The New Mexico Environment Department asserts in a state court filing this week the Department of Energy is not meeting its cleanup obligations for the Los Alamos National Laboratory under a 2016 consent order — an order the state wants to terminate.

The New Mexico Environment Department (NMED) filed its complaint Thursday with the state’s First Judicial District Court after the clock expired Jan. 22 on a mandated dispute resolution process that began in October and failed to produce a mutually-agreeable path forward on Los Alamos cleanup for 2021, the state said in a press release.

So, the state now wants to terminate the 2016 consent order, which critics call a watered-down version of an earlier one from 2005, and seeks court-supervised negotiations for a replacement order with the federal government. NMED also requests a civil penalty of $333,000 for DOE’s lack of compliance with the current order as well as a new “robust schedule” for legacy cleanup.

“Today, we are seeking to terminate the 2016 Consent Order and initiate court-supervised negotiations to renegotiate clean-up terms that protect communities and their environment,” said NMED Cabinet Secretary James Kenney. “The Department entered the 2016 Consent Order with high expectations, but almost five years later, our expectations are far from met.”

The DOE has enjoyed a “constructive working relationship … for years with NMED that has resulted in significant cleanup progress at [Los Alamos National Laboratory] LANL since the establishment of the 2016 Compliance Order on Consent,” an Environmental Management spokesperson said by email Thursday night. “While the state has chosen to discontinue the ongoing discussions on 2021 milestones, we remain hopeful of working with the state to resolve any concerns that exist under the Compliance Order so we can continue this record of success in delivering results for the citizens of New Mexico.”

Non-compliance order activities, such as shipping transuranic waste to the Waste Isolation Pilot Plant, accounts for nearly half of DOE’s legacy cleanup annual budget at Los Alamos, according to the DOE spokesperson. 

The case was filed for NMED by New Mexico’s special assistant attorney general John Verheul in Santa Fe County-based First Judicial District Court.

Critics of the 2016 consent order say it relinquished many hard deadlines in the original version and ceded too much sway over milestones to congressional funding. Proponents said the 2016 order made it easier to prioritize the most urgent cleanups at the birthplace of nuclear weapons by negotiating new cleanup campaigns every year. This approach also made it easier for Congress to understand where yearly appropriations would go, supporters of the consent order said.

Meanwhile, NMED also said the DOE Los Alamos Field Office’s 2021 Plan was inadequate due to a lack of substantive future remediation targets. Many milestones set for fiscal 2021 “contained little or no field work and were simply administrative reports” on work done previously, or monitoring data, according to the complaint.

The DOE’s 2021 plan will “inadequately delay” the Los Alamos cleanup completion date of 2036, NMED said.

The state agency and DOE pursued “informal” negotiations prior to the mandatory dispute resolution that began in October, NMED said, adding some progress has been made but not enough.

For example, because of COVID-19-related delays, DOE asked to postpone a Sept. 30 deadline for submission of a corrective measures’ evaluation report for the Los Alamos chromium plume for more than a year, until Dec. 16, 2022. NMED offered a six-month extension until March 30, 2022, but DOE did not agree.  

The 2016 consent order allows NMED to now “pursue any legal remedy,” according to the state’s complaint.