Very Informal Comments on the May 31, 2002 "Letter of Intent" Signed by the New
Mexico Environment Department (NMED) and the Department of Energy (DOE):
"Meeting Environmental Responsibilities at New Mexico DOE Facilities"

Greg Mello, 7/8/02, with gratitude for transcription assistance by Andre Shiromani

            The Letter of Intent (LOI, Letter) signed by the New Mexico Environment Department (NMED), the Department of Energy (DOE), and the Regional Administrator of the Environmental Protection Agency (USEPA) on May 31, 2002 is a fascinating -- and frightening -- regulatory document, the first of its kind that I know of in New Mexico.

            The LOI does not stand alone, but was developed in light of, and as an attempt to exert influence over, other regulatory and administrative initiatives which help define and implement it.  To fully understand the Letter, then, one must also review these other documents and processes as well.

            Let's begin with the LOI.  It's worthwhile to look at it phrase by phrase in some places. 

"Collective Commitment"

            The signatories are, it says, "collectively committed" to a number of things. So the letter has some legal weight. I believe the letter can be brought into a courtroom in defense of policies undertaken by DOE and its contractors pursuant to its phrases, so that the NMED, after signing this letter, will be hard-pressed to enforce requirements under the Resource Conservation and Recovery Act (RCRA), or to make subsequent permitting decisions based on technical information brought forward by the public, or in any other way to enter into a strong disagreement with the DOE.  As I see it, the DOE or its contractor the University of California (UC) will be able to produce this letter and tell a judge that the Environment Department has already agreed, in writing, to what they are doing, or not doing.

            In addition, money is going to change hands as a result of signing this letter, giving it some characteristics of a business deal. It seems to be an instrument that is not strictly speaking a regulatory activity; it's not law or regulation, but it does seem to be a kind of business deal.         Oddly, the party whose activities are most regulated by this letter is the Environment Department itself.  So it appears that the Environment Department is selling regulatory indulgences in return for cash received. That sounds like a harsh view, but I think it is in fact the simplest and most accurate. 

            We can state this more fully.  NMED is selling regulatory indulgences in return for cash received, both for itself and, much more so, for the regulated parties from Congress, and also to be freed from certain onerous enforcement, public hearing, and technical review requirements.  NMED and the Governor's office may believe that such indulgences create an economic benefit for the state by causing an increase in federal patronage.  NMED Secretary Maggiore indeed referred to the "stabilizing" effect of his agency's actions not less than three times in the press conference that accompanied his release of the "Corrective Action Order" (CAO), a document which is intimately connected to the LOI in content, funding, and timing.  Such short-term "stabilization," for the lab and his own agency, is among the prime reasons Mr. Maggiore signed this LOI.

            So: the parties are "collectively committed." It should be noted that this type of "collective commitment" - really it is a private commitment -- is not the kind that is envisioned by RCRA or any other kind of environmental law or regulation that I know of.  It is an extra-RCRA, and possibly an extra-legal, device.

"Accelerating Risk Reduction"

            This idea has two components really, a virtual component, and a real component. The first refers to accelerating a program and an associated corporate and media-relations- oriented perception, and not to the reduction of actual, real risk. 

            When it comes to risk, "real" is in the eye of the beholder.  Risk is itself a social construct which is susceptible to considerable redefinition by perceived authorities, because it is based on value decisions and choices. Because of this socially-constructed quality, risk is also subject to what we might call "imaginative reduction" -- or "imaginary inflation" for that matter, i.e. hysteria.  Another way to say this is to say that risk can be ritually reduced since it is in part social belief (superstition, if you like) in the first place.

            An example might be a study which finds that doing absolutely nothing in terms of corrective action is the "best" course of action, and will be adequately "safe."  The "cleanup" is at that point "completed," and the problem can be forgotten. We can call this "ritual cleanup."  Heavy reports, and perhaps shiny computer disks also, have been waved over the site, and perhaps magical monitoring wells have been driven at the site.  Therapeutic meetings have been held by the scientific counselors of environmental grief.  No pollution has been removed, but the meaning of the pollution has been cleansed.  Truckloads of money have been sacrificed, and the virtue of this sacrifice will appease the furies which seem to haunt the site.  And we certainly all will feel so much better -- which is the real, political goal of the exercise.  The bad thoughts have been washed out by more "appropriate" ones.  Conflict - that engine of history -- has been replaced by quiet harmony.  The experts have helped us see the error of our ways.

