NMED Comes Down on Los Alamos in WIPP Response, Warning of ‘Significant Penalties’ Compliance Actions Could Come Within 60 Days

Kenneth Fletcher
WC Monitor
9/5/2014

SUMMERLIN, Nev.—Warning of “significant penalties” coming to the Department of Energy in the wake of the incidents that occurred earlier this year that have closed the Waste Isolation Pilot Plant, New Mexico regulators are also looking to go after DOE for cleanup-related concerns at the Los Alamos National Laboratory. Such concerns include communications problems, permit violations and safety issues, NMED Secretary Ryan Flynn said here this week at this year’s RadWaste Summit. “There are going to be significant penalties levied against DOE for deficiencies that have been identified both at Los Alamos National Laboratory and at WIPP. Right now it is looking more and more like the problems from a regulatory perspective are much greater… at Los Alamos,” Flynn told WC Monitor on the sidelines of the RadWaste Summit, stating that the issues at WIPP encompassed in a large part mine safety.

NMED cited LANL in July for treating some WIPP-bound waste without the proper permit—while LANL is allowed to process waste under its permit, it cannot take further steps that would be considered treating the waste. The noncompliances involved adding neutralizers and absorbents to some extremely acidic waste containing nitrate salts. LANL has also improperly assigned waste codes to some waste sent to WIPP, Flynn said this week. “The problems at the WIPP were not at the same degree as the problems we are uncovering at Los Alamos National Laboratory from a state regulatory perspective,” Flynn said.

LANL this week referred request for comment to DOE headquarters. When asked to respond to Flynn’s comments regarding LANL, a DOE spokesperson said in a statement: "The Department is fully committed to reopening WIPP, and will continue to work with the State of New Mexico to do so safely and as expeditiously as possible."

Compliance Actions Could Come Within 60 Days

The final assessment of penalties will occur as the state completes its own nvestigation into the Feb. 14 radiation release at WIPP, which stemmed from a breached drum packaged at LANL. “We are not necessarily waiting on DOE’s Accident Investigation Board. We are actively working on our investigation right now. I anticipate there will be some compliance actions that will be initiated in the next 60 days regardless of where the AIB comes down, and we already have compliance orders that are being drafted as we speak,” Flynn said. Rather than launch one large compliance order, there will be a series of compliance actions from NMED as portions of its own investigation are completed.

LANL Communications Issues Could Increase Fines

Communications issues with LANL will be taken into account if NMED levies fines. “At LANL there has been really poor communication with the regulator. It is damaging DOE’s credibility. It’s not only damaging DOE’s credibility, but it’s increasing their potential liability,” Flynn said in remarks at the RadWaste Summit. “The harder we have to fight to get that information, the more resources we have to pour into it to figure out precisely what occurred, the less forthcoming you are, then the less generous we’re going to be when it comes to assessing fines and exercising our discretion on how to move forward and what an appropriate sanction is for violations.”

At the same time, there have been great improvements in NMED’s relationship with the WIPP site after poor communication in the initial days and weeks after the accident, Flynn said. “They stumbled out of the gate on communicating both to the public and the regulator. After their early missteps, WIPP has recovered very nicely. They have done an outstanding job briefing the public with a series of town hall meetings. That’s been one of the strengths at the WIPP site in getting this turned around,” he said. He added, “The communication with the regulator has been outstanding and the manner with which they have been communicating at WIPP with the regulator has been outstanding. They haven’t been holding back information.”

At LANL ‘We Hear Crickets’

But there are numerous examples of LANL being unresponsive when NMED has requested information, Flynn said. That includes requests for the results of independent tests regarding the root cause of the radiation release. “It would help us and we believe it would help the investigation, but we hear crickets when we ask for it. That’s unacceptable,” Flynn said.

Additionally, while LANL has held regular briefings with NMED, it has failed to provide reports cited in the briefings to support conclusions. “You are eroding the credibility with the regulator when you do that. If you’re not going to give us something, don’t even tell us about it,” Flynn said. “Nothing is going to get a regulator more upset than saying I’ve got some great information for you, but oh by the way I can’t give it to you, sorry about that. It’s really shortsighted.”

LANL also recently “unilaterally” changed the head space gas sampling in waste containers that had been flagged as being of higher concern and had been separated from other waste, according to Flynn. The containers are being isolated and sampled as a precaution, but recently instead of daily sampling LANL decided to shift to a twice a week schedule. “They made that decision unilaterally without talking to the regulator first and saying look, this is the data we are collecting and these are the reasons why we believe we are not getting useful information from sampling these on a daily basis,” Flynn said, adding, “That does not work to help your credibility with the regulator.”

Poor Communication Helping to ‘Snatch Defeat From … Jaws of Victory’

The final example of poor communication at LANL Flynn cited is changes in the self-disclosure of issues. After initially disclosing a broad set of issues to NMED, LANL later came back to the regulator and changed the self-disclosure from four issues to two issues. “It really just hurts your credibility with the regulator. The initial issues have not gone away, but I think sometimes we get into we’ve got to manage liability,” Flynn said. These issues, such as self-disclosures, regular briefings and sampling of high concern waste containers, are potential positives that have been turned into negatives for the state due to poor communication, according to Flynn. “You snatch defeat from the jaws of victory,” he said.