How US Nuclear Force Modernization is Undermining Strategic Stability

Nuclear Weapons defects graph from 1993 Sandia Stockpile Life Study
Nuclear Weapons defects graph from 1993 Sandia Stockpile Life Study

A must read:

How US Nuclear Force Modernization is Undermining Strategic Stability:
The Burst-Height Compensating Super-Fuze

By Hans M. Kristensen, Matthew McKinzie, Theodore A. Postol

http://thebulletin.org/how-us-nuclear-force-modernization-undermining-strategic-stability-burst-height-compensating-super10578

Excerpt:

The US nuclear forces modernization program has been portrayed to the public as an effort to ensure the reliability and safety of warheads in the US nuclear arsenal, rather than to enhance their military capabilities. In reality, however, that program has implemented revolutionary new technologies that will vastly increase the targeting capability of the US ballistic missile arsenal. This increase in capability is astonishing- boosting the overall killing power of existing US ballistic missile forces by a factor of roughly three- and it creates exactly what one would expect to see, if a nuclear-armed state were planning to have the capacity to fight and win a nuclear war by disarming enemies with a surprise first strike.

This is a super outstanding analysis by Mssrs. Kristensen, McKinzie and Postol.  I’m no doubt naïve, but I’m hoping it will have some real political and geopolitical impact.

And how in keeping with the 2013 Defense Dept. guidance, which Kristensen was the first to point out to me. It helps to demonstrate that the American public doesn’t really have nuclear “deterrence” as claimed for a half-century. Instead, the U.S. has always had a nuclear war-fighting strategy, as first demonstrated in Hiroshima and Nagasaki.

To quote:

The new guidance requires the United States to maintain significant counterforce capabilities against potential adversaries. The new guidance does not rely on a “counter-value’ or “minimum deterrence” strategy.

Report on Nuclear Implementation Strategy of the United States Specified in Section 491 of 10. U.S.C., Department of Defense, June 2013, page 4 (quotation marks in the original) http://www.globalsecurity.org/wmd/library/policy/dod/us-nuclear-employment-strategy.pdf

As Kristensen, McKinzie and Postol point out, the geopolitical risks in radical improvements to U.S. nuclear warfighting capabilities are enormous. A secondary concern I’d like to point out is the risk to nuclear weapons reliability posed by intentionally introducing major changes to an extensively tested stockpile.

The Pantex Plant (final assembly site for US nuclear weapons) has a newsletter called The Pantexan (duh!). I recall circa 2009 that it had an article concerning the fact that the MC 4700 “super fuze” that was being installed in the then-ramping up W76 Life Extension Program had initial design and production problems. As the article boasted, those defects were detected and swiftly corrected.

However, the principle remains that introducing intentional changes can undermine confidence in stockpile reliability. The grand irony is that the Stockpile Stewardship Program has been lavishly funded because of the official rationale of preserving stockpile reliability, but I believe it has been a Trojan horse all along for using Life Extension Programs to create new military capabilities (and which the excellent analysis above reinforces).

[I have tried a few times to again find that Pantexan article, unfortunately without success.]

The above graph from the 1993 Sandia Stockpile Life Study  shows that the supermajority of nuclear weapons defects occur within the first 5 years from the First Production Unit. Marylia Kelley (Executive Director of TriValley CAREs that watchdogs Livermore Lab ) and I met with Vic Reis, commonly regarded as the “father” of the Stockpile Stewardship Program, in 2004 or 2005. He explicitly said to us that the whole purpose of the Stockpile Stewardship Program was for the “other side of the bathtub curve”, i.e. when defects were going to multiply because of aging.

Guess what? That hasn’t happened, given long-established stockpile surveillance, rigorous maintenance and well-understood replacement of “limited life components” (e.g., batteries, neutron generators, tritium).

Indeed, the 1993 Sandia Stockpile Life Study itself said

We undertook this study to understand how long nuclear weapons last. We quickly learned that this is the wrong question. It is clear that, although nuclear weapons age, they do not wear out; they last as long as the nuclear weapons community (DOE and DOD) desire. In fact, we can find no example of a nuclear weapon retirement where age was ever a major factor in the retirement decision.

The more significant question is “what does it take to sustain a weapon while it is in the stockpile?”… Failures, defects, and aging problems have been rare…

[Available at http://www.nukewatch.org/facts/nwd/Sandia_93_StockpileLife.pdf]

So again, I think the Stockpile Stewardship Program has been a ruse to indefinitely preserve U.S. nuclear weapons while giving them new military capabilities. And now we have the trillion dollar-plus “modernization” to vastly expand U.S. nuclear warfighting capabilities.

 

Costs Jump in Nuclear Weapons vs. Cleanup; Nuclear Weapons Winning over Environmental Protection

 America is at a crossroads, having to choose between an unnecessarily large, exorbitant, nuclear weapons stockpile, and cleanup that would protect the environment and water resources for future generations. Expanded nuclear weapons research and production, which will cause yet more contamination, is winning.

Two recently released government reports make clear the stark inequality between the so-called modernization program to upgrade and indefinitely preserve U.S. nuclear forces (in large part for a new Cold War with Russia), and the nation-wide program to clean up the radioactive and toxic contamination from the first Cold War. The Obama Administration launched a trillion dollar nuclear weapons “modernization” program, which President Trump may expand. In contrast, cleanup of the first Cold War mess has been cut from a high of $8.5 billion in 2003 to $5.25 billion in 2016, even though comprehensive cleanup would produce far more jobs than nuclear weapons programs.

With respect to cleanup, last week the Congressional Government Accountability Office (GAO) released its bi-annual High-Risk Series, which added “Environmental Liabilities” to its list of federal programs and operations that are particularly susceptible to fraud, waste, abuse, and mismanagement. Environmental liabilities are expressed as the estimated taxpayers’ cost of necessary future cleanup.

The Department of Energy is running the world’s largest cleanup program addressing the massive contamination caused by Cold War nuclear weapons research and production. But that national program is plagued by inefficiencies, mismanagement, cost overruns and excessive contractor profits.

According to GAO, since 1989 DOE’s Office of Environmental Management has spent over $164 billion on cleanup. Nevertheless, “Despite billions spent on environmental cleanup, DOE’s environmental liability has roughly doubled from a low of $176 billion in fiscal year 1997 to the fiscal year 2016 estimate of $372 billion.”

Therefore, from a cost perspective, cleanup is going backwards fast. Moreover, that $372 billion won’t be anywhere near the total cost of comprehensive, genuine cleanup because not all contamination is yet known. Furthermore, DOE explicitly plans to “cap and cover” much of its existing buried radioactive and toxic wastes, creating de facto permanent nuclear waste dumps while declaring them cleaned up according to regulations.

In contrast, funding is rapidly rising for revamped nuclear weapons and the missiles, submarines and bombers to deliver these most formidable weapons of mass destruction. Underpinning this astronomical expense is the fact that instead of maintaining just the few hundred warheads needed for the publicly claimed policy of “deterrence,” thousands of warheads are being refurbished and kept to fight a potential nuclear war. This is the little known but explicit policy of the U.S. government. As a top-level 2013 Defense Department policy document put it, “The new guidance [in Obama’s 2010 Nuclear Posture Review] requires the United States to maintain significant counterforce capabilities against potential adversaries. The new guidance does not rely on a “counter-value’ or “minimum deterrence” strategy.”

President Reagan said long ago that nobody can win a nuclear war. Thousands of nuclear weapons are certainly not needed to deter emerging nuclear threats such as North Korea or potential nuclear terrorism. In addition, there are increasing hints (for example, by the Defense Department’s Defense Science Board) that the U.S. may develop and produce more precise low-yield nuclear weapons that are arguably more usable, and even possibly return to full-scale testing.

