Nuclear Watch New Mexico (NukeWatch) can continue to pursue its lawsuit against the Energy Department and its former Los Alamos National Laboratory (LANL) contractor for failing to do certain tasks spelled out in a 2005 consent order, but a federal judge won’t throw out a revised 2016 settlement between DOE and the state of New Mexico.
That’s the upshot of the 37-page decision issued July 12 by Albuquerque-based U.S. District Judge Judith Herrera. The ruling also preserves the viability of financial penalties against the defendants, the Energy Department and former contractor Los Alamos National Security (LANS).
The May 2016 suit claimed the deadline for 13 cleanup tasks spelled out in the 2005 consent agreement between DOE and the New Mexico Environment Department was extended by the state agency without good cause. These include submission of various reports on environmental monitoring, completion schedules, and issues which precede actual cleanup. The 2005 settlement was meant to hasten remediation of Los Alamos area contamination dating to nuclear weapons research in World War II.
Daily penalties for failing to complete the work started as early as June 2014 and today total more than $300 million NukeWatch New Mexico said in a Monday press release.
Frustrated by delays in milestones outlined in the original 2005 consent agreement, NukeWatch New Mexico used the citizens suit provision of the Resource Conservation and Recovery Act (RCRA) and filed a notice of intent to sue in December 2015. The actual lawsuit was filed in May 2016. The state agency intervened in the case in June 2016, around the time DOE and NMED executed their new 2016 order.
The 2005 consent order called for 80 specific remedial tasks over 10 years, although the agreement said DOE, the contractor, and the state could seek a deadline extension with good cause.
The Energy Department said it does not comment on litigation. The New Mexico agency did not respond to a request for comment. The affected parties have 14 days to file appeal motions, which could be followed by a status conference and an evidentiary hearing.
“We are gratified that the Court is allowing the lawsuit on civil penalties to move forward,” said Jon Block, a staff attorney for New Mexico Environmental Law Center, who is representing NukeWatch, said in a press release.
The litigation alleged violations of RCRA and the corresponding laws of the New Mexico Hazardous Waste Act. Among other things, the 23,680-acre LANL facility “designs and tests nuclear weapons, produces plutonium pits, researches and tests high explosives,” the judge noted in the decision.
As a result, DOE and LANS have stored, treated, and released hazardous waste under RCRA, according to the document.
The state and DOE decided to reconsider elements of the 2005 legal agreement after events such as the 2011 Las Conchas wildfire that threatened LANL. The fire prompted the state and federal agencies to moving certain above-ground transuranic waste a priority. That prompted a 2012 framework agreement to revamp waste management at the laboratory.
Then in 2016 NMED published a draft consent order to “supersede” the 2005 order. Although the New Mexico Environment Department took public comment, it never actually held a public hearing.
NukeWatch argued the state should not have given DOE and the contractor extensions beyond the prior Dec. 6, 2015 compliance date. The advocacy group also argued, unsuccessfully the 2016 order itself has no compliance deadline and violates the 2005 order.
“The problem, though, is that the 2005 Order is gone because the 2016 Order replaced it,” according to the court decision. The 2016 order outlined a “campaign approach” which superseded the compliance schedule in the 2005 order.
But the court held the NukeWatch lawsuit can go forward because of lack of assurances the campaign approach outlined in the 2016 order will remedy violations cited by the plaintiffs. “Essentially, LANS and DOE have done nothing more than tell the Court that a new system is in place, have described its general workings, and promised that violations will not recur.”
