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"Forget the Rest" blog

New Mexico Environment Department Sells Out
Greg Mello
July 10, 2002

On May 30, after a months-long secret process, New Mexico Environment Department (NMED) Secretary Pete Maggiore signed an agreement with the DOE, called a "Letter of Intent," which purports to "accelerate completion" of environmental cleanup at DOE facilities in New Mexico.

It's an odd phrase, "accelerate completion." What does it mean?

Very loosely translated, the letter and its supporting documents mean something like this: "Regarding DOE environmental responsibilities in New Mexico. We have all experienced a lot of hassle, embarrassment, and expense on this environment thing, so let's cut to the chase. We'll cover the nuclear and chemical waste dumps with a couple of feet of dirt, fence 'em off, and post some signs. With that, we're outta here. We all agree that DOE has more important stuff to do, like make bombs. There's no problem with these dumps now, and on the average your grandkids should be fine. Here's some paint for the fences. You'll need it, because you're gonna have to guard this crap forever."

How does DOE get "buy-in" to something like this, without involving the public, elected officials, other agencies, or tribes? The answer is very simple: money. They are paying NMED to sign it. And no one will admit that the Johnson Administration is selling an importance piece of our environmental inheritance for a mess of porridge.

NMED managers won't say the letter is a good thing, and they don't say it's a bad thing. Instead they say - privately, of course - that it is meaningless, "just a game."

DOE believes otherwise. They view this letter as determinative, something that will save taxpayers hundreds of millions of dollars, if not a billion or even more, in long-term cleanup in New Mexico. DOE is more than happy to sweeten such a deal with a little cash for NMED.

Maybe the "innovative cleanup technology" for which DOE has been searching all these years is something as simple as payments to regulatory agencies. "Join us. We have been waiting for you."

But how does one orchestrate such a thing as this? What is this "letter of intent?"

It's not legislation or regulation - although it sets up processes, establishes what's important, and ordains outcomes, just like law.

It's not exactly a contract - although it "commits" the parties signing it, and NMED is likely to receive about $700,000, starting next year, for signing it.

It's not a modification of an environmental permit, so they say, or a new permit - although it is designed to control what is done pursuant to permits and to predetermine the outcome of permitting processes.

If the letter was any of these things, it would be illegal. So it is none of them - and it is all of them. Barring judicial review, it falls between the cracks, into the void where law and prior policy are absent, like the creative business practices of Enron.

That's the world it comes from. It's a business deal, plain and simple, the purpose of which is to allow DOE to "buy down," for pennies on the dollar, the agency's environmental obligations in New Mexico. And that is why the lawyers on both sides wanted it vague - too clear, and it might wake the snoozing watchdogs.

Another way to describe it is as a reverse environmental compliance agreement, in which the regulatory agency, in return for payment received, agrees to lower its expectations and comply with what DOE wants. It's NMED which is being regulated here - DOE is paying the piper, and now it is calling the tunes. It's a client relationship, normal in business, but not in government. Until now. In our poor state,

DOE's unquestioned power means that DOE not only gets to make the rules, but make them look normal too. Poor New Mexico - so far from God, so close to Los Alamos.

The really clever thing about this agreement is that the actual, working definitions of its strange phrases are defined elsewhere, in documents to be drafted by the DOE and its contractors. Wow - Orwell didn't think of this! These other documents comprise, we might say, a kind of evolving "glossary" which, together with the of the letter, produce the true meaning of the agreement. It's very cutting-edge, with a post-modern touch. The letter is "vague" and "meaningless," or so say some who are close to the process, but the devil is alive and well in the details, especially in the DOE-generated "performance management plan" (the "PMP," in the letter's veiled Dilbert-speak). The PMP includes, according to the Letter, "actions, milestones, responsibilities, business processes, and acquisition strategies necessary to achieve the agreements made in this letter." The Alice-in-Wonderland scope of this bizarre list hints at DOE's de facto control.

The Environment Department's future payments will depend not only on how much cash DOE has available, but also on the friendliness of relations between DOE and NMED. If, as the letter says, they "continue the established partnership" and there is "senior-level [NMED] support to achieve [

DOE's] desired end state," then future payments are understood to be likely - if for no other reason than to process DOE's approvals quickly.

The Environment Department has been receiving payments from DOE for many years now, and these payments have always been a serious conflict of interest. Each year, the Department must ask DOE for enough money to keep the staff it has hired with previous years' money. Despite the instability of funding, this same staff does outstanding work, year in and year out. Their diligence and professionalism has balanced the agency's conflict of interest - up, I would say, to now.

Does this money influence policy? You bet it does. You can bet that if NMED were to initiate enforcement to, say, halt the unpermitted disposal of nuclear waste at the lab's old hazardous waste landfill, which is still done in unlined, shallow pits, or require real cleanup at the many contaminated sites at Los Alamos and Sandia, or just get too damn uppity about anything, NMED could kiss its annual cash gift goodbye.

This is not just happening in New Mexico. DOE's plan to walk away from its toxic legacy is national in scope. To set up the plan, Mr. Bush's DOE appointees took some $800 million out of next year's proposed "cleanup" budget and put it into a special category, accessible only to DOE contractors in states where the regulators sign agreements to lower DOE's costs and "accelerate completion." By far the easiest way to lower costs and get "done" quickly is to do less cleanup. There's more: since DOE is awarding these scarce funds on a "first-come-first-served" basis, it has orchestrated what amounts to "a race to the bottom," in which states compete with each other to undercut their own long-term interests. Clever, isn't it? For our state, where DOE cleanups are not Superfund sites, it will take the second "R" - that would be R, for "recovery" - out of RCRA.

New Mexico deserves better than this, both in cleanup and in the long-term jobs that will employ New Mexicans doing it. Pete Maggiore's deal benefits no one. He should quickly rescind it, or be helped to do so by the state's congressional delegation.

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