Expanded U.S. nuclear capabilities under the rubric of “modernization” involves the wholesale rebuilding of DOE’s nuclear weapons production complex; a perpetual cycle of Life Extension Programs that refurbish existing nuclear weapons while giving them new military capabilities; and completely new ballistic missiles, cruise missiles, heavy bombers and submarines to deliver the rebuilt nuclear weapons.

Not surprisingly, that’s going to cost American taxpayers more than previously thought. Last week the nonpartisan Congressional Budget Office (CBO) released its updated study Projected Costs of U.S. Nuclear Forces, 2017 to 2026. It estimated that “modernization” of the U.S. nuclear forces will cost $400 billion during 2017 to 2026. This is 15% higher than a CBO estimate two years ago of $348 billion for the 10-year period of 2015 to 2024.

Moreover, in its earlier report CBO asserted that the next two decades will cost even more. Therefore, modernization will exceed the one trillion dollars over 30 years that is often cited now. And that figure could go much higher yet should Trump accelerate modernization, which he implied when he tweeted the U.S. “must greatly strengthen and expand its nuclear capability…”

Common to both its nuclear weapons and cleanup programs, DOE has the singular distinction of having its contract management designated as high risk by GAO for 26 consecutive years. This is because the Department’s track record of inadequate management and oversight of contractors, who comprise 95% of all nuclear weapons complex employees, has left DOE vulnerable to fraud, waste and abuse. The list of busted projects is overwhelming, while the usual nuclear weapons contractors are typically not held accountable (for example, Bechtel’s Waste Treatment Plant at Hanford or Babcock and Wilcox’s half-billion dollar design mistake for Y-12’s proposed Uranium Processing Facility).

To illustrate this nation-wide problem locally, the Los Alamos National Laboratory (LANL), run by Bechtel and the University of California, recently signed a new 2016 Consent Order governing cleanup with the New Mexico Environment Department (NMED), which has coddled the nuclear weapons industry under Gov. Martinez. This new agreement pushes completion of Lab cleanup out to 2040, while creating loopholes where DOE can get out of cleanup by simply claiming that it is too difficult or costly. As a result, DOE has cut the Lab cleanup budget to around $188M per year, in contrast to a high of $225 million in 2014, or the $250 million per year that NMED has said in the past is necessary.

To add insult to injury, LANL’s estimated 3-4 billion dollar environmental liability assumes that nearly 200,000 cubic meters of radioactive and hazardous wastes are left behind forever in unlined dumps, protected only by “cap and cover” and thereby “cleaned up” according to regulations. But this, of course, is false cleanup. As a 2005 LANL hydrogeological report put it, “Future contamination at additional locations [in regional groundwater] is expected over a period of decades to centuries as more of the contaminant inventory reaches the water table.”

But nuclear weapon research and production at LANL, which threatens precious water resources, is not only thriving, but is expanding. Currently, up to $6 billion is planned to be spent on upgrading existing plutonium facilities and building new ones so that production can be expanded to 50-80 plutonium pits per year by 2028 (pits are the fissile cores of nuclear weapons). Ironically, expanded pit production is for exorbitant “Interoperable Warheads” for both intercontinental ballistic missiles and sub-launched missiles that the nuclear weapons labs are pushing but the Navy doesn’t want. Moreover, the planned changes to the existing, extensively tested nuclear stockpile are so radical that they could undermine confidence in performance reliability, possibly prompting a return to full scale testing.

Scott Kovac, Research Director at Nuclear Watch NM, commented, “Ten years from now, after taxpayers spend another $50 billion on cleanup, DOE’s environmental liability estimate will probably still be more than $400 billion. Meanwhile the US will have spent the same amount on expanded nuclear weapons production that will cause yet more contamination. That money should instead be used to get cleanup done once and for all, giving American taxpayers the real national security of a clean environment and safe drinking water.”

Jay Coghlan, Nuclear Watch New Mexico Executive Director, observed, “Over the next few decades the window will close for comprehensive, genuine cleanup. Unfortunately, our children and grandchildren will instead be saddled with the ongoing financial and environmental debts of never-ending improvements to nuclear weapons that keep a privileged elite rich. As citizens we need deep and meaningful contractor reform and stronger federal oversight. The directors of the nuclear weapons labs should be stripped of their two-hatted role as the presidents of the for-profit limited liability corporations that run the labs, which are built-in conflicts-of-interest. Then perhaps we would begin to see jobs-creating cleanup programs taking precedence over unneeded, exorbitant nuclear weapons programs that threaten global security and local environments.”

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GAO High-Risk Series 2017 is available at http://www.gao.gov/products/GAO-17-317

Specific DOE cleanup cost numbers are at http://gao.gov/highrisk/us_government_environmental_liability/why_did_study#t=1

Projected Costs Of U.S. Nuclear Forces, 2017 To 2026 February 2017 is available at https://www.cbo.gov/sites/default/files/115th-congress-2017-2018/reports/52401-nuclearcosts.pdf

The quote on top-level counterforce nuclear weapons doctrine is from:

Report on Nuclear Implementation Strategy of the United States Specified in Section 491 of 10. U.S.C., Department of Defense, June 2013, page 4 (quotation marks in the original) http://www.globalsecurity.org/wmd/library/policy/dod/us-nuclear-employment-strategy.pdf

For possible more usable nuclear weapons and a return to full-scale testing, see Seven Defense Priorities for the New Administration, Defense Science Board, December 2016, http://www.acq.osd.mil/dsb/reports/Seven_Defense_Priorities.pdf
The quote on more expected groundwater contamination is from LANL’s Hydrogeologic Studies of the Pajarito Plateau: A Synthesis of Hydrogeologic Workplan Activities (1998–2004), ER2005-0679 December 2005, Page 5-15, http://www.worldcat.org/title/los-alamos-national-laboratorys-hydrogeologic-studies-of-the-pajarito-plateau-a-synthesis-of-hydrogeologic-workplan-activities-1998-2004/oclc/316318363

As Trump Seeks to Expand U.S. Nuclear Weapons Capabilities New Sandia Labs Director Argued for Expanded Use of Nuclear Weapons

On December 22, 2016 president-elect Donald Trump upended four decades of U.S. policy to reduce nuclear weapons by tweeting “the United States must greatly strengthen and expand its nuclear capability until such time as the world comes to its senses regarding nukes.” The next morning he doubled down by declaring, “Let it be an arms race. We will outmatch them at every pass and outlast them all.”

That same day Russian President Vladimir Putin claimed that his country’s nuclear weapons are fully capable of penetrating any American missile defense system, and observed “It’s not us who have been speeding up the arms race.” Earlier Trump had suggested that Japan, South Korea and Saudi Arabia should perhaps obtain nuclear weapons, and reportedly asked a foreign policy advisor why the U.S. couldn’t use nuclear weapons if it already had them. Further, Trump refused to rule out using nuclear weapons in Europe or against the Islamic State in Iraq and Syria. Underlying all this is a trillion dollar effort begun under the Obama Administration to upgrade U.S. nuclear forces, including new nuclear weapons production plants, and new missiles, submarines and bombers, all expected to be operational until around the year 2080.