            The second component of "accelerating risk reduction" is the real component.  This, of course, may be exaggerated, but it is by definition at least partly real.  An example would be the "Quick-to-WIPP" shipment of transuranic (TRU) waste from Los Alamos to WIPP, which will result in lowered risk when compared to indefinite storage, but which may or may not result in lowered risk when compared to other alternatives that are not being considered. 

            So, to repeat: "accelerating risk reduction" has a real meaning in part, but it also refers to accelerating a bureaucratic program of risk reduction which involves, to a great extent, changing perceptions without necessarily changing the environment.

"Cleanup"

            "Cleanup" is the next word of importance.  Anyone reading this LOI needs to be clear that "cleanup" is a euphemism for a DOE program which derives its identity by spending money on perceived environmental problems at DOE sites. It may or may not involve actual physical cleanup. 

            For example, some $701 million dollars in "cleanup" has been done at Los Alamos, but at least 80% or possibly as much as 90% of that amount has been spent on overhead and studies.  (Some of these are important and worthwhile, but they are not cleanup.)  Meanwhile, waste disposal continues at Los Alamos, with the net amount of waste disposed in the environment having experienced a considerable increase, and not a decrease, since the beginning of the "cleanup" program.  The LOI says that the result will be reduced risk sooner, and again we're talking about the reduced perception of risk, and we're also talking about reduced future programmatic expenditures on risks.

            "Cleanup" is synonymous with "environmental restoration."  It would be a very big mistake to assume that "environmental restoration" has anything to do with restoring the environment.

"Focus to remain on its [DOE's] core national security mission"

            The second stated purpose of this Letter is to allow the National Nuclear Stewardship Administration's "focus to remain on its core national security mission." (The NNSA is a quasi-autonomous portion of DOE.)  That means that the Environment Department agrees that it should help the NNSA focus on nuclear weapons work.  We can be sure this is not part of Pete Maggiore's statutory authority.  It's not entirely meaningless, however, because "national security" is often the trump card played by NNSA or DOE in a regulatory negotiation.  It's always nice to have a preemptive surrender in one's pocket before entering those situations -- even if it's only a moral surrender.

"Long-Term Environmental Stewardship"

            The next phrase is "Long-Term Environmental Stewardship," or "Environmental Stewardship" for short.  I'm not sure that either of these phrases have any meaning at all.  The "Long-Term Environmental Stewardship" office at DOE is slated for closure, so DOE itself is not too sure this phrase has meaning.  (The office has already experienced severe budget cuts and DOE has sought to transfer these obligations or responsibilities to the Army Corps of Engineers.) Ironically, the lifetime, so far, of the "long-term" environmental stewardship office is itself only about four years, and it now seems to be in its sunset period.  So, at a minimum, there's a pretty serious disconnect between the idea of environmental stewardship and the institutional resources and commitment to that idea at DOE.

             This blurring of the virtual and the real is perhaps the central presentational theme in the Letter of Intent and the "cleanup" programs for which it serves as an umbrella.  "Between the thought and the act falls the shadow," wrote T. S. Eliot.   This letter elevates that shadow to an art form.

            The "implementation" of "long-term environmental stewardship," and "moving the date of implementation [of LTES] forward," means, in fine, stopping nearly all the work at the site -- if there is any to stop.  So that means that the "cleanup" at Sandia, as the LOI says, will be over in 2006 instead of 2009.  And "cleanup" will end in 2015 at Los Alamos instead of in 2030.  It's not clear that there will be more work done after these dates.  In fact, as we will see, the letter is designed to also produce less actual, physical cleanup in a number of areas. What is most clear, however, is that the signatories are committed to ending the "cleanup" at an earlier date. 

The Other Key Commitments Enumerated in the Letter

1.      "Accelerate Risk Reduction of Ground Water and Soil Contamination". 

Again, it's the same principle.  The risk, which is a social and institutional construct, will be "reduced" for groundwater and soil but the actual groundwater and soil are not, in virtually every case, as we shall see when we look at the underlying documents, ever going to be actually cleaned up at all.

            The first part of this item (1a.) implements the "Quick-to-WIPP" strategy.  This will move or reduce some of the risk at Los Alamos, the risk created by storing "legacy" TRU waste in tents at Area G. It's not clear that this is the best risk reduction strategy, or the least expensive, or the one that preserves regulatory safeguards in waste transportation, a rapidly growing business important to many of DOE's constituents in the nuclear industry.  But I think that when compared to just leaving the waste in the tent, it will indeed show a real decrease in risk.  The problem here is that only really one alternative is on the table.

            It is important to notice that this Quick-to-WIPP proposal may be construed as a de facto selection of "final remedy" for an existing or yet-to-be-written closure plan for a RCRA-permitted or RCRA interim-status storage site at TA-54.  This might be what legally would call "partial closure," and may or may not fall under the public participation regulations and guidelines of RCRA. 

