“The poor performance at LANL I think is exactly why we sued the Department of Energy because we believe the DOE and contractor are in violation of the Consent Order, we need to correct that and from a policy perspective, the Department of Energy has prioritized over New Mexico, cleanup at Savannah River, cleanup at Idaho National Labs, cleanup at all these other places and that is unacceptable to the state of New Mexico since we are the only state that holds the geologic repository known as WIPP,” – New Mexico Environment Department Secretary James Kenney
BY MAIRE O’NEILL firstname.lastname@example.org | The Los Alamos Reporter June 8, 2021
District 43 Rep. Christine Chandler and New Mexico Environment Department Secretary James Kenney on Monday both criticized the Department of Energy’s lack of progress in shipping waste from Los Alamos National Laboratory to the Waste Isolation Pilot Project (WIPP) in Carlsbad. Their comments were made during the Legislative Radioactive & Hazardous Materials Committee meeting. Chandler is the vice chair of that committee.
Eletha Trujillo, Bureau Chief of the Hazardous Waste Planning Division at the state Energy, Minerals and National Resources Department, earlier in the meeting noted that there are two groups from LANL that ship waste – the DOE Environmental Management group and the DOE National Security Administration group.
“The DOE NNSA group had some safety violations back in February – the spark incident that occurred with a barrel at Los Alamos and so they have not been able to do any shipments. They do have material, but they’re not able to ship anything because they’re under a safety hold by the NRC. When they complete their plan and they get approval again from the NRC then the NNSA will be able to ship again. We don’t know when that’s going to happen. Typically the NNSA tends to have more safety violations than Environmental Management,” Trujillo said.
She added that EM has shipped their material and does not have enough material for a full load.
Later in the meeting during an interaction with Secretary Kenney, Chandler noted Trujillo’s discussion of LANL shipments and asked Kenney how he accounts for some of the poor performance of the waste shipment program.
“The poor performance at LANL I think is exactly why we sued the Department of Energy because we believe the DOE and contractor are in violation of the Consent Order, we need to correct that and from a policy perspective, the Department of Energy has prioritized over New Mexico, cleanup at Savannah River, cleanup at Idaho National Labs, cleanup at all these other places and that is unacceptable to the state of New Mexico since we are the only state that holds the geologic repository known as WIPP,” Kenney responded.
He said he also thinks there could be “more accountability between the contractor and the Department of Energy at LANL and more oversight by Washington, DC of the practices at the Department of Energy”.
Chandler said one of the excuses or explanations for the lack of shipments to WIPP and the prioritization of Idaho and Savannah River is LANL doesn’t have enough shipments to ship.
“So I think of this as sort of a chicken and the egg argument here. They don’t have enough shipments because the DOE has chosen not to put its attention on ensuring that LANL performs adequately,” she said. She asked Kinney if he would say that’s a fair statement and he replied that he would.
Chandler said she doesn’t find it acceptable for DOE or others when defending LANL’s lack of access to WIPP to use the fact that shipments are not ready.
“That is on the Department of Energy and NNSA. They are responsible for making sure we are moving waste off the site and they have failed to do so and they have failed to make their contractors accountable along those lines,” she said.
Chandler reminded the committee that LANL is going to be the focal point for pit production in the DOE complex.
“LANL’s role will continue to be prominent and it will continue to generate waste at the site. And it is critical that the DOE step up and ensure that the focal point of the complex is getting the attention and funding that it needs to ensure that not only the program is performing well, which it is, but that their environmental responsibilities are met and adequately fulfilled. I fully support NMED and the Secretary’s efforts to hold DOE accountable and I’m pleased that NMED filed suit to try to force DOE to show greater responsibility in terms of its environmental responsibilities at the site,” she said.
Later in the meeting, committee chair Sen. Jeff Steinborn asked Kenney to explain the lawsuit against DOE for the benefit of the new committee members. Kenney said NMED filed the lawsuit for lack of substantive movement towards milestones and targets that were required under the Consent Order. He explained that the Compliance Order on Consent is an NMED and DOE “federally-enforceable and state-enforceable document the state entered into in order to work with DOE to clean up legacy waste.