One of the most important players in the trillion dollar nuclear weapons upgrade is the Sandia National Laboratories, with its newly appointed director Stephen Younger. Long before Trump, Younger argued for the expanded use of nuclear weapons, writing in his June 2000 paper Nuclear Weapons in the 21st Century “[i]t is often, but not universally, thought that nuclear weapons would only be used in extremis, when the nation is in the gravest danger…..This may not be true in the future.” (P. 2)

Although generally the least publicly recognized of the three American nuclear weapons labs, Sandia is the largest by both budget and number of personnel (the other two nuclear weapons labs are the Los Alamos and the Lawrence Livermore National Laboratories). Sandia has multiple sites (hence is called “Labs” in the plural), but its main facility is on Kirtland Air Force Base in Albuquerque, NM. Nearby is the Kirtland Underground Munitions Maintenance and Storage Complex, likely the largest storage facility for nuclear weapons in the nation, with up to 2,500 warheads. Kirtland AFB also sites the Air Force’s national Nuclear Weapons Center, which describes itself as the “The Nucleus of America’s Deterrent”, whose stated mission is to “Deliver nuclear capabilities Warfighters use every day to deter and assure.”

Although “deterrence” has been sold to the American taxpayer for decades as the rationale for nuclear weapons, in reality the U.S. (and Russian) arsenal is for nuclear warfighting, as a 2013 top-level Pentagon document explicitly states:

The new guidance requires the United States to maintain significant counterforce capabilities against potential adversaries. The new guidance does not rely on a “counter-value’ or “minimum deterrence” strategy.

As one source explains

Counterforce doctrine, in nuclear strategy, [is] the targeting of an opponent’s military infrastructure with a nuclear strike. The counterforce doctrine is differentiated from the countervalue doctrine, which targets the enemy’s cities, destroying its civilian population and economic base. The counterforce doctrine asserts that a nuclear war can be limited and that it can be fought and won. https://www.britannica.com/topic/counterforce-doctrine

In turn, counterforce requires thousands of nuclear weapons for nuclear warfighting, instead of the few hundred needed for only deterrence. But as President Ronald Reagan famously put it in his 1984 State of the Union address:

A nuclear war cannot be won and must never be fought. The only value in our two nations possessing nuclear weapons is to make sure they will never be used. But then would it not be better to do away with them entirely?

In 1988 Reagan nearly reached agreement with Soviet Union leader Mikhail Gorbachev to ban nuclear weapons. Unfortunately, relying on false promises made by then-Livermore Lab Director Edward Teller, Reagan insisted on pursuing ballistic missile defenses (or “Star Wars”), which killed any possible deal. Thus, sadly, counterforce and the capability to wage a nuclear war remain the operative national security policy as we face today’s very real risk of entering into a new nuclear arms race with Russia.

Stephen Younger already foreshadowed this in his 2000 paper when he wrote, “The United States employs a counterforce strategy that targets military assets that could inflict damage to our national interests.” (P. 9) He is now in a prime position to implement that counterforce policy as Sandia Labs Director.

Sandia’s main mission is design of the thousands of nonnuclear components (such as fuzes, radars, etc.) that weaponize the nuclear designs of the Los Alamos and Lawrence Livermore National Laboratories into deliverable weapons of mass destruction. However, Sandia’s secondary mission is studying nuclear weapons “effects,” which are not the horrific effects of nuclear weapons on humans and the environment. Instead, this concerns the effects of nuclear weapons on nuclear weapons, to make sure that they are radiation hardened so that they will operate in the severe environments of a nuclear war. This is aimed at mostly the fratricidal effects of our own weapons, since any single target might be hit with multiple warheads. This has every thing to do with nuclear warfighting and first strike capabilities, rather than mere “deterrence.”

Younger’s appointment as director is also indicative of Sandia’s growing focus on nuclear weapons, principally due to Life Extension Programs (LEPs) that not only seek to indefinitely preserve existing nuclear weapons, but to also give them new military capabilities (Sandia is currently the lead lab for the B61-12 LEP, which is transforming a “dumb” bomb into the world’s first nuclear smart bomb). A decade ago Sandia Labs fell below 50% funded by nuclear weapons programs, which was publicly touted by the New Mexican congressional delegation as successful mission diversification leading to possible greater regional economic development. However, that trend is now reversed. In the FY 2017 federal budget request Sandia is 56% funded by nuclear weapons programs. In terms of gross funding for nuclear weapons programs Sandia is tied with the Los Alamos Lab at $1.58 billion for FY 2017, while Lawrence Livermore Lab’s nuclear weapons program is $1.07 billion. Sandia’s total annual budget is around $2.8 billion, the largest of the three nuclear weapons labs.

Jay Coghlan, Nuclear Watch New Mexico Director, commented, “Americans can’t allow an unpredictable president and a greedy nuclear weapons complex to fool us into a new nuclear arms race. Reagan said it best that “a nuclear war cannot be won and must never be fought.” We need to make sure that Trump gets that message as well. He says he wants to both rebuild the nation’s infrastructure and expand nuclear weapons capabilities. But it’s one or the other – Trump will find out the hard way that the country can’t afford to have it both ways.”

# # #

Stephen Younger’s June 2000 paper “Nuclear Weapons in the 21st Century” is available at https://www.nukewatch.org/importantdocs/resources/NuclearWeaponsIn21stCentury.pdf

For more on the Kirtland Air Force Base, the nuclear weapons complex within the nuclear weapons complex, please see https://nukewatch.org/Kirtland.html

The quote on U.S. nuclear weapons counterforce policy is from: Report on Nuclear Implementation Strategy of the United States Specified in Section 491 of 10. U.S.C. Department of Defense, June 2013, page 4 (quotation marks in the original) http://www.globalsecurity.org/wmd/library/policy/dod/us-nuclear-employment-strategy.pdf

Nuclear Watch NM Amends LANL Cleanup Lawsuit – Claims New Consent Order To Be Invalid

Nuclear Watch NM Amends LANL Cleanup Lawsuit – Claims New Consent Order To Be Invalid

Nuclear Watch New Mexico has amended its federal lawsuit against the Department of Energy (DOE) and Los Alamos National Security, LLC (LANS) that alleges twelve violations of a 2005 Consent Order governing cleanup at the Los Alamos National Laboratory (LANL). Those violations could result in potential penalties of more than $300 million dollars that would go to the state, if only the New Mexico Environment Department (NMED) were to enforce them.

Nuclear Watch now asks the court to declare the new 2016 Consent Order to be invalid because the requirement for the opportunity of a public hearing was not met.

NMED intervened in the case on June 23, 2016. The next day, NMED and DOE signed the 2016 Consent Order after a 60-day comment period, during which over 40 citizens, nonprofit organizations, public officials, and two Pueblos provided comments. Lack of enforceability and lack of concrete long-term schedules were common major foci of the comments. Despite that, “No change” without any further explanation was NMED’s overwhelming response to specific public comments as the two agencies moved from the draft to final Consent Order.

The finalized new Consent Order surrenders enforceability by creating a giant loophole where DOE and LANL can avoid cleanup by claiming that it is either too expensive or impractical. This is clearly the opposite of what is needed, when nuclear weapons research and production programs that caused the mess to begin with are receiving increased taxpayer funding, while cleanup programs are being cut.

In addition, NMED’s new Consent Order explicitly absolves DOE and LANS of past violations. In response, Nuclear Watch has added to its lawsuit this request for declaratory judgment by the court that DOE and NMED violated the public’s right for the opportunity of a formal hearing, explicitly required by the 2005 Consent Order.

Scott Kovac, NukeWatch Research Director, noted, “We will not let the public’s right for cleanup at the Los Alamos Lab be papered over by DOE and NMED. Both agencies agreed to all parts of the 2005 Consent Order, which included rigorous public participation requirements and a detailed the cleanup schedule, including a final compliance date. We will continue to push for the public to have a true voice in these important matters. ”

The New Mexico Environmental Law Center and Attorney John E. Stroud are representing NukeWatch in this legal action to enforce timely cleanup at LANL.

