Watchdogs File Second FOIA Request for Los Alamos and Sandia Labs Evaluations,

Demand Expedited Release to E-FOIA Reading Room

Santa Fe, NM – Nuclear Watch New Mexico has filed a second request under the Freedom of Information Act (FOIA) for the National Nuclear Security Administration’s FY 2015 Performance Evaluation Reports for the Los Alamos and Sandia National Laboratories. Nuclear Watch filed its first request on December 22, 2015, which has still not been fulfilled despite the law’s statutory requirement that FOIA requests be honored within 20 working days. Because of that, Nuclear Watch is demanding expedited processing and posting of these reports to an electronic FOIA reading room, as required by the 1996 E-FOIA amendments.

In 2009 the National Nuclear Security Administration (NNSA) began to withhold Performance Evaluation Reports without explanation. Accordingly, Nuclear Watch filed a FOIA request for the FY 2009 Los Alamos Lab Performance Evaluation Report that NNSA denied. Nuclear Watch appealed that decision to the Department of Energy’s Office of Hearings and Appeals, which upheld the denial on the basis that the reports contained proprietary information, contrary to the openness and transparency of previous years.

Since that time, the NNSA’s nuclear weapons complex has been rocked by constant cost overruns, security scandals, illegal lobbying and the closure of the multi-billion dollar Waste Isolation Pilot Plant after a faulty radioactive waste drum from LANL ruptured and contaminated workers. It is Nuclear Watch’s belief that American taxpayers deserve to know how their money is being spent on substandard performance by nuclear weapons contractors such as Bechtel, the University of California and Lockheed Martin.

In January 2012 Nuclear Watch filed a FOIA request for the FY 2011 Performance Evaluation Reports of all eight NNSA sites, which the agency again denied. However, rather than fruitlessly appealing to the DOE Office of Hearings and Appeals, the organization filed a lawsuit on March 28, 2012, and began to receive the PERs six days later. Since then the NNSA has publicly released its FY 2012, 2013 and 2014 PERs without having to be compelled by FOIA requests or citizen lawsuits.

However, the National Nuclear Security Administration has not released its FY 2015 Performance Evaluation Reports, which we know have been completed at least for the Los Alamos Lab. On December 17, 2015, LANL Director Charlie McMillan reported to his employees that the Los Alamos National Security, LLC management and operations contract would be put out to bid because of substandard performance as documented by the Performance Evaluation Report.

These reports have been of keen media interest. After its FOIA request was not honored the Albuquerque Journal recently editorialized:

Money to run the labs comes from U.S. taxpayers, who deserve to know how it is being spent and if contractors are doing their jobs in a timely and efficient manner. Past shoddy attention to detail by NNSA contractors and lackadaisical oversight by the U.S. Department of Energy are some of the reasons why the evaluations are critical to protecting national security. The potential search for new contractors makes the evaluations especially critical. They should be made public post haste.

Similarly a respected journalist with the Knoxville News Sentinel reported that his FOIA request was left unfulfilled, and noted that, “The performance reports contain valuable information on how the NNSA contractors are carrying out their missions involving billions of taxpayer dollars annually.” In addition, at least two other nonprofit watchdog organizations, the Oak Ridge Environmental and Peace Alliance and SRS Watch, have FOIAed for NNSA’s Performance Evaluation Reports without success.

These multiple requests by different entities are particularly important because according to the Department of Justice the 1996 E-FOIA amendments

create a new category of records that will be required to receive “reading room” treatment — a category consisting of any records processed and disclosed in response to a FOIA request that “the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records… Second, the amendments will require agencies to use electronic information technology to enhance the availability of their reading room records… To meet this new requirement through on-line access, agencies should have Internet or World Wide Web sites prepared to serve this “electronic reading room” function.

Jay Coghlan, Nuclear Watch New Mexico director, commented, “It is unconscionable that the National Nuclear Security Administration withholds information from the American taxpayer on how fat contractors who constantly bust budgets are paid, especially when these same contractors always have their hands out for yet more taxpayer money for nuclear weapons forever. The question is, what do NNSA and its contractors have to hide? To answer that, Nuclear Watch will not only demand that the Performance Evaluation Report be publicly released, but that from this point on the reports be automatically posted to an electronic FOIA reading room as the law requires. The American taxpayer should not have to fight this battle year after year just to keep greedy nuclear weapons contractors accountable.”

