Los Alamos National Laboratory (LANL) has given itself a Categorical Exclusion (CX) under National Environmental Policy Act (NEPA) for the removal, relocation, and examination of transuranic (TRU) waste drums at Waste Control Specialists (WCS). These drums are similar to the ones that forced WIPP to close in 2014. LANL officials decided that formal environmental assessments, with public input, of the movement of the possibly exploding waste drums are not needed.
Dear Friends and Colleagues:
Tonight, MSNBC will air a powerful documentary called “In the Dark of the Valley” at 7 p.m. PST/ 10 p.m. EST. The film follows the story of Melissa Bumstead, a mother whose search for answers about her young daughter’s cancer leads her to the contaminated Santa Susana Field Laboratory (SSFL), a former nuclear and rocket engine testing site near Los Angeles. I have been involved in the fight to clean up SSFL for 15 years, and PSR-LA has been involved for over 30 years. PSR-LA Board President Dr. Bob Dodge and I are featured in the film, along with our longtime ally Dan Hirsch, President of Committee to Bridge the Gap; generations of SSFL cleanup activists, and many others.
I urge you to watch the documentary tonight or record it to watch later. Not only is the film masterfully done and visually stunning, it manages to capture the heart of one of the longest and most intensely fought battles to clean up a contaminated site in the US. That’s a big deal.
I’m writing to you all today because as I reflect on the fight to cleanup SSFL — the struggles, the hard work, the heartache, the setbacks, the frustration, the power of the forces we’re up against, the greenwashing, the gaslighting,the personal sacrifices made by so many, the folks we’ve lost along the way — the fact that this film was made so well and is going to be broadcast nationally is more than a big deal. It’s a victory. And victories, especially in these troubled times, should be shared and savored. Particularly for those of you who don’t know as much about SSFL, understanding just how brutal SSFL cleanup advocacy is, and how amazing the community and cleanup advocates are, makes this film — this victory — even sweeter.
Comments to the Northern NM Citizens’ Advisory Board
By Scott Kovac, Nuclear Watch NM, July 24, 2019
Tremendous progress requires overall improvement, not just at one spot. A recent Environmental Management Los Alamos (EMLA) press release claimed “tremendous progress” with regards to the chromium (Cr) plume. Media stories then did their job and generalized that everything about the plume was getting better. This is the kind of public relations’ language that does not help to further the discussion on these complex issues.
Over the last decade funding for the Los Alamos National Laboratory’s (LANL’s) nuclear weapons programs has increased 20%. However, funding for needed cleanup has remained flat at one-tenth of the almost $2 billion requested for nuclear weapons programs in FY 2020. Nuclear weapons funding is slated to keep climbing under the $1.7 trillion 30-year nuclear weapons “modernization” program begun under Obama. Trump is adding yet more money, and is accelerating the new arms race with Russia by adding two new types of nuclear weapons. Cleanup funding, on the other hand, is doomed to stay flat for the next two decades because the New Mexico Environment Department (NMED) under Gov. Martinez gutted a 2005 “Consent Order” that would have forced the Department of Energy (DOE) and LANL to get more money for cleanup.
The Road to Genuine Los Alamos Lab Cleanup
Funding for nuclear weapons is still the priority at the Lab
- $1.7 trillion 30-year “modernization” program total current estimate across the nation
- LANL receives $2 billion annually for nuclear weapons work
Legacy Cleanup Program at LANL is getting started with new contractor
- Current cleanup estimate is $4.1 billion remaining to finish by 2036
- LANL cleanup has been receiving $195 to $220 million per year
On March 1, 2005, after arduous negotiations and threats of litigation, the New Mexico Environment Department (NMED), Department of Energy (DOE), and Los Alamos National Laboratory (LANL) entered into a Consent Order specifying the schedule for investigation and cleanup of the Lab’s hundreds of contaminated sites. This Consent Order (CO) was LANL’s agreement to fence-to-fence cleanup of Cold War legacy wastes, which NMED began to enforce.
The Regional Coalition of LANL Communities (RCLC) is facing scrutiny from several directions lately. The Department of Energy (DOE) Inspector General is conducting an investigation. Two members of the Santa Fe Board of County Commissioners abstained from a vote on new RCLC financial controls because the commissioners opposed blindly supporting LANL’s mission, which is 70% nuclear weapons work. And SF New Mexican columnist
DOE Environmental Management’s (EM’s) environmental liability grew by $214 billion in fiscal years 2011 through 2018, even though EM spent over $48 billion on cleanup.
GAO found that this liability may continue to grow for several reasons:
•EM’s environmental liability does not include the costs of all future cleanup responsibilities. For example, as of April 2018, DOE and its contractor had not negotiated a cost for completing a large waste treatment facility, called the Waste Treatment and Immobilization Plant, at the Hanford site.
By Scott Kovac Los Alamos National Laboratory is first and foremost a nuclear weapons laboratory. The Department of Energy’s annual Congressional Budget Request for fiscal year 2020 shows that 71% of the Lab’s budget will go to nuclear weapons work if Mr. Trump has his way. While cleanup of Cold War wastes would be 7%. And electrical transmission research along with renewable energy and energy efficiency research were slashed to a mere 0.36% of the request for the Lab. As the country goes deeper in debt, we must let go of the old Cold War mentality and invest in our future.
