Chris Schneidmiller
WC Monitor
10/16/2015
The state of New Mexico is losing patience with the failure to yet finalize settlements with the Department of Energy over high-profile incidents at the Waste Isolation Pilot Plant and waste management problems at the Los Alamos National Laboratory, state Environment Secretary Ryan Flynn told WC Monitor.
DOE in April announced a deal under which it would provide $73 million in support for infrastructure and emergency response improvements for the regions surrounding WIPP and Los Alamos, including $34 million to improve roadways and transportation routes near the transuranic waste storage facility in southeastern New Mexico and $10 million for water infrastructure upgrades in the Los Alamos area in the state’s north. These followed a February 2014 fire in WIPP’s underground and a subsequent, unrelated radiation release there that was ultimately connected to waste shipped from Los Alamos.
Flynn, though, said the sides have yet to reach agreement on the schedule for the projects to be carried out.
“Honestly, the last piece of the puzzle right now is figuring out a schedule for implementing the projects that the Department of Energy agreed to perform as part of the settlement agreement,” he said in an Oct. 9 telephone interview. “The state does not believe that those projects should just kind of be allowed to be completed whenever it’s convenient for the department. We expect those projects will be either completed or in progress and nearing completion within two years.”
Finalizing the plans for the settlement projects must precede any serious negotiations for revising the decade-old consent order for environmental remediation at the Los Alamos National Laboratory, Flynn said. The document sets a schedule that requires DOE to finish all major cleanup work by December of this year, a deadline the department will not meet. The consent order itself expires only when the New Mexico Environment Department determines that cleanup is complete, and DOE has called for revising the document. “We’ve indicated that we will absolutely be willing to work with the department and provide them with relief from the liability [in the form of fines] that has accumulated thus far under the consent order, but that’s contingent on the settlement agreements getting finalized,” Flynn said.
In a wide-ranging Q&A, Flynn also addressed the schedule for reopening WIPP, a potential interim consolidated waste storage site in the state, and whether WIPP might one day be used for storage of downblended nuclear weapon-usable plutonium.
Generally how would you characterize the Department of Energy’s response to the situations at WIPP and the Los Alamos National Lab, in terms of reopening the former and then addressing the waste management issues at the latter?
It’s a tough question to answer. I think it’s a work in progress. There’s been a lot of positive developments over the past couple of months. The most recent development involved the closure of Panels 6 and Room 7 of Panel 7 at WIPP. Over the past year there’s been a lot of progress being made there. They continue to increase the scope of their staging area in the underground so that they can continue to expand their operations in the underground. The interim ventilation system is another positive development that allows them to do more work getting hybrid equipment in the underground for the bolting to maintain the structural stability of the mine itself. I think there’s been progress that’s been made over the past year, and we still have a lot of work that remains to be done.
I think from the state’s perspective we are fully committed to getting the site reopened as efficiently as possible, although we need to make sure it’s done safely. We haven’t set any sort of arbitrary deadline for reopening the facility. We’ll continue to work with the Department of Energy and allow the facility to be reopened as soon as we’ve determined that it’s safe to do so. Hopefully it’ll be done sooner rather than later, and we’d like to make sure that they continue to make progress over the next couple of months, so that hopefully by the end of next year it can be opened.
From the state’s perspective what are the major projects or major work that still remain to be done on WIPP?
The most significant milestone that needs to be addressed right now is we need to settle the compliance orders that we issued to the facility. We had a settlement agreement that, we were able to settle on the terms of the settlement agreement, we still haven’t been able to finalize the actual full settlement agreement. There’s been, quite frankly, too much time passed where we’ve been waiting for the Department of Energy to kind of respond. … We’ve been working on this going back and forth over the past, gosh, six months on this now, and those settlement agreements first and foremost need to be finalized.
One of the reasons why those settlement agreements were so critical is the corrective actions that are contained within the settlement agreements. So the settlement agreement settles regulatory issues related to the fire and release that we identified, and we have a major component on the settlement agreement is the Department of Energy will be required to implement corrective actions that will improve the safety of the facility and address the issues that we identified. So we have to get those settlement agreements finalized.
After those settlement agreements are finalized we still have to maintain the structural stability of the facility itself, and that’s just the constant for the facility. It is a mine that they need to continually make sure that people are safe to enter and work down there.