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Nuclear Watch New Mexico’s second Freedom of Information Act request for the Los Alamos and Sandia Performance Evaluation Reports is available at

https://nukewatch.org/importantdocs/resources/NWNM-FOIA-FY15-PERs-4-6-16.pdf

The Albuquerque Journal March 24, 2016 editorial “Tardy posting of NNSA evaluations unacceptable” is available at

https://web.archive.org/web/20160407101502/http://www.abqjournal.com/745237/opinion/tardy-posting-of-nnsa-evaluations-unacceptable.html

Knoxville News Sentinel reporter Frank Munger’s blog post is available at

http://knoxblogs.com/atomiccity/2016/03/14/what-to-think/

The Department of Justice quote is from FOIA Update, Vol. XVII, No. 4 1996

https://www.justice.gov/oip/blog/foia-update-congress-enacts-foia-amendments

NNSA’s Performance Evaluation Reports from 2007 to 2014 are available at

https://nukewatch.org/PERs-PEPs.html

This article has some details on future expanded plutonium pit production and related facility upgrades and new construction at the Los Alamos Lab.

1) Brig. Gen. S.L. Davis, NNSA acting deputy administrator for defense programs, explicitly ties future underground “modules” to the 50 to 80 pits per year production rate. That is the most explicit statement I’ve seen so far on that.  The admission that they can do up to 30 pits per year without the modules is also useful.

2) NNSA and LANL all talk about the statutory requirement for expanded pit production (from the FY 2015 Defense Authorization Act). That came from the nuclear neocons in the House Armed Services Strategic Forces Subcommittee (one of the staff guys that wrote that legislation is originally from Sandia Labs). They required expanded production regardless of the technical needs of the stockpile.  It is worth noting that after LANL finished producing 29 W88 pits in 2011 for the stockpile, there has been no further pit production scheduled, essentially because the existing stockpile doesn’t need it.

3) Nevertheless, LANL is tooling up to produce W87 pits for the Interoperable Warhead, which has been delayed for at least 5 years and which the Navy doesn’t want.  So the whole thing is a house of cards.  The real question is whether the appropriators will fund expanded plutonium pit production, and specifically where Senator Tom Udall (D-NM) will stand on that. He’s on the Senate Energy and Water Development Appropriations Subcommittee.

Jay Coghlan

Nuclear Watch New Mexico

http://www.abqjournal.com/721642/news/los-alamos-lab-would-get-2-1-billion-in-obamas-proposed-budget.html
Los Alamos lab would get $2.1 billion in proposed budget; officials discuss plans for making plutonium `pits’
By Mark Oswald / Journal Staff Writer
Published: Wednesday, February 10th, 2016 at 10:57am
Updated: Wednesday, February 10th, 2016 at 5:40pm

SANTA FE, N.M. — The Obama adminstration’s proposed fiscal 2016 budget for the Department of Energy, released Tuesday, allocates $2.1 billion for Los Alamos National Laboratory.

That’s down from $2.2 billion that the new budget document says was “enacted” for the current fiscal year but up from $1.9 billion in Department of Energy funding that was included in the administration’s request for last year.

Jay Coghlan of Nuclear Watch New Mexico said the new documents show an additional $200 million was added to the lab’s nuclear weapons program during FY 2016.

The budget, released Tuesday, also calls for $189 million for clean up of decades-worth of radioactive and hazardous materials at LANL, about the same as in recent years.

LANL is under a directive to resume production of plutonium “pits,” the triggers for nuclear weapons, as part of changes and upgrades to the nation’s nuclear weapon stockpile.

Previous DOE documents have indicated that plans to add to new underground “modules” at Los Alamos for the plutonium work were planned, for a cost estimated at a whopping $2 billion or more.

The new budget request doesn’t advance the “module” idea, leaving the plans for pit production facilities open to interpretation. The budget request says that the “remaining mission need” can be met with other alternatives.

“A common interpretation from all this is that the administration has more time to think about it,” said Greg Mello of the anti-nuclear Los Alamos Study Group. “We think it’s great they should take the time to think more clearly… before plunking capital asset money on the table.”

LANL’s Radiological, Utility, and Office Building is now projected to be a $1.44 billion building. DOE recently endorsed plans to expand RLOUB’s plutonium handling capacity by more than 10 times to 400 grams, apparently as part of the pit production plan. Critics say the building was not built as a nuclear facility.