            The second part (1b.) implements the "watershed aggregate approach for environmental restoration."  The "watershed aggregate approach" aggregates risk over an entire watershed rather than having any specific cleanup standard at any single point.  In this way, an acre of clean soil is averaged with a hundredth of an acre of highly dirty soil because when left in place they in fact will blend in time, especially if they're in a canyon bottom or headed there (which is the case for all soil anywhere, including Los Alamos).  In this way, by agreeing to the watershed aggregate approach, it's almost certain that calculated or apparent risk levels can be held low enough to avoid almost all actual cleanup at Los Alamos lab. 

            In this commitment the letter says that the highest-risk watershed and high priority Material Disposal Areas (MDAs) will be completed some 14 years sooner than previously planned and that means, basically, that 14 years of cleanup won't happen. To complete all of the work by 2008 in the highest risk watersheds and high-priority MDAs would pretty much mean that nothing much - perhaps an earthen cover -- will be done in most cases. There might be isolated areas of especially high contribution to risk which can be economically remediated and used as public relations "poster sites" in order to justify inaction over the rest of the site. 

            As an aside, some people think that current high levels of congressional spending on DOE/NNSA cleanup will continue indefinitely -- past 2008, for example.  Perhaps those people should share what they smoke with the next administration's Office of Management and Budget, which is very likely to inherit a budgetary disaster from the present period of unbridled military spending, quasi-recession, "homeland security," tax cuts, and war.

2.      "Define Regulatory Endpoint for LANL and Sandia." 

      Normally, defining the "regulatory endpoint" is something that is generally done through the process of promulgating a regulation, pursuant to a statute.  In its implementing details, under RCRA at least, these requirements are tuned up through a public hearing process, with regulatory agency having the final say. Here, in this case, the signatory parties are "committed" to defining the regulatory endpoints. They, the signatories (not including the public, as is subsequently clear) commit to "[d]etermine likely future use scenarios and associated cleanup standards."  This is the responsibility of Peter Maggiore and the USEPA alone, not the DOE, but only after receiving a wide range of input in a fact-finding, adversarial hearing process conducted on the record.  It is not something done in "partnership" (see below) with any DOE office. 

            At some sites, like Rocky Flats, an involved process of determining cleanup standards was created and a lot of expert witnesses brought in and a cleanup standard finally chosen.  At Rocky, that cleanup standard was approximately 10 times more stringent than the one typically applied at Los Alamos, even prior to the device of "watershed aggregation."  Determining "likely use scenarios" (2a.) is the most important step in determining the relevance of future doses, and hence of risks, and hence cleanup standards, just as the LOI says.

            At (2b.) the LOI commits the parties to "pursue necessary actions to ensure long-term effectiveness of institutional controls."  Now, all sites will have institutional controls of some sort. Presumably, these would be minimized in any good plan; that would in fact be the major goal of the plan.  Instead, the repetition of phrases like "long-term environmental stewardship" and "effectiveness of institutional controls" leads the reader to believe that the cleanup plans promulgated under this Letter of Intent will lean heavily on institutional controls, i.e. will not be cleanup plans at all.

            These "necessary actions," as the real cognoscenti of the NMED/DOE relationship will know, include support for an Environmental Covenants Act, passage of which DOE says is an essential part of the plan described in this letter.  This Act, as last seen, would provide the legal means of excluding the most exactly future land uses from contaminated sites, effectively precluding the analysis of risk for those uses, and give NMED the responsibility for enforcing future pollution zoning.  In effect, NMED would own the pollution.  The burden of regulation would be moved from the polluter to those ordinary New Mexicans who have been excluded from the processes described in this letter.

            But even without the Act, should the Environment Department in a future permitting action say that they do not want to rely on institutional controls to ensure that risks remain low, the regulated party can produce this letter saying that the Environment Department has already agreed to base its regulatory endpoints on long-term effectiveness of institutional controls.

            In other words, the farm is being sold.

            In (2c.) the parties commit to "improve the definition of data quality objectives and what constitutes sufficient and acceptable data for predictive modeling."  This is largely a red herring. This work item will absorb a lot of dollars at LANL while not risking getting any shovels dirty, to be a receptacle for federal funding.  Most, if not all, of the expensive predictive modeling in question will never achieve the predictive capability that will be needed to determine final remedies for MDAs and other contaminated sites, which are each unique in source term (unknown at present) and in lithology (which is unknowable to an adequate detail).  The uncertainties are simply too great, and they are irreducibly great. 