“What that focuses on is several campaigns in which the DOE and NMED establish milestones and targets by which the DOE shall reach cleanup. We had implementation problems. We felt as though there were implementation problems with that document and as a result of us being unable to come to agreement, we ended up filing our lawsuit to compel the DOE to essentially meet the intent of the Consent Order which is a managed cleanup which is not contingent on funding and that has enforceable limitation with penalties for not meeting the deadlines we think New Mexicans deserve to have,” Kenney said.
Senator Steinborn said the state’s relationship with the LANL on cleanup has changed.
“Maybe it was prior to the Consent Order, but it changed significantly under the last administration to allowing the Environmental Management folks to set the timetable in a sense within milestones of the cleanup they wanted to do, whereas our previous relationship with the state and the Lab used to be that we drive a very hard line on cleaning up things with fines associated if it didn’t happen,” Steinborn said.
He said the cleanup operator talked the state into willingly letting them set the timetable for cleanup.
“Unfortunately the criticism of the current Consent Order is that it allows cleanup at all these legacy sites to occur at way too slow a pace and Congress only funds us based upon that slower expectation. So there are many out there, including myself, who would love to see the state renegotiate the Consent Order so then seek a higher level of funding so that we can work more aggressively clean legacy waste at the Lab,” Steinborn said.
Secretary Kenney said the state is seeking a new Consent Order that has a final cleanup date with all the interim milestones when NMED needs to ensure the DOE is on track to meet those deadlines on behalf of the state of New Mexico.
“We’re also seeking adequate funding and funding should not be a means by which we do not achieve those goals. To be honest and candid with you all, if you look at our website, we have a section on there where we provide comments on NEPA documents in other states related to what they’re doing, like Savannah River, or Idaho National Labs or Oak Ridge, Tennessee. We watch what’s happening in the rest of the country and it’s clear that the DOE is prioritizing other states in terms of their cleanup and shipments that ultimately come to New Mexico and we will not be last. We will not be thought of last in any Department of Energy conversation. In fact, our position is since we are the recipient of some of this waste that goes to WIPP or gets processed at Los Alamos National Laboratory, we should be the first state in the country that’s thought of, not the last one,’ Kenney said.
He said DOE’s position had been that they could not meet some of the terms of the Consent Order because they are funding aspects of the Middle DP Road project.
“We don’t think we should trade one contamination source for another. That’s not what our department would do. We need to make risk-based decisions about what the greatest priority is. At this point, whether you’re talking about DP Road or the hexavalent chromium plume, both of those should be funded and cleaned up in the state if New Mexico,” Kenney said. “That was also a problem in terms of the way the Department of Energy was viewing a limited budget and asking New Mexico to weigh in on what do you want solved. We’re not going to play that game.”
Under public comment, Joni Arends executive director of Concerned Citizens for Nuclear Safety said the original Consent Order from LANL came out as a draft in 2002.
“It contained not only the Consent Order but a statement of the determination of an imminent and substantial endangerment to the communities. That determination was negotiated away before the final agreement was finalized in 2005. LANL was supposed to clean up by 2015 and the Consent Order was renegotiated,” she said.
She said this is a big concern for CCNS for two reasons.
“First, three times the amount of radioactive and hazard waste destined for WIPP is buried on the Pajrito Plateau in unlined pits, trenches and shafts in volcanic tuff that is moving to the regional drinking water supply as witnessed by the hexavalent chromium plume but also by the Rio Grande,” Arends said. “Second, NNSA is shipping newly-generated waste to WIPP. That’s not what WIPP is for. WIPP is for cleaning up the waste that’s buried and moving towards water supplies.”
Arends said it would be really helpful if the state legislature would make a statement that says that the newly-generated waste needs to be dealt with separately from the legacy waste.