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Nuclear Watch New Mexico’s 1st amended complaint is available here

NMED’s Final Consent Order and the “response” to comments matrix are available here

Nuclear Watch New Mexico’s original lawsuit complaint is available here

Our May 5, 2016 second notice of intent to sue (which is a good summary of our complaint) is available here

Our January 20, 2016 notice of intent to sue is available here

 

 

 

University of New Mexico’s growing involvement in nuclear weapons prograns

See Honeywell, UNM sign accord to pursue joint research

This is more evidence of the University of New Mexico’s deepening involvement in nuclear weapons programs. UNM recently announced that with Boeing, the U. of Texas and others that it was going to bid on the Sandia Labs management contract.

Honeywell runs the new Kansas City Plant, which is manufacturing and/or procuring ~100,000 nonnuclear nuclear weapons components every year for increasingly aggressive Life Extension Programs. These programs not only extend the service lives of nuclear weapons for up to 60 years, but also give them new military capabilities, despite denials at the highest levels of the U.S. government.

UNM is also the host site for the June 21 Strategic Deterrence Symposium featuring top military and Energy Dept. nuclear brass. Nuclear Watch NM will be there to see what they are to.

Obama’s Speech in Hiroshima

Obama’s speech is  beautiful and very moving.

But he’ll be gone soon while the one trillion dollar modernization of U.S. nuclear forces that begins under him will go on for 30 years and then some (unless we stop it, that is).

http://www.nytimes.com/2016/05/28/world/asia/text-of-president-obamas-speech-in-hiroshima-japan.html?smid=tw-nytimes&smtyp=cur&_r=0

 

Text of President Obama’s Speech in Hiroshima, Japan

MAY 27, 2016

 

Sign the Petition – No Loopholes, No Excuses – Full Cleanup at Los Alamos!

Dear Friends,

Thanks to those who made it to the meeting last night!

 

NukeWatch has a new petition –

The New Mexico Environment Department (NMED) has issued a proposed new “Consent Order” governing cleanup at the Los Alamos National Laboratory, the birthplace of nuclear weapons.

We demand NMED close the giant loophole in the proposed Consent Order that would allow Los Alamos Lab and DOE to get out of cleanup by simply saying that they don’t have enough money.

And we demand NMED hold a public hearing on the proposed Consent Order, given the intense public interest in cleaning up the Lab.

For more info –

https://www.change.org/p/kathryn-roberts-no-excuses-no-loopholes-full-cleanup-at-los-alamos-lab

AND WE HAVE EXPANDED OUR SAMPLE COMMENTS FOR YOU TO USE AS YOU SEE FIT

Please let your voice be heard and turn in public comments.

Copy the sample comments below and paste into an email.

Please modify as you see fit, then email to the address below.

If you don’t mind, please cc: us at: info(at)nukewatch(dot)org

 

[date]

 

Ms. Kathryn Roberts

New Mexico Environment Department

Post Office Box 5469

Santa Fe, New Mexico 87502

 

Via email to kathryn.roberts@state.nm.us 

 

Dear Ms. Roberts,

I urge the New Mexico Environment Department (NMED) to abandon the proposed 2016 Compliance Order on Consent, or Consent Order, for Los Alamos National Laboratory (LANL), released for public comment on March 30, 2016.  It creates serious problems and represents a giant step backwards in achieving the goal of genuine cleanup of the Laboratory.

The Environment Department should keep the existing Consent Order that went into effect March 1, 2005, while modifying and updating a cleanup schedule that includes a realistic final compliance date.  I also formally request that NMED provide the opportunity for a public hearing on the revised cleanup schedule and new completion date, in accordance with the New Mexico Hazardous Waste Act and the 2005 Consent Order.

 

GENERAL COMMENTS

The opportunity for a public hearing must be provided

  • Any extension of a final compliance date must be treated as a Class 3 permit modification to the 2005 Consent Order and therefore requires a 60-day public comment period.
  • Any extension of a final compliance date under the 2005 Consent Order can be implemented only after the opportunity for public comment and a public hearing, including formal testimony and cross-examination of witnesses.
  • The Environment Department is legally required to follow these public participation requirements that explicitly incorporated into the 2005 Consent Order.

Withdraw the proposed draft 2016 Consent Order 

  • The proposed draft represents a big step backwards in achieving the goal of genuine cleanup of the Laboratory.
  • The Environment Department should keep the current 2005 Consent Order and revise the Section XII cleanup schedule and final compliance date.
  • I request that the Environment Department withdraw the proposed draft 2016 Consent Order.

The public deserves the opportunity to comment on all following drafts 

  • It seems likely that a later draft – after the Lab’s and public comments are incorporated into a revised draft – and after closed-door negotiations between the Environment Department and the Laboratory – could be substantially different from the current draft.
  • I request that the public have the opportunity to review and comment on any further drafts of a revised proposed 2016 Consent Order.

Public participation provisions in the existing 2005 Consent Order must be incorporated into the proposed draft 2016 Consent Order

  • The proposed draft 2016 Consent Order explicitly limits public participation requirements incorporated into the existing 2005 Consent Order.
  • I request that all notices, milestones, targets, annual negotiations, and modifications require public review and comment, and the opportunity for a public hearing.

The current state of cleanup must be updated and next steps scheduled

  • Work under the existing 2005 Consent Order needs to be subject to public review.  In 2005 DOE agreed to complete cleanup under the Consent Order by December 6, 2015, which did not happen.  In order for the public to understand where the work under the existing Consent Order stands, LANL should be required to provide a current, publicly available list of the status of all cleanup projects under the 2005 Consent Order.
  • Further, I request that next steps for cleanup at every site listed in the 2005 Consent Order be documented in detail and given a scheduled completion date, or alternatively verified as already completed.
  • All documents submitted under the 2005 Consent Order must be incorporated into any revised Consent Order.

All documents must be made public as required in the 2005 Consent Order

  • The State and the Lab must make all communications, documents, submittals, approvals, notices of deficiencies and denials under any revised Consent Order readily and electronically available to the public.
  • The State and the Lab must notify individuals by e-mail of all submittals, as required in the 2005 Consent Order.

The Environment Department must respond in writing to all public comments

  • I request that the State reply individually to each and every comment submitted.
  • The Lab’s comments and NMED’s response to comments must be made public.

All future work must have enforceable deadlines

  • The proposed draft 2016 Consent Order proposes a “Campaign” approach with enforceable cleanup deadlines limited to the work scheduled only for that year.
  • I request that all anticipated cleanup projects have scheduled, enforceable cleanup deadlines from the beginning of any revised Consent Order.

The Consent Order cannot be open-ended

  • Any Consent Order for LANL cleanup must have a final compliance date to which the State and the Lab agree to and are so bound.
  • The public should be given an opportunity for a public hearing on the new final compliance date as required by New Mexico’s hazardous waste regulations.

 

SPECIFIC COMMENTS

The Proposed 2016 Consent Order Must Not Extend the Original Final Compliance Date Without Required Public Participation

The proposed 2016 consent order would indefinitely extend the final compliance date for completing corrective action at the Laboratory, without the opportunity for a public hearing with formal testimony and cross-examination of witnesses. Any extension of a final compliance date under the 2005 Consent Order requires a 60-day public comment period and the opportunity for a public hearing, including formal testimony and cross-examination.  The Environment Department is legally required to follow these procedural requirements.

