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.
Tag: Consent Order
Talking Points: The 2016 LANL Cleanup Consent Order Should Be Rescinded
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://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!
Public Meeting: Los Alamos Cleanup at the Crossroads
Please join us for an informal public meeting Tuesday, May 24 at 6pm.
Main Library Community Room, 145 Washington Ave, Santa Fe, NM
Please remember that no refreshments are allowed at the Library.
See you there!
Los Alamos Cleanup at the Crossroads
A Discussion on the Future of Cleanup at Los Alamos
We have opportunities to take new directions
How do we get to the Northern New Mexico we want leave for future generations?
Learn how your input can help make better cleanup decisions at Los Alamos National Laboratory
Join us for a
Public Meeting: Tuesday May 24, 2016, 6 – 7:30pm
Main Library Community Room, 145 Washington Ave, Santa Fe
Topics to be Addressed
Los Alamos Cleanup Order
- For “fence-to-fence” cleanup of legacy Cold War wastes
- The 10-year trip since the original Consent Order was signed in 2005
- New “Consent Order” Proposed by the NM Environment Department
- Proposed changes from the existing
- What can be improved?
- Who is in the driver’s seat?
- Just along for the ride, or will the public have real input?
- Public comments due May 31
Department of Energy’s new Environmental Management at Los Alamos
- Cleanup work no longer under nuclear weapons work
- Looking for a new contractor
- Can cleanup accelerate?
Nuclear Watch’s lawsuit
- Alleging violations of the 2005 Consent Order
Questions, answers, and discussion
- What’s on your mind
- Your comments are important
Brought to you by Nuclear Watch New Mexico
Important Public Meeting On the Future of Cleanup At Los Alamos – Join Us on November 12
Important Public Meeting On the Future of Cleanup At Los Alamos – Join Us on November 12
The future of hundreds of thousands of cubic meters of radioactive and hazardous wastes is being evaluated now. Will Northern New Mexico be turned into a permanent nuclear waste dump?
The New Mexico Environment Department (NMED) and Los Alamos National Laboratory (LANL) have been revising the 2005 Consent Order (CO), which is the agreement between the State and the Feds for fence-to-fence cleanup of legacy Cold War wastes. The work in the CO, was supposed to be completed by December 2015. It was designed as a plan-to-make-a-plan with investigations of contaminated sites followed by cleanup decisions and remediation. Milestones and penalties were included to keep funding and cleanup on track.
What have LANL and NMED come up with to replace the 2005 Consent Order? Looks like we’ll have to wait until Thursday November 12th to find out. NMED and LANL have announced a public meeting to explain their ideas for the revised CO. There is an opportunity for public comments at the special meeting and we need you there. But it is unclear what NMED will do with any comments made. The public has been left out so far. Nuclear Watch New Mexico is pressing for meaningful responses to all comments and for actual inclusion of the public’s wishes into the revised CO.
In particular NukeWatch will be pushing for concrete milestones that are set from the beginning for all actions, for penalties when deadlines are not met, and for a new final end date. The revised Consent Order cannot be open-ended.
Northern New Mexico has been waiting long enough for cleanup at Los Alamos. Much of the waste buried in unlined dumps perched above our aquifer has been slowly releasing into the ground and heading towards our aquifer since the 1950s and 1960s. The Cold War ended in the early 1990s. Enough is enough.
Northern New Mexico Citizens’ Advisory Board Meeting
Revised NMED/ LANL Consent Order Special Meeting
Thursday, November 12, 2015
1:00 p.m. to 4:30 p.m.
Cities of Gold Conference Center
10-A Cities of Gold Road
Pojoaque, New Mexico 87506
1:00 p.m. Call to Order – Lee Bishop, DDFO
Welcome and Introductions – Doug Sayre, Chair
Approval of Agenda
1:15 p.m. New Mexico Environment Department Perspective on Revised Consent Order – Secretary Flynn
1:30 p.m. Department of Energy Perspective on Revised Consent Order – Doug Hintze
1:45 p.m. History of Work Already Completed – Doug Hintze
2:00 p.m. Campaign Approach – Doug Hintze
2:30 p.m. Break
2:45 p.m. Campaign Approach (continued) – Doug Hintze
3:30 p.m. Schedule of Actions – NMED
3:45 p.m. Public Comment Period
4:30 p.m. Adjourn – Lee Bishop
NukeWatch Pushes Environment Department for More Public Input in Los Alamos Cleanup
NukeWatch Pushes Environment Department for More Public Input in Los Alamos Cleanup
An in-depth article, Consent order facing changes, by Mark Oswald in the Albuquerque Journal (October 9, 2015) lays out how legacy waste cleanup at Los Alamos National Laboratory (LANL) is being negotiated between DOE and the NM Environment Department (NMED) without the fully required public participation. The 2005 Consent Order (CO), which addresses the fence-to-fence cleanup of hundreds of thousands of cubic meters of Cold War legacy radioactive and hazardous waste in the ground at the Lab, was due to reach it’s final milestone this December. For many reasons, including the closure of WIPP due to improper radioactive waste drum packing practices at LANL, the December 2015 deadline will not be meet.
Please don’t think that, just because deadlines were not reached that it was a failure. Much progress on cleanup at LANL was made under the 2005 Consent Order. About 2,100 cleanup sites were originally identified, ranging from small spills to large landfills. Cleanup of about half of the sites has been completed. Initial investigation of about 90 percent of the remaining sites has been completed. Many cleanup alternatives were also investigated at the remaining sites and options have been presented. A groundwater monitoring well infrastructure was installed, with more monitoring wells on the way.
In Oswald’s article, NMED’s Kathryn Roberts stated that, “The 2005 deal was focused on investigative work and characterization of LANL’s legacy waste.” We at NukeWatch, feel that the goal of the 2005 Consent Order was always the cleanup of LANL and that the investigations and characterization of the many waste sites were just the first steps. There are milestones in the CO, with dates, for the actual cleanup of all the legacy waste sites at Los Alamos. 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, the Lab’s largest waste site, had been cleaned up.
NMED and DOE/LANL are negotiating the new CO now and have publically stated plans to rollout the draft for the new CO this November for a 60-day public comment period. Nuclear Watch NM believes that these negotiations must have public input.
This gets us to one of our main reasons why we feel the need for more public input. We are concerned that the new CO will not have enforceable milestones for all cleanup projects from the beginning. Deciding every 1 to 3 years which sites will be addressed for a cleanup ‘campaign’ and then what that schedule should be will insure that Los Alamos never addresses all the sites. This would revert cleanup back to the way it was done before the 2005 Consent Order with budget driving cleanup. But the purpose of the CO is to have cleanup drive the budget. A schedule for all cleanups must be set from the beginning and the Lab must be held accountable every step along the way by getting the money and doing the work on time.
We will insist on a new final compliance date for the last milestone of the last legacy cleanup project. Cleanup at Los Alamos cannot be open-ended.
NukeWatch’s September 21 letter to NMED that explains our position that a “Class 3 Permit Modification” is required is here.
The 2005 Consent Order, as modified, is here.