The state of New Mexico is reconsidering its 2016 pact with the U.S. Department of Energy on how to regulate the cleanup of decades-old hazardous waste at Los Alamos National Laboratory.
The administration of Democratic Gov. Michelle Lujan Grisham wants to revisit the agreement — known as a consent order — that the state Environment Department crafted under Republican Gov. Susana Martinez to replace a more stringent 2005 version that expired at the end of 2015.
The public will have a chance to air views about the current consent order and suggest changes at a meeting Thursday at the University of New Mexico’s Los Alamos campus. The meeting is being held in response to people expressing concerns about the consent order to state regulators and legislative leaders, said Maddy Hayden, a spokeswoman for the Environment Department.
“Undertaking periodic reviews of enforceable documents ensures that the intent of the consent order is met,” Hayden said in an email.
Lab officials say the 2016 consent order created more flexible goals for tackling an immense cleanup with unforeseen problems, while critics contend it defanged an enforcement action that was getting results.
Hard deadlines and prescribed penalties for missing them without just cause were replaced by “milestones” or goals that are more easily renegotiated. Running late on a project can still draw a fine, but that’s become relatively rare.
The more cooperative effort between the lab and regulators has been dubbed a “campaign” approach to cleaning up the immense hazardous waste in the lab’s Area G disposal sites.
“The campaign approach establishes a more effective structure for completing work on a priority basis and provides flexibility through the recognition of changing conditions on the ground,” said Steven Horak, a spokesman for the U.S. Energy Department’s environmental management field office in Los Alamos.
But watchdogs say firm deadlines are vital to ensure projects are finished in a timely manner and the overall cleanup doesn’t drag on indefinitely.
“The old order had a detailed schedule with deadlines for the completion of each individual task,” said Charlie de Saillan, an attorney with the New Mexico Environmental Law Center who helped write the 2005 consent order. “A lot of work was accomplished. Work has slowed down under the 2016 consent order.”
Political tide drives oversight
In the early 2000s, federal agencies had made little progress in cleaning up the vast waste created during the Manhattan Project and the Cold War, which contaminated the soil and water around the lab, so the state decided to push for swifter remediation, said de Saillan, who was an attorney with the state Environment Department at the time. That involved some legal jousting and negotiations between the state and the Energy Department.
The two sides broke the stalemate in late 2004, resulting in the 2005 consent order. It had detailed requirements for investigating and monitoring sites, choosing remedies and handling the overall cleanup.
There were explicit deadlines but also leeway to extend them for good cause, de Saillan said, adding that it’s misleading for anyone to suggest the deadlines were unreasonably rigid. Plenty of extensions were granted under Democratic Gov. Bill Richardson, he said.
The order’s main flaw was setting a 2015 deadline for clearing out all the waste, which was unrealistic, de Saillan said.
Still, the order proved to be an effective enforcement tool, he said. The lab cleaned up many areas, including mercury and PCB disposal sites; completed investigations at 90 percent of individual sites; discovered and surveyed the toxic chromium plume beneath Mortandad Canyon; and removed old buildings at the plutonium complex.
But after Martinez was elected governor in 2011, she gave environmental cleanup less priority and favored less oversight. The political tide had shifted, and with it came a more more forgiving approach to dealing with the lab, de Saillan said.
Reversal of power
Under Richardson, the lab would submit written requests to extend deadlines, explaining the circumstances. Regulators would spend a couple of weeks reviewing the requests, approving some and denying others, de Saillan said.
Reviews shortened to a couple of days under Martinez, and the extensions were almost always granted, bordering on rubber-stamping, he said.
Ryan Flynn, who became the state’s environment secretary in 2013, granted the lab 150 deadline extensions during his tenure, said Jay Coghlan, executive director of Nuclear Watch New Mexico.
Shortly after Flynn announced in 2016 that the consent order was being revised, the Energy Department reduced its top-range estimate for the long-term cleanup to $3.8 billion and said it would need at least 20 years to complete it, Coghlan said.
That reduced the yearly cleanup projection to $150 million from the earlier $250 million estimate, Coghlan said.
“It’s no coincidence that a mere few months after the 2016 consent order came out, DOE low-balled its life-cycle estimate,” he said.
This consent order reversed the power dynamic, de Saillan said. Before, the Energy Department had to gear its budget to meet most deadlines, but now with the deadlines removed, it could spend what it wanted on cleanup and the state had to accept it.
“DOE’s budget is driving the cleanup, and DOE’s budget has been cut,” de Saillan said.
The new order also directed the state agency to forgive violations the lab committed under the previous consent order. Unofficial estimates peg the total dismissed fines as high as $300 million, Coghlan said.
Restoring the public’s voice
Kathryn Roberts, a former state Environment Department staffer who was working as a group leader at the lab, returned to the agency in 2015 as the resources protection director.
She was instrumental in revamping the 2005 consent order.
Her LinkedIn profile describes her lab job as assisting with compliance and interpreting environmental regulations for cleanup projects. This experience would prove useful to Roberts when rewriting consent order guidelines.
In 2017, Roberts left the agency to join Longenecker & Associates, a Nevada-based firm that does consulting work for the lab. That same year, Flynn quit his job as environment secretary to become executive director of the New Mexico Oil & Gas Association.
Consent orders don’t normally require public participation, de Saillan said, so the state stipulated in 2005 that the public must be able to comment at various phases of the cleanup and when there’s a serious infraction.
That language was stripped from the 2016 consent order, he said, which enabled the lab to exclude the public.
Environment Secretary James Kenney has said he wants more transparency and public dialogue, including about the lab.
At the upcoming meeting, officials will take seriously the suggestions they hear for revising the consent order, Hayden said. “All productive input and feedback received at the meeting will be reviewed and considered by the department.”