During a press briefing today (Wednesday, Feb. 10), a Journal reporter asked officials of the National Nuclear Security Administration about potential pit production facilities.

Brig. Gen. S.L. Davis, acting deputy administrator for defense programs, said, “Under the current capabilities we have in the projects we have going, we’re going to be able to do ten pits in 2024, 20 pits in 2025, and 30 pits in 2026.

“To get to the 50-80 pits dictated by statute we’d have to do additional construction. In the current budget, we have some money for design of a plutonium capability. We’re currently undergoing an analysis of alternatives to see if that would be, in fact, plutonium modules at Los Alamos or perhaps some other alternatives, but at this point there is no money for funding of the major construction item to do that in the current budget.”

NNSA administrator Frank Klotz, said that to make sure the agency has the capacity for plutonium operations, “we are undergoing several projects basically to move things out of the old chemical and metallurgy facility building by repurposing space” in the building known as Plutionium Facility-4 in and in RLUOB.

“We have some significant funding going to subprojects associated with that,” said Klotz. He said that in the fiscal year 2017 budget, there’s about $6 million “which will be used for the development of the conceptual design for an analysis alternatives for the additional capacity we need at Los Alamos to do pit manufacturing.”

“In the out years, we have put in $12 million per year for the plutonium modular approach,” Klotz said. “We recognize that is not nearly enough money to do that. However, until we go through the analysis alternatives and until we do our internal and external independent cost estimations and all of the environmental assessments and all the other things that needs to be done before we can come up with a realistic estimate in terms of what that we’ll be.

“We’ll be back in the FY 18 or 19 budget when we have done all that due diligence and have better figures for that.”

Nuke Watch’s Coghlan said of the overall DOE budget, with $9.3 billion for the weapons activities within the National Nuclear Security Administration: “Recall that President Obama received the 2009 Nobel Peace Prize for calling for the abolition of nuclear weapons. Instead, the last budget of his administrations sets an all time record for funding Department of Energy nuclear weapons programs. What this means at Los Alamos is that the Lab’s future is being increasingly tied to expanded production of plutonium pits, the radioactive cores of nuclear weapons.”

For immediate release February 2, 2016

Watchdogs Call for Renewed Investigation of Corruption at Los Alamos Lab and Questionable Suicide of Former Deputy Director

Santa Fe, NM – Today three well-known whistleblowers sent a certified letter to Mr. Damon Martinez, the US Attorney for the District of New Mexico, asking him to reopen an investigation into fraud and corruption at the Los Alamos National Laboratory (LANL) and the questionable suicide in 2002 of the then-recently retired Lab Deputy Director. Mr. Damon is the top federal law enforcement official in New Mexico, and also serves as the Chair of the National Lab/Research University Working Group for US Attorneys. Therefore, he should be uniquely qualified to address the whistleblowers’ concerns.

Glenn Walp and Steve Doran were hired in 2002 by LANL to investigate fraud at the Lab after it had been repeatedly rocked by security and corruption scandals. However, senior Lab officials summarily fired them without cause before they could complete their investigations. During their long careers in law enforcement they were respectively, among other things, Commissioner of Pennsylvania State Police and police chief of Idaho City, Idaho. The third whistleblower, Chuck Montaño, is a multi-credentialed auditor and investigator who worked at LANL for 32 years. He became a federally protected whistleblower after reporting accounting malpractice and abuses that he had witnessed for years, and for which Lab management retaliated against him.

In their letter to Mr. Martinez, the three whistleblowers state that their main concern is the need for law enforcement to fully investigate the claimed suicide in 2002 of LANL’s second-in-command, former Deputy Director of Operations Richard Burick. Specifically at issue was the gun found at the scene of his death, and the improbability of this particular type of handgun being left in the state and condition that it was found in if truly used in a suicide. Steve Doran, who is a highly qualified investigator, and other weapon experts have concluded that it is impossible that the gun in question would have landed where it did, with an open, undamaged chamber, had it been truly used in a suicide.

In the same period of time as Burick’s claimed suicide, the criminal investigation of major procurement fraud at LANL was derailed by the Lab’s hasty firing of Walp and Doran. This, in turn, prevented a congressional committee from learning the full scope of potential criminal activity. Since then, new information has emerged that possibly links the corruption to Burick’s suicide, which the three whistleblowers assert deserves serious investigation by federal law enforcement.

