed in 40

C.F.R. Part 261, Appendix VIII (incorporated by 20.4.1.200 NMAC) and 40 C.F.R. Part 264, Appendix IX (incorporated by 20.4.1.500 NMAC); any groundwater contaminant listed in the

WQCC regulations at 20.6.2.3103 NMAC; any toxic pollutant listed in the WQCC Regulations at 20.6.2.7.WW NMAC; and Explosive Compounds as defined herein. Contaminant does not include radionuclides or the radioactive portion of mixed waste.

G. “Corrective Measures Evaluation” or “CME” means a study or report identifying, developing, and evaluating potential corrective measures alternatives for removal, containment, and/or treatment of site-related contamination and recommending a preferred alternative for remediation of such contamination. A CME performed by DOE is equivalent to a Corrective

Measures Study.

H. “Corrective Measures Implementation” or “CMI” means the design, construction, operation, maintenance, and monitoring of the remedy selected following preparation of a CME and Statement of Basis.

I. “Day” means a calendar day, unless specified as a business day. “Business day” means Monday through Friday, excluding all federal and New Mexico State holidays.

J. “Deferred” or “Deferred Site” means the SWMUs and AOCs for which full investigation and/or remediation is deferred until such time as the SWMU or AOC is taken out of service or otherwise becomes accessible (e.g., firing sites and active facilities). Deferred Sites include the SWMUs and AOCs where delayed investigation, due to active Facility operations, was proposed in NMED-approved investigation work plans and reports.

K. “Designated Agency Manager” or “DAM” means the position designated by each

Party to serve as that Party’s representative responsible for coordinating the implementation of this Consent Order.

L. “DOE” means the United States Department of Energy, and any successor departments or agencies.

M. “EPA” means the United States Environmental Protection Agency, and any successor departments or agencies.

N. “Explosive Compounds” means the following chemicals: 2-Amino-4,6-

Dinitrotoluene (2-Am-DNT); 4-Amino-2,6-Dinitrotoluene (4-Am-DNT); 2,4-Diamino-6-

Nitrotoluene (2,4-DANT); 2,6-Diamino-4-Nitrotoluene (2,6-DANT); 3,5-Dinitroaniline (3,5-

DNA); Octahydro-1,3,5,7-tetranitro-1,3,5,7-tetrazocine (HMX); 2-Nitrotoluene (2-NT); 3-

Nitrotoluene (3 NT); 4-Nitrotoluene (4-NT); Pentaerythritol tetranitrate (PETN); Hexahydro-

1,3,5-trinitro-1,3,5-triazine (RDX or Cyclonite); Triaminotrinitrobenzene (TATB); Tris (o-cresyl) phosphate (TCP); Methyl-2,4,6-trinitrophenylnitramine (Tetryl); 2,4,6-Trinitrotoluene

(TNT).

O. “Facility” means the Los Alamos National Laboratory site owned by the United

States Department of Energy and located on the Pajarito Plateau in Los Alamos County in

North Central New Mexico, comprised of approximately 36 square miles and located approximately 60 miles north-northeast of Albuquerque and 25 miles northwest of Santa Fe.

P. “Fiscal Year” or “FY” means the federal fiscal year, which currently begins

October 1st and ends September 30th each year.

Q. “Groundwater” means interstitial water which occurs in saturated earth material and which is capable of entering a well in sufficient amounts to be utilized as a water supply.

R. “HWA” means the New Mexico Hazardous Waste Act, NMSA 1978, §§ 74-4-1 to

-14.

S. “Hazard Index” or “HI” means the sum of more than one Hazard Quotient for multiple Contaminants and/or multiple exposure pathways. The HI is calculated separately for chronic, subchronic, and shorter-duration exposures.

T. “Hazard Quotient” or “HQ” means the ratio of a single substance exposure level over a specified time period (e.g., subchronic) to a reference dose for that substance derived from a similar exposure period.

U. “Hazardous constituent” or “hazardous waste constituent” means any constituent identified in 40 C.F.R. Part 261, Appendix VIII (incorporated by 20.4.1.200 NMAC), and any constituent identified in 40 C.F.R. Part 264, Appendix IX (incorporated by 20.4.1.500 NMAC).

V. “Hazardous Waste” means any solid waste or combination of solid wastes which because of its quantity, concentration, or physical, chemical, or infectious characteristics meets the description set forth in NMSA 1978, § 74-4-3(K), and is listed as a hazardous waste or exhibits a hazardous waste characteristic under 40 C.F.R. Part 261 (incorporated by 20.4.1.200

NMAC).