At some point, DOE will have to admit that it has no idea what it will cost to cleanup the Cold War nuclear weapons complex sites. DOE should stop making more wastes until the existing wastes are remediated. The new estimate is more that twice the amount that has been spent in total since cleanup began in 1989, with the most difficult sites still to come.
We’ve said it before and we’ll say it again – Clean Up, Don’t Build Up!
The thing is that the new $377 billion estimate includes leaving much of the waste behind.
Program-Wide Strategy and Better Reporting Needed to Address Growing Environmental Cleanup Liability GAO-19-28: Published: Jan 29, 2019. Publicly Released: Jan 29, 2019.
The Department of Energy is tasked with cleaning up waste from Cold War nuclear weapons production, much of which is hazardous or radioactive. The department’s Office of Environmental Management estimates that future work could cost at least $377 billion—$109 billion more than last year’s estimate.
For Immediate Release
New Mexico Environmental Law Center
Nuclear Watch New Mexico – Santa Fe, NM
A United States District Court judge has ruled that a lawsuit filed by Nuclear Watch New Mexico (NukeWatch) can move forward. The lawsuit is based on thirteen (13) violations of corrective actions Los Alamos National Security, LLC (LANS) and the Department of Energy (DOE) failed to complete under a 2005 Consent Order governing cleanup that the New Mexico Environment Department (NMED) fought for under former Governor Bill Richardson.
Fines for failure to complete the corrective tasks are $37,000 per violation per day. Violations for failing to complete the tasks started as early as June 2014 and now total well over $300 million.
The judge in allowing the lawsuit on civil penalties to move forward stated that DOE/LANS had failed to show in their legal and factual analysis that violations were unlikely to recur.
Jon Block, representing NukeWatch as a staff attorney at the New Mexico Environmental Law Center, said “We are gratified that the Court is allowing the lawsuit on civil penalties to move forward.”
In 2002, the NMED determined that decades of contamination at Los Alamos National Laboratory constituted an “imminent and substantial endangerment to health and the environment” and sought to compel cleanup at the Lab. DOE/LANS counter-sued, and in 2005 the parties agreed to a Consent Order specifying that DOE/LANS would characterize the extent and nature of the contamination, assess alternatives for effective cleanup of the contamination, and implement cleanup. Gov. Martinez came into office in 2011, after which DOE/LANS compliance with the Consent Order effectively stopped.
NukeWatch filed its original complaint in May 2016, followed by an amended complaint in July 2016. That was in response to a June 2016 announcement by NMED and DOE/LANS that they had entered into a new Consent Order that rendered the 2005 Consent Order invalid.
The judge did grant DOE/LANS and NMED’s motions to dismiss that part of NukeWatch’s complaint asking for declaratory and injunctive relief (in general seeking to have the 2016 Consent Order declared invalid). However, the judge specifically noted that the revised 2016 Consent Order replaced enforceable goals in the 2005 Order with unenforceable goals.
Jay Coghlan, NukeWatch director, commented “Susana Martinez’ administration shamefully gave away the store to the Los Alamos Lab, forgiving hundreds of millions of dollars in potential penalties for clear violations of an enforceable cleanup order, at the very time when New Mexico was facing a serious budget crisis. We are very pleased that the issue of penalties can now go forward in court, which should bring some accountability toward achieving comprehensive Lab cleanup that would produce hundreds of high-paying jobs.”
See NukeWatch’s Amended Complaint here
See Judge Judith Herrera’s decision here
Jay Coghlan: Nuclear Watch New Mexico
Jon Block, Staff Attorney: New Mexico Environmental Law Center
The New Mexico State Auditor Office recently questioned whether two settlements between the New Mexico Environment Department and the Department of Energy were in the best interests of New Mexico. That Office noted:
The [New Mexico Environment] Department unnecessarily forgave tens of millions of dollars in civil penalties related to various waste management issues and missed cleanup deadlines by the Department of Energy (DOE) and its contractors… [C]onsidering the seriousness of the violations, and the clarity regarding responsibility for the violations, it appears highly unusual that the Department would not collect any civil penalties under these circumstances. 
The settlements were over contractor violations at the Waste Isolation Pilot Plant (WIPP) and Los Alamos National Laboratory (LANL) that resulted in a ruptured waste drum that contaminated 22 workers and closed WIPP for nearly three years, costing the American taxpayer at least $1.5 billion to reopen. NMED claimed it had to agree to “supplemental environmental projects” instead of financial penalties because otherwise DOE would have taken the penalty money out of cleanup funding. 
Unfortunately, the $74 million NMED agreed to in supplemental environmental projects were for items that the DOE is already obliged to do. For example, $46 million was dedicated to repaving roads at or near WIPP and LANL that DOE uses to ship radioactive wastes, and another $10 million was earmarked for LANL’s own potable water supply.
In contrast, NMED completed an assessment of $54 million in penalties that would have gone to New Mexico, but did not enforce them before making the settlements with DOE. This was at a time when the state was beginning to face a serious budget crisis. As State Senator John Arthur Smith (Chair of the Senate Finance Committee) put it, NMED’s failure to levy penalties when New Mexico was facing a budget crisis is “taking it out of the pockets of our kids and young people when they do something like that.” 
Jay Coghlan, Director of Nuclear Watch New Mexico, commented, “This is inexcusable that NMED preemptively surrendered to Department of Energy extortion. In effect DOE is saying if you, the regulator, fine us, we will cut the money the taxpayer has paid to clean up our mess that threatens the citizens you are suppose to protect.”
NMED’s position that it had to agree to DOE’s extortion is not borne out by the facts. For example, there is a clause in the current LANL management contract that specifically holds the contractor accountable for “Fines and penalties imposed by any other regulatory agency, if it is the result of Contractor or subcontractor misconduct.”  Moreover, DOE cleanup projects are funded by specific congressional budget line items. It is highly unlikely that DOE could legally reprogram money from them to pay penalties without congressional approval.
In addition to the WIPP settlements, the State Auditor Office also noted:
The 2016 settlement agreement between DOE and the Department regarding longstanding contamination at LANL also raises concerns. While DOE and its contractor incurred millions of dollars in potential civil penalties related to missed cleanup deadlines, in revising the 2005 Compliance Consent Order, the Department also completely forgave the collection of these penalties while also loosening the compliance deadline framework.
Before Gov. Susanna Martinez took office New Mexico had an enforceable Consent Order with a detailed cleanup compliance schedule that implicitly forced DOE to get additional LANL cleanup funding or face financial penalties for missed deadlines. But under Gov. Martinez and at the Lab’s request, former NMED Secretary Ryan Flynn and Kathryn Roberts (then-Director of NMED’s Resource Protection Division) granted more than 150 time extensions for cleanup milestones, and then turned around and claimed that the Order was not working. In June 2016 NMED signed a revised Consent Order full of loopholes that allows the Lab to potentially get out of cleanup by claiming that it is too difficult or costly.
With the revised Consent Order in hand, the DOE Los Alamos Environmental Management Office then followed with a baseline cost projection of up to $3.8 billion to clean up LANL, which is woefully low, while nevertheless delaying cleanup completion out to 2040. DOE also claimed that only 5,000 cubic meters of wastes need to be cleaned up, willfully ignoring the estimated ~200,000 cubic meters they plan to “cap and cover” and leave buried as a permanent nuclear waste dump. In alignment with this, the DOE just awarded a 10-year LANL cleanup contract to Newport News Nuclear BWXT, LLC, at a rate of $140 million per year, again woefully low.
Flynn subsequently left NMED through the proverbial revolving door to become executive director of the New Mexico Oil and Gas Association, whose main mission is to lobby against environmental regulations. Roberts left NMED to work for Longenecker and Associates, a DOE contractor that is named as an “interested party” in bidding for the prime LANL management contract. At Longenecker, Roberts joined Christine Gelles, who, as the former head of DOE environmental management programs at LANL, initiated negotiations with NMED and Roberts over the revised Consent Order.
Nuclear Watch has sued DOE over missed compliance deadlines in the 2005 Consent Order, in which New Mexico could potentially collect ~$100 million in penalties. Despite that, the Environment Department intervened against the enviromentalists in that lawsuit.
Jay Coghlan of Nuclear Watch added, “We look forward to a New Mexico Environment Department under the next governor that quits coddling the nuclear weapons industry and aggressively protects the environment through enforceable cleanup deadlines and penalties. That would be a real win-win for northern New Mexicans, permanently protecting our precious water resources while creating hundreds of high-paying jobs.”
# # #
Nuclear Watch New Mexico’s September 21, 2016 Second Amended Complaint in its lawsuit over missed cleanup milestones in the 2005 Consent Order is available at https://nukewatch.org/importantdocs/cleanup_lawsuit/Second-Amended-Complaint-as-filed-9-21-16.pdf
For a detailed critique of the revised Consent Order by Nuclear Watch please see https://www.nukewatch.org/watchblog/?p=2492
 The New Mexico State Auditor’s November 21, 2017 letter to Mr. Butch Tongate, the current NMED Secretary, is available at https://www.nukewatch.org/importantdocs/resources/NMED_ACO_SA_lttr_11-21-17.pdf
 NMED’s claim that it had to agree to supplemental environmental projects and not penalties is from State auditors challenge WIPP leak settlement, Rebecca Moss, Nov 30, 2017, http://www.santafenewmexican.com/news/local_news/state-auditors-challenge-wipp-leak-settlement/article_8e0a3329-e38d-5680-a228-a6be7f2ea451.html
 Sen. John Arthur Smith’s quote is also from Rebecca Moss’ article State auditors challenge WIPP leak settlement
 See LANS Prime Contract Sections B – H, p. 20, http://www.lanl.gov/about/_assets/docs/conformed-prime-contract.pdf
Santa Fe, NM – On October 25 the Santa Fe City Council passed the following:
A RESOLUTION REQUESTING THAT THE NEW MEXICO ENVIRONMENT DEPARTMENT STRENGTHEN THE REVISED LOS ALAMOS NATIONAL LABS CLEANUP ORDER TO CALL FOR ADDITIONAL CHARACTERIZATION OF LEGACY NUCLEAR WASTES, INCREASED CLEANUP FUNDING, AND SIGNIFICANT ADDITIONAL SAFETY TRAINING; AND SUSPEND ANY PLANNED EXPANDED PLUTONIUM PIT PRODUCTION UNTIL SAFETY ISSUES ARE RESOLVED…
The Resolution was co-sponsored by Santa Fe City Councilors Carmichael Dominguez, Michael Harris, Signe Lindell, Joseph Maestas and Renee Villarreal, and unanimously adopted by all eight City Councilors. Mayor Javier Gonzales was not present.