The whistleblowers are coming forth now with their letter to the US Attorney for New Mexico prompted in part by a recent article by the Project on Government Oversight (POGO), a respected national organization that investigates and publicizes government waste, fraud and abuse. The POGO article concluded that if there were ever to be full accountability at LANL, “a new investigation into Richard Burick’s alleged suicide would be a good place to start.”

Walp, Doran and Montaño are also motivated by the recent announcement by the National Nuclear Security Administration that the LANL management contract will be competed in 2017. Their concern is that a full and complete investigation is needed in order to clean house and help ensure that one of the premier nuclear weapons labs, long plagued by scandal, is properly managed in the future, free of any possible reoccurrence of fraud and corruption. They believe that it is imperative that decision makers know the full extent of what transpired in order to know how best to proceed with the award of the new contract. Without a deeper understanding and accountability before the award is made, it is possible that the LANL management contract will end up in the hands of those largely responsible for the cover-up of past mismanagement at the Los Alamos Lab, or even worse the possible obstruction of justice that occurred.

Former Pennsylvania State Police Commissioner Glenn Walp commented, “Unless the consortium contractors for the Los Alamos National Laboratory consciously and aggressively resolve their perpetual management and operational failings, the lab will remain a haven for crime, corruption and cover-ups; perhaps it is time to shut it down.”

Former Police Chief Steve Doran asserted, “Corruption at Los Alamos must be taken out at the roots and those responsible brought to justice. This will build a strong national laboratory system that can be both trusted and productive.”

Federally protected whistleblower Chuck Montaño added, “The Los Alamos Lab is a cash cow for the military-industrial complex, and because politicians are so beholden to these corporations, there’s zero accountability for the fraud, waste and abuse that keeps occurring in Los Alamos. We are seeking to end that by asking the US Attorney for New Mexico to intervene and go wherever the facts may take him. ”

# # #

 The Walp/Doran/Montaño letter to Mr. Damon Martinez, US Attorney for New Mexico, is available at https://nukewatch.org/importantdocs/resources/Letter-NM-US-Attorney-LANL-fraud.pdf

The Project on Government Oversight’s article Once Upon a Time in Los Alamos is available at http://www.pogo.org/blog/2016/once-upon-a-time-los-alamos.html

Chuck Montaño’s book Los Alamos: Secret Colony, Hidden Truths chronicling his 32 years working at the Los Alamos Lab and becoming a federally protected whistleblower is available at http://losalamosdiary.com/index.html

Glenn Walp’s book Implosion at Los Alamos on his hiring and firing investigating corruption and fraud at the Los Alamos Lab is available at http://www.implosionatlosalamos.com/

Nuclear Watch NM Gives Notice of Intent to Sue

Over Lack of Cleanup at the Los Alamos Lab

Nuclear Watch New Mexico has notified the Department of Energy (DOE) and the Los Alamos National Laboratory (LANL) that it will file a lawsuit over their failure to meet cleanup milestones under a “Consent Order” governed by the New Mexico Environment Department. Formal notice is required before a lawsuit can actually be filed, which NukeWatch intends to do within 60 days or less. The New Mexico Environmental Law Center is representing NukeWatch in this legal action to enforce cleanup at LANL.

Jay Coghlan, NukeWatch Executive Director, commented, “The nuclear weaponeers plan to spend a trillion dollars over the next 30 years completely rebuilding U.S. nuclear forces. Meanwhile, cleanup at the Los Alamos Lab, the birthplace of nuclear weapons, continues to be delayed, delayed, delayed. We are putting the weaponeers on notice that they have to cleanup their radioactive and toxic mess first before making another one for a nuclear weapons stockpile that is already bloated far beyond what we need. Real cleanup would be a win-win for New Mexicans, permanently protecting our water and environment while creating hundreds of high paying jobs.”

Last week Nuclear Watch NM broke a story  on how LANL and DOE have formally given the green light for new underground facilities to expand the production of plutonium pits (the fissile triggers of modern H-bombs) from the currently approved level of 20 pits per year to 80. In all, upgrades to existing plutonium facilities at LANL and the construction of two underground “modules” that can be added to later for yet more production will cost at least $4 billion. The environmental impact statement for a previously proposed Walmart-sized plutonium facility (canceled because of costs that exploded up to $6.5 billion dollars) documented that not a single new Lab job would be created because it would simply relocate existing jobs. Full cleanup, on the other hand, would be labor intensive and create hundreds of high paying jobs for several decades.

