NMED Initiates Dispute Resolution Procedures With DOE On LANL Consent Order FY2021 Milestones And Targets


New Mexico Environment Department officials have in recent weeks expressed their disappointment in milestones and targets for legacy waste cleanup at Los Alamos National Laboratory submitted for the coming year and it appears that attempts at informal negotiations between the two parties have failed. NMED has notified the Department of Energy that the state is initiating dispute resolution procedures under the terms of the 2016 Consent Order.

NMED received the DOE’s proposed changes to the Consent Order for Appendices A, B and C for FY2021 on August 7 and on September 3, DOE Environmental Management, NMED’s Resource Protection Division and Hazardous Waste Division directors and their staff met to discuss the proposed update to Appendix B, which is where milestones and targets for cleanup for the Consent Order are annotated.

“During this meeting, NMED expressed its disappointment with the proposal presented by DOE. The proposal was inadequate due to the lack of substantive and appropriate milestones and targets for the upcoming years. The proposal was noticeably deficient and would further slow clean-up progress which is contrary to protecting public health and the environment. NMED informed DOE that the proposal was unacceptable,” the letter states. 

On September 23, DOE presented a revised proposal to NMED in an attempt to address the NMED feedback, however that proposal was also deemed unacceptable “due to lack of adequate milestones and targets to maintain cleanup progress.

At the Northern New Mexico Citizens’ Advisory meeting last week, DOE’s Environmental Management Los Alamos Field Office Manager Kirk Lachman said this is a tough year for working on the Consent Order milestones given some of the other activities they are obligated to take care of including the DP Road issue and getting waste that originated in at LANL moved from Waste Control Specialists, a storage facility in Texas. The waste is similar to what caused the 2014 closure of the Waste Isolation Pilot Plant at WIPP.

“I want to make sure everyone remembers that. It was shipped to Texas to get it off the hill because of wildfire season and then we discovered the issue of what that waste was and the mistakes that were made. We have to work through that process which is a non-trivial process as is evidenced by the fact that it has been down there for a number of years. We’re struggling. We have twice-weekly meetings including all the way to EM-1 on that waste. It’s a high priority and it’s going to use some good-sized chunks of funds to move that out and go through the process,” Lachman said.

At the same NNMCAB meeting, NMED Resource Protection Division Director Stephanie Stringer said the primary focus of NMED’s regulatory activities currently is working with LANL on the annual update to annual milestones and targets.

“I’ve said it in other forums…that we are greatly disappointed in the milestones and targets proposals that we received. I understand and acknowledge that it’s related to budget but our expectation is to move this project along as quickly as possible so we’re going through the process of negotiating with LANL on what the final milestones and targets will be,” Stringer said.

She said in certain cases, NMED doesn’t understand why there isn’t a target or a timeline that they are happy with so they need more justification to understand why a date has been pushed back or why an activity hasn’t been scheduled that they may have expected to see.

“It varies depending on each individual case. Definitely we want to push back and get a robust plan to keep the project moving so that’s our goal in the negotiation process,” Stringer said.

Neelam Dhawan, NMED’s Permitting Manager for LANL, said that for the last two years NMED had been able to finalize a plan.

“This year we are quite disappointed with the model proposed for next year so we are willing to talk and see where we go. Hopefully we can resolve it and finalize it. It’s supposed to be finalized in the first quarter of the fiscal year but I don’t think there is a deadline. It can be modified if the budget changes,” she said.

When CAB chair Max Baca asked how timelines and fines are being addressed under COVID, Dhawan said it’s tricky to evaluate how much time should elapse because COVID is still ongoing and DOE’s efficiency has gone down because they have to take extra safety and health precautions.

“It’s going to be a little tricky to do what we’re doing. Most of this year’s milestones were status reports so they will reflect why the amount of work proposed is not going to be done because of the COVID-19. Once we get the justification, we will be looking at it and seeing if it’s acceptable,” she said.  

Stringer noted that there has been a lot of media coverage about compliance in light of COVID.

“Our objective across the board for any of our regulatory programs is not to let anyone hide behind a COVID excuse so we really need to understand if there’s a request for an extension that the COVID excuse isn’t being applied unnecessarily, so we’ve been really clear with our regulated community that we need to understand the explanation and provide good justification for consideration of an extension request. We’re trying not to let COVID impact our regulatory oversight obligations in that way,” she said.

Lachman said EM is not planning on requesting any extensions for 2020.

“We’re at about 30 percent efficiency loss and we’ve been doing what we can to make sure we bring in all those progress reports with an explanation of any impact but right now I’m not aware of any extensions,” he said.

The Consent Order outlines the process for the dispute and NMED has asked that each designated agency manager to provide a written statement of position to Tier 1 officials within 10 days which is the next step.