W. “Hazardous Waste Regulations” means the New Mexico Hazardous Waste

Management Regulations, 20.4.1 NMAC.

X. “Interim Measures” or “IM” means actions that can be implemented to reduce or prevent migration of site-related Contaminants which have or may result in an unacceptable human or environmental receptor risk while long-term corrective action activities are evaluated and implemented.

Y. “Maximum Contaminant Level” or “MCL” means a maximum contaminant level adopted by EPA under the federal Safe Drinking Water Act, 42 U.S.C. §§ 300f to 300j-26, or by the Environmental Improvement Board under the Environmental Improvement Act, NMSA

1978, § 74-1-8(A)(2).

Z. “Milestone” means an enforceable deadline listed in Appendix B for the current

FY.

AA. “Mixed Waste” means waste that contains both hazardous waste subject to the

HWA and RCRA, and source, special nuclear, or byproduct material subject to the AEA.

BB. “NMED” means the New Mexico Environment Department, and any successor departments or agencies.

CC. “Parties” means collectively NMED and DOE, and the term “Party” shall refer to either of these two entities.

DD. “Permit” means the RCRA Permit issued to DOE for the Facility to operate a hazardous waste treatment and storage facility, EPA ID No. NM0890010515, as it may be modified or amended.

EE. “Presumptive Remedy” means a clear, conservative remedy alternative or preferred technologies for common categories of sites for which DOE, based upon its past experience with remediation and EPA's scientific and engineering evaluation of performance data on technology implementation, believes, and NMED concurs, there will be no need to prepare a

CME pursuant to Section XVI. For the purposes of this Consent Order, the most bounding alternative is complete source removal (i.e., complete excavation and cleanup to residential soil screening levels (SSLs)).

FF. “RCRA” means the Federal Resource Conservation and Recovery Act, 42 U.S.C.

§§ 6901 to 6992k, also known as the Solid Waste Disposal Act.

GG. “RCRA Facility Investigation” or RFI means the investigation(s) conducted to investigate releases or potential releases of site-related Contaminants from SMWUs and AOCs as needed to support the purposes of this Consent Order.

HH. “Respondent” means the United States Department of Energy.

II. “SWA” means the New Mexico Solid Waste Act, NMSA 1978, §§ 74-9-1 to -43.

JJ. “Solid Waste” means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1342), or source, special nuclear, or byproduct material as defined by the AEA (42 U.S.C § 2014).

KK. “Solid Waste Management Unit” or “SWMU” means any discernible unit at which solid waste has been placed at any time, and from which NMED determines there may be a risk of a release of hazardous waste or hazardous waste constituents, irrespective of whether the unit was intended for the management of solid or hazardous waste. Such units include any area at the Facility at which solid wastes have been routinely and systematically released; they do not include one-time spills. See 61 Fed. Reg. 19431, 19442-43 (May 1, 1996).

LL. “State of New Mexico” or “State” means the State of New Mexico, including all of its departments, agencies, and instrumentalities.

MM. “Statement of Basis” means a document prepared by NMED based on a CME that describes the basis for NMED’s selection of a remedy.

NN. “Surface Impoundment” means a facility or part of a facility which is a natural topographic depression, man-made excavation, or diked area formed primarily of earthen material (although it may be lined with man-made materials), which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an injection well. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds, and lagoons.

OO. “Target” means a non-enforceable deadline listed in Appendix B for the next two

FYs (i.e., FY+1 and FY+2).

PP. “Technical Area” or “TA” means an administrative unit of area established to encompass operations at the Facility.

QQ. “Trench” means a long, narrow depression or excavation, natural or artificial, in the earth’s surface.

RR. “United States” means the United States of America, including all of its departments, agencies, and instrumentalities.

SS. “WQCC” means the New Mexico Water Quality Control Commission, and any successor agencies, boards, or commissions.

TT. “Water Quality Control Commission (WQCC) Regulations” means the regulations at 20.6.2 NMAC promulgated by the New Mexico Water Quality Control Commission governing the quality of groundwater and surface water in New Mexico.

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. FINDINGS OF FACT: For purposes of this Consent Order only, the following constitutes a summary of facts by NMED upon which this Consent Order is based.

1) The Parties

a) The New Mexico Environment Department is the department within the executive branch of the New Mexico State government charged with administration and enforcement of the HWA, NMSA 1978, §§

74-4-1 to -14; the Hazardous Waste Regulations, 20.4.1 NMAC, and the SWA, NMSA 1978, §§ 74-9-1 to -43.

b) The Respondent is a department of the United States government, and is the owner and a co-operator of the Facility.

