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DOE challenges state fines for Los Alamos lab, WIPP over leak

The U.S. Department of Energy on Friday challenged the state’s decision to levy $54 million in fines for permit violations at Los Alamos National Laboratory and the nuclear waste repository WIPP, calling the penalties “arbitrary” and “capricious.”

In its legal responses to the New Mexico Environment Department’s latest compliance orders, DOE claims the state “improperly imposed penalties for violations which did not occur” and claims the fines are “grossly disproportionate” to those levied against other entities.

Yet both DOE and NMED said in separate statements Friday that “settlement discussions” are underway.

Last month, the state Environment Department slapped DOE with the largest-ever civil penalties levied by the state against the federal government in connection with a radiological release at the Waste Isolation Pilot Plant: $36.6 million against Los Alamos and $17.7 million against WIPP.

This photo shows the aftermath of a leak from a Los Alamos radioactive waste drum at the Waste Isolaition Pilot Plant in Carlsbad. (Courtesy DOE)

This photo shows the aftermath of a leak from a Los Alamos radioactive waste drum at the Waste Isolaition Pilot Plant in Carlsbad. (Courtesy DOE)

NMED cited numerous violations of the facilities’ permits in connection with the radiological release at WIPP in February that contaminated nearly two dozen workers with low levels of radiation. The offending waste drum — plutonium and americium escaped after at least one ruptured — had been improperly remediated and packaged at Los Alamos.

The state agency said in a statement that it “is always willing to consider settlement options in an effort to avoid excessive taxpayer expenses involved in litigation,” but added that “our top priority is correcting the problems that ultimately caused the release at WIPP and ensuring the long-term success of New Mexico’s federal facilities.”

“However, we will not agree to back down on any of the problematic issues we identified in the compliance orders,” NMED said.

DOE also issued a statement on Friday, saying, “We look forward to addressing the underlying causes that led to the compliance orders and to developing a positive path forward for the re-opening of WIPP and the resumption of transuranic waste operations at LANL.”

While DOE formally denies many of the violations, NMED said its findings are backed by an accident investigation board convened by DOE to investigate the release at WIPP, as well as an underground truck fire that occurred the same month. The violations include safety and maintenance problems at WIPP and the mishandling of legacy defense nuclear waste at LANL.

DOE in its legal response formally requested a hearing.

Under a 1992 federal law allowing the U.S. government to open the nuclear waste repository in the state nearly 16 years ago, New Mexico secured authority to issue environmental permits and the ability to fine the federal government in the event of violations.

The DOE countered in its legal response that the penalties assessed by the state “unconstitutionally limits operations of the Department in violation of the Supremacy Clause of the United States Constitution.” It also says the state has no jurisdiction for regulating the “radiological components” of waste disposed at WIPP.

“We did not overreach at all,” Environment Secretary Ryan Flynn said in a telephone interview this week. “I’m very confident in how the legal process will move forward. We had a productive initial round of settlement discussions and we’re going to continue them.”

NMED said in a statement that while it “is not in a position to comment on the specifics of any settlement discussions, NMED feels its compliance orders represent an accurate and dispassionate application of its penalty policy and procedures and we are very confident that we will prevail in any legal challenge to the compliance orders.”

Don Hancock, a longtime WIPP observer with the Southwest Research and Information Center in Albuquerque, said the state “clearly has authority.”

“This is an absurd legal argument and it’s an affront not just to the citizens of New Mexico but to citizens of the United States as a whole,” Hancock said.

NMED has also indicated that the $54 million in fines represent a first round of penalties and that its review of permit violations in connection with the WIPP radiation release is ongoing.

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