            It would be a worthwhile service for a talented statistical geohydrologist to show what the lower limit of error would be in predicted hydraulic conductivity, contaminant arrival time, and so on. This little epistemological exercise, a kind of sensitivity analysis, is not an overwhelmingly difficult one.  Basically, because of the extreme heterogeneity of the site (which translates into many orders of magnitude differences in hydraulic properties), the unknowable character of the geohydrology at any particular location and the imponderable unknowns regarding future modeling inputs such as precipitation, ground cover, human occupation, human intrusion, vegetative covering, the activity of burrowing animals, climate change, and so on, not to mention the lack of full information as to the source term, the total error in risk, which will be multiplicative for many of these factors, is enormous.  Probably any one of these sources of error is enough to blow any predictive model into a cocked hat. 

            You simply can't drill a well at point A at LANL and use it to predict the hydraulic conductivity at point B which is perhaps as little 10, 20, or 30 feet away.  On the scale of distance and time relevant to contaminant geohydrology at LANL the unremoveable uncertainties are sufficiently great as to warrant a very cautious approach.

We may thus say that this item (2c.) runs precisely counter to what is called the "precautionary principle," which is that where there is uncertainty, one should chose the most conservative decision where public health is involved. 

            We might say that the quest for the perfect predictive hydrology model at LANL is precisely parallel to the nuclear weapons stewardship program where the same quest has been elevated to national policy.  And it will fail there, just as it will fail in the environmental area.  It's kind of brute force method of generating saleable "truth" based on access to large computers and lots of people, and a lot of "data" of varying relevance and quality, where one suspends professional judgment and replaces it with a team solution in which no one in particular feels responsible for the failure of the whole. 

            The advantage of the environmental worker, in comparison to those assessing reliability of a gadget, is that there is no objective truth as to the exact risk posed by MDA X in 500 years.  It is more than unknown.  It is unknowable, and in the case of this site, its final inscrutability is a many-splendored thing. 

            Commitment (2d.) says the signers will "plan and implement a long-term environmental stewardship program working with our regulators and the surrounding community."  Actually, the regulators signed this letter, so the phrase "working with our regulators" doesn't make any sense in this context.  Perhaps they all just left it in because they thought it had a nice ring.

            But the broader point is that the specific regulatory requirements of RCRA for closure and post-closure care and the procedures and standards associated with them are being replaced by a transient buzzword, which refers to a highly-transient program, which has no standards, and perhaps even no meaning, at all.

3.      "Continue the established partnership between the DOE, its contractors, and regulators." 

This assumes the end of the traditional regulatory relationship and in fact is a commitment to end it.  

      The DOE has a partnership with its contractors to be sure.  They are supposed to do what it tells them to do, although they do not always do so.  The regulators, for their part, have no business entering into a partnership that is not the relationship envisioned by law. They do not have the authority to do that. 

      Commitment (3a.) spells it out more clearly: "Ensure senior level involvement and support to achieve the desired end state."   "Senior level involvement and support" sound very much like prejudiced decisions made outside the context of public participation. The "desired end state" is not defined here, but is defined throughout the rest of the letter to some extent and it is defined in the supporting documents for the LOI.   We don't know, in this context, whether this is the "desired end state" of the public or of RCRA or perhaps just of the DOE. 

      Continuing at 3b., commitments "include the expansion of high performance teams to focus on accelerated decision-making and to optimize cleanup schedules".  By now, we're getting used to this language. "Cleanup" doesn't necessarily mean cleanup.  "Optimize cleanup schedules" means to optimize the timing of bureaucratic decisions in a program called "cleanup."  "Accelerated decision making" actually means what it says, which means that we won't be getting any independent perspectives on what to do.  But "High Performance Teams" - what are they?

      The "High Performance Teams" (HPTs) are private teams of the regulated and regulatee brought together to do the work of the permitting process without messy public disagreement so that the details can be worked out and remedies largely selected prior to bringing the answers in front of the public.  The public would then have an abbreviated role in blessing the predetermined outcome - the role of providing, in other words, a gloss of apparent legality.   

            Commitment #4 is to "shortened review periods".  That's done with the "accelerated decision making" and the "high performance teams."  Democracy is messy, and the outcome is unsure; a corporate style will finish this job more quickly and allow us to focus on our core mission, which is to say, bombs.

            Commitment #5 is to "streamline internal processes such as quality control and verification of data" and includes "preparation of regulatory documents and the maximization of electronic commerce", "consolidation and integration of databases and elimination of duplicative processes".  It sounds good, in some ways, but data quality and verification are the heart of the matter, not the bells and whistles.  Perhaps the computer modeling alluded to above will suffice, with a minimum of actual data. 