2) The Facility

a) The Facility, as defined in Section III.O of this Consent Order, is the

Los Alamos National Laboratory (LANL) site. The Facility currently comprises approximately 36 square miles (approximately 23,000 acres) and is located on the Pajarito Plateau in Los Alamos County in north central New Mexico, approximately 60 miles north-northeast of

Albuquerque and 25 miles northwest of Santa Fe. At one point during its history, the Facility comprised up to roughly 41 square miles

(26,337 acres). The Facility is surrounded by the Pueblo of San

Ildefonso, Los Alamos County, Bandelier National Monument, Santa

Fe National Forest, and Santa Fe County.

b) The Pajarito Plateau is dissected by nineteen major surface drainages or canyons and their tributaries. The canyons run roughly west to east or southeast. From north to south, the most prominent canyons are

Pueblo Canyon, Los Alamos Canyon, Sandia Canyon, Mortandad

Canyon, Pajarito Canyon, Cañon de Valle and Water Canyon, Ancho

Canyon, and Chaquehui Canyon. These canyons drain into the Rio

Grande, which flows along part of the eastern border of the Facility.

c) Hydrogeologic investigations have identified four discrete hydrogeologic zones beneath the Pajarito Plateau on which the Facility is located: (1) canyon alluvial systems; (2) intermediate perched water in the volcanic rocks (Tschicoma Formation and the Tshirege Member of the Bandelier Tuff); (3) canyon-specific intermediate perched water within the Otowi Member of the Bandelier Tuff, Cerros del Rio basalt and sedimentary units of the Puye Formation; and (4) the regional aquifer.

3) Facility Operations

a) The Facility began operations in 1943 when the United States Army

Manhattan Engineer District was established for the development and assembly of an atomic bomb. Current and historical operations have included nuclear weapons design and testing; high explosives research, development, fabrication, and testing; chemical and material science research; electrical research and development; laser design and development; and photographic processing.

b) The Facility has been divided into numerous Technical Areas, or

“TAs.” Many former TAs have ceased operations, have been combined with other TAs, or were cancelled before becoming operational.

c) For administration purposes, the Respondent has further categorized some of the areas within the TAs as “Material Disposal Areas” or

“MDAs.” These include, for example, MDAs A, B, T, U, and V in

TA-21; MDA C in TA-50; MDAs G, H, and L in TA-54.

d) Water supply wells at the Facility, in Los Alamos County, and on San

Ildefonso Pueblo property withdraw water from the regional aquifer beneath the Pajarito Plateau.

4) Waste Management

a) As a result of the Facility operations, from approximately 1943 to the present, the Respondent has generated, treated, stored, disposed of, and otherwise handled solid wastes, including hazardous wastes, hazardous waste constituents, and mixed wastes at the Facility.

b) The Respondent has disposed of hazardous wastes, hazardous constituents and mixed waste at the Facility. In addition, certain groundwater contaminants listed at 20.6.2.3103 NMAC, certain toxic pollutants listed at 20.6.2.7.WW NMAC, and certain Explosive

Compounds as defined herein, are present in the environment at the

Facility. The Respondent has disposed of such wastes in septic systems, pits, surface impoundments, trenches, shafts, landfills, and waste piles at the Facility. The Respondent has also discharged industrial wastewater and other waste from outfalls into many of the canyon systems at the Facility.

5) Releases of Contaminants

a) Waste management activities at the Facility have resulted in the release of hazardous wastes, hazardous waste constituents, mixed waste, certain groundwater contaminants listed at 20.6.2.3103 NMAC, certain toxic pollutants listed at 20.6.2.7.WW NMAC, and certain Explosive

Compounds as defined herein.

b) Contaminants that have been released into, and detected in, soils and sediments at the Facility include, for example, explosives, such as

RDX, HMX, TNT; volatile organic compounds and semi-volatile organic compounds; metals such as arsenic, barium, beryllium, cadmium, chromium, copper, lead, mercury, molybdenum, silver, and zinc; and polychlorinated biphenyls (PCBs).

c) Contaminants that have been released into, and detected in, groundwater beneath the Facility include, for example, explosives, such as RDX; volatile organic compounds such as trichloroethylene, dichloroethylene, and dichloroethane; metals such as molybdenum, manganese, beryllium, lead, cadmium, chromium, and mercury;

perchlorate; other inorganic contaminants such as ammonia, nitrate, and fluoride; and other contaminants. Contaminants have been detected beneath the Facility in all four groundwater zones.