Every year the estimated cost of nation-wide “environmental liabilities” from past nuclear weapons research and production, currently $298 billion, outpaces the annual levels of environmental restoration funding actually spent, even though those estimated liabilities don’t include full cleanup to begin with. At the same time, one multi-billion dollar DOE cleanup project after the other fails, for example the $13.5 billion Waste Treatment Plant at the Hanford nuclear reservation, the multi-billion dollar Waste Isolation Pilot Plant in southern New Mexico (closed because of a ruptured radioactive waste barrel from LANL), and the estimated $2.6 billion spent to date for incomplete cleanup at LANL. As an example of local impacts, during major stormwater events the City of Santa Fe has to close water diversion on the Rio Grande that can supply up to 15 million gallons per day of drinking water because of plutonium contamination in Los Alamos Canyon. Meanwhile, nation-wide, thousands of sick Cold War workers and downwinders from nuclear weapons tests await long delayed health benefits and compensation.

LANL is key to the trillion dollar rebuilding of nuclear forces as the premier nuclear weapons design lab and the nation’s sole production site for plutonium pit triggers, the most critical nuclear weapons components. Funding for DOE nuclear weapons programs is nearly double historic Cold War averages, with around $1.5 billion spent annually at LANL alone. In contrast, funding for Lab cleanup remains flat at around $185 million per year, with only approximately a third going to actual cleanup (one-third goes to pensions and another third to safeguarding improperly prepared radioactive waste barrels destined for the now-closed WIPP). New Mexico Environment Department (NMED) officials have publicly stated that around $250 million per year is needed for effective cleanup at LANL.

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 also stipulated a detailed compliance schedule that the Lab was required to meet. Ironically, the last milestone, due December 6, 2015, required a report from LANL on how it successfully cleaned up Area G, its largest waste dump. However, real cleanup remains decades away, if ever. The Lab plans to “cap and cover” Area G, thereby creating a permanent nuclear waste dump in unlined pits and shafts, with an estimated 200,000 cubic yards of toxic and radioactive wastes buried above the regional groundwater aquifer, four miles uphill from the Rio Grande.

In the past the New Mexico Environment Department had repeatedly stated that it would release a revised Consent Order with new compliance dates before the end of 2015. Last November NMED Secretary Ryan Flynn said that a draft revised Consent Order would not be released until settlements were finalized over LANL violations of waste handling procedures that led to the closure of WIPP. Those settlement negotiations are still ongoing, leaving the Consent Order governing cleanup at the Lab in legal limbo.

Under typical hazardous waste handling permits, federal regulations require that an extension of a final compliance date include “an opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit data, views or arguments orally or in writing and to examine witnesses testifying at the hearing.” While the 2005 Consent Order is not a permit per se, it nevertheless explicitly incorporated the public process requirements of a federal hazardous waste permit. Therefore, Nuclear Watch New Mexico believes that any revised Consent Order requires an opportunity for meaningful public participation during its negotiation, leading to a public hearing should there be any unresolved issues, a position which so far NMED has opposed.

Scott Kovac, Nuclear Watch NM Research Director, said, “DOE, LANL and NMED have had four years to involve the public in revising Consent Order cleanup decisions and comnpliance dates at the Lab, but yet they seem to have ignored the final deadline. Northern New Mexicans want meaningful input into cleanup decisions at LANL. NukeWatch believes that a rigorous cleanup schedule must be stipulated from the beginning in any revised Consent Order, and that the Lab must be held accountable every step along the way for getting the necessary funding and doing the work on time. We insist upon meaningful public participation and dates certain for compliance milestones. Cleanup at the Los Alamos Lab cannot be open-ended or it will never be accomplished.”

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Nuclear Watch New Mexico’s Notice of Intent to Sue is available at https://nukewatch.org/importantdocs/resources/NukeWatch-NM-NOI-to-DOE-and-LANS-20160120.pdf

Budget data are from the Department of Energy’s annual Congressional Budget Requests.

The current estimate of $298 billion to cleanup past nuclear weapons research and production comes from the DOE Agency Financial Report for Fiscal Year 2014. Even that figure does not come anywhere close to full and complete cleanup, but instead often involves “cap and cover” and leaving nuclear wastes permanently in place.

The quote concerning the need for a public hearing was incorporated into New Mexico state law NMSA 1978, §74-4-4.2(H) (2006).