One of three plaintiffs is continuing mediation in hopes of reaching a settlement in a lawsuit against the New Mexico Environment Department over calculating underground waste volume at the U.S. Energy Department’s Waste Isolation Pilot Plant (WIPP).
Concerned Citizens for Nuclear Safety (CCNS) filed the request for extended mediation July 31 with the New Mexico Court of Appeals as part of a formal status report by the parties in the lawsuit filed Jan. 17. The court that day approved extending settlement negotiations until Aug. 21.
The report says the Santa Fe-based advocacy group will proceed with mediation with the state, although July talks failed to bridge the differences between NMED and two other watchdog groups, Nuclear Watch New Mexico (NukeWatch) and the Southwest Research and information Center (SRIC).
The parties have not divulged any details of what is specifically being mediated during the talks.
The state appeals court routinely requires parties to go to mediation in cases involving state agencies before a lawsuit proceeds to trial.
Lawyers for all sides agreed to extension of the mediation timeline for NMED and Concerned Citizens.
“Although mediation efforts in the appeal process were not able to resolve concerns regarding the State of New Mexico’s approval of the Volume of Record Permit Modification Request, positive, healthy discussions have taken place,” an Energy Department spokesperson said in an Aug. 1 email.
Extending the mediation through Aug. 21 should allow NMED and Concerned Citizens for Nuclear Safety to conclude their settlement discussions, the spokesperson added. The state, Energy Department, and SRIC declined to elaborate on the filing, and whether further mediation is planned between NMED and the two remaining advocacy groups.
If Concerned Citizens and NMED reach a settlement, the nongovernmental group would withdraw from the case and the court would issue a schedule for the remaining parties to proceed with the litigation, sources said.
In December, the Energy Department received a state update to the hazardous waste permit for WIPP. The revised document, signed by then-New Mexico Environment Department Secretary Butch Tongate, allowed the site to stop recording waste under the 1992 WIPP Land Disposal Act based on the size of the outer disposal container. The change, effective Jan. 20, means empty spaces and packing material between drums within larger containers are no longer recorded as waste under the federal legislation.
The retroactive change cut the official total of transuranic waste at WIPP from roughly one-half to one-third of its 176,000-cubic-meter limit.
The watchdog groups on Jan. 23 filed their lawsuit appealing the state decision. They claim the Land Withdrawal Act does not allow for an alternate method of counting waste other than the outermost container. NukeWatch and Southwest Research claim the Tongate decision is legally wrong. They are asking for the decision to be overturned.
The New Mexico Environment Department has elected not to reconsider the Tongate decision since Gov. Michelle Lujan Grisham (D) was sworn in to office on Jan. 1. The agency has encouraged the mediation process under Tongate’s successor, James Kenney.
