Criticism of a controversial new agreement between the state and the federal government on how to clean up legacy waste in and around Los Alamos National Laboratory often has one thing in common—deadlines.
Most agreements between states and the federal government to clean up nuclear waste have fixed deadlines set for benchmarks. If the federal Department of Energy misses one of these deadlines, it can then be sanctioned and penalized by the state.
“The Department of Energy hates penalties,” Scott Kovac, a research and operations director with Nuclear Watch New Mexico, said in an interview. “A deadline might shake out some funding from its budget.”
For 11 years, a previous consent agreement between DOE and the state Environment Department set strict deadlines like these in New Mexico. Not any longer.
The new consent order between the two agencies, finalized last month, features two types of deadlines.
One set, called “targets,” don’t have any mechanisms for enforcement. The other set, called “milestones,” are enforceable and can technically lead to sanctions. But they renew every year and are decided on through negotiations between DOE and New Mexico.
This, according to critics, effectively puts DOE in charge of cleanup rather than the state.
Jon Block, a Santa Fe attorney helping Nuclear Watch in a lawsuit against the Environment Department over the cleanup issue, said consent orders on waste cleanup are supposed to allow states to hold the federal government accountable to complete the clean up.
Instead, he argued that the state Environment Department is doing the opposite.
“They’ve turned over the cleanup to the polluter,” Block said in an interview. “Instead of being the enforcer of noncompliance, they’re the cooperator, the negotiator, ‘we’re your pal.’”
Block says this presents a problem because DOE’s approach to cleaning up nuclear waste is to “do the least work possible and spend the least amount of money.”
A spokeswoman with DOE wrote in an email to NM Political Report that the new consent order better prioritizes completing cleanup and “minimizes the duplication of investigative and analytical work and documentation.”
If the state feels that DOE isn’t following the new consent order, the state can file for injunctive relief against DOE.
DOE’s current budget request for total waste cleanup funding across the country amounts to $5.3 billion. That’s less than the $9.2 billion the agency is requesting from U.S. Congress for its weapons budget.
The new consent order also gives DOE power to “update” the Los Alamos cleanup deadlines based on issues like “actual work progress, changed conditions and changes in anticipated funding levels.”
To Kovac, this means that if DOE loses some of its money, the agency can use that as an excuse to not meet even the less flexible deadlines set under the new consent order.
A spokeswoman with the Environment Department also did not immediately return requests to comment for this story. We will add any response we receive to this story.
Under the old consent order, DOE often missed the stronger deadlines for cleanup at Los Alamos, which may have played a role in the new deadline structure.
In a prepared statement last month, Environment Department Secretary Ryan Flynn promised the new consent order “will accelerate the pace of environment restoration activities in and around Los Alamos” and “prioritize cleanup activities.”
Flynn also said the department wants the federal government to spike its yearly Los Alamos cleanup budget to $255 million, an increase from $189 million last year. DOE estimates total Los Alamos legacy cleanup will cost $3.8 billion and take 19 years to complete.
Actually getting that money, however, is another story.
DOE and U.S. Congress may prioritize nuclear waste cleanup in other states with stronger consent orders and larger penalties for noncompliance.
“When agreements have milestone [deadlines] that need to be met, that in theory drives the [federal] budget,” Don Hancock, director of the nuclear waste safety program at the Southwest Research and Information Center, said in an interview.
Bob Alvarez, a former DOE deputy assistant secretary under President Bill Clinton, added that fixed deadlines for waste cleanup “indicate a level of militancy and seriousness” from local governments.
“The absence of deadlines does give DOE a great deal of latitude in what their schedules and budgets are going to deal with,” Alvarez said in an interview.
But other factors can outweigh fixed deadlines in competition for federal cleanup dollars.
The Hanford Site in Washington State, for example, usually gets more than $2 billion a year from DOE for cleanup of its legacy waste. Hanford contains roughly two-thirds of all nuclear waste in the country, much higher than Los Alamos.
The federal lab at Hanford also mostly shut down after the Cold War, meaning that today legacy waste cleanup is its main focus.
Los Alamos, on the other hand, is still “one of the principle sites of the nuclear weapons complex,” according to Alvarez.
“They’re not as dependent on cleanup money as they are on nuclear weapons operations spending,” he said.
Update (9:20 pm): Added statement from DOE spokeswoman.