The legal requirements that mandate a public hearing are clear. Section XII of the 2005 Consent Order establishes the compliance schedule for implementation and completion of corrective actions at specific sites at the Laboratory. This schedule is mandatory. The final report that was to be submitted under the 2005 Consent Order – therefore, the final compliance date – was the remedy completion report for the huge Area G waste dump, required to be submitted by December 6, 2015. The proposed 2016 Consent Order would indefinitely extend this final compliance date by not designating a specific final compliance date.

But this revision must be treated as a major Class 3 permit modification. Section III.W.5 of the 2005 Consent Order explicitly provides for the preservation of full procedural rights for the public as follows:

This Consent Order hereby incorporates all rights, procedures and other protections afforded the Respondents [DOE and UC, now LANS] and the public pursuant to the regulations at 20.4.1.900 NMAC (incorporating 40 C.F.R. § 270.42) and 20.4.1.901 NMAC, including, but not limited to, opportunities for public participation, including public notice and comment, administrative hearings, and judicial appeals concerning, for example, remedy selection decisions of the [Environment] Department.

Thus, extension of a final compliance date under the 2005 Consent Order requires a 60-day public comment period and the opportunity for a public hearing, including formal testimony and cross-examination.

 

The Proposed New Consent Order Must Not Limit Other Public Participation Procedures

The proposed 2016 Consent Order expressly limits public participation requirements in a way that completely diverges from those provided in the 2005 Consent Order.  As explained above, the 2005 Consent Order explicitly protects procedural due process rights available to the public.  The proposed 2016 Consent Order explicitly removes these protections, as follows:

The Parties agree that the rights, procedures and other protections set forth at 20.4.1.900 NMAC (incorporating 40 C.F.R. § 270.42), 20.4.1.901 NMAC, and 20.4.1.902 NMAC, including, but not limited to, opportunities for public participation, including public notice and comment, administrative hearings, and judicial appeals, do not apply to modification of the Consent Order itself. [Emphasis added]

Thus, as proposed in the above language, the Parties (the Environment Department, Department of Energy and Los Alamos National Security, LLC) have inappropriately agreed to remove the due process rights, procedures and other protections provided to the public under the Resource Conservation and Recovery Act (RCRA) and the New Mexico Hazardous Waste Act.  This provision must be stripped from the proposed 2016 Consent Order.

 

The Proposed New Consent Order Must Not Eliminate Enforceable Deadlines

The proposed 2016 consent order would eliminate all the deadlines for completing cleanup under the 2005 Consent Order, and replace them with an open-ended and vague scheduling process, with limited enforcement opportunities.

The 2005 Consent Order, in Section XII, established dozens of deadlines for the completion of corrective action tasks, including completion of investigations at individual sites, installation of groundwater monitoring wells, submittal of groundwater monitoring reports, evaluation of remedial alternatives for individual sites, and completion of final remedies. These deadlines are enforceable under section III.G.

The proposed 2016 Consent Order would abandon the 2005 Consent Order provisions and replace them with a so-called “Campaign Approach” under Section VIII.  Under Section VIII.A.3, it would be up to the DOE, not the regulator at the New Mexico Environment Department, to select the timing and scope of each “campaign.”

Enforceable deadlines for cleanup tasks would apply no more than one year into the future. Deadlines would be based on “Campaigns” negotiated each year with DOE with no public participation and opportunity to comment on the schedule. To add insult to injury, the annual schedule would be determined by funding at DOE’s discretion, rather than the schedule driving the funding, which was the fundamental approach of the 2005 Consent Order.

All cleanup projects must mandatory completion dates scheduled from the beginning date of any revised Consent Order, and must be fully enforceable.

 

Existing Violations Must Not Be Eliminated

Section II.A of the proposed 2016 Consent Order would “settle any outstanding violations of the 2005 Consent Order.” This is a get out of jail free card.  Without enforceable schedules from the beginning, any consent order is not truly unenforceable, and the Environment Department would be abdicating its responsibility to protect human health and the environment as required by the federal Resource Conservation and Recovery Act (RCRA) and the New Mexico Hazardous Waste Act.  NMED must not surrender its regulatory and enforcement powers!

 

Attorney General Approval Must Be Obtained

The 2005 Consent Order was signed by the Attorney General of New Mexico for purposes of the Covenant Not to Sue (section III.) and the Reservation of Rights (section III.). As indicated on the draft signature page, there is no indication of the NM Attorney General plans to sign the proposed 2016 Consent Order. Yet it would provide the State of New Mexico with a covenant not to sue DOE on behalf of the State of New Mexico, not merely on behalf of the Environment Department. The Attorney General was an active participant, representing the People of New Mexico, in the 2005 Consent Order.  The Environment Department has a responsibility to ensure that the NM Attorney General is consulted, and his approval obtained, before any consent order is adopted.

 

The Proposed 2016 Consent Order Must Not Omit Detailed Requirements Found in the 2005 Consent Order

The 2005 Consent Order includes numerous detailed requirements for such things as well installation, sample collection, and preparation of work plans and reports. These ensure that the cleanup work is done properly, consistently, and according to standard industry practices.  They also ensured that work plans and reports were consistent, easy for the Environment Department to review, and easy for the public to understand.  The proposed 2016 Consent Order omits many such requirements, which should be corrected.

 

The Proposed 2016 Consent Order Must Not Allow Budget To Dictate Cleanup 

The proposed 2016 Consent Order allows DOE to provide cleanup priorities based on anticipated budget, which is backwards. . By the time NMED receives an estimated annual cleanup budget from DOE, the horse has left the barn. The original purpose of the 2005 Consent Order was to compel DOE and LANL to ask Congress for additional funds to accelerate cleanup. The giant loophole in the proposed 2016 Consent Order that allows DOE and LANL to say that they don’t have sufficient funding and therefore can choose to exempt themselves from cleanup should be eliminated.

 

Cleanup Levels Must Remain Strict

Section IX Cleanup Objectives and Cleanup Levels of the proposed 2016 Consent Order would allow DOE to “develop site specific ecological cleanup levels” to mitigate unacceptable ecological risk due to release of site-related contaminants. There is no mention of NMED’s role in this process. DOE would be allowed to demonstrate to NMED that any particular “cleanup objective is impracticable.” To do this, DOE may consider such things as technical difficulty, the cost of the project, hazards to workers or to the public, and any other basis that may support a finding of impracticability. If NMED approves the impracticability request, DOE can then propose alternative cleanup methods using site-specific risk assessments. All of this could take place behind closed doors, as there are no public participation requirements in this section. Please clarify what cleanup levels will be used and when and where they will be applied.

 

New Mexico deserves better

In closing, the Environment Department’s proposed 2016 Consent Order allows the federal government to leave Northern New Mexico contaminated if DOE believes that cleanup is too difficult or costly– a sorry situation indeed for a nuclear weapons facility that receives over 2 billion taxpayer dollars a year. Instead, the New Mexico Environment Department should implement a new revised Consent Order that is aggressive and enforceable and in which the State of New Mexico stays in the driver’s seat, not LANL and DOE. That would be a real win-win for New Mexicans, helping to permanently protect the environment and our precious water resources while creating hundreds of high-paying cleanup jobs. .

 

Sincerely,

Name

City

 

The new draft Consent Order is available at

https://www.env.nm.gov/HWB/lanlperm.html#COOC

 

NMED’s public notice for the draft Consent Order is available at

https://www.env.nm.gov/HWB/documents/PublicNotice__English.pdf

 

The public comment period ends 5:00 pm May 31, 2016.

Comments should be submitted to kathryn.roberts@state.nm.us

Consolidated Nuclear Security LLC Performance Evaluation Report – Wrong B61-12 tail case?