6) Regulatory History of the Facility

a) On August 13, 1980, the Respondent submitted to the United States

Environmental Protection Agency (EPA) a “Notification of Hazardous

Waste Activity” for the Facility pursuant to Section 3010(a) of RCRA, 42 U.S.C. § 6930(a).

b) By letter dated November 19, 1980, the Respondent submitted to EPA a Part A RCRA permit application for the Facility. The Respondent also sent a copy of the Part A application to the Environmental

Improvement Division of the New Mexico Department of Health and

Environment, the predecessor to the Environment Department. The application covered hazardous waste treatment, storage, and disposal activities at TA-54, and included some 129 hazardous waste streams.

The Respondent has revised the Part A permit application several times since it was first submitted, including, among other things, to notify the State that the Respondent would not seek a permit for hazardous waste disposal activities at the Facility. The Respondent’s most recent Part A permit revision was submitted to NMED in January

2016.

c) On January 25, 1985, the State of New Mexico received from EPA authorization to implement its hazardous waste program under the

HWA in lieu of the Federal program. 50 Fed. Reg. 1515 (Jan. 11, 1985). Subsequent program revision applications were approved effective on April 10, 1990, July 25, 1990, December 4, 1992, August

23, 1994, December 21, 1994, July 10, 1995, January 2, 1996, March

10, 1997, June 13, 1998, October 1, 2003 and March 1, 2009. 40

C.F.R. § 272.1601.

d) On November 8, 1989, NMED’s predecessor agency issued a

Hazardous Waste Facility Permit (Permit) to the Respondent to operate a hazardous waste treatment and storage facility at the Facility pursuant to Section 74-4-4.2 of the HWA. The Permit covered hazardous waste container storage areas at TA-16, TA-50, and TA-54, hazardous waste storage and treatment tanks at TA-54, and hazardous waste incinerators at TA-16 and TA-50. Two of the four treatment tanks at TA-54 were removed in accordance with an approved closure plan in 1996. NMED approved the closure report in 1997. The remaining two tanks were removed from the site in 2002. NMED approved the closure in 2007. The Respondent closed the incinerator at TA-16 in accordance with an approved closure plan, and NMED approved the Closure Certification Report in October 2001. The

Respondent closed the incinerator at TA-50 in accordance with an approved closure plan, and NMED approved the Closure Certification

Report in July 1998.

e) In the late 1980’s, the Respondent identified for EPA “Potential

Release Sites,” including solid waste management units (SWMUs) and

“areas of concern” (AOCs), where hazardous wastes, hazardous constituents, solid wastes, or mixed wastes may have been disposed.

Of those sites, EPA identified over 1200 as sites to be investigated and included on the Hazardous and Solid Waste Amendments (HSWA) portion (known as the “HSWA Module”) of the Facility’s RCRA permit.

f) On March 8, 1990, EPA issued to the Respondent the HSWA portion of the Permit, effective on May 23, 1990, covering those requirements of RCRA added by the HSWA of 1984. The EPA portion of the permit required corrective action for continuing releases of hazardous waste and hazardous waste constituents at and from the Facility pursuant to Section 3004(u) and (v) of RCRA, 42 U.S.C. § 6924(u) and (v).

g) On July 25, 1990, the State of New Mexico received from EPA authorization to expand its hazardous waste program under the HWA in lieu of the federal program, including the authority to regulate the hazardous component of mixed waste. 55 Fed. Reg. 28397 (July 11, 1990).

h) Effective January 2, 1996, the State of New Mexico received from

EPA final authorization to implement its corrective action program under the HWA. See 60 Fed. Reg. 53,708 (Oct. 17. 1995); 61 Fed.

Reg. 2450 (Jan. 26, 1996).

i) Between 1995 and 1999, the Respondent submitted a Permit renewal application to NMED for permitted and interim status storage and treatment units at the Facility. The General Part B renewal application was initially submitted in August 1996; the TA-16 application for permitted and interim status units was initially submitted in June 1995;

the TA-50 permit application for permitted and interim status units was initially submitted in January 1999; the TA-54 permit application for permitted and interim status units was initially submitted in

January 1999; and the TA-55 permit application for interim status units was initially submitted in June 1996. Permit applications for interim status units at TA-3, TA-14, TA-36 and TA-39 were submitted to NMED in or before May 1999.