Councilwoman Villarreal, who led the effort, commented:
As emphasized through this resolution, prioritizing cleanup and safety will have a direct impact on the City of Santa Fe and northern NM communities by doing right for past and historic legacy contamination, as well as recent nuclear criticality safety incidents at LANL. Regional economic development would be stimulated through comprehensive cleanup of the Lab. That would be a real win-win for northern New Mexicans, permanently protecting the environment and our water resources while providing hundreds of high paying jobs.
The passage of this Resolution is significant for northern New Mexico for many critical reasons.
The Santa Fe City Council is the first local government to take a position on the revised 2016 Consent Order governing cleanup at LANL. In Nuclear Watch’s view, the revised Consent Order was a giveaway by the New Mexico Environment Department (NMED) to LANL, contrary to the original 2005 Consent Order, because:
- Ex-NMED Secretary Ryan Flynn, before becoming chief lobbyist for the New Mexico Oil and Gas Association, granted more than 150 extensions to the 2005 Consent Order at LANL’s request, and then claimed the Order wasn’t working
- NMED’s chief negotiator for the revised 2016 Consent Order passed through the revolving door to work for a Department of Energy contractor that is now an “interested party” in bidding for the LANL management contract;
- NMED forgave more than $300 million in potential fines under the 2005 Consent Order, at a time when the State of New Mexico was facing a $600 million budget deficit; and
- The revised 2016 Consent Order lacks enforceability and allows LANL to get out of cleanup by claiming that it’s too difficult and/or costly.
For documentation, see https://nukewatch.org/pressreleases/NMED-PR-1-16-17.pdf , https://nukewatch.org/pressreleases/2016-Lifecycle-Baseline-Cost-estimate-PR.pdf and https://www.nukewatch.org/pressreleases/NWNM_Consent_Order_PR-6-28-16.pdf
The Santa Fe City Council is also the first local government to take a position that planned expanded plutonium pit production should be suspended until all safety issues are resolved, as certified by the Defense Nuclear Facilities Safety Board. This follows a number of nuclear criticality safety incidents at the Lab, as outlined in the Resolution.
Ironically, future expanded plutonium pit production is being driven by the nuclear weapons labs for a so-called “Interoperable Warhead” that the US Navy doesn’t want. (See a leaked Navy memo at https://www.nukewatch.org/importantdocs/resources/Navy-Memo-W87W88.pdf and Navy Strategic Missile Boss: Interoperable Warhead Not Yet Required http://seapowermagazine.org/stories/20170525-IW.html)
Moreover, it was recently revealed that the Trump-appointed chairman of the Defense Nuclear Facilities Safety Board was secretly arguing for downsizing or abolishing it. Both New Mexico Senators Udall and Heinrich have rallied against that, even introducing an amendment to the FY 2018 Defense Authorization Act protecting the Safety Board. This Santa Fe City Resolution lends additional local support to the Safety Board.
The City of Santa Fe is a member of the Regional Coalition of LANL Communities, which is comprised of nine cities, counties and pueblos surrounding the Los Alamos Lab. The Coalition is overwhelmingly funded by Los Alamos County and the Department of Energy, and Santa Fe Mayor Javier Gonzales is its chairman. The Regional Coalition has yet to take a position calling for enhanced nuclear safety before plutonium pit production is expanded, or against the revised 2016 Consent Order that undermines potential job creation through weak enforcement of cleanup.
Other local governments may pass resolutions similar to that just passed by the City of Santa Fe. Perhaps this could persuade the Regional Coalition to actively advocate for enhanced nuclear safety before plutonium pit production is expanded, and genuine, comprehensive cleanup that could truly drive regional economic development.
# # #
The Santa Fe City Resolution is available at https://nukewatch.org/importantdocs/resources/2017-76-LANL-Cleanup.pdf
Why rescind the 2016 Consent Order?
- In June 2016 the New Mexico Environment Department (NMED), the Department of Energy (DOE) and Los Alamos National Security, LLC (LANS) signed a revised Consent Order governing cleanup at the Los Alamos National Laboratory (LANL). The new Consent Order is a big step backwards in achieving comprehensive, genuine cleanup at the Lab.
- NMED should have kept the original, enforceable 2005 Consent Order that it fought so hard for under the Richardson Administration, modified as needed for the cleanup schedule and final compliance date.
- Under Gov. Martinez, the revised 2016 Consent Order was a giveaway by NMED to DOE and the Lab, surrendering the strong enforceability of the old Consent Order. As documented below, it is clearly the reverse of the 2005 Consent Order, whose underlying goal was to make DOE and LANL get more money from Congress for accelerated cleanup.
