Los Alamos Cleanup: Running in Reverse 

September 8, 2002 

Greg Mello

Since 1943 the Department of Energy (DOE) and its predecessor agencies have designed, built and (once) tested nuclear weapons in New Mexico.  These activities have left us with a considerable toxic legacy, which unfortunately is still growing today. 

There are at least 1,000 contaminated sites at Los Alamos National Laboratory (LANL), including 25 or so hazardous and nuclear waste landfills that together have a total volume of about 18 million cubic feet.  At Los Alamos, groundwater, streams, and springs are seriously contaminated in several locations, and low levels of lab-emplaced generated contaminants have begun to show up in a couple of public drinking water wells and, apparently, in one off-site spring.  While the contaminant concentrations may remain below standards in public wells for decades to come, this desirable outcome is by no means assured.  

Disposal of nuclear and chemical waste at Los Alamos isn't just something that happened in the bad old days.  It is happening now, as LANL continues to operate its 1950s-vintage disposal site, called "Area G."  Area G, the largest of LANL's dumps, contains some 63 acres of hazardous and nuclear waste of all kinds.  Today, as in decades past, nuclear wastes and PCBs are buried in unlined shallow pits and shafts and covered with as little as three feet of earth.  Area G contains the same kind of plutonium waste as WIPP, along with a mish-mash of other waste: old nuclear reactors, spent nuclear fuel (similar to that proposed for disposal at Yucca Mountain in Nevada, but in much smaller quantities) and chemical wastes of many kinds, totaling about 11 million cubic feet in all.  Since DOE's disposal records are admittedly very incomplete (and at other sites frequently have been proven to be false), no one will ever know for sure all of what is in Area G without exhuming the poorly buried waste.   

This is intended to be permanent nuclear waste disposal, not just temporary storage.  (Long-term storage also does take place at Area G, in tents built over the old disposal pits.)  And it isn't any kind of temporary expedient; LANL plans to generate and permanently bury nuclear waste on site indefinitely.  How much waste?  DOE documents say the lab will generate and bury an additional 19 million cubic feet (about 2.5 million 55-gallon drums' worth) of nuclear waste at LANL over the next 70 years, somewhat more than has been made and buried at LANL up to now.  All this is in addition to the waste it plans to generate, store, and ship to WIPP.  

So the "clean up" at LANL is running at full speed - in reverse.  

After Area G is completely full (in roughly 2005), DOE plans to create another four similar shallow, unlined disposal sites, one after another, and permanently fill each of them with nuclear waste.  

There has been no public licensing process for this disposal, as would be required for a comparable commercial site.  There is no hazardous waste disposal permit, no plan or commitment for closure or post-closure monitoring and repairs, and no performance bond -- all of which are ordinarily required at admitted hazardous waste disposal sites like Area G.  The New Mexico Attorney General said last year that Area G has been operating illegally since 1985, but neither Attorney General Madrid nor the New Mexico Environment Department (NMED), which should be regulating the site, wants to face the issue.  More than 2,000 individuals and 27 environmental organizations have petitioned NMED to close Area G, all to no avail so far. 

While disposal continues, the University of California, which runs Los Alamos for the DOE, supposedly has been engaged in a "cleanup" program, which began in 1989.  Yet there are still no definite plans to clean up much, if any, of the toxic environmental legacy at Los Alamos.  While most states have negotiated cleanup agreements of some kind with the DOE, New Mexico has no binding agreement that requires actual remediation anywhere, nor to our knowledge is any such agreement being drafted at this time. 

Lack of money is not the issue.  DOE has spent over $700 million on "cleanup" at Los Alamos alone, and a few real cleanup projects have indeed been done.  But most of the money, year after year, is spent on investigations and preliminary studies of various kinds.  At Los Alamos there are now enough of these detailed studies to fill a good-sized room.  And every year, much of the cleanup money - no one really knows how much -- simply disappears into "overhead." 

None of this is accidental.  While lab managers don't mind getting the money, they do not want cleanup and have said as much in congressional testimony.  Why?  Today's cleanup standard could well become tomorrow's disposal standard, for one thing.  And real cleanup would reflect badly on the institution and on nuclear technology as a whole, potentially affect morale and recruitment.  It would, for these reasons, negatively impact, ahem, national security. 

Sometimes the question is posed whether or not this waste will leak into the environment.  Well, it's in the environment.  In most cases there is no containment to leak from.  Even if the long-lived portion of the contamination bleeds out slowly from its current location so that standards are never exceeded in off-site wells and streams, New Mexico law quite properly requires all aquifers and streams in New Mexico be protected -- even those which Los Alamos may now think it owns. 

Who, then, is conducting due diligence on behalf of the public?  Who is watching out for the public health and safety, or for the environment? 

The New Mexico Environment Department s (NMED) is that agency, and overall, its record is decidedly mixed at LANL.  Regarding cleanup in particular, it has been largely ineffectual -- and as for halting illegal disposal, NMED is eerily silent. 

