Yes – you read the headline correctly. United States Environmental Protection Agency (EPA) has issued an order to a municipality to obtain a permit that will mitigate and cleanup DOE-caused contamination. In what might be the first case of its kind, the federal government wants a County to pay for cleanup of contamination caused by the federal government. And to add to the confusion
this is all tied up in the new Clean Water Act rules issued by the Administration.
ECA wanted to highlight this issue for its members since this is a dangerous precedent. Throughout many of our communities, contamination issues have arisen due to the operations of DOE in the communities since World War II. DOE has worked to cleanup the sites. In Los Alamos, DOE has a robust cleanup program. Could it be that EPA is taking action against the County because it cannot
against LANL (another Executive Branch of the United States)? Los Alamos County can ill-afford to become a surrogate for the conduct and responsibility of the federal government. Our national defense mission at Los Alamos National Laboratory is a national effort from which there is a national benefit and success. Placing the burden and cost of the national effort on the back of the citizens of Los Alamos County by EPA is unfair.
EPA is claiming that Los Alamos County’s stormwater (water run-off when it rains) may eventually reach the Rio Grande River (which, given the distance and connectivity, is a question in itself with which the County does not agree) and that the contamination at LANL, other sites in the town, and historic sites in the County (many of which include contamination a created by DOE) is polluting the Rio
Grande. From this flawed factual predicate, EPA would hold the County responsible for building a new stormwater system (which may cost millions of dollars) to capture the runoff.
Over 5 years ago, EPA was sued by third party (Amigos Bravos) to issue a determination that the County’s and other parties stormwater discharges “…contribute[s] to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States”, under the Clean Water Act. EPA took public comment and did not act at the time (EPA, according to EPA regulations,
was required to make a determination within 90 days). On December 16, 2019 some 2,004 days, or 5 years, 5 months, later, and contrary to EPA regulations (and after Amigos Bravos petitioned the U.S. District Court to compel the Regional Administrator to issue his decision), the EPA Regional Administrator issued his final Designation decision. The decision came without warning, and without public comment on some of the questionable documents considered by EPA. The County had no
opportunity to refute the more recent information considered by EPA even though over 5 years ago EPA and the County met on the issue and the County issued detailed public comments. At that time, State of New Mexico environmental authorities agreed with the County, in opposition to the proposed action.
The County is going through the process (and cost) of challenging the EPA action. The County’s response, filed on January 17, states “No science-based link or rational articulated explanation pursuant to the applicable standard is provided by the [EPA] Regional Administrator to show that there is a reasonable and supportable link between the County and PCB water quality exceedances.”
Further, EPA is actually in the middle of issuing new rules related to whether this would be a violation of the Clean Water Act.
In addressing the need for this challenge, County Manager Harry Burgess cited significant legal concerns about how the EPA’s decision was reached. Burgess also expressed serious concerns about the fairness of the EPA ruling which would unfairly place the costs of cleanup and monitoring upon the citizens of the County. Many of the identified pollutants were discharged prior to the existence of the
County during the time of the Manhattan Project, the top-secret mission in WWII that resulted in the creation of Los Alamos National Laboratory.
“To be clear, Los Alamos County fully supports environmental clean-up and has voiced such support for full funding, identified timelines and requested prompt corrective action for these types of activities,” Burgess said. “… At the same time, we have been very clear with EPA about the need for firm boundaries and limitations regarding the extent of our citizens’ responsibility regarding these legacy
wastes.”
“In this challenge, our stance remains the same as it was over five years ago when this issue first arose---placing this responsibility and related financial burden upon the citizens of Los Alamos is unfair, given that a mere 14% of the land in Los Alamos County is under the effective control of the County, with the vast majority of the remaining 86% of the land under the effective control of Los
Alamos National Laboratory and other federal agencies,” he said.
Burgess said that the County is challenging the EPA’s ruling by filing an appeal with the Environmental Appeals Board in Washington D.C. and may pursue other avenues available for relief in the U.S. District Court, District of New Mexico.
“We are taking the necessary steps to preserve and defend our legal position. At the same time, we also invite representatives from all sides to the table to discuss the complexity and inadequacy of this EPA ruling,” he said, adding, “This is not a ruling to be taken lightly; in order to comply with such a broad and unending regulatory burden, we will need to pull funds from other road
construction projects outlined in the County’s budget to hire additional staff, including a full-time engineer to create and implement a stormwater master plan. Other projects for road maintenance and sidewalk improvements will have to be scaled back or canceled, yet these stormwater controls will not be effective in limiting the mobilization of the pollutants, given that the majority of any runoff will continue to emanate from federal lands that would not be regulated by the proposed permit.”
“Our interest in challenging EPA’s decision is to make sure that any decision that impacts the citizens of this County is lawful as well as fair,” Burgess said. “The County seeks solutions that address and resolve actual problems in an effective manner. We believe this current broad-sweeping approach taken by EPA lacks a rational relationship to the problem it purports to address, and further
believe this decision was reached in a manner contrary to law. It would be an act of fiscal irresponsibility to simply comply with this regulatory mandate without further consideration, discussion and resolution of the legal issues involved.”
This is contrary to every action EPA has had with the County and ECA members throughout the Country. EPA is usually stressing communication, dialogue and public involvement in federal cleanup issues. EPA is many times a catalyst to assist communities addressing federal cleanup and has stressed the need to work together. This is a highly unusual action by EPA and one that we believe
is a mistake in the region.
ECA will continue to keep its members up to date on the issue.
