State sues DOE over LANL cleanup

SANTA FE – The state Environment Department has lost patience with the U.S. Department of Energy over what it says is a “continuing pattern of delay and noncompliance” with the cleanup of hazardous legacy waste at Los Alamos National Laboratory, posing a health risk to people in surrounding communities.

After a dispute resolution process broke down, the New Mexico Environment Department late Wednesday filed a civil lawsuit against the DOE in 1st Judicial District Court in Santa Fe. It claims that DOE has failed to meet objectives identified in compliance orders in 2005 and 2016 and has dragged its feet in cleaning up contamination left behind from decades of bomb-making and nuclear research.

It asks that a court-supervised process be conducted to resolve the issues.

“We’re a state agency, and our patience is long,” Environment Secretary James Kenney said in a phone interview. “But our patience runs out quickly when there’s an inability to meet promises.”

DOE maintains that significant progress has been made since 2016, including addressing hexavalent chromium contamination in groundwater and the cleanup at several sites with elevated levels of soil contamination. It maintains that it completed all 16 compliance order milestones for fiscal year 2020.

“DOE appreciates the constructive working relationship we have had for years with NMED that has resulted in significant cleanup progress at LANL since the establishment of the 2016 Compliance Order on Consent,” DOE said in a statement. “While the state has chosen to discontinue the ongoing discussions on 2021 milestones, we remain hopeful of working with the state to resolve any concerns that exist under the Compliance Order so we can continue this record of success in delivering results for the citizens of New Mexico.”

But NMED doesn’t see it as a “record of success.”

The lawsuit claims that DOE has failed to comply with the 2016 Consent Order that outlined a schedule for cleanup of legacy waste at LANL.

But compliance issues date back much further than that and environmental contamination has occurred there since the lab was founded in the 1940s as a secret facility tasked with developing the first atomic bomb.

“The contamination has been there since the 1940s, so this has been an ongoing problem,” said Stephanie Stringer, director of NMED’s Resource Protection Division.

An NMED news release listed nuclear weapons design and testing, chemical and materials science research and the research, development and fabrication of high explosives as historic operations that have generated waste streams for hazardous and radiological wastes at LANL. It says that over the years DOE has failed to meet required clean-up targets.

“This ongoing failure means that hazardous and radioactive substances continue to exceed standards and pose health risks to adjacent communities,” the lawsuit states.

It adds that groundwater contamination poses a long-term threat to drinking water sources, that tribal communities are unable to use their land as they’re accustomed to, and that economic and recreational activities are put at risk. It notes that the Parajito Plateau upon which the lab is built contains 19 major surface drainages and their tributaries.

The lawsuit demands that the 2016 Consent Order be terminated and a new order be negotiated through a court-supervised process. It calls for DOE to address the issues that came up during the dispute resolution process and a schedule be set for cleanup of legacy contamination.

The state also wants DOE to pay a $333,000 civil penalty for lack of compliance with the 2016 Consent Order.

According to the lawsuit, the Environment Department and DOE entered into dispute resolution last October, but the two sides could not come to agreement on several issues before the resolution process ended Jan. 22.

NMED wanted DOE to adhere to meeting milestones and targets for cleanup and deemed DOE’s proposal to be inadequate due to a lack of substantive clean-up targets in upcoming years. When negotiations broke down, the department resorted to litigation.

“NMED will vigorously pursue this matter to ensure timely clean-up of legacy contamination that New Mexicans deserve through a comprehensive, expeditious and enforceable clean-up plan at LANL,” its news release states.

The lawsuit notes that Nuclear Watch New Mexico previously filed a lawsuit against the DOE over its non-compliance with the 2016 Consent Order.

Jay Coghlan, executive director of Nuclear Watch New Mexico, said in a statement that “What New Mexicans really deserve (is) to have needed cleanup drive funding instead of the budget that DOE wants driving cleanup. We strongly salute the Environment Department for taking legal action against DOE’s scheme of expanding dirty nuclear weapons production over cleanup.”

NMED held a virtual community engagement meeting on Thursday to discuss topics related to the department’s work at LANL.