The biggest issue beyond structural stability, decontamination in the mine, will continue to be ventilation and increasing the ventilation of the underground. The ventilation limits that are currently in place on the amount of people and the equipment that can be utilized in the underground. That’s going to be a major milestone that’ll need to be crossed. Those are some of the big issues.
They’ve got a good team in place down in Carlsbad right now. I think the contractor, [Nuclear Waste Partnership], they’ve got strong people in place, and I think the leadership at [DOE’s Carlsbad Field Office] that they’ve put in place is eager to get to work. … Congress has been very supportive in terms of budget so far, so I think the pieces are there, it’s really going to relate to a sustained commitment from leadership of the Department of Energy, as well as the state, to make sure that we keep this as a top priority and keep moving forward.
What is the status, and what still needs to be done to get those settlement agreements finalized?
Honestly, the last piece of the puzzle right now is figuring out a schedule for implementing the projects that the Department of Energy agreed to perform as part of the settlement agreement. The state does not believe that those projects should just kind of be allowed to be completed whenever it’s convenient for the department. We expect those projects will be either completed or in progress and nearing completion within two years. That’s our expectation, that’s been our expectation from the outset, and that’s what we’re working to come to an agreement on, is that schedule for the upgrades to transportation routes, the opening of an emergency operations center, the watershed improvements up in the Los Alamos area, etc. There are a lot of really great projects that were identified as part of the settlement agreement, and we just want to ensure that they’ll be completed on a timely basis.
Do you have a hope for when you’ll get the agreements finalized, and after that how do you hope to use the funds from the settlement?
Our goal was to have the agreements finalized by the summer, by July, and that has obviously come and gone. So we’d like to have them finalized a long time ago. We’re running out of patience on how long it’s taking to get the agreements finalized, and so that’s kind of where we’re at right now on the settlement agreements. We’ve been extremely responsive to turning around documents, and the Department of Energy has not shared the same commitment to really aggressively turning documents around and sending them back to us. We’re certainly hopeful that the WIPP settlement, as the very least, will be finalized as soon as possible. There really is not a good reason for it taking this long. That one we’d like to finalize any day now.
The Los Alamos settlement is a little bit different. We don’t want to sign or finalize that agreement until the department has completed their extent of condition review up at the lab. A lot of that agreement is really going to be identical to what’s in the WIPP settlement agreement. Once we get the WIPP settlement agreement finalized, it should not take very long to get the Los Alamos agreement finalized. But there is this extent of condition review that’s currently under way. We’re comfortable with where things are with respect to the Los Alamos settlement agreement right now, because we just don’t think it makes sense to rush to finalize the agreement before the extent of condition review is completed. We don’t anticipate any surprises as a result of the extent of condition review. We anticipated some of the conditional items that the department has flagged as far that review. We fully anticipated those. We had kind of suggested that some of those issues would be identified a couple of months ago, and I think we were proven correct on that.
I think we’re in two different places. Los Alamos, the extent of condition review should be completed by the end of this month, and ideally we’d be in position to finalize that settlement agreement in the mid-November time frame. WIPP … that one should have been finalized long ago, and I just don’t think there’s a real justification for it taking so long.
What is the status for talks on revising the state consent order for the cleanup at Los Alamos?
We started having initial conversations when we might sit down and start having those conversations, and procedurally what that process would look like. We haven’t actually engaged in any substantive conversations with respect to the consent order at this point. Really, again, we have to let those settlement agreements get finalized before we’ll agree to sit down and revise the consent order. There’s a necessary order in how we’re going about our business here.
That consent order provides the state with leverage to ensure that various sites at Los Alamos are cleaned up. Those deadlines that are currently in effect in the consent order are certainly something that are very serious and have major consequences if they’re not met. We’ve indicated that we will absolutely be willing to work with the department and provide them with relief from the liability that has accumulated thus far under the consent order, but that’s contingent on the settlement agreements getting finalized.
I think that hopefully illustrates kind of why we think the order is critical here. We’re not going to give that up until we have assurances, until we have a finalized, fully executed settlement agreement. Once we have that in place then we’ll absolutely sit down with the department and engage in good-faith negotiations concerning a new schedule for completion of the remaining scope of work at Los Alamos. We also will need to go to the public and to solicit feedback and have dialogue with the public in order to determine their priorities with respect to completion of the consent order.
How far would you say DOE has come in addressing the issues at Los Alamos, the waste issues, that then led to the problems at WIPP, and what remains to be done?
