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Consent order on Los Alamos lab clean-up facing changes

Construction workers in 2009 demolished a Cold War-era building at Los Alamos National Laboratory in 2009, part of the cleanup of several decades of hazardous waste at the lab. Revisions to a 2005 consent order between the New Mexico Environment Department, LANL and the federal department of energy are under consideration. (Eddie Moore/Albuquerque Journal)

Construction workers in 2009 demolished a Cold War-era building at Los Alamos National Laboratory in 2009, part of the cleanup of several decades of hazardous waste at the lab. Revisions to a 2005 consent order between the New Mexico Environment Department, LANL and the federal department of energy are under consideration. (Eddie Moore/Albuquerque Journal)

SANTA FE, N.M. — This story has been corrected from an earlier version to give the correct name of Kathryn Roberts, NMED’s resource protection division director, throughout the story.


The New Mexico Environment Department is working on a revised legal agreement with the federal Department of Energy and Los Alamos National Laboratory over the huge undertaking of cleanup of decades of hazardous waste at the lab as milestones for progress established under a previous, 10-year-old “consent order” are set to run out in December.

Environment department officials say what they want is a more “performance-oriented” document that will generate actual cleanup or remediation of radioactive and other kinds of waste rather than focusing on preparatory work that only sets the stage.

The 2005 deal was focused on investigative work and characterization of LANL’s legacy waste, said Kathryn Roberts, NMED’s resource protection division director. “That was all necessary work,” but it hasn’t allowed “a lot of field work and remediation to be accomplished,” she said.

“The goal is to get work done up there,” Roberts added.

The environment department is also promising plenty of opportunity for public comment and participation in development of a revised agreement with the DOE and the lab.

But Nuclear Watch New Mexico is raising questions about how NMED is proceeding. The watchdog group says the state is violating the existing 2005 consent order by not following strict public participation rules that are part of the agreement.

“Our core fear is, we’re afraid that the public participation ends up being public comment on a done deal already negotiated between DOE, Los Alamos National Laboratory and the environment department,” said Nuclear Watch’s Jay Coghlan. “We are just not confident that deep changes would occur that way.

“What Nuke Watch wants is genuine, comprehensive cleanup that would be real win-win for New Mexico, permanently protecting New Mexicans while creating hundreds of high-paying jobs,” said Coghlan.

The 2005 consent order was LANL’s agreement for “fence-to-fence” cleanup of Cold War-era legacy waste by December 2015. That hasn’t happened, and all the agencies and parties involved have known for years the 2015 goals wouldn’t be met.

There has been cleanup work, notably demolition and other improvements at the lab’s Technical Area 21 that was paid for with much of the $212 million in post-recession federal stimulus dollars received by the lab. Just this week, officials announced demolition of another formerly contaminated warehouse at TA-21, one of the early sites for Manhattan Project and Cold War-era work, and location of the world’s first plutonium processing facility.

But LANL’s Area G waste dump still contains an estimated 80 percent of the lab’s buried waste inventory and what happens there is a big issue moving forward. “It’s the big elephant in the room,” said Coghlan. The lab’s final “milestone” from the 2005 consent order was supposed to be a “remedy completion report,” due on Dec. 6, on how Area G had been cleaned up.

A chromium plume in the Los Alamos area’s aquifer is another major priority.

No comment was provided by the DOE or the lab this week. “We cannot comment on ongoing negotiations,” a statement said.

Cleanup deal

The cleanup fight started in 2002 when the state environment department issued a finding that 60 years worth of old industrial dumps, discarded high explosives, solvents and other hazardous waste at Los Alamos posed an “imminent and substantial endangerment to human health and the environment.” The state also issued a 300-page cleanup order requiring LANL to investigate its 40-square-mile property for waste.

The DOE and LANL contested the finding and the order, arguing its own cleanup schedule was better, and sued in federal court. The 2005 deal ending the legal dispute was said to have “set in stone” a framework for cleaning up the lab’s 40-square-mile site.

The consent order laid out milestones toward cleanup by 2015, enforceable by financial penalties. Both the state and the lab viewed the deal as a way to pressure the federal government to provide the money for dealing with environmental messes at Los Alamos. But getting enough funding for the work – in recent years, federal dollars have been mostly in the range of $200 million – has become increasingly difficult.

State and federal officials began raising the possibility of renegotiating the consent order in 2011. Then, in 2012, the two sides reached a non-binding side deal focusing on one particular waste issue – 3,706 cubic meters of nuclear waste stored at Area G. All of the above-ground “transuranic” waste barrels, which were considered at risk of being reached by wildfire, were to be gone by the end of June 2014.

