Los Alamos National Laboratory is trumpeting a new radioactive waste cleanup agreement that would allow it to leave half of its radioactive waste in place indefinitely—and defy federal environmental protection guidelines.

The agreement, unveiled at a Jan. 5 meeting of citizen advocacy group Northern New Mexico Citizens' Advisory Board, flies in the face of a 2005 consent order requiring total cleanup at the lab by the end of 2015. Although the new agreement is not legally binding, it allows LANL and the New Mexico Environment Department to consider changing the consent order at some future, unspecified time.

The agreement's unveiling comes at a time of great uncertainty regarding LANL's plans for cleaning up its biggest waste dump, Area G, home to 40,000 drums of radioactive waste. At an October NNMCAB meeting, the Gov. Susana Martinez administration announced that it would suspend indefinitely all release of public information about the cleanup plan. As SFR reported, that move appeared to anti-nuclear-proliferation activists to violate federal law [cover story, Nov. 2, 2011: "Wasteland"].

Michael Graham, LANL's associate director of environmental programs, declared the dawn of a "new day and a new future" at LANL when he introduced the agreement last week. Last summer's Las Conchas fire was a wakeup call that Area G's waste presents "a serious risk to the public," Graham said.

Graham is right about the risk, according to reports created by the Defense Nuclear Facilities Safety Board, a Washington, DC-based oversight group. At a November meeting in Santa Fe, DNFSB members questioned LANL's repeated failure to address major safety problems at Area G. Faulty tent poles holding up Area G's fabric domes jeopardize the dump's all-too-critical fire-suppression system, and DNFSB calculations found that a plane crashing into Area G could subject the public to more than 70 times as much radioactivity as is recommended under federal guidelines [news, Dec. 7: "Overdose"].

But the guidelines are just that: guidelines. Under the 1964 federal Atomic Energy Act, nuclear weapons-related activities are deemed too important to national security to be formally regulated by any federal agency. Similarly, the DNFSB has no authority to impose fines against LANL or to stop its activities.

The cleanup agreement LANL is now touting as a step forward is equally toothless. Although it expresses LANL and NMED's intention to get 17,000 drums of radioactive waste off the hill by June 2014, it's not legally binding. It also flies in the face of the consent order's requirement that all 40,000 drums be removed from the site, offering no explanation for why some waste can remain.

Instead, the agreement sets the stage for LANL to get out of the consent order—the only binding legal document that does force cleanup at the lab. The agreement explicitly states that the US Department of Energy, its subagency the National Nuclear Security Administration and NMED will "meet at an appropriate time to consider changes" to the consent order. In an email, NNSA spokeswoman Toni Chiri declines to be more specific, writing that a meeting between the entities "has not been scheduled."

Perhaps most egregiously, the agreement also states that NMED will not commit to follow federal Environmental Protection Agency cleanup guidance. NMED will abide by EPA guidelines "except where such guidance is not supported by sound science," the agreement states.

"EPA guidance that's not based on sound science occurs whenever the EPA issues views, guidance or standards that are based on conclusions that do not have universal acceptance from the scientific community," NMED spokesman Jim Winchester tells SFR. As of press time, Winchester was unable to offer any examples. According to EPA spokesman Joe Hobbard, however, "All EPA guidance is based on sound science."

The agreement isn't the only evidence that the state is cutting LANL some slack. Between Oct. 19 and Dec. 14, NMED granted LANL 26 extensions on consent-order-mandated cleanup deadlines, some within days of LANL's requesting them. On Jan. 5, NMED also revealed that it did not levy any fines against LANL in 2011, even though LANL missed other deadlines.

Although Frank Marcinowski, deputy assistant secretary for regulatory compliance with DOE's Environmental Management program, said at the meeting that such fines come out of LANL's cleanup budget—suggesting that fines would do more harm than good—Susan Gordon, director of the Alliance for Nuclear Accountability, tells SFR that isn't true.

"That is really misconstrued. The fine is about the contractor," Gordon says, referring to Los Alamos National Security, the private company that operates LANL. "It does not directly take money away from cleanup. It takes it out of the pocket of the contractor."

As SFR previously reported, LANL's environmental cleanup program was the only one at any US nuclear facility that the US House of Representatives recommended to fund below NNSA's request [news, Aug. 31: "Pit Stop"]. Although NMED Secretary David Martin said at the Jan. 5 meeting that NMED is working with state legislators and congressional delegates to address the funding problem, Gordon says other nuclear sites receive more cleanup money than LANL because funding cleanup is "not a priority" in the Roundhouse.

New Mexico Democratic Senators Tom Udall and Jeff Bingaman did pen a joint letter to the Senate Appropriations Subcommittee on Energy and Water Development last September, urging its members to increase LANL's proposed cleanup funding for fiscal year 2012. But the letter cited the requirements of the consent order as proof that LANL needs the money—and now the new agreement puts the consent order's authority in serious jeopardy.

"Those drums should have been gone by now, is the whole point," Scott Kovac, Operations and Research Director of Nuclear Watch New Mexico, says. "[NMED] decided to actually do something, but in the meantime, they're letting the lab off the hook."

Meeting Mischief

The meeting to discuss the new LANL cleanup agreement was remarkable for a relative absence of outraged public commentary, compared to other LANL meetings. (Some outspoken activists were at a simultaneous meeting on the Buckman Direct Diversion.) Technical difficulties interfered with both Kovac’s and Gordon’s comments; the microphone died completely while Gordon spoke. Absent the usual dissension, LANL staffers seemed emboldened to let their hair down. Graham even joked about the Las Conchas fire coming within a few miles of Area G. When his college friends flew in to visit him in Los Alamos on July 4, Graham said he told them, “’Area G does not stand for Graham.”