            Commitment #6 is where the state gets paid off:  "Address resource issues by seeking additional state funding and pursuing new more tractable hazardous waste fee regulations that provide sufficient (increased) regulatory resources."  What we mean here is that the DOE is going to pay the state some money. They may also negotiate better fee regulations that will also give them money, quite possibly by dividing, say, Area G from one unit to many units, theoretically 250 or more. Dividing Area G would have the side-effect of allowing DOE to close any small part of Area G while keeping the rest of it open. 

            Commitment #7 integrates DOE and regulatory public participation.  NMED has legal requirements for public involvement, not just public relations.  DOE has no such requirements.  Until this letter, a required public hearing and a corporate dog-and-pony show were two entirely different universes.  The idea that they would be commensurable, let alone integrated, is appalling. 

            Commitment #8 is a bit repetitive. It says NMED is dedicated to the completion of the cleanup program and the protection of workers. The safety of workers is always in tension with environmental remediation goals, to some degree.  The safest program for the environmental restoration worker is one that does not involve exposure to the contaminated environment at all, i.e. omitting actual cleanup entirely.  Here, by "completing" the "cleanup," using the "watershed aggregate approach," worker exposure, even to dangerous ultraviolet light, can be kept near zero.

            Commitment #9 refers to innovative cleanup procedures. For DOE contractors, innovation is something which is often used as a cover for things which don't really have any deliverables or haven't produced any. If it can be sold as an R&D program, it doesn't actually have to work. It says here that these innovative technologies will lead to effective investment for American taxpayers. In fact, Congressional auditors have found that DOE's innovative cleanup technology program has not been an effective investment for American taxpayers -- far from it.

The "Performance Management Plan"

            The Letter says the DOE and its contractors will develop a Performance Management Plan (PMP) by August of this year. The plan is to include a (bizarre) list of components: "actions, milestones, responsibilities, business processes, and acquisition strategies necessary to achieve the agreements made in this letter."  The PMP will contain the details wherein the many minor devils lie. What's remarkable is that "the DOE and its contractors" will develop this document, although there is are rumors that DOE will want NMED to sign it as well when it comes out. 

             The NMED is not only signing off on a bad plan, and a vague plan, but they're also signing off on a unknown plan, the details of which will be worked out later, perhaps by one party alone.  It may be a fairly blank check. The Orwellian glossary we have spent some time deciphering can thus be redefined in the PMP or other documents or revisions, at any time, either by the DOE for its own purposes or by DOE contractors for theirs.  The reins are slipping from NMED's hands.  (When these bizarre phrases become incorporated in DOE-contractor documents, DOE will also lose control.  For DOE, this is the normal condition.)

            The protean, "Schrödinger's Cat" quality of this letter is a very clever means of reducing regulatory freedom.  It's a kind of palimpsest on which successive future writers - all but the disempowered NMED -- can record their agendas. 

            The PMP is due out any day now.

Are these commitments "real?"

            The question apparently remains in some people's minds as to whether or not these commitments are real.  Be assured: they are very real.  It doesn't matter, for example, what the Environment Department thinks it is doing when signing this letter. NMED's motives may be noble, but motives don't count here; and neither do attitudes or its political assessments.  It doesn't matter, for example, that the Environment Department apparently believes, in private, that this letter is a meaningless game.  The character of the individuals involved is likewise irrelevant.  That's why letters like this are signed!

            Once the instrument has been signed, underwritten implicitly or explicitly in its principles and funded by Congress, it has a life of its own, a life which is not subject to interpretation by one party but by all parties in proportion to their political power at that time. The DOE and (much more so) its contractors usually have a great deal -- a determinative amount - of formal political power in NM.  They also have a lot of informal day-to-day institutional power, not least because they can put a huge staff on RCRA issues, and even DOE's site contractors can litigate with no actual cost to the contractors themselves.  Formal permitting standards (e.g. formal closure standards), and other formal standards, are the only check on this power.

            What this letter does, in its area of applicability, is to remove the explicit protection of law, that organ in society designed to check the injurious exercise of power, and replace it with - well, basically nothing. 

            I don't know if NMED will be able to recover any meaningful regulatory stance vis-à-vis DOE and its contractors if this letter is allowed to stand.  It is a huge loss of sovereignty to New Mexico, and its adumbrations could potentially be felt far outside its formal sphere of application, in other aspects of the DOE/New Mexico relationship.  Quite possibly, if it is seen as successful and hence normative, the philosophy established in this letter could spread to - pollute is perhaps the better verb - other regulatory contexts as well.