The 2016 Consent Order was negotiated to allow DOE’s budget to drive cleanup, not what is needed to permanently protect our water.
- As late as 1996 LANL was claiming that groundwater contamination from its operations was impossible, even going so far as to request a waiver from NMED from having to monitor for contamination to begin with (which fortunately NMED denied).
- Since then, extensive groundwater contamination from chromium, perchlorates, high explosives and VOCs has been documented.
- As a harbinger of more to come, plutonium has been detected up to 240 feet below the surface of Area G, the Lab’s largest waste dump. See https://nukewatch.org/importantdocs/resources/AGCME-Plate_B-3_radionuclides_subsurface.pdf
LANL plans to “cap and cover” some 200,000 cubic meters of toxic and radioactive wastes at Area G, creating a permanent nuclear waste dump in unlined pits and shafts.
- Despite the threat to precious water resources, the revised 2016 Consent Order allows DOE to determine cleanup priorities based on its anticipated budget, which is the reverse of the original Consent Order.
- The new Consent Order allows LANL and DOE to get out of future cleanup by simply claiming that it’s too expensive or impractical to clean up. (See CO quotes below.)
- Shortly after the 2016 Consent Order went into effect, DOE took advantage of it by estimating a lifetime budget that projected a top range of $3.8 billion to clean up the Lab, while delaying completion to 2040. That works out to only around $150 million per year, when NMED is already on record that $250 million per year is needed. DOE is planning “cleanup” on the cheap.
- Worst of all, DOE claimed that only 5,000 cubic meters of mixed radioactive wastes need to be cleaned up, willfully ignoring the estimated 200,000 cubic meters in Area G alone. See https://nukewatch.org/importantdocs/resources/LBC-Summary-Aug-2016.pdf, p. 3.
Whose interests were represented in the 2016 Consent Order? Not New Mexico’s!
- Shortly after the 2016 Consent Order went into effect, NMED Secretary Ryan Flynn displayed his true environmental colors by resigning to become the Executive Director of the New Mexico Oil and Gas Association. The Association’s main purpose is to lobby on behalf of the oil and gas industry against environmental regulations.
- Before joining NMED, Mr. Flynn worked for a law firm that advertises that “Our representation of oil and gas producers, mid-stream entities, and natural gas pipelines has been a mainstay of Modrall Sperling’s natural resources practice since the early days of the firm.” Modrall Sperling has also defended LANL or LANS (LANL’s managing contractor) against environment regulations and labor complaints.
- In January 2017 Kathryn Roberts, the head of NMED’s Resource Protection Division and lead Consent Order negotiator, announced that she was leaving to work as a public communications specialist for Longenecker and Associates, a DOE contractor. Prior to working at NMED, Ms. Roberts worked at LANL for four years as Group Leader for Regulatory Support and Performance.
- At Longenecker Ms. Roberts joined Christine Gelles, its Corporate Vice President and Chief Strategy Officer. They know each other well, as Ms. Gelles was the former interim manager of the new DOE Environmental Management field office at the Los Alamos Lab. A Longenecker resume´ notes that Gelles “Led planning and initial regulatory interactions with New Mexico Environment Department negotiation of Los Alamos Consent Order.” She also led initial development of the LANL lifetime budget that will cheat New Mexico out of needed increased cleanup funding. See http://longenecker-associates.com/leadership/
- During the 2016 Consent Order negotiations, Ms. Roberts was one of Gelles’ main counterparts on the other side of the table as head of NMED’s Resource Protection Division. Now Gelles is one of her superiors at Longenecker, when the DOE contractor could possibly bid in the future on LANL cleanup.
- Section II.A of the 2016 Consent Order allowed the Lab to “settle any outstanding violations of the 2005 Consent Order.” Existing violations were then waived.
- NMED pre-emptively surrendered its regulatory and enforcement powers, when the state of New Mexico really needed the money!
- New Mexico could have collected more than $300 million in stipulated penalties had NMED vigorously enforced the 2005 Consent Order. At the time, New Mexico was facing a budget crisis with a projected $600 million deficit. In effect, NMED gave half of that deficit away to a polluting nuclear weapons site that has an annual budget of ~$2.4 billion and rising.
The 2005 Consent Order was all about the enforceable schedules.
- The 2005 Consent Order required DOE and LANL to investigate, characterize, and clean up hazardous and mixed radioactive contaminants from 70 years of nuclear weapons research and production.
- It stipulated a detailed compliance schedule that the Lab was required to meet. Ironically, the last milestone, due in December 2015, required a report from LANL on how it successfully cleaned up Area G, its largest waste dump.
Under Gov. Martinez, NMED extensions eviscerated the 2005 Consent Order.
- When NMED Secretary Ryan Flynn announced a draft new Consent Order on March 30, 2016, he publicly claimed that the 2005 Consent Order was not working, hence the need for a new one to replace it.
- Nuclear Watch agrees that the 2005 Consent Order wasn’t working, but that’s because Flynn granted more than 150 compliance milestone extensions at the Lab’s request, effectively eviscerating it. The 2005 Consent Order was working quite well until Gov. Martinez took office.
Some specific provisions in the 2016 Consent Order that put DOE in the drivers seat.
