Judge: Suit seeking fines against LANL can proceed

Group says millions owed over cleanup violations

SANTA FE - A federal judge has ruled that a watchdog group’s lawsuit can continue against the federal Department of Energy and the private contractor that runs Los Alamos National Laboratory.

The 2016 suit by Nuclear Watch New Mexico alleges DOE and the contractor — Los Alamos National Security LLC (LANS) — owe hundreds of millions of dollars in fines for missing deadlines for cleaning up radioactive and other kinds of hazardous waste at the lab.

U.S. District Judge Judith Herrera this week rejected motions to dismiss the portion of the suit that says in 13 specific cases, DOE and LANS failed to get extensions of cleanup deadlines from the New Mexico Environment Department and should have been subject to fines of $37,000 per day under a 2005 agreement with state government. The fines would now total more than $300 million, according to Nuke Watch.

Judge Herrera found that the DOE, LANS and the state Environment Department, in seeking dismissal, had failed to meet a legal burden to show that it is “absolutely clear” that the conduct challenged in the suit could not reasonably be expected to recur. NMED joined the lawsuit on the side of DOE and LANS.

Herrera did dismiss a portion of the suit that sought to invalidate a 2016 legal agreement between the DOE and New Mexico state government over environmental cleanup at the lab.

The 2016 deal superseded a 2005 consent order that was supposed to have required clean up of the lab’s entire 40-square-mile site by 2015. The cleanup work didn’t come close to completion as DOE failed to receive sufficient federal appropriations to pay for it.

The2106 agreement did away with set deadlines for different parts of or the entire cleanup of LANL. Instead, it calls for a set of “campaigns” to achieve specific goals, such as remediating a chromium plume in the aquifer below Los Alamos.

Judge Herrera agreed with the defendant agencies that the 2016 agreement was a new consent order, not a modification of the 2005 order. Therefore, the agencies weren’t required to follow process requirements for amending the 2005 order, like a formal public hearing, before adopting the 2016 deal, Herrera ruled.

Jon Block, representing NukeWatch as a staff attorney at the New Mexico Environmental Law Center, said “We are gratified that the Court is allowing the lawsuit on civil penalties to move forward.”