j) The Permit, which was originally set to expire in November 1999, was administratively extended pursuant to 20.4.1.900 NMAC

(incorporating 40 C.F.R. § 270. 51). The renewed Permit became effective in December 2010.

k) On June 21, 2011, the Las Conchas wildfire began burning in the

Santa Fe National Forest. The fire burned over 150,000 acres and threatened the Facility and the town of Los Alamos. The proximity of the fire to above-ground stored wastes in TA-54 prompted New

Mexico Governor Susana Martinez to request that the Respondent prioritize removing non-cemented above-ground wastes. The

Respondent agreed to realign waste management priorities.

l) As a result of the agreed upon realignment of priorities, the

Respondent and the State of New Mexico entered into a non-binding

Framework Agreement in 2012 that realigned environmental priorities.

m) In the course of negotiating the 2012 Framework Agreement, the

Respondent acknowledged that meeting the milestones of the 2005

Consent Order was difficult, if not impossible, given past and anticipated funding shortfalls. As part of the 2012 Framework

Agreement negotiations, the Parties agreed to discuss renegotiation of the 2005 Consent Order at a future date.

n) In 2014, the Secretary of DOE directed that DOE’s Office of

Environmental Management assume oversight of the cleanup at the

Facility, which will result in new and/or additional contractors implementing the work required by this Consent Order on behalf of the Respondent. As a consequence of this change, the contractor currently performing the work required by the 2005 Consent Order is no longer included as a Respondent to this Consent Order.

7) Procedural History of Consent Order

a) On May 2, 2002, pursuant to Sections 74-4-10.1 and 74-4-13 of the

HWA, NMED issued a Determination of an Imminent and Substantial

Endangerment to Health or the Environment Concerning the Los

Alamos National Laboratory (the Determination), to the Respondent and the Regents of the University of California (University), the

Facility operator prior to 2006.

b) On May 2, 2002, NMED also issued a draft order pursuant to Sections

74-4-10.1 and 74-4-13 of the HWA, called “In Re: Proceeding Under the New Mexico Hazardous Waste Act §§ 74-4-10.1 and 74-4-13”

(Draft Order). The Draft Order proposed a series of investigation and corrective action activities for the Respondent and the University to complete at the Facility.

c) NMED provided notice and an opportunity to comment on the Draft

Order. The comment period extended for 90 days and ended on July

31, 2002. During the public comment period, NMED held four public meetings to provide the public with information on the draft order.

NMED received comments from 38 persons, including the

Respondent, on the Draft Order.

d) On June 3, 2002, the University filed a Complaint for Declaratory and

Injunctive Relief and for Review of Agency Action in the United

States District Court for the District of New Mexico (No. CIV 02-637

MV/DJS) challenging the Determination. On June 3, 2003, the

University and the United States each filed a Notice of Appeal with the

New Mexico Court of Appeals (Ct. App. Nos. 23,172 and 23,173), challenging the Determination.

e) On October 9, 2002, the United States, on behalf of the Respondent, filed a Complaint in the United States District Court for the District of

New Mexico (No. CIV 02-1273-LH/RHS), challenging the September

9, 2002 Installation Work Plan (IWP) Work Schedule issued by

NMED. The IWP Work Schedule imposed requirements similar to those contained in the Draft Order.

f) On November 26, 2002, NMED issued to the Respondent a Final

Order called “Re: Proceeding Under the New Mexico Hazardous

Waste Act §§ 74-4-10.1 and 74-4-13” (Final Order). The Final Order contained a set of investigation, monitoring, and corrective action activities and a schedule for implementation of those activities.

NMED also responded, in writing, to each of the public comments it had received on the Draft Order. The Determination issued on May 2, 2002 was also withdrawn on November 26, 2002, and the findings and conclusions contained therein were incorporated into the Final Order.

g) On December 18, 2002, the University dismissed its complaint in the

United States District Court challenging the Determination because

NMED had withdrawn that Determination.

h) On December 24, 2002, the United States filed an Amended

Complaint, challenging both the 2002 IWP Work Schedule and the

Final Order. The United States also filed a Notice of Appeal in the

New Mexico Court of Appeals (Ct. App. No. 23,693), challenging the

Final Order.

i) On December 26, 2002, the University filed a Complaint for

Declaratory and Injunctive Relief and for Review of Agency Action in the United States District Court for the District of New Mexico (No.