- “The Parties agree that DOE’s project’s plans and tools will be used to identify proposed milestones and targets.” See https://www.env.nm.gov/wp-content/uploads/2015/12/LANL_Consent_Order_FINAL.pdf, p. 28.
- “DOE shall define the use of screening levels and cleanup levels at a site…” Ibid, p. 32.
- “DOE shall update the milestones and targets in Appendix B on an annual basis, accounting for such factors as… changes in anticipated funding levels.” Ibid, p. 29.
- “… [DOE and NMED] shall meet to discuss the appropriation and any necessary revision to the forecast, e.g. DOE did not receive adequate appropriations from Congress…” Ibid, p. 30.
- “If attainment of established cleanup objectives is demonstrated to be technically infeasible, DOE may perform risk-based alternative cleanup objectives…” Ibid, p. 34. DOE can opt out because of “impracticability” or cost of cleanup. Ibid, p. 35.
- Altogether, these put the Department of Energy in the driver’s seat, not the New Mexico Environment Department, and create giant loopholes that threaten comprehensive cleanup at LANL. The 2016 Consent Order and therefore cleanup at LANL will be held hostage to DOE funding, when the Department’s own track record makes clear that its priority is expanded nuclear weapons production paid for in part by cutting cleanup and nonproliferation programs.
All future cleanup does not have cradle to grave enforceable deadlines.
- Under the 2016 Consent Order, all anticipated cleanup projects do not have scheduled, enforceable cleanup deadlines from the beginning to the end of the project. This will encourage a lack of accountability in LANL cleanup programs that are already slow, incomplete, and wasteful of taxpayers’ dollars.
- The 2016 Consent Order eliminates all the final deadlines for completing cleanup under the 2005 Consent Order, and replaces them with an open-ended and vague scheduling process, with highly limited enforcement opportunities.
- The 2005 Consent Order (Section XII) established dozens of detailed deadlines for the completion of corrective action tasks, including completion of investigations at individual sites, installation of groundwater monitoring wells, submittal of groundwater monitoring reports, evaluation of remedial alternatives for individual sites, and completion of final remedies. These deadlines were truly enforceable under Section III.G.
- The 2016 Consent Order abandons the 2005 Consent Order provisions and replaces them with a so-called “Campaign Approach” under Section VIII. Under Section VIII.A.3, it would be up to the DOE, not the regulator (i.e., NMED) to select the timing and scope of each “campaign.”
- “Campaigns” have enforceable cleanup deadlines for only the work scheduled for the current year, when cleanup takes many years. These campaigns are to be negotiated each year between NMED and DOE with no public participation and opportunity to comment on the schedule. To add insult to injury, the annual schedule is determined by funding at DOE’s discretion, rather than the schedule driving the funding, which was the fundamental driver of the 2005 Consent Order.
- All cleanup projects should have mandatory completion dates scheduled from the beginning, and must be fully enforceable. The 2016 Consent Order miserably fails that test.
The opportunity for a public hearing was not provided.
- Any extension of a final compliance date (which was December 6, 2015) under the 2005 Consent Order should have been implemented only after the opportunity for public comment and a public hearing, including formal testimony and cross-examination of witnesses.
- The Environment Department was legally required to follow these public participation requirements that were explicitly incorporated into the 2005 Consent Order, but did not.
Public participation provisions in the 2005 Consent Order were not incorporated into the 2016 Consent Order.
- The 2016 Consent Order explicitly limits public participation requirements that were incorporated into the 2005 Consent Order.
- All notices, milestones, targets, annual negotiations, and modifications should have had public review and comment and the opportunity for a public hearing, but did not.
Comprehensive cleanup at LANL would be a win-win for northern New Mexicans, permanently protecting the environment while providing hundreds of high paying jobs.
- When DOE wants to do something, it lowballs the cost. When DOE doesn’t want to do something, it highballs the cost. LANL has estimated that comprehensive cleanup of Area G would cost $29 billion. Using actual costs of cleaning up smaller dumps, Nuclear Watch has extrapolated that cleanup of Area G would cost $7 to 8 billion. See https://www.nukewatch.org/facts/nwd/Area_G_Comparison_Costs-11-14-12.pdf
- But of that $29 billion, DOE estimated that labor costs would be $13 billion. Applying that 45% proportion to Nuclear Watch’s estimate, that would be around $3.5 billion in jobs, jobs that northern New Mexico sorely needs.
- In contrast, the government’s own environmental impact statement for a $6.5 billion nuclear weapons facility for expanded plutonium pit production stated that it would not produce a single new lab job, because it would merely relocate existing lab jobs.
- Comprehensive cleanup at LANL would be a real job producer!
Rebecca Moss at the New Mexican has another hard charging article on safety lapses at the Los Alamos Lab. See “Lab might have known dangerous waste was unmarked” at www.santafenewmexican.com/news/local_news/lab-might-have-known-dangerous-waste-was-unmarked/article_19d37b31-219a-5620-954c-a62fa9620d2a.html
If the New Mexico Environment Department is claiming, as this article reports, that its revised Consent Order governing cleanup at the Los Alamos National Laboratory (LANL) is a stronger enforcement tool than the original 2005 Consent Order, then it is being highly disingenuous (to put it politely).
