New Mexico Environment Department Resource Protection Director Stephanie Stringer  chats with N3B Los Alamos President Glenn Morgan at a community forum in February. Stringer discussed community and stakeholder feedback on the 2016 Consent Order during a telephonic meeting of the Northern New Mexico Citizens Advisory Board Tuesday, April 14. Photo by Maire O’Neill/losalamosreporter.com

BY MAIRE O’NEILL
maire@losalamosreporter.com

Northern New Mexico Citizens Advisory (CAB) Board members heard from New Mexico Environment Department (NMED)Resource Protection Division Director Stephanie Stringer Tuesday on feedback received at a Jan. 9 community engagement meeting on the 2016 Consent Order held in Los Alamos. The CAB met by telephone conference call.

The 2016 Consent Order is the a document signed by the Department of Energy (DOE) and NMED that regulates legacy waste investigation and cleanup at Los Alamos National Laboratory (LANL). Although it encompasses the work scope from the 2005 Consent Order, stakeholders have criticized the newer document. The 2016 Consent Order outlines cleanup “campaigns” and identifies “milestones” and targets.

Campaigns are specific cleanup projects and as one winds down, the next prioritized campaign commences. They have deadlines within the current fiscal year called milestones which are enforceable by NMED and targets in the subsequent two fiscal years which are not enforceable.

Stringer told the board that when she came into her position under the new administration, communities and stakeholders were invited to share their thoughts on what’s going with NMED to help develop a good vision for New Mexico.

“One of the things that we heard was that the 2016 LANL Consent Order is not the most popular consent order on the block, shall we say. I heard that comment a lot but I never knew what the specific issues were, so the intent of having the public meeting and soliciting more detailed feedback was so that I could better understand and direct my staff how to go about implementing the 2016 Consent Order and possibly consider different alternative options that could include approaching the DOE to renegotiate or consider opening it back up,” Stringer said.

She noted that the Jan. 9 meeting was respectful with a good turnout and options to share input with the community. All feedback received at the meeting and during a designated time frame following the meeting is posted on the NMED website at https://www.env.nm.gov/hazardous-waste/lanl/ under 2020 Community Engagement Feedback on Compliance Order on Consent.

Stringer said one general issue that was brought up by multiple people was the lack of a public hearing prior to the adoption of the 2016 Order. She said NMED’s position is that the 2016 Consent Order is a legal binding document between NMED and DOE.

“I wasn’t here when all of that happened so I’m really just trying to look forward and focus all of my resources and effort on making the most progress that I can while I’m in this position. I just wanted to mention that because multiple people commented that that’s an issue with the 2016 Order,” she said.

Stringer said there were three or four comments on not having the full schedule through the end of the cleanup incorporated into the 2016 Consent Order which is a big component that people feel is very lacking. She said the focus was on the milestones on an annual  basis, projecting out a couple more years with the targets and that there’s an end date for cleanup.

“But then there’s a pretty big gap within the Consent Order for how we get to that end point and what those activities would include. I think that’s a legitimate criticism of the Consent Order. That’s not to say we can’t handle those issues outside of it. Definitely, not having a schedule, not knowing all of the milestones and the steps to get us to the end was a huge component of all of the feedback that we received,” she said.

Stringer said people really felt that the regulatory oversight authority of NMED was greatly diminished with the 2016 Consent Order when compared to the 2005 Consent Order.

“Our authority right now is within the milestones of the 2016 Consent Order and we’re making sure we’re meeting all of our obligations to hold DOE accountable to what they’ve established, recognizing that perhaps we do have some limitations,” she said. “One of the other associated comments or feedback that I got was that there are no stipulated penalties in the 2016 Consent Order and there are. The milestones are enforceable milestones and if those are not met, then LANL can be assessed penalties. As a matter of fact we have assessed penalties this year and denied extension requests. So we’re really implementing the Order very carefully and consciously to make sure that we’re meeting our regulatory obligations.”

Stringer said other consistent feedback received was that the budget is driving the milestones.

“The fact that the milestones are based on a budget is very disappointing to a lot of people from what I could tell. I’ve kind of evolved on this particular issue because in general, NMED does not get into the operations and business management of our regulated facilities,” she said. She noted that NMED really focuses on environmental compliance but that over the course of the last year, it’s been brought to her attention that particularly with how the 2016 Consent Order is written, the budget information is important for her and her staff when they evaluate extension requests.

“In the context of what’s going on in the budget right now, there’s talk of the $100 million of carryover and I think not having that information available to me when I’m making decisions about whether a milestone could have been met with additional financial resources directed towards something, knowing that they were available because there was a carryover, that’s just important context for how we the regulatory entity implements the Order,” Stringer said. “So, I’ve changed my perspective on that one. I definitely don’t want to get into managing the budget of DOE. I can’t imagine what that’s like, but as far as knowing that the budget is driving the milestones and so that’s important contextual information for how I hold LANL accountable to those milestones. It’s a very important component that I don’t want to not consider when I am making those kinds of decisions.”

Feedback from the meeting also alleged a lack of outreach required under the 2016 Consent Order and no requirements for certain things to go through public review, Stringer said, adding that there’s a desire for a lot of additional outreach to occur so that the community is really involved in driving some of those decisions.

