BY MAIRE O’NEILL
New Mexico Environment Department Sec. James Kenney told participants in a virtual Los Alamos community engagement meeting Thursday evening that NMED’s goal is cleanup, that its goal is never to penalize, but that there has to be consequences when people don’t follow the rules.
Sec. Kenney was referring to a lawsuit against the Department of Energy filed by NMED in District Court late Wednesday and announced early Thursday initiating the termination of the 2016 Consent Order as well as holding the Department of Energy accountable to cleaning legacy waste at Los Alamos National Laboratory per the existing planning cycle and “seeking mediation through the District Court for our new version of the Consent Order”.
“Our goal is to improve the outcomes and the timeliness of the cleanup at Los Alamos and hold the Department of Energy accountable to spending their budget to making sure that it’s used in a way that it reduces risk, protects public health and just has better outcomes for the state of New Mexico,” he said.
Kenney said he knew the lawsuit would be of big interest to the community as it has been more than a year since a January 2020 meeting in Los Alamos on what was working and not working in the Consent Order.
“We want you to know that we are listening, we are hearing what you are saying and our experience is that we needed to do this in order to move forward,” he said.
The Secretary thanked all those in the Department who work monitoring Los Alamos and making sure NMED knows what’s going on and for holding them accountable and holding firm.
“We have very high expectations not just for the Department of Energy but anybody who is doing business in New Mexico that they are going to adhere to the law, follow the law, and that when cleanup is necessary they’re going to follow up and not put us behind other states,” he said.
Kenney noted that a significant part of NMED leadership was present at the virtual event.
“All the resources we can muster are always in high demand with as many issues as we have in the state. We are glad that we were able to work on this and get to this point. We are monitoring what happens all around the country,” he said. “All the roads that DOE uses go to New Mexico. We should not be last on the list of anything when it comes to DOE. In the environmental cleanup thought process, we should be first. It all should start from here and move out from here, not come towards us. We’re trying to change that. I’m very optimistic with the new federal administration that maybe we’ll get a better outcome.”
Going forward, Kenney said, “The lawsuit is the lawsuit and we’re going to go through that process”.
“A lot of it depends on the Department of Energy. We’re committed to doing what’s best here, meaning we’re committed to working with them if they’re willing to work with us. At the same time, we’re also committed to following through legally and moving our lawsuit forward,” he said. “I would love to turn a page with all of our federal entities in New Mexico, that their noble missions, the missions that they have in the state of New Mexico, that the employees that they have, that they’re as proud of their mission of what they’re doing here as they are of their environmental footprint so I would like us to get to that point. It’s a long line of litigation at his point. It’s clear what we’re asking for in the complaint. The ball is in the Court’s court. The ball is in the DOE court at this point. “
Kenney said he appreciates everybody’s commitment and that NMED set up the quarterly community engagement meetings to hear from the public what their biggest concerns are about Los Alamos and to be responsive.
“Sometimes that takes time based on the legal process as well as our funding levels. You have a committed group of civil servants here – public servants – and whatever you raise to us, we will take fully in and contemplate how to improve an outcome and work with you on how to just move the needle forward in the cleanup in terms of the Consent Order,” he said.
Asked by Los Alamos County Council Chair Randall Ryti if he had any idea how long the process is going to take and if there are going to be any delays in the work that’s currently underway as a result of the lawsuit, Kenney responded that his expectation, hope and desire here is that the Department of Energy continues to work NMED to keep cleanup moving forward while the Department negotiates a new Consent Order.
“It shouldn’t be a binary choice. We shouldn’t choose to negotiate and not cleanup, so that would be our desire and that’s what we’ve asked for in the complaint. How long the negotiation process will take I guess depends on how willing the partners are to get together and have that conversation,” he said. “Some things we were very clear about. We want milestones that have meaning, not milestones that are just driven by budget. We want real risk reduction, we want real communication to take place and not communication that prolongs the cleanup but communication that is driving the cleanup or cleanup that’s driving the communication which would be even better.”
Kenney said NMED has not yet talked to the Department of Energy since filing the suit.
“We are looking forward to those conversations and as soon as we know more, we’ll share it with you. Part of the problem of litigation is when you go into it things become a little bit hard, a little less transparent. We’ll thread that needle between transparency and productivity,” he said.
Asked about the $300,000 fine proposed in the lawsuit, Kenney said NMED’s goal is cleanup and never to penalize but that there has to be consequences when people don’t follow the law.
“We need to talk to DOE first. We’re in a little bit of uncharted waters, but let me remind everyone on this call that prior to my being appointed by the governor to this position, I had worked with the EPA for many years under many administrations mostly in the enforcement arena throughout the country. This is not my rodeo in the suing of a federal agency and probably won’t be my last, I can tell you that much. So a lot of the questions I’m sort of ducking are questions that I have experience in and we have experience in as a Department and we have strategy. We know what we’re doing,” Kenney said.
He said he thinks there will be a positive outcome through the litigation process.
“I would like to move things quickly to resolution in the best interest of the environment and public health. I’m very clear about what we’re doing. I know exactly what we’re going to do. I just need to know what my next move is based on what the Department of Energy wants to do,” he said.
The Los Alamos Reporter reached out to the Department of Energy Environmental Management Los Alamos Field Office for comment immediately after the NMED announcement Thursday but as of Friday morning has not received a response.
The Reporter noted in September 2020 that there were signs that NMED was ready to get tough with DOE on the status of legacy waste cleanup at LANL an possibly pursue litigation. See https://losalamosreporter.com/2020/09/11/doe-takes-heat-over-lack-of-legacy-waste-cleanup-progress-failure-to-prioritize-lanl-shipments-to-wipp/
The final District Court complaint is available here.