Interested citizens should judge for themselves. The 2016 revised Consent Order is available at http://www.lanl.gov/environment/protection/compliance/order-on-consent.php
The revised Consent Order was a giveaway by NMED to the Department of Energy and the Lab, surrendering the strong enforceability of the old Consent Order. It is clearly the opposite of the old Consent Order, whose underlying intent was to make DOE and LANL get more money from Congress for accelerated cleanup.
The new Consent Order allows LANL and DOE to get out of future cleanup by simply claiming that it’s too expensive or impractical to clean up. Not long after the revised Consent Order went into effect, DOE took advantage by estimating a lifetime budget that projected a top range of $3.8 billion to clean up the Lab by 2040. That works out to only around $150 million per year, when NMED is already on record that $250 million per year is needed. Most egregious of all, DOE claimed that only 5,000 cubic meters of wastes needed to be cleaned up, purposively misleading the public and politicians by willfully ignoring the ~200,000 cubic meters of radioactive and toxic wastes known to be buried in LANL’s biggest dump alone.
Some of the highlights (or perhaps better put as lowlights) of the revised Consent Order are:
- “The Parties agree that DOE’s project’s plans and tools will be used to identify proposed milestones and targets.” P. 28. “DOE shall define the use of screening levels and cleanup levels at a site…” P. 32. This puts the Department of Energy in the driver’s seat, not the New Mexico Environment Department
- “DOE shall update the milestones and targets in Appendix B on an annual basis, accounting for such factors as… changes in anticipated funding levels.” P. 29. Therefore the new Consent Order is held hostage to DOE’s budget.“… [DOE and NMED] shall meet to discuss the appropriation and any necessary revision to the forecast, e.g. DOE did not receive adequate appropriations from Congress…” P. 30. Again, the new Consent Order and therefore cleanup at LANL will be held hostage to DOE funding, when DOE’s own track record makes clear that its priority is expanded nuclear weapons production paid for in part by cutting cleanup and nonproliferation programs.
- “If attainment of established cleanup objectives is demonstrated to be technically infeasible, DOE may perform risk-based alternative cleanup objectives…” P. 34. DOE can opt out because of “impracticability” or cost of cleanup. P. 35. This creates giant loopholes that threaten comprehensive cleanup at LANL.
Given all this, how can NMED claim with a straight face that the 2016 revised Consent Order is a stronger enforcement tool? This is just more of the Martinez administration coddling the nuclear weapons industry in New Mexico. Indeed, NMED had the gall to give LANL more than 150 extensions to the original Consent Order, and then turned around and claimed the Consent Order was not working and replaced it with a toothless tiger. Furthermore, and this is telling, the main Consent Order negotiator for NMED left shortly after it was signed to go work for a DOE contractor!
New Mexicans should demand comprehensive, enforceable cleanup at the Lab, which would be a real win-win, permanently protecting our precious water resources while providing hundreds of high paying jobs.
Make no doubt about it, Los Alamos National Laboratory is a nuclear weapons research, development, and production facility. In this year’s FY18 Congressional Budget Request:
70% of the Lab’s budget is Nuclear Weapons Activities
11% is for Nuclear Nonproliferation
10% for ‘Work For Others’
.4% Nuclear Energy
This chart and the FY18 LANL Lab tables to back it up are here
For immediate release July 28, 2016
LANL Estimate of $2.9 Billion for “Remaining” Cleanup
Leaves Nuclear & Toxic Wastes Behind and Kills Needed Jobs
Santa Fe, NM – The Department of Energy (DOE) has announced that the cost of “Remaining Legacy Cleanup” of radioactive and toxic wastes from more than 70 years of nuclear weapons research and production at the Los Alamos National Laboratory (LANL) will cost $2.9 billion through fiscal year 2035, averaging $153 million per year.
That cost estimate clearly assumes that the Lab’s major radioactive and toxic wastes dumps will not be cleaned up. Instead they will be “capped and covered,” leaving some 200,000 cubic yards of radioactive and toxic wastes at Area G, its largest waste dump. Those wastes sit in unlined pits and trenches, 800 feet above groundwater and three miles uphill from the Rio Grande (plutonium contaminants have been detected 200 feet below Area G). During this same period of time the Lab’s nuclear weapons programs that caused the mess to begin with will cost ten times as much, even before expected funding increases for expanded production of plutonium bomb core “pits” and increasingly aggressive “Life Extension Programs” that give existing nuclear weapons new military capabilities.
DOE’s announcement also pegs the cost of past cleanup at LANL at $3.2 billion to date, raising the question of what has been and will be accomplished with precious taxpayer dollars. The answer is not much for the money. According to DOE’s own data, for the next couple of years only around a sixth of LANL’s “cleanup” funding will actually go to cleanup. Approximately one-third will be used to catch up on worker pensions and another third to babysit improperly treated radioactive waste barrels, one of which ruptured and closed the multi-billion dollar Waste Isolation Pilot Plant. More than half of the remaining one-third for real cleanup goes to LANL’s notoriously high overhead.
