State says new consent order adds 'accountability' to LANL cleanup

Sep. 4—A $333,000 payment to the state, strict cleanup deadlines and clear sanctions are the result of years of negotiations between the New Mexico Environment Department and the U.S. Department of Energy, state officials announced Wednesday.

The state Environment Department sued the Department of Energy in 2021 over what it considered a lack of progress on waste cleanup at Los Alamos National Laboratory, saying delays continued to put nearby communities at risk. Between fiscal years 2023 and 2024, the estimated completion date for environmental management projects at Los Alamos National Laboratories jumped from 2036 to 2043, according to congressional budget documents.

The Environment Department sought a civil penalty in 2021 for failing to meet cleanup promises and the termination of a 2016 agreement that state officials said lacked teeth. The $333,000 will go towards the state's hazardous waste emergency fund, "the primary state fund from which [the department] addresses releases of hazardous materials," according to a news release from Gov. Michelle Lujan Grisham.

"Los Alamos National Laboratory is now fully accountable for cleaning up the radioactive waste legacy stemming from the Oppenheimer days," Lujan Grisham said in a statement Wednesday.

Patrick Hefflinger, legislative affairs specialist for the Department of Energy's Office of Environmental Management, said in an email to The New Mexican that payment will be submitted within 90 days. He stressed the money is a term of the settlement agreement, not a civil penalty, and does not represent an "admission of any wrongdoing, noncompliance or liability on the part of DOE or any contractor acting at DOE's direction."

"DOE is satisfied to have settled the litigation with NMED regarding the 2016 consent order," Hefflinger said. "The revised 2016 consent order has several improvements," such as anew public participation section and schedule for the Environment Department to review documents submitted by the U.S. Energy Department.

The agreement between the state and the federal government was renegotiated in 2016, something Scott Kovac, research and operations director at Nuclear Watch New Mexico, said his organization opposed at the time. Kovac said the group felt it was a weaker consent order than the previous iteration.

"We fought pretty hard when the 2016 consent order came out," Kovac said. "We had a really good consent order, really strong consent order, the 2005 consent order ... the 2016 consent order basically let DOE off the hook, we thought."

Environment Secretary James Kenney said the new agreement, which supersedes the 2016 one, provides metrics to measure cleanup progress over the next five years and gives the department additional enforcement power.

There are many sites at LANL requiring cleanup, Kenney said. For some, the agreement requires they be cleaned up by a set completion date. For others, more information may be required to develop a cleanup plan.

Hefflinger said some projects known as "Class A Campaigns" have "sufficient clarity" to allow for a five-year schedule to be developed and completion date to be set, although Hefflinger said that date could potentially fall beyond the five-year mark.

Missed milestones and completion dates can result in penalties to the Department of Energy.

Other projects, known as "Class B Campaigns," are "too uncertain to establish a campaign completion date at this time," Hefflinger said.

One of the prescribed cleanups is a plume of hexavalent chromium — "the same chemical that was the subject of Erin Brockovich," Kenney said — which was used to keep equipment cool and prevent algae buildup. The discharge eventually migrated into the groundwater under Los Alamos.

"That's, I feel, a big win for this new consent order is to move forward with the hexavalent chromium cleanup — with sanctions for not completing it," Kenney said in an interview.

Joni Arends, co-founder of Concerned Citizens for Nuclear Safety, said she was still going through the new consent order but said it was "significant" that legacy waste was defined as dating back to the Cold War.

"It's a huge part of the work that we're all doing," Arends said. "That means that the cleanup will result in removing the waste from the ground."

Kenney said the new consent order bookends with the Waste Isolation Pilot Plant's 10-year permit renewal with the state, which he said prioritizes legacy waste shipment to the site rather than new waste.

"This is the culmination of years of effort by the Environment Department, which this consent order being one more step in holding the Department of Energy accountable," Kenney said in a news release. "Los Alamos National Laboratory must now immediately get to work and fill the Waste Isolation Pilot Plant with legacy waste. All excuses have been voided."

Next on the agenda is cleaning up abandoned uranium mines.

"We're methodical. We're moving forward. I wish it was faster, but that's what's coming next," Kenney said.

Public meetings will be held over the coming months about the terms of the consent order, according to a news release from the Governor's Office.

Greg Mello, co-founder of the Los Alamos Study Group, said the new consent order is an accomplishment — so long as it is strong enough to result in the removal of legacy waste.

"We've been down this road before," Mello said. "It's a very hard problem. [But] It's something that a lot of people have wanted for a long time."