Energy Department contests $54M in fines for WIPP leak

Posted: Friday, January 9, 2015 7:00 pm | Updated: 12:38 am, Sat Jan 10, 2015.

By Patrick Malone
The New Mexican

The U.S. Department of Energy on Friday challenged more than $54 million in fines proposed by the New Mexico Environment Department, questioning the state’s oversight authority of its nuclear waste handling operations at Los Alamos National Laboratory and the Waste Isolation Pilot Plant.

In response to unprecedented fines announced last month stemming from a February truck fire and a radiation leak days later at WIPP, the Energy Department and the private contractors it pays to operate LANL and WIPP asked the Environment Department to forgive or reduce the penalties and requested hearings to contest the violations.

New Mexico Gov. Susana Martinez and her Cabinet secretary for the Environment Department, Ryan Flynn, hand-delivered notice of the violations and resulting fines to President Barack Obama’s energy secretary, Ernest Moniz, in Las Vegas, Nev., on Dec. 6. Within a few days, the Energy Department approached the state to discuss a settlement, according to Environment Department spokesman Jim Winchester.

“While NMED is always willing to consider settlement options in an effort to avoid excessive taxpayer expenses involved in litigation, our top priority is correcting the problems that ultimately caused the release at WIPP and ensuring the long-term success of New Mexico’s federal facilities,” Winchester said. “The parties will continue to engage in settlement discussions as the legal process moves forward. However, we will not agree to back down on any of the problematic issues we identified in the compliance orders.”

In a written statement, the Energy Department said: “We look forward to addressing the underlying causes that led to the compliance orders and to developing a positive path forward for the re-opening of WIPP and the resumption of transuranic waste operations at LANL. … We share with NMED the goal of quickly addressing outstanding issues and fully resuming operations at both LANL and WIPP.”

A hearing officer designated by the Environment Department could decide the merits of the state’s penalties, unless the state reaches a settlement agreement with the Energy Department first.

The penalties stemmed from a Feb. 5 fire at WIPP, and a radiation leak nine days later that began with a chemical reaction inside a drum of Cold War-era nuclear waste from Los Alamos. The Valentine’s Day leak exposed more than 20 workers to radioactive contamination and closed the nation’s only below-ground repository for nuclear waste for what could be years. The Energy Department estimates the cost of repairing and reopening WIPP at $550 million.

Emails obtained by The New Mexican during a six-month investigation into the leak at WIPP revealed that LANL’s descriptions of the waste drum that ultimately ruptured omitted ingredients that would have pointed to its volatility. It was highly acidic, contained organic kitty litter rather than the inert clay variety historically used as an absorbent in nuclear waste and was treated with an organic acid neutralizer. None of those ingredients, however, were acknowledged in the description of the drum LANL provided to WIPP and state and federal regulators. As the investigation to pinpoint what triggered the cause of the leak continues, those unmentioned ingredients are being eyed as possible contributing factors.

The flawed description of the waste that LANL provided and its unauthorized treatment of waste were among two dozen violations the Environment Department cited in its compliance order to the Energy Department that led to $36.6 million in fines under the operating permit the state issued the lab. Another $17.7 million in fines were levied against WIPP’s permit from the state for 13 violations, which include lapses in safety procedures during the underground truck fire and acceptance of the volatile drum of waste from LANL that ruptured.

In its response to the Environment Department regarding WIPP, the Energy Department appeared to shift responsibility for the radiation leak to Los Alamos or its contractors, arguing that “some other person or entity … caused such violation in whole or in part.” Other defenses invoked by the Energy Department on behalf of LANL, WIPP and the contractors that operate them call the state’s fines “arbitrary and capricious” and include claims that the permit holders did not violate any terms of their permits or any laws.

“I find that particularly galling,” Don Hancock, who monitors WIPP closely for the Southwest Information and Research Center in Albuquerque, said. “It’s not only OK to burn the place down, it’s OK to have a radiation release that closes down the facility for years, maybe forever? It’s expected that they would want to reduce the fines. It’s not credible for them to be stating to NMED, to the public, to the world, that they didn’t violate conditions of the permit with the fire and the radiation release.”

The Environment Department also asserted that “NMED does not have jurisdiction for regulating” nuclear waste at Energy Department sites.

“This is outrageous,” Greg Mello, executive director of the watchdog Los Alamos Study Group, said. “In essence, DOE is saying that while the pretense of environmental regulation is OK, actual enforcement is not.”

Hancock said if the state reduces the fines it imposed, it would call into question how seriously it takes the nuclear sites’ missteps.

“It wasn’t just the environment department, it was Gov. Martinez who personally delivered to Secretary Moniz these two orders,” he said. “I would certainly hope that the governor is not going to backslide."

Contact Patrick Malone at 986-3017 or pmalone@sfnewmexican.com.