DOE’s cost estimate for future LANL cleanup assumes flat funding out to FY 2035, and notes how that cost is “Aligned to [the] 2016 Consent Order.” Despite repeated requests, DOE refused to estimate cleanup costs at LANL until a new Consent Order was finalized with the New Mexico Environment Department (NMED). Both agencies recently signed it, creating a giant loophole in which the Lab can claim that cleanup is too expensive or impractical to achieve. This is the exact opposite of the original 2005 Consent Order, whose underlying intent was to make DOE and LANL ask Congress for additional cleanup funding. Subsequently, funding for LANL cleanup has fallen from $224 million in FY 2014 to $189 million requested for FY 2017.
Under the Gov. Martinez Administration, NMED Secretary Ryan Flynn granted more than 150 milestone extensions to the 2005 Consent Order at the Lab’s request and then claimed that the old Consent Order did not work. Nuclear Watch New Mexico has filed suit against DOE and LANL for missing compliance milestones under the original Consent Order, with potential fines of more than $300 million. NMED explicitly absolves those violations and fines through the new Consent Order and has intervened in the lawsuit against NukeWatch. This raises the question of whose side the Environment Department is on, the environment or the polluter (in this case, a $2.3 billion per year nuclear weapons facility)?
DOE and NMED kill the chance for serious job creation at the Los Alamos Lab with a deceptive plan for so-called cleanup that leaves tons of radioactive and toxic wastes in the ground that will permanently threaten northern New Mexico’s precious water resources. In addition to the environmental and safety threats and contamination, nuclear weapons programs are not big producers of new jobs. For example, the environmental impact statement for a planned $6.5 billion plutonium facility for expanded nuclear weapons production explicitly stated that not one new Lab job would be created because it would merely relocate existing jobs. In contrast, a LANL study of full cleanup of Area G assumed that around 40% of the total cost would go to labor. Thus, as a rough approximation, for every additional billion dollars put into cleanup, another 3,000 years of cleanup work could be created for one hypothetical worker (in other words, hundreds of high paying jobs for the regional economy).
Jay Coghlan, NukeWatch Director, commented, “The Department of Energy and the New Mexico Environment Department deal New Mexicans a bad hand by pushing a plan that blocks genuine cleanup at the Los Alamos Lab. We need real cleanup that protects our precious water resources for future generations, not more nuclear bombs that cause the mess to begin with.”
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DOE’s presentation on its cost estimate for future LANL cleanup is available at
December 10, 2014
Jack R. Craig, Jr.
Re: Transition of Legacy Clean-up Work at Los Alamos National Laboratory
Please consider these preliminary comments and requests concerning the transition of legacy clean-up work at Los Alamos National Laboratory.
Through comprehensive research, public education and effective citizen action, Nuclear Watch New Mexico seeks to promote safety and environmental protection at regional nuclear facilities; mission diversification away from nuclear weapons programs; greater accountability and cleanup in the nation-wide nuclear weapons complex; and consistent U.S. leadership toward a world free of nuclear weapons.
First, we request that alternatives to the current Department of Energy contract process be considered. The privatization of the nuclear weapons complex may be failing the U.S. taxpayer. Cost overruns plague the current system. Different variations of the same contractors still continue to line up for different variations of the same contracts. Yet, with a few exceptions, cleanup only crawls along. Many of the sites are still contaminated decades after the work was completed. And now, WIPP is shut down.
We ask that alternatives such as looking to governmental agencies instead of private contractors be tasked with cleanup at Los Alamos. For instance, could the Army Corp. of Engineers do the job?
We also strongly request that alternatives to “No-Bid” and “Cost-Plus” contracts be considered first. Recently, Senate Armed Services Committee Chairman John McCain spoke to prohibit the Pentagon from awarding cost-plus contracts, arguing such deals encourage nefariousness. (DefenseNews.com, December 5, 2014)
Second, if a conventional contract is used, we request that the following specific items be included in the proposed new EM contract at LANL. We also ask that these items be included in the ‘bridge’ contract:
- Must be tied to LANL Consent Order and LANL RCRA permit.
- Any “campaigns” must be legally binding, and not used as justification to miss Consent Order milestones.
- Should be more incentive based – less fixed.
- Should be more transparent like ARRA, including public availability of Performance Evaluations.
- Should have dramatically lower overhead costs, for example lower security and no LDRD costs. These overhead costs should be made public just as the old Functional Support Costs were available to the public.
- Must include public update meetings semi-annually.
- Should favor local/regional economic development.
- Must have public update meetings at least semi-annually.
Third, for the new bridge contract and any final contract we ask:
- Cleanup must continue at current pace during transition.
- There must be a new lifecycle baseline – with the range with assumptions spelled out. Comprehensive cleanup must be considered, not just cap and cover.
- Corrective Measures Evaluations must be completed on all areas as one of the priorities.
Finally, concerning the new bridge contract, the synopsis doesn’t address the issue of how much LANS will be paid under the to-be-finalized bridge contract in relation to how much it would have been paid under the existing contract. It also doesn’t state which of the tasks mentioned are different than under the existing contract. We request that costs and tasks be fully described in the to-be-finalized bridge contract.
Thank you for your consideration in these matters and please call if you have any questions.
Jay Coghlan Scott Kovac
Executive Director Research Director