Buried in the just released NNSA FY 2015 Performance Evaluation Report (PER) for Consolidated Nuclear Security LLC (the combined contract for Pantex and Y-12 run by Lockheed Martin and Bechtel) is the remarkable note that Pantex sent to the Defense Department a Joint Test Assembly (JTA) of the B61-12 nuclear smart bomb with the wrong tail case. Generally, a  JTA is a full scale mock up of the nuclear weapon (just not nuclear armed), in this case for a real life drop test from an Air Force fighter at the Tonapah Test Range in Nevada (which is run by the Sandia Labs).

P. 5:  “CNS experienced several issues with the builds of the new B61 JTA Modernization configurations. CNS experienced quality issues on five of the six First Production Units. The most severe of which was the installation of an incorrect tail case on the JTA S/N 602 that was delivered to Department of Defense (DoD). The DoD chose not to proceed with the flight test and returned the unit to Pantex.” [S/N is the serial number of the particular unit.]   – End –

How do you put the wrong tail case on the mock bomb, especially given all the hoopla we’ve heard about the B61-12 and the rush to get it into production? Did this involve the now-well known tail fin kit that turns the “dumb” B61 bomb into the precision-guided B61-12?

A few other worthy items from the CNS PER:

•     p. 5: Pantex is falling behind in dismantlements, and this is before the announced planned 20% increase in dismantlements. “CNS achieved 101% of dismantlements related to secondaries and 66% of the revised Production Control Document (PCD) baseline schedule. The low performance against the revised PCD baseline schedule resulted in NNSA falling below the trajectory to achieve the 2022 dismantlement goal.”

Secondaries are dismantled at Y-12, with all of the rest of the nuclear weapon dismantled at Pantex. The 2022 dismantlement goal is to dismantle the ~2,500 nuclear weapons scheduled by 2009 for dismantlement. This does not include any weapons retired since then.

•     p. 7: “CNS did not meet the majority of the expectations for scheduled surveillance activities, deliverables, and requirements as documented within each applicable weapons system approved Integrated Weapon Evaluation Team (IWET) Plans and associated directive documents.”

Rigorous surveillance is the prerequisite for maintaining stockpile safety and reliability (the claimed rationale for the Stockpile Stewardship Program), but has chronically suffered lower prioritization.

• p. 10: “W76-1 LEP: CNS achieved 101% of the secondary production schedule, met the military shipment schedule, but only achieved 85% of the total FY15 delivery commitment to the Department of Defense.”

This doesn’t bode well for future Life Extension Programs that are growing only more complex and ambitious.

•     p. 11: “CNS is behind schedule on pit recertification projects and is working on recovery plans. The CNS delays have not adversely impacted the B61-12 schedule.  However, if delays continue the impacts to the B61-12 schedule are certain.”

•     p. 14: The future uranium casting process for the Uranium Processing Facility is still unproven.

“CNS did not fully meet expectations on the use of the production microwave caster in [Building] 9212 [at Y12]. This is partially due to equipment issues including the stack 11 filter issues and a failure in the microwave’s bottom lift assembly. Unfortunately, CNS was unable to recover the schedule. Running the microwave caster early and often is valuable since this technology represents the future Uranium Processing Facility (UPF) casting capability.”

•     p. 24: Pantex and Y-12 are beginning “additive manufacturing” (3-D printing) of nuclear weapons components. What are the future proliferation consequences of this?

“CNS began advancing manufacturing capabilities through additive manufacturing initiatives. CNS procured and received a Connex 500-UV Resin multi-color, large-scale plastic machine. This machine will be used for prototyping, proof of principle, displays and cutaways, and training aids. CNS also procured its first metal additive machine and installation will begin at Y-12 in July. Once R&D material testing is complete, the first area of focus will be tooling applications. A second, identical machine has been procured for Pantex and will be delivered late summer for similar applications.”

•     p. 35: CNS, composed of Lockheed Martin and Bechtel, gave the construction contract for the Uranium Processing Facility at Y-12 to Bechtel. There was no competition that I heard about.

Concerning Bechtel’s track record, it took the Chemistry and Metallurgy Research Replacement Project at LANL from an original $600 million to $6 billion, and the Waste Treatment Facility at Hanford from $3.5 billion to $13 billion, and it may still never work.

•     p. 42: “While NNSA has noted the CAS [Contractor Assurance System] reports have gotten more self-critical over FY15, the CNS end of year self-assessment was not self-critical. Given all the issues this year that impacted mission, it was unusual that the report was not more introspective.”

In fact, CNS gave itself a glowing self-assessment, which NNSA did not agree with. In all, NNSA awarded CNS $11.3 million out of a possible $20 million in incentive fees, along with a fixed fee of $31 million. For NNSA, that’s a pretty big slap on the wrist.

The Performance Evaluations Reports are available at https://nnsa.energy.gov/aboutus/ouroperations/apm/perfevals

NukeWatch successfully sued in 2012 to get the reports publicly released, but NNSA was misbehaving again and did not release the FY 2015 PERs until now. These reports are invaluable for insight into what NNSA sites actually do and related contractor performance. The reports are also becoming increasingly critical of contractor performance ever since the major security incident at Y-12 and the closure of the Waste Isolation Pilot Plant caused by an errant radioactive waste drum from Los Alamos.

Comment Period Extended for Proposed Los Alamos Cleanup Order

The New Mexico Environment Department’s Hazardous Waste Bureau is extending the public comment period on the proposed changes to the Draft Consent Order which governs legacy clean-up at Los Alamos National Laboratory.

The public comment period now continues through May 31.  To obtain a copy of the documents or a portion thereof, visit the NMED website at https://www.env.nm.gov/HWB/lanlperm.html under Consent Order.

Written comments must be based on information available for review and include, to the extent practicable, all referenced factual materials.

NMED is scheduled to present on the public comments received to date at the May 18 Northern New Mexico Citizens’ Advisory Committee meeting at the Cities of Gold Hotel, 10-A Cities of Gold Road, Santa Fe, New Mexico from 1:00 P.M. to 5:00 P.M.

 

AND WE HAVE EXPANDED OUR COMMENTS

Please let your voice be heard and turn in public comments. Copy the sample comments below and paste into an email. Please modify as you see fit, then email to the address below. If you don’t mind, please cc: us at: info(at)nukewatch(dot)org

 

[date]

 

Ms. Kathryn Roberts

New Mexico Environment Department

Post Office Box 5469

Santa Fe, New Mexico 87502

 

Via email to kathryn.roberts@state.nm.us

 

Dear Ms. Roberts,

I urge the New Mexico Environment Department (NMED) to abandon the proposed 2016 Compliance Order on Consent, or Consent Order, for Los Alamos National Laboratory (LANL), released for public comment on March 30, 2016.  It creates serious problems and represents a giant step backwards in achieving the goal of genuine cleanup of the Laboratory.

The Environment Department should keep the existing Consent Order that went into effect March 1, 2005, while modifying and updating a cleanup schedule that includes a realistic final compliance date.  I also formally request that NMED provide the opportunity for a public hearing on the revised cleanup schedule and new completion date, in accordance with the New Mexico Hazardous Waste Act and the 2005 Consent Order.

 

GENERAL COMMENTS

 

The opportunity for a public hearing must be provided

  • Any extension of a final compliance date must be treated as a Class 3 permit modification to the 2005 Consent Order and therefore requires a 60-day public comment period.
  • Any extension of a final compliance date under the 2005 Consent Order can be implemented only after the opportunity for public comment and a public hearing, including formal testimony and cross-examination of witnesses.
  • The Environment Department is legally required to follow these public participation requirements that explicitly incorporated into the 2005 Consent Order.