DOE leaders acknowledged then that the lab couldn’t meet the consent order’s broader deadlines or milestones. But NMED officials said they would consider renegotiating the 2005 deal if there was substantial progress on getting the TRU barrels to the Waste Isolation Pilot Plant near Carlsbad.

Then, in February 2014, one of the Los Alamos drums, which had been improperly packed with a combustible mix of materials, breached at WIPP and contaminated the underground storage facility. WIPP remains closed as a result. The DOE has agreed to pay $73.25 million to resolve NMED fines over the WIPP leak.

The WIPP accident also kept LANL from meeting the agreed-upon deadline to get rid of the barrels, putting what happens next with its consent order and site-wide lab cleanup front and center.

Revisions under consideration

NMED’s Roberts said one change in the consent order that the state wants is to replace the incremental milestone approach to cleanup with a series of “campaigns,” with dates for completion “from start to finish” of a prioritized list of specific remediation projects. “We really want to show progress,” she said.

State environment secretary Ryan Flynn has been “really adamant” about getting a revised consent order by the end of 2016, Roberts said. That may be optimistic, but “there is a sense of urgency on behalf of New Mexicans,” she said.

Roberts said the public will have a chance to comment on and ask questions about proposed consent order changes during a designated public comment period and at meetings of two groups – the Northern New Mexico Citizens Advisory Board, a federally appointed group that considers LANL and DOE issues, and the Regional Coalition of LANL Communities, which consists of leaders from local governments and pueblos.

That’s different from the stringent rules for a major modification of the lab’s hazardous waste facility permit issued by the state, under which interested parties can request hearings to resolve disagreements and call witnesses that can be cross-examined. A hearing officer then makes recommendations to the environment department.

Nuclear Watch’s Coghlan and Scott Kovac point to a portion of the existing consent order that mandates using the permit rules for public participation before certain kinds changes to the consent order, including “extension of final compliance date.”

“It’s there in black and white,” said Coghlan.

In a letter to NMED, Nuke Watch’s leaders say “we seek the full public participation process required by the existing Consent Order, which includes the opportunity for a hearing if negotiations are not successful.”

Coghlan said the rigorous public participation rules “get to disagreements before there is a done deal.” Nuke Watch wants to assure that the public has “a role in defining a matter of public interest – cleanup at Los Alamos to protect our water supply,” he said.

Coghlan said NMED has in the past granted more than 100 extensions of the consent order milestones and that its previous effort at a “campaign” approach – the 3706 Campaign to push the lab to move out all of the TRU waste drums – “ended in disaster with the closure of WIPP.”

“Can we be confident that the environment department is going to meet the genuine expectations of the public and that the lab will thoroughly be cleaned up? The answer to that is no.”

FLYNN: State can’t impose changes to the order (Adolphe Pierre-Louis/Albuquerque Journal)

FLYNN: State can’t impose changes to the order (Adolphe Pierre-Louis/Albuquerque Journal)

Timing an issue

In a formal statement, NMED said that, under the consent order revisions, “We’ve received Nuclear Watch’s letter indicating that they believe that the revision of the CO agreement should be treated as a permit renewal instead, with public involvement to include full, year-long adjudicative hearings and we are taking that point of view into consideration because we agree that active public involvement improves outcomes.”

In an interview, NMED secretary Flynn said there has been no final decision on whether or not to use the more extensive and formal public participation process. He noted that the 2005 consent order was approved with only a 30-day public comment period. “We think more can be done with face-to-face meetings with stakeholders such as Nuclear Watch and other NGOs, and we also have and will continue to meet with local communities” including Santa Fe, Los Alamos, Española and area pueblos, he said.

Flynn said a big issue is timing and trying to get changes in place as soon as possible. If administrative hearings are held on proposed revisions and a hearing officer has to make recommendations to Flynn, in the end, NMED will still have to “sit down and negotiate with DOE.” The state can’t unilaterally impose changes in a consent order, he said.

And Flynn said there would still be a full administrative hearing on actual remedies to LANL’s various waste problems, including Area G, where the options run from a relatively cheap “cap and cover” approach to actual removal of decades of waste buried in pits and shafts that would cost billions. In the consent order, “we’re talking schedules, we’re not talking remedies,” Flynn said.

Coghlan said Nuclear Watch realizes full-blown public participation in revising the consent order would take more time. “That’s why they (NMED) should have started this long ago,” he said. “… In effect, NMED is saying we can’t do this because we waited too long.”

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