CIV 02-1631 LFG/WDS), challenging the Final Order. On December

26, 2002, the University also filed a Notice of Appeal with the New

Mexico Court of Appeals (Ct. App. No. 23,698) challenging the Final

Order.

j) From December 2002 through December 2003 and from February through March 2004, the Parties engaged in settlement negotiations to resolve the issues raised by the United States’ and the University’s lawsuits. To facilitate the settlement discussions, the Parties agreed to stay the pending litigation during the settlement process.

k) On April 25, 2003, NMED issued a Compliance Order HWB 03-02, alleging that the Department of Energy and the University failed to implement interim measures at the Airport Landfill, or SWMU 73-

001(a), at the Facility. The Respondent answered the Compliance

Order, denying NMED’s allegations. That action was also stayed during negotiations of this Consent Order.

l) On September 1, 2004, NMED released the proposed Consent Order resulting from the settlement negotiations for public review and comment. NMED placed a public notice of the availability of the proposed Consent Order in the local news outlets, and mailed copies of the notice to all interested parties. NMED provided the public with a

30-day period to comment on the proposed Consent Order. The comment period ended on October 1, 2004. NMED received comments from 18 persons on the proposed Consent Order. NMED responded, in writing, to each of those public comments on March 1, 2005.

m) On March 1, 2005, NMED, the Respondent, and the University, entered into the 2005 Consent Order intended to address cleanup of the

Facility. In addition, as the result of those settlement negotiations and the execution of the 2005 Consent Order, NMED agreed to withdraw the Determination, the Final Order, the Airport Landfill Order, and the

2002 IWP Work Schedule, and the United States and the University agreed to dismiss their lawsuits.

n) The 2005 Consent Order was modified on five occasions between issuance on March 1, 2005 and issuance of this Consent Order. The following draft modifications were issued for public comment prior to incorporation into the Consent Order. On March 1, 2006 and February

23, 2007, the Consent Order schedule was modified. On June 18, 2008, Section IV.A.3.g was added to address notification procedures for certain types of detections of contaminants in groundwater. A modification to address the grouping of wells for the purpose of periodic monitoring and the frequency of submittal of the General

Facility Information was completed on April 20, 2012. A modification requiring the maintenance of a publicly accessible database (Section

III.Z) was completed on October 26, 2012.

B. CONCLUSIONS OF LAW: For purposes of this Consent Order only, the following constitutes the conclusions of law by NMED upon which this Consent Order is based.

1) Respondent is a “person” within the meaning of Section 74-4-3(M) of the

HWA, and the Hazardous Waste Regulations at 20.4.1.100 NMAC

(incorporating 40 C.F.R. § 260.10), and Section 74-9-3(I) of the SWA.

2) Los Alamos National Laboratory is a “facility” within the meaning of the

Hazardous Waste Regulations at 20.4.1.100 NMAC (incorporating 40 C.F.R. §

260.10).

3) Respondent is an “owner” and an “operator” of the Facility within the meaning of the Hazardous Waste Regulations at 20.4.1.100 NMAC (incorporating 40

C.F.R. § 260.10).

4) Respondent has engaged in the “storage,” “treatment,” and “disposal” of

“hazardous waste” at the Facility, and is currently engaged in the “storage” and

“treatment” of “hazardous waste” at the Facility, within the meaning of Section

74-4-3(P), (T), (E), and (K) of the HWA, and the Hazardous Waste Regulations at 20.4.1.100 NMAC (incorporating 40 C.F.R. § 260.10).

5) NMED has determined that hazardous wastes and hazardous waste constituents have been “release[d]” from the Facility into the environment within the meaning of Section 74-4-10(E) of the HWA.

6) Pursuant to Section 74-4-10(A) of the HWA, NMED has determined that the

Respondent may have violated 20.4.1.900 NMAC, incorporating by reference

40 C.F.R. § 270.33, Schedule of Compliance.

7) Groundwater contaminants listed at 20.6.2.3103 NMAC, toxic pollutants listed at 20.6.2.7.WW NMAC, and Explosive Compounds as defined herein are regulated under the SWA through 20.9.9 NMAC.

8) NMED has determined that there is or has been a release of groundwater contaminants listed at 20.6.2.3103 NMAC, toxic pollutants listed at

20.6.2.7.WW NMAC, and Explosive Compounds as defined herein into the environment requiring corrective action pursuant to Section 74-9-36(D) of the

SWA and 20.9.9.14 NMAC.

V. PARTIES

A. The Parties to this Consent Order are NMED and DOE, as defined in Section

III.CC (Definitions).