WIPP has been much further ahead than Los Alamos has, really from the outset. I think they’ve done a really outstanding job … working with us, sitting down with staff, identifying all the potential issues, and agreeing on a series of corrective actions that will need to be taken.
Los Alamos has taken longer, and it’s not necessarily surprising. I think there were more issues up there that needed to be investigated. And so I think it required more thought and work. They’ve made progress on a number of fronts, they are working to address things like, I think there were a lot of issues with respect to the lack of subject matter expertise and lack of secondary levels of assurance with respect to waste characterization work that was being done that was identified by any number of the investigative reports, from the OIG report to the root cause analysis that the laboratory had prepared, to the AIB. …
What we’ve done is, has been really go through all the issues that have been identified, both though our own investigation and compliance orders as well as through those various other independent or DOE-initiated reviews, and we’ve been able to fix most of them. The one big issue that I think we have conceptual agreement on but we are still needing to iron out all the details is on how the central characterization process will be revised. I think we both agree that there needs to be better, stronger communication between the generator of the waste and the repository, WIPP. I think some of the lines that have been drawn, there seemed to be [barriers] set between the sites and the WIPP facility. The facility here, WIPP and their contractor, really need to have a hand in the characterization process so that they can validate what they’re receiving is in fact allowable, that they’re allowed to receive it and that it’s safe. … There’s just a lot of details that need to be hashed out in order to fully articulate what the changes will be. I think that conversation is going well, but it’s just a matter of being actually putting these changes in writing and memorialize what exactly what we’re going to do.
That should be done soon, and I’m optimistic if we can get the settlement agreement for WIPP done in the next couple days and the laboratory can complete their extent of condition review by the end of this month, then there’s no reason we shouldn’t be in position to have the LANL settlement agreement finalized by mid-November. We’re not going to be able to get a new consent order in place by the end of the year, but we should be able to get a draft … revised document in place and out to the public for public comment and for individual stakeholder meetings with various interests in the area, by the first of the year.
When we spoke to you last month at the RadWaste Summit, you said that the state’s focus is on WIPP recovering before you consider a consolidated interim storage site in New Mexico. When WIPP is ultimately up and running again, would you support hosting such a waste storage facility?
I support that order of how we go about doing things. I think it’ll depend on, No. 1, what the community wants, and the community in that area, Carlsbad, both Eddy and Lea counties, there’s been really strong support for the siting of an interim storage facility for spent nuclear fuel. … We are supportive of going through this consent-based process. I think we need to understand exactly what the details will be, we need to understand what the benefits will be for the state in hosting such a facility before we agree to provide our unconditional support for a project. But I think at this point we’re certainly very interested, and we want to participate in that process, we think that we have a potential site in the southeastern part of the state that would be ideal for hosting this sort of facility.
Now, in terms of a final decision on whether we would in fact agree to site it if that process moves along and identifies our state as being the spot, the location for it, I think it’s premature at this point to provide an unconditional yes or no. But the community’s supportive and we certainly want to support the community, and we want to fully participate in this process so that we have that opportunity if and when DOE is in a position to actually make that position.
There’s been a lot of talk recently about the possible end to the MOX facility program at the Savannah River Site and then using a downblending process to deal with that 34 metric tons of plutonium under the U.S.-Russian agreement from 2000, and then sending the downblended material to WIPP. How would WIPP need to change its safety basis and maybe even make physical changes if it were to host that material?
The Department of Energy has already downblended plutonium and shipped that to the WIPP facility. What the [DOE MOX] Red Team had proposed was not something unprecedented. That has already occurred at the facility.
I’m really hesitant to start having this conversation, because we don’t oppose the construction of the MOX facility. We really don’t want to get involved in trying to compete against South Carolina or for the state of South Carolina to think that we’re trying to endorse the opinion that was provided by the Red Team. Ultimately, we’d rather avoid getting into a discussion of what we would need to do and how that could occur here.
We have a strong relationship with the state of South Carolina, both at the federal level and the state level, and we certainly think that there’s a number of states to continue to work with the Department of Energy to fulfill their mission, including storing defense-related waste.
New Mexico Environment Secretary Ryan Flynn will also speak on WIPP reopening at the 2015 Decisionmakers’ Forum, which is scheduled for Oct. 19-22 on Amelia Island, Fla. The conference will include presentations from a host of government and industry speakers; registration and agenda details can be found here.