 

Withdraw the proposed draft 2016 Consent Order

  • The proposed draft represents a big step backwards in achieving the goal of genuine cleanup of the Laboratory.
  • The Environment Department should keep the current 2005 Consent Order and revise the Section XII cleanup schedule and final compliance date.
  • I request that the Environment Department withdraw the proposed draft 2016 Consent Order.

 

The public deserves the opportunity to comment on all following drafts

  • It seems likely that a later draft – after the Lab’s and public comments are incorporated into a revised draft – and after closed-door negotiations between the Environment Department and the Laboratory – could be substantially different from the current draft.
  • I request that the public have the opportunity to review and comment on any further drafts of a revised proposed 2016 Consent Order.

 

Public participation provisions in the existing 2005 Consent Order must be incorporated into the proposed draft 2016 Consent Order

  • The proposed draft 2016 Consent Order explicitly limits public participation requirements incorporated into the existing 2005 Consent Order.
  • I request that all notices, milestones, targets, annual negotiations, and modifications require public review and comment, and the opportunity for a public hearing.

 

The current state of cleanup must be updated and next steps scheduled

  • Work under the existing 2005 Consent Order needs to be subject to public review.  In 2005 DOE agreed to complete cleanup under the Consent Order by December 6, 2015, which did not happen.  In order for the public to understand where the work under the existing Consent Order stands, LANL should be required to provide a current, publicly available list of the status of all cleanup projects under the 2005 Consent Order.
  • Further, I request that next steps for cleanup at every site listed in the 2005 Consent Order be documented in detail and given a scheduled completion date, or alternatively verified as already completed.
  • All documents submitted under the 2005 Consent Order must be incorporated into any revised Consent Order.

 

All documents must be made public as required in the 2005 Consent Order

  • The State and the Lab must make all communications, documents, submittals, approvals, notices of deficiencies and denials under any revised Consent Order readily and electronically available to the public.
  • The State and the Lab must notify individuals by e-mail of all submittals, as required in the 2005 Consent Order.

 

The Environment Department must respond in writing to all public comments

  • I request that the State reply individually to each and every comment submitted.
  • The Lab’s comments and NMED’s response to comments must be made public.

 

All future work must have enforceable deadlines

  • The proposed draft 2016 Consent Order proposes a “Campaign” approach with enforceable cleanup deadlines limited to the work scheduled only for that year.
  • I request that all anticipated cleanup projects have scheduled, enforceable cleanup deadlines from the beginning of any revised Consent Order.

 

The Consent Order cannot be open-ended

  • Any Consent Order for LANL cleanup must have a final compliance date to which the State and the Lab agree to and are so bound.
  • The public should be given an opportunity for a public hearing on the new final compliance date as required by New Mexico’s hazardous waste regulations. 

 

SPECIFIC COMMENTS

 

The Proposed 2016 Consent Order Must Not Extend the Original Final Compliance Date Without Required Public Participation

The proposed 2016 consent order would indefinitely extend the final compliance date for completing corrective action at the Laboratory, without the opportunity for a public hearing with formal testimony and cross-examination of witnesses. Any extension of a final compliance date under the 2005 Consent Order requires a 60-day public comment period and the opportunity for a public hearing, including formal testimony and cross-examination.  The Environment Department is legally required to follow these procedural requirements.

The legal requirements that mandate a public hearing are clear. Section XII of the 2005 Consent Order establishes the compliance schedule for implementation and completion of corrective actions at specific sites at the Laboratory. This schedule is mandatory. The final report that was to be submitted under the 2005 Consent Order – therefore, the final compliance date – was the remedy completion report for the huge Area G waste dump, required to be submitted by December 6, 2015. The proposed 2016 Consent Order would indefinitely extend this final compliance date by not designating a specific final compliance date.

But this revision must be treated as a major Class 3 permit modification. Section III.W.5 of the 2005 Consent Order explicitly provides for the preservation of full procedural rights for the public as follows:

This Consent Order hereby incorporates all rights, procedures and other protections afforded the Respondents [DOE and UC, now LANS] and the public pursuant to the regulations at 20.4.1.900 NMAC (incorporating 40 C.F.R. § 270.42) and 20.4.1.901 NMAC, including, but not limited to, opportunities for public participation, including public notice and comment, administrative hearings, and judicial appeals concerning, for example, remedy selection decisions of the [Environment] Department.

Thus, extension of a final compliance date under the 2005 Consent Order requires a 60-day public comment period and the opportunity for a public hearing, including formal testimony and cross-examination.

 

The Proposed New Consent Order Must Not Limit Other Public Participation Procedures

The proposed 2016 Consent Order expressly limits public participation requirements in a way that completely diverges from those provided in the 2005 Consent Order.  As explained above, the 2005 Consent Order explicitly protects procedural due process rights available to the public.  The proposed 2016 Consent Order explicitly removes these protections, as follows:

The Parties agree that the rights, procedures and other protections set forth at 20.4.1.900 NMAC (incorporating 40 C.F.R. § 270.42), 20.4.1.901 NMAC, and 20.4.1.902 NMAC, including, but not limited to, opportunities for public participation, including public notice and comment, administrative hearings, and judicial appeals, do not apply to modification of the Consent Order itself. [Emphasis added]

Thus, as proposed in the above language, the Parties (the Environment Department, Department of Energy and Los Alamos National Security, LLC) have inappropriately agreed to remove the due process rights, procedures and other protections provided to the public under the Resource Conservation and Recovery Act (RCRA) and the New Mexico Hazardous Waste Act.  This provision must be stripped from the proposed 2016 Consent Order.

 

The Proposed New Consent Order Must Not Eliminate Enforceable Deadlines

The proposed 2016 consent order would eliminate all the deadlines for completing cleanup under the 2005 Consent Order, and replace them with an open-ended and vague scheduling process, with limited enforcement opportunities.

The 2005 Consent Order, in Section XII, established dozens of deadlines for the completion of corrective action tasks, including completion of investigations at individual sites, installation of groundwater monitoring wells, submittal of groundwater monitoring reports, evaluation of remedial alternatives for individual sites, and completion of final remedies. These deadlines are enforceable under section III.G.

The proposed 2016 Consent Order would abandon the 2005 Consent Order provisions and replace them with a so-called “Campaign Approach” under Section VIII.  Under Section VIII.A.3, it would be up to the DOE, not the regulator at the New Mexico Environment Department, to select the timing and scope of each “campaign.”

Enforceable deadlines for cleanup tasks would apply no more than one year into the future. Deadlines would be based on “Campaigns” negotiated each year with DOE with no public participation and opportunity to comment on the schedule. To add insult to injury, the annual schedule would be determined by funding at DOE’s discretion, rather than the schedule driving the funding, which was the fundamental approach of the 2005 Consent Order.

All cleanup projects must mandatory completion dates scheduled from the beginning date of any revised Consent Order, and must be fully enforceable.

 

Existing Violations Must Not Be Eliminated

Section II.A of the proposed 2016 Consent Order would “settle any outstanding violations of the 2005 Consent Order.” This is a get out of jail free card.  Without enforceable schedules from the beginning, any consent order is not truly unenforceable, and the Environment Department would be abdicating its responsibility to protect human health and the environment as required by the federal Resource Conservation and Recovery Act (RCRA) and the New Mexico Hazardous Waste Act.  NMED must not surrender its regulatory and enforcement powers!