There are several reasons for this.  The biggest reason is the simplest: DOE holds the purse strings.  In recent years, NMED has become increasingly dependent on DOE subsidies.  It relies on these subsidies for the salaries of many of the outstanding scientists NMED has hired to watch over DOE.  Now, DOE isn't just paying NMED because it is a nice nuclear weapons agency, or because it "owes" NMED for anything.  DOE is paying the piper, and will call the tune.  It expects (and receives) considerable cooperation and freedom from enforcement from the NMED.

How then, from the NMED perspective, can the agency resolve the legal, political, and managerial issues posed by Los Alamos -- without antagonizing the DOE and the lab? How can NMED ask the labs to clean up -- without actually making them clean up? 

At DOE, managers are asking themselves versions of the same questions: how can our problems, both legal and in public relations, be solved without actually changing our behavior, or moving (much) contaminated dirt? 

There is only one approach that meets these contradictory goals: deception. 

The first move this year was NMED's.  In early May, NMED found that there might be - "we don't say there is" - an "imminent and substantial endangerment" of human health and the environment at LANL.  So far so good.  Then on this basis, which is certainly true, NMED issued a "corrective action order."  But the order requires no actual corrective action.  (What's in a name, anyway?)  Instead, it orders several years' worth of further investigations, in effect "turning back the clock" -- while providing a "regulatory driver" for more lab appropriations.  NMED can also get a small slice of the action.  As NMED Secretary Maggiore said in his May press conference, a big part of his agency's purpose in issuing the order was to help "stabilize" funding for the lab's environmental programs.

The thrust of the research NMED has ordered, however -- which will consume essentially all the "cleanup" funding at the site for years -- is not risk reduction, but risk assessment.  NMED thus spent its political and bureaucratic capital to create a safe "sponge" for cleanup money - safe, in the sense that it will accomplish no cleanup.  This is something LANL can accept, and indeed there have been no complaints from that quarter about the corrective action order (as opposed to the "endangerment" finding, which is being challenged, about which more below). 

         Then, just three weeks later in late May, Maggiore signed an agreement with the DOE called a "Letter of Intent," which accelerates the "completion" of cleanup at DOE facilities in New Mexico - this, just after signing an order calling for years of additional investigations!  How, then, is this "accelerated cleanup" to be accomplished?  By agreeing to a whole menu of Bush Administration anti-environmental goals and procedural "reforms," such as private decision-making groups ("high performance teams") that will "fast-track" regulatory decisions, the substitution of "long-term stewardship" for cleanup, and so on - in sum, by agreeing there will be never be much cleanup.  In return for signing off on this letter and keeping silent about subsequent  related documents that detail this agreed-upon approach, NMED will receive about $700,000 in subsidies - payoffs, in other words -- from the DOE in the first year alone.  Presumably, future payments will be made in return for good behavior. 

What is happening here is that a few lame-duck Johnson Administration officials are selling an important piece of our environmental inheritance for a mess of porridge.

Why didn't Secretary Maggiore consult the citizens of New Mexico before signing on DOE's dotted line?  Why weren't other agencies, or the state legislature, consulted?  Why haven't there been open forums where the public could discuss the advisability of making such a bargain, let alone the public hearings which federal and state environmental law say should have been held?  Instead, Maggiore's negotiations were completely secret.  A few selected outsiders were brought in privately after the fact to provide "cover," which is the same kind of paternalism that is used by DOE on NMED.  Then, next year, when hearings are finally held, the real decisions will have already been made.  "Oh yes, we value your input very much - to make the decisions we have already made legally unassailable.  Now go away for another 14 years."  (The last public hearing on LANL cleanup was in 1989, held by EPA.  NMED has never held one.)

DOE has obtained other such "letters," in other states.  The various states have had to compete with each other for limited environmental dollars, and in the process have in some cases loosened previously agreed upon standards and goals -- the main "reform" sought by Team Bush.

There have been, of course, many cries of "Foul!" as a result of this artificial "race to the bottom."  Even the somnolent U.S. Senate, which hasn't conducted real oversight of DOE's programs in years, smelled a rat.  The Senate Appropriations Committee suggested that DOE's approach be sent back to the drawing board - but it also provided the exact sum of money DOE requested for the "new" strategy, at least in New Mexico.  It is sure to be funded in the House as well. 

         But what about public health and the environment?  How can DOE and a compliant NMED make the public health risk and the lack of compliance with groundwater standards seem to disappear?  The answer is simple, and it's covered in the "Letter of Intent:" average it out.  Assume it will be diluted.  After all, LANL controls some 43 square miles of land, and most of that land is basically uncontaminated.  And the rain, as the gospel says, falls on the contaminated and uncontaminated alike. 

            The regulatory import of what DOE and NMED call their "watershed aggregate approach" is that uniform cleanup standards - the kind that apply to everybody -- are irrelevant.  Cleanup isn't necessary, they have said and will say, because the entire watershed isn't contaminated badly enough, on the average, to warrant action.  Nifty, eh?  And if this doesn't work, NMED suggests in its order that "technical infeasibility" might also be employed, an almost infinitely flexible excuse for inaction.  