B. The terms of this Consent Order shall apply to and be binding upon NMED and

DOE, their respective agents and employees, and their successors and assigns. DOE may employ contractors for implementation of the work required by this Consent Order. DOE shall require all contractors, subcontractors, laboratories and consultants retained to perform work pursuant to this Consent Order to comply with and abide by the terms of this Consent Order.

DOE shall hold the contractor(s) accountable through provisions in its contract(s) for the contractor’s performance (e.g., missed milestones) that results in NMED’s issuance of stipulated penalties under this Consent Order.

VI. WORK ALREADY COMPLETED / SUBMITTED

A. This Consent Order shall be construed to avoid duplication of work already performed or completed as determined by NMED pursuant to its current HWA authority or by

EPA pursuant to its RCRA authority prior to delegation of the RCRA program to the State.

Accordingly, all such work that has been completed prior to the effective date of this Consent

Order, that fulfills the substantive requirements of this Consent Order, and that has been approved by NMED or EPA, in writing, shall be deemed to comply with this Consent Order.

B. With respect to work already performed and for which documentation has been submitted by DOE to NMED pursuant to the 2005 Consent Order and for which NMED has not completed action as of the effective date of this Consent Order, NMED will proceed with timely review of such documentation. Such reviews shall be conducted in accordance with Section

XXIII (Preparation / Review / Comment on Documents).

VII. RELATIONSHIP TO PERMITS

A. NMED has determined that all corrective action for releases of hazardous waste or hazardous constituents at the Facility, required by Sections 3004(u) and (v) and 3008(h) of

RCRA, 42 U.S.C. §§ 6924(u) and (v) and 6928(h), and Sections 74-4-4(A)(5)(h) and (i) and 74-

4-4.2(B) of the HWA, shall be conducted solely under this Consent Order and not under the current or any future Hazardous Waste Facility Permit (“Permit”), with the exception of the following five items which will be addressed in the Permit and not in this Consent Order:

1) New releases and newly discovered releases of hazardous waste or hazardous constituents from hazardous waste management units at the Facility.

2) The closure and post-closure care requirements of 20.4.1.500 NMAC

(incorporating 40 C.F.R. Part 264, Subpart G), as they apply to hazardous waste management units at the Facility.

3) Implementation of the controls, including long-term monitoring, for any

SWMUs or AOCs listed in the Permit in Attachment K (Listing of SWMUs and

AOCs), Table K-2 (Corrective Action Complete with Controls).

4) Any corrective action conducted to address releases of hazardous waste or hazardous constituents that occur or are discovered after the date on which this

Consent Order terminates pursuant to Section XXXVII (Termination) of this

Consent Order.

5) Newly created SWMUs or AOCs from non-permitted operations.

B. Consistent with Subsection A above, the requirements of this Consent Order shall not terminate upon renewal of the Permit issued to DOE. The renewed Permit, and any future modifications, renewals, or reissuance of the Permit, will not include any corrective action activities, or any other requirement that is duplicative of this Consent Order. The Parties agree that Subsection A above is consistent with the intent of the Permit and, further, that any renewed Permit shall include the five excepted items described in Subsection A above.

C. The Parties enter into this Consent Order based on their understanding that this

Consent Order shall be the only enforceable instrument for corrective action relating to the

Facility, except for those items listed in Subsection A.1)-5) above, which shall be subject only to the Permit. For the purposes of any enforcement action taken by the State or any third party, other than the items listed in Subsection A.1)-5) above, NMED has determined that compliance with the terms of this Consent Order constitutes compliance with the requirements for corrective action under RCRA and the HWA and their implementing regulations, including

Sections 3004(u) and (v) and 3008(h) of RCRA, 42 U.S.C. §§ 6924(u) and (v) and 6928(h), 40

C.F.R. Part 264, Subpart F, Sections 74-4-4.2(B) and 74-4-4(A)(5)(h) and (i) of the HWA and section 20.4.1.500 NMAC (incorporating 40 C.F.R. Part 264, Subpart F). Upon the effective date of this Consent Order, the sole mechanism for enforcing corrective action activities relating to the Facility, except as provided in Subsection A.1)-5) above, shall be this Consent Order. The

State will not take any action to enforce the corrective action requirements of the existing

Permit, except as to those items listed in Subsection A above. This Consent Order is an

“enforceable document” pursuant to the requirements of 40 CFR § 264.101.

D. Consistent with Sections A through C of this Section, the Parties agree that the status of SWMUs and AOCs will be tracked under this Consent Order until Termination of this

Consent Order. The Permit will not be updated while this Consent Order is in effect with information about the status of SWMUs and AOCs currently listed in the Consent Order except for SWMUs and/or AOCs for which DOE has been granted a permit modification for corrective action complete status.

