New Mexico and the Energy Department have formally agreed on the campaign-style approach the federal agency must follow for an estimated 19-year legacy waste-cleanup at the Los Alamos National Laboratory (LANL), making official a document the state believes — despite deep grass-roots skepticism from some quarters — will persuade Congress to open the funding taps.
The 2016 consent order finalized last week is a dramatic revision of a predecessor document approved in 2005 and eschews hard deadlines for site-wide cleanup in favor of 17 so-called campaigns of related cleanup activities that will stretch out, according to DOE’s current estimate, to the middle of the 2030s. The Albuquerque, N.M.-based watchdog group Nuclear Watch New Mexico this week slammed the new consent order as toothless and unenforceable, writing in multiple statements and press releases that omitting the hard, legally binding deadlines in the old document in favor of deadlines DOE and the state revise on an annual basis deprives Santa Fe of a lever to lobby for adequate funding from Capitol Hill.
The New Mexico Environment Department, as it has since before a draft of the 2016 consent order was released for public comment March 31, continued to make the case that the new approach gives both the state and DOE the flexibility they need to keep the wheels of legacy nuclear remediation turning — something that was not possible with the old consent order, under which hard deadlines were routinely blown every time federal funds come in too low to complete, grinding cleanup at the 70 year-old lab to a halt.
“One of the other issues and concerns that we heard, particularly from the congressional delegation, is that ‘you have no plan,'” Kathryn Roberts, NMED Resource Protection Division director, said Friday in a telephone interview with Weapons Complex Monitor. “Some argue the 2005 document had that plan. But there is no logical sequence of work there. The 2016 consent order provides that plan, and focuses on those short term goals so the congressional delegation and other delegations that can lobby for cleanup funding can know what to ask for.”
Work on the new consent order’s first campaign, a two- to three-year chromium interim measures and characterization project, is already underway, Roberts said. However, the precise timing of the deadlines in the campaign, the objective of which is to clean up an underground chromium plume threatening local water supplies, will not be set until 15 business days after the DOE receives its fiscal 2017 appropriation from Congress — or a continuation of the prior-year appropriation called a continuing resolution, which especially in an election year is almost certainly more likely than a new appropriations bill that reconciles the 2017 spending proposals the House and Senate have produced.
Either way, the state and the agency will not sit down until after Oct. 1. The parties will meet around that time of year annually to refine milestones based on the agency’s available funding, until the cleanup is finished, under the new consent order.
The consent order’s final campaign, cleaning up the highly contaminated Area G, is expected to take five years, according to the new consent order. However, the new consent order includes no target dates for either starting or finishing cleanup of the 65-acre Area G, which includes not only above-ground and buried waste, but the waste-processing facilities the active nuclear weapons site requires to treat existing waste slated to be shipped off-site and new waste created by the nuclear modernization programs now ramping up at DOE’s National Nuclear Security Administration.
Area G is expected to drive the total cost of LANL cleanup significantly, Roberts said. The new consent order obliges DOE to revise its estimate that the remaining 19 years of work — which includes all the legacy cleanup for which the agency’s Office of Environmental Management is responsible — will cost about $4 billion. New Mexico thinks it will cost more than $5 billion, but the state’s figure assumes DOE’s final remedy will involve leaving buried Area G waste where it is, and covering the site with a cap, Roberts said.
If the state decides DOE needs to remove the waste from the site, Santa Fe’s $5-billion estimate for the total LANL legacy cleanup bill could “go up very, very quickly,” said Roberts, adding that she hoped DOE would announce its new estimate for site-wide legacy cleanup costs around January. The department must revise its estimate for total LANL legacy cleanup costs annually, under the 2016 consent order, but the new agreement does not require DOE to publish that estimate on a specific date.
Adding to the difficulty of nailing down an end-date or cost for LANL legacy waste cleanup is the fungibility of the deadlines the new consent order prescribes. Not only can deadlines be revised annually at DOE’s suggestion, but not all deadlines are created equal.
The document includes both enforceable deadlines called milestones and unenforceable deadlines known as targets. The essential distinction, according to the new consent order, is that New Mexico can levy financial penalties for blown deadlines, but not blown targets. Financial penalties are: $2,000 a day for the first 30 days after a missed milestone, and $4,000 a day thereafter. However, New Mexico reserves the right to waive any financial penalties it wishes, according to the 2016 consent order.
Meanwhile, friction about LANL cleanup continues at the local level, with DOE, LANL prime contractor Los Alamos National Security, and New Mexico all named as defendants in a lawsuit filed by NukeWatch. The group alleges the state is owed some $300 million for blown cleanup deadlines under the 2005 consent order, which was still the law of the land when the citizens group filed suit May 12 in the U.S. District Court for New Mexico.
Chief among the violated deadlines cited in the suit was the mandate that Area G, where some of LANL’s highest-risk transuranic waste is stored, be mostly cleaned up by Dec. 16, 2015.
The deadline came and went, as both DOE and New Mexico knew years in advance it would. The Energy Department acknowledged as much in 2012, but before the parties could finalize an update to the LANL cleanup rules, a drum of improperly packaged transuranic waste from LANL burst open underground at the Waste Isolation Pilot Plant (WIPP) storage facility near Carlsbad, N.M., some 340 miles south by road from Los Alamos.
New Mexico dug in its heels after that, refusing to negotiate a new consent order until after DOE settled up over the accident at WIPP. The agency did so in January, to the tune of almost $75 million. The money will go to road, emergency preparedness, and infrastructure improvements intended to make waste shipments to WIPP safer, according to the terms of the settlement published on a DOE website.
Since the settlement came down, New Mexico has been firmly and publicly in DOE’s corner. When NukeWatch first threatened suit over the breached LANL cleanup deadline in February, New Mexico Environment Secretary Ryan Flynn called the lawsuit “frivolous” and accused the advocacy group of using the courts to drum up publicity and raise funds. New Mexico subsequently joined the lawsuit as a defendant on June 23.
Meanwhile, DOE is preparing to release a solicitation for 10 years of LANL legacy waste cleanup work valued at about $1.7 billion, including a five-year option. The draft solicitation for that work went out in May. If the final contract DOE lets is worth that much, it would represent just under half the agency’s current cost estimate for the first 10 years of legacy cleanup at LANL. New Mexico, in the June 24 press release announcing the new consent order, says DOE needs a higher annual appropriation from Congress: a $66-million increase over last year’s appropriation, to roughly $255 million annually.
The specificity of the state’s estimate is an almost total reversal from the environment department’s posture earlier this year, when Flynn warned that putting a price tag on legacy LANL cleanup was a fool’s game.
“Anybody that tells you they know how long it will take, or they have a ballpark of how much it will cost, is lying,” Flynn said in a February interview with Weapons Complex Monitor. “It’s beyond difficult, trying to calculate that. You’re really just guessing.”