 

Attorney General Approval Must Be Obtained

The 2005 Consent Order was signed by the Attorney General of New Mexico for purposes of the Covenant Not to Sue (section III.) and the Reservation of Rights (section III.). As indicated on the draft signature page, there is no indication of the NM Attorney General plans to sign the proposed 2016 Consent Order. Yet it would provide the State of New Mexico with a covenant not to sue DOE on behalf of the State of New Mexico, not merely on behalf of the Environment Department. The Attorney General was an active participant, representing the People of New Mexico, in the 2005 Consent Order.  The Environment Department has a responsibility to ensure that the NM Attorney General is consulted, and his approval obtained, before any consent order is adopted.

 

The Proposed 2016 Consent Order Must Not Omit Detailed Requirements Found in the 2005 Consent Order

The 2005 Consent Order includes numerous detailed requirements for such things as well installation, sample collection, and preparation of work plans and reports. These ensure that the cleanup work is done properly, consistently, and according to standard industry practices.  They also ensured that work plans and reports were consistent, easy for the Environment Department to review, and easy for the public to understand.  The proposed 2016 Consent Order omits many such requirements, which should be corrected.

 

The Proposed 2016 Consent Order Must Not Allow Budget To Dictate Cleanup

The proposed 2016 Consent Order allows DOE to provide cleanup priorities based on anticipated budget, which is backwards. . By the time NMED receives an estimated annual cleanup budget from DOE, the horse has left the barn. The original purpose of the 2005 Consent Order was to compel DOE and LANL to ask Congress for additional funds to accelerate cleanup. The giant loophole in the proposed 2016 Consent Order that allows DOE and LANL to say that they don’t have sufficient funding and therefore can choose to exempt themselves from cleanup should be eliminated.

 

Cleanup Levels Must Remain Strict

Section IX Cleanup Objectives and Cleanup Levels of the proposed 2016 Consent Order would allow DOE to “develop site specific ecological cleanup levels” to mitigate unacceptable ecological risk due to release of site-related contaminants. There is no mention of NMED’s role in this process. DOE would be allowed to demonstrate to NMED that any particular “cleanup objective is impracticable.” To do this, DOE may consider such things as technical difficulty, the cost of the project, hazards to workers or to the public, and any other basis that may support a finding of impracticability. If NMED approves the impracticability request, DOE can then propose alternative cleanup methods using site-specific risk assessments. All of this could take place behind closed doors, as there are no public participation requirements in this section. Please clarify what cleanup levels will be used and when and where they will be applied.

New Mexico deserves better

In closing, the Environment Department’s proposed 2016 Consent Order allows the federal government to leave Northern New Mexico contaminated if DOE believes that cleanup is too difficult or costly– a sorry situation indeed for a nuclear weapons facility that receives over 2 billion taxpayer dollars a year. Instead, the New Mexico Environment Department should implement a new revised Consent Order that is aggressive and enforceable and in which the State of New Mexico stays in the driver’s seat, not LANL and DOE. That would be a real win-win for New Mexicans, helping to permanently protect the environment and our precious water resources while creating hundreds of high-paying cleanup jobs. .

 

Sincerely,

Name

City

 

The new draft Consent Order is available at

https://www.env.nm.gov/HWB/lanlperm.html#COOC

 

NMED’s public notice for the draft Consent Order is available at

https://www.env.nm.gov/HWB/documents/PublicNotice__English.pdf

 

The public comment period ends 5:00 pm May 31, 2016.

Comments should be submitted to kathryn.roberts@state.nm.us

Sample General Comments on the proposed new Los Alamos Cleanup Agreement

The New Mexico Environment Department (NMED) has issued a draft revised Consent Order (CO), which was the agreement in 2005 between the State and the federal Department of Energy (DOE) for fence-to-fence cleanup of legacy Cold War wastes at the Los Alamos National Laboratory (LANL). The Consent Order was designed as a plan-to-make-a-plan with investigations of contaminated sites followed by cleanup decisions and remediation. Milestones and penalties were included to keep funding and cleanup on track.

Serious investigation and cleanup began under the 2005 Consent Order. From 2005 through 2010, DOE and its contractors, under NMED oversight, accomplished significant progressed towards cleanup of the Laboratory. Much investigation work was completed. A large plume of hexavalent chromium was discovered in groundwater. Remedies were completed at dozens of individual sites.

Little cleanup has been accomplished in the last few years. We fear that the new Consent Order, if adopted, would continue that downward trend. It does not have enforceable milestones for all cleanup projects from the beginning. Instead the new plan is for NMED and DOE to decide every 1 to 3 years which sites will be addressed for cleanup “Campaigns”. This may allow Los Alamos to never address all the sites, and revert cleanup back to the way it was done before the 2005 Consent Order with budget driving cleanup. This is contrary to the original purpose of the CO, which was to compel DOE and LANL to get additional money from Congress for cleanup.

NMED’s public notice for the draft Consent Order is available at

https://www.env.nm.gov/HWB/documents/PublicNotice__English.pdf

The new draft Consent Order is available at

https://www.env.nm.gov/HWB/lanlperm.html#COOC

 

 

Please let your voice be heard and turn in public comments. Copy the sample comments below and paste into an email. Please modify as you see fit, then email to the address below. If you don’t mind, please cc: us at: info(at)nukewatch(dot)org

The 45-day public comment period ends 5:00 pm May 16, 2016.

Comments should be submitted to:

kathryn.roberts@state.nm.us

 

 

Ms. Katherine Roberts

Division Director

New Mexico Environment Department

Post Office Box 5469

Santa Fe, New Mexico 87502

Comments on the proposed new Consent Order

 

Withdraw this draft

  • This draft represents a big step backwards in achieving the goal of genuine, comprehensive cleanup of the Laboratory.
  • The Environment Department should keep the current 2005 Consent Order with necessary revisions to the cleanup schedule.
  • I request that the Environment Department withdraw this draft Consent Order.

 

A 45-day comment period on this first draft is inadequate

  • The March 30, 2016 draft document is a new Consent Order and, as such, thoroughly reviewing the document is a big task.
  • I request that at least another 15 days be added to the public comment period.

 

The public deserves the opportunity to comment on all following drafts

  • It seems likely that a later draft – after the Lab’s and the public’s comments are incorporated – could be substantially different from the current draft.
  • I request that the public have the opportunity to comment on any further drafts of the new Consent Order.

 

Public participation must be put back into the new Consent Order

  • The new Consent Order would expressly limit public participation requirements which would be opposite from the 2005 Consent Order.
  • I request that all milestones, targets, annual negotiations, and modifications require the opportunity for public review and comment.

 

The current status of all areas of cleanup must be updated

  • A current list of the status of all cleanup at Los Alamos must be included in the new Consent Order.
  • I request that the next step for cleanup at every site be documented in detail.
  • All previous 2005 Consent Order documents must be incorporated in to the new Consent Order.

 

All documents must be made public

  • The State and the Lab must make all communications, documents, and submittals specified in this Consent Order readily available to the public.
  • The State and the Lab shall notify individuals by e-mail of all submittals as specified in this Consent Order.

 

All future work must have enforceable deadlines

  • The new Consent Order would institute a “Campaign” approach with enforceable cleanup deadlines for only one year at a time.
  • I request that all cleanup work items have scheduled, enforceable dates.
  • The new revised Consent Order creates a giant loophole for DOE and LANL to plead that they don’t have enough funding and therefore don’t have to do the cleanup. The original intent of the Consent Order was to make DOE and LANL get more funding for cleanup from Congress. The “I’m too poor” excuse should be eliminated from any final Consent Order.

 

The revised Consent Order cannot be open-ended

  • Any new Consent Order must have a detailed, enforceable schedule of genuine cleanup milestones.
  • I request that the public be given an opportunity for a hearing on the new Consent Order.

 

Sincerely,

Your name

City

State