She noted that other concerns voiced included the need for involvement or at least transparency in understanding the risks-based methodology being applied by LANL. She said prioritization ties in with that because LANL is looking at the campaign approach that was developed with risk in mind and prioritizing the highest impact to public health.

“Making sure those environmental issues are addressed first and foremost is good, but when it comes down to it, this is a diverse community with different interests and so what is a priority or risk to one, may not be a priority or risk to another,” Stringer said. “So how do we integrate all of those different perspectives and priorities of the different groups?  People downstream are very concerned about some of the activities going on at LANL and think that some of those activities should be a higher priority to be completed. I’m kind of lumping that into sort of one category of different priorities not being considered as part of the process.”

As far as the feedback received on how the 2016 Consent Order was developed, Stringer said she can’t rewrite history and while it’s good information to be aware of, it’s nothing she can do anything about now.

“I’m just looking at how do I move forward and get the biggest bang for my buck while I’m here, to make an impact and see progress in the cleanup at LANL – that’s definitely my objective in this process,” she said.

Stringer said NMED is analyzing the feedback to understand what the issues are within the community and determine whether the weaknesses or criticism presented actually require a new Consent Order to be addressed or whether they can be addressed through some other mechanism.

“While the Consent Order drives what are absolutely base minimum requirements, and we have to hold LANL accountable to those, that’s not to say LANL, DOE or NMED can’t go above and beyond those requirements,” she said.

Stringer said she is working with NMED’s general counsel to see if some of the ideas presented can be achieved outside the Consent Order. That way she said all the resources are focused in a more productive way instead of getting into negotiations that can take up to two years (like the 2016 Consent Order) before anything is decided upon.

Stringer noted that even though it isn’t required, public outreach is occurring at some level.

“Certainly the piece that I can address is the regulatory oversight and accountability is definitely driving what our absolute authority is, and if those aren’t met, establishing consequences. Generally speaking, I’m looking at all of this feedback and thinking, okay can we do this,” she said.

She noted that a technical working group had been recently held by DOE and another public meeting where cleanup contractor N3B presented the entire schedule of their contract scope.

“It essentially took the milestones and the targets and expanded upon them so that it filled in some of the data gaps of the schedule of activities, but it only goes to the end of their contract so it doesn’t go quite through the end date. DOE was nice enough to prepare a poster of this for me because when it’s presented on a PowerPoint slide, it’s really tiny and you can’t really read it. I’m looking to seeing what’s in there to see if that’s a useful tool for the public to get a better handle on the bigger picture of the schedule of activities at least through 2028,” Stringer said. “That’s filling in part of the gap that people have expressed concerns with.”

She noted that while there may not be formal comment periods, NMED staff and DOE staff attend many meetings such as the CAB meeting and NMED community and DOE community engagement meetings.

“Both NMED and DOE need to do a better job helping people understand that the information that’s being shared at these different venues, does feed into the development of the milestones and different actions at DOE. I think we need to be really clear that whenever there’s a meeting advertised, this is your opportunity to help us to understand how to develop the milestones and be really clear in our communications,” Stringer said. “I think there’s so many different groups and so many different meetings going on that no one really understands where they fit into the big picture of the final cleanup schedule and end date.”

She said she has talked to a lot of people at DOE and with their contractors about how it can be more clearly communicated to people that the information they bring to the various meetings is their chance to feed into the milestone process.

“I think that’s one small step that we can make towards addressing some of the weaknesses and the criticism of the Consent Order.  I’m looking at all of those types of things to see how I can get to that endpoint as quickly as possible,” Stringer said.

As far as strengths and weaknesses of the 2016 Consent Order, Stringer said she thinks DOE would probably agree that it was written before it was ever implemented.

“Through implementation, both parties have discovered there’s sometimes a lack of specificity or clarity in the direction of the requirements, so interpretation of the exact language of the Consent Order is something that in hindsight is needed to see that more specificity would have been really helpful to the people who were applying it,” she said. “But again that’s not to say that it can’t be done on our own. Working together to figure out how we’re both going to interpret it and apply it is something that’s an ongoing activity.”

Stringer said the bottom is that she is in the middle of the evaluation process and working with staff on the feedback received to figure out the best options going forward.

“Before COVID hit the budget of the NMED had been cut over the last eight years so we as a department are operating on fumes. We were really looking forward to having a bigger budget to work with, a little more stability with resources, expanding our staff so that we can have more people to be able to do our reviews and do our regulatory oversight in a much more quick and efficient manner and then COVID hit,” she said. “We’re not sure what’s going to happen. Clearly there’s a possibility of a special session but it feels a little bit like we’re back to where we were, where we just don’t have the resources to be able to fulfill all of our responsibilities.”

Stringer said LANL is always going to be a huge priority within the Department.

“I’m not trying to imply that we’re not going to do our job when it comes to implementing the regulations at LANL but it is a challenge to do when you’ve got such limited resources. It’s important in the context of the conversation that we’re having today because now I’ve got just a year out – do I really want to have staff devoted to reopening and working with DOE to try and negotiate a new Consent Order or do I want to buckle down and figure out a way that I can get the most cleanup done,” she said.