E. Consistent with Section XXI (Certification of Completion), NMED’s determination that corrective action is complete for a SWMU or AOC placed on either the corrective action complete with controls list or the corrective action complete without controls list will be subject to the State’s reservation of rights for new information. During the duration of this Consent Order, if NMED seeks to require additional work at any

SWMU or AOC contained on either of the two lists for corrective action complete, NMED will initiate a permit modification to remove the SWMU or AOC from such list.

F. Upon Termination of this Consent Order pursuant to Section XXXVII, any

SWMUs and/or AOCs where corrective action is not complete will be addressed under the

Permit in accordance with the regulations at 20.4.1.900 NMAC (incorporating 40 C.F.R. §

270.42), 20.4.1.901 NMAC, and 20.4.1.902 NMAC, including, but not limited to, opportunities for public participation, including public notice and comment, administrative hearings, and judicial appeals.

G. The Parties agree that the rights, procedures and other protections set forth at

20.4.1.900 NMAC (incorporating 40 C.F.R. § 270.42), 20.4.1.901 NMAC, and 20.4.1.902

NMAC, including, but not limited to, opportunities for public participation, including public notice and comment, administrative hearings, and judicial appeals, do not apply to modification of the Consent Order itself.

H. This Consent Order shall establish no requirements for releases of Contaminants from SWMUs or AOCs to storm water runoff that:

1) Are permitted under DOE’s National Pollutant Discharge Elimination System

(NPDES) Individual Permit for storm water discharges from SWMUs and

AOCs (Individual Permit) (NM0030759 or as reissued); or

2) Are from SWMUs or AOCs that DOE and EPA have determined did not require coverage under the Individual Permit (i.e., SWMUs and AOCs that were not exposed to storm water, did not contain significant industrial materials, and/or did not potentially impact surface water); or

3) Are from SWMUs or AOCs formerly permitted under the Individual Permit that were deleted from the Individual Permit.

I. For SWMUs or AOCs that are permitted under the Individual Permit, DOE may identify and implement corrective action activities pursuant to this Consent Order that address requirements of both this Consent Order and the Individual Permit. NMED’s review and approval of such corrective actions shall be limited to those elements of the corrective action that specifically address requirements of this Consent Order.

VIII. CAMPAIGN APPROACH

A. To carry out the purposes set forth in Section II (Purpose and Scope) above, the

Parties agree to use a structure called the “campaign approach.” As described more fully below, corrective action activities required by this Consent Order will be organized into campaigns, generally based upon a risk-based approach to grouping, prioritizing, and accomplishing corrective action activities at SWMUs and AOCs. A campaign may consist of one or more projects; campaigns and projects consist of one or more tasks and deliverables.

Campaigns, projects, tasks, and deliverables may be subject to two types of deadlines:

milestones, which are enforceable; or targets, which are not enforceable.

B. PROCESS FOR ESTABLISHING CAMPAIGNS

1) NMED shall maintain a list of the SWMUs and AOCs subject to this Consent

Order in Appendix A (Solid Waste Management Unit/Area of Concern List).

The list in Appendix A shall be updated if new SWMUs and AOCs are added through the process in Section X (Newly Discovered Releases). Appendix A shall also identify the status of corrective action activities at each SWMU and

AOC, as defined in Subsection B.2 of this Section. The information in

Appendix A will be updated annually during the annual planning process defined in Subsection C of this Section.

2) Appendix A shall identify the status of corrective action activities under this

Consent Order for each SWMU and AOC in accordance with Subsection C.

Because each SWMU or AOC may not proceed through each status category, the categories below will be used as appropriate for the status of corrective action activities:

a) Pre-Investigation

b) RFI or Field Work in Progress (includes Interim Measures, Accelerated Corrective Action)

c) RFI or Field Work Reports submitted to NMED

d) CME in Progress

e) CME submitted to NMED

f) CMI in Progress

g) CMI Reports submitted to NMED

h) Request for Certificate of Completion submitted to NMED

i) Certificate of Completion with controls or without controls issued

j) Deferred – Full investigation and/or remediation of the SWMU or

AOC is deferred until such time as the SWMU or AOC is taken out of service or otherwise becomes accessible (e.g., firing sites and active facilities).

3) To facilitate prioritization and completion of the corrective action activities of this Consent Order, DOE shall organize corrective action activities into campaigns as described above.