            And so the sellout goes on, through Byzantine bureaucratic and legal maneuvers not fully described here.  It is very complicated.  Its overall complexity, like that of the accounting systems used to mask corporate fraud, places it beyond the reach of well-intentioned scrutiny and comment, even by NMED itself in many cases.  Simpler approaches would conserve NMED's scarce regulatory resources, be comprehensible to the public (and to judges), and in the process would uphold the environmental values that many worked so hard to put in place.  They would require some clarity of direction from NMED, however. 

            All in all, Maggiore's team has set a terrible precedent, precisely because it has been so very cleverly put together. 

            But there is still more. 

While LANL has remained silent about the investigations required by the state's corrective action order - after all, they want NMED to order DOE headquarters to give them more money - LANL is opening its very deep pockets for lawyers to fight NMED's finding of "endangerment" to human health and the environment.  It has already filed a complaint in federal district court challenging NMED's "endangerment" finding, which is buttressed by extensive legal research.  Why? 

One possible explanation is that an "endangerment" finding might give energetic public interest organizations a good handle to institute a citizen's suit against LANL.  LANL feels comfortable producing thousands of pages of (often meaningless) technical studies which cannot be deciphered by the public.  But LANL would be a lot less comfortable if forced to face citizen organizations which, unlike NMED, are not on the DOE dole, armed with the powers of discovery and cross-examination in a neutral judicial forum. 

This is a danger LANL is unwilling to risk.  So while our feckless president prepares his preemptive attack on Iraq, LANL is now threatening its own preemptive strike on New Mexico regulatory authority, which aims at crippling the state's ability to regulate any nuclear waste or nuclear contamination resulting from nuclear weapons work.  After years of brushing off NMED's regulatory attempts at LANL, the DOE now threatens to let slip its LANL lawyers, who are saying that EPA and NMED never had the authority to regulate most of the waste at LANL, Sandia, and WIPP in the first place. 

Such a blatant exercise of power would, however, create it own severe legal and PR "blowback" for the nuclear feds.  If LANL and DOE proceed, they could no longer sell themselves as "good citizens" trying to do the right things in the right manner.  The Johnson NMED, for its part, would no longer be able to point to a need for more LANL "studies" to justify its own regulatory failures.  If LANL pursues and wins its lawsuit there will be no more regulatory failures because there will be no more regulation.  NMED, which is now in part a paid agent of DOE, has gradually passed over to DOE so much of the regulatory initiative that it will require considerable fresh thinking and courageous action to get it back. 

            How, then, might this situation be remedied?  What actions should Mr. D'Antonio -- Maggiore's successor -- or the next administration, take?

            First and foremost, the NMED Secretary needs to admit that a mistake was made, and repudiate both the "Letter of Intent" and the detailed plans DOE has drawn up to implement it.  Since NMED officials keep claiming that these documents are "meaningless," it shouldn't (according to this reasoning) be hard for NMED to disavow them.  Their unwillingness to do so thus far testifies to the political and financial quid pro quo the "Letter" actually does embody, which will fatally compromise all future NMED regulatory actions as long as it stands.  

            Second, NMED needs to say goodbye to its addictive DOE payments.  By prior agreement, they cannot be used for enforcement anyway, and it is enforcement that is so badly needed to make all the other NMED efforts worthwhile.  NMED spends thousands of hours each year vetting LANL's evasive regulatory submittals and going to endless LANL-generated meetings, most of which efforts accomplish exactly nothing.  Much of this would be unnecessary if NMED were guiding the process instead of being guided by it.  NMED could also seek to improve its fee structure - for example by billing all its regulated hazardous waste permittees by the hour, as is done in California in some cases.  It is not necessary to increase state taxes to end the present degrading situation. 

            Third, NMED should take the initiative for once, and direct its excellent staff to require cleanup of both groundwater and soil in the most contaminated locations at LANL.  NMED is perfectly aware of which these are.  For most sites at LANL, there is already enough information in hand to begin cleanup, and it is only in the course of the cleanup process that detailed 3-dimensional information can be gained in any case.  Cleanup and investigation should proceed together in most cases, not sequentially, which will also improve the quality of data tremendously, not to mention the environment and regulatory relationship.

Fourth, NMED needs to use the bully pulpit, its greatest political asset, to lead the news media and the public to understand that having a large property and a mission to make the absolute weapon does not mean that you can pollute it, absolutely or otherwise.

Fifth, NMED should initiate enforcement action to halt the unpermitted disposal of nuclear waste at Area G, on both technical and legal grounds.  Such leadership would invariably awaken a groundswell of informed citizen involvement and create effective channels for its democratic expression.  Instead of fearing and limiting public involvement, NMED would actually be investing in its core constituency and helping renew public conversation about the environment and our role in it. 

Finally, NMED should immediately require DOE to submit detailed plans that would include removing or permanently sequestering at least some of the long-lived nuclear and toxic legacy found in old landfills on The Hill.  At present, there are no such plans even under consideration.  At three such dumps, including Area G, NMED has an especially strong and clear regulatory mandate.  NMED must use that mandate, informed by the very best science, and do so quickly - or, as discussed above, it may well lose it.  New Mexico will be much the poorer if this occurs.