Kenneth Fletcher
WC Monitor
2/20/2015
With the Department of Energy facing cleanup-related fines in numerous states, some state officials are balking at the Office of Environmental Management’s position that any penalties will come out of cleanup dollars. Notably, New Mexico recently levied $54 million in fines against DOE and has warned of potentially $100 million in additional penalties, citing violations at Los Alamos National Laboratory and the Waste Isolation Pilot Plant. The Department is also facing financial penalties due to missed milestones in Washington, South Carolina and Idaho. While some state regulators have emphasized that penalties should not come out of the cleanup budget, EM is taking a different stance. “Any fines and penalties assessed on the EM program would be provided by cleanup dollars, resulting in reduced funding for cleanup activities,” states a recent EM presentation to state regulators at the Environmental Council of the States.
New Mexico Environment Department Secretary Ryan Flynn has repeatedly said that fines levied by the state should not reduce cleanup funding, claiming that such a move would restrict regulators looking to enforce violations. “This is a public relations campaign designed to scare states from holding DOE accountable for endangering the health and safety of our citizens,” Flynn said this week in a written response. “Because this position is inconsistent with DOE’s past practices, it appears that this is a new policy being implemented by the Obama Administration. Essentially, DOE is threatening to punish states by doing less cleanup work if states attempt to hold it accountable for violating federal and state environmental laws.”
Flynn continued: “Aside from showing no respect for the rights of states, DOE is also challenging the authority of the Environmental Protection Agency. States like New Mexico welcome federal facilities into our communities with the understanding that these facilities will respect the health and safety of our citizens by complying with federal and state laws.”
EM: Cleanup Funds Only Source to Pay Penalties
Some lawsuits against the federal government have been paid out of the U.S. Department of Justice’s Judgment Fund. For example, DOE has used the Judgment Fund to pay for settlements with commercial utilities for litigation related to Yucca Mountain and the government’s failure to accept commercial spent nuclear fuel by its deadline. However, DOE’s Office of Environmental Management does not have access to those funds, according to EM officials. “The only source of funding available to the Office of Environmental Management is the money appropriated from Congress for cleanup work,” a DOE official said in a written response.
EM doesn’t have any other options when it comes to penalties, acting Assistant EM Secretary Mark Whitney said last week. “First and foremost we have to use the dollars that appropriated for us towards what they were appropriated for. So that is largely the basis for that discussion on taking a compliance penalty coming out of cleanup dollars,” he said at a Congressional Nuclear Cleanup Caucus briefing last week. “I don’t know that there is another way around that quite honestly.”
Washington State Doesn’t Expect Fines to Impact Cleanup
The Washington State Department of Ecology has imposed several penalties on the Department of Energy in the last 15 years for compliance issues related to Hanford cleanup ranging from $10,000 to $450,000. Some of those penalties in the past have been paid by the site’s contractors. Washington state does not expect that the fines imposed so far to have a significant impact on cleanup activities, Washington Department of Ecology Compliance Manager John Price told WC Monitor this week. “For the penalties we are issuing here at the amounts we are issuing that hasn’t been a concern,” Price said.
South Carolina ‘Shares New Mexico’s Concern’
However, the case is different in other states given the millions in penalties brought forth by New Mexico and also potentially coming in South Carolina. Due to impending missed milestones at the Savannah River Site for tank waste cleanup, South Carolina’s Department of Health and Environmental Control has warned of penalties that could reach $150 million. “DHEC shares New Mexico’s concern that DOE may seek to punish states by taking penalties out of cleanup funds,” SCDHEC spokesman Jim Beasley said in a written response this week. “In South Carolina, DOE is seven months away from missing a milestone. The ball is in DOE’s court to either manage their money to pay penalties or negotiate an acceptable, equitable solution with the State. If DOE fails to take appropriate steps, DHEC is fully authorized and ready to enforce risk reduction milestones for our citizens.”
In Idaho, that state’s Department of Environmental Quality is currently in negotiations with DOE on its failure to empty underground waste tanks, with fines reaching up to $3,600 per day and increasing to $6,000 per day on July 1. However, the Idaho regulator is not worried that the penalties will impact cleanup progress at the Idaho National Laboratory. “DOE is obligated to meet its cleanup requirements and comply with state hazardous waste laws,” Idaho DEQ INL Coordinator Susan Burke said in a written response. “How they choose to do that is up to them. The penalties DEQ has assessed and is negotiating are very modest when viewed against the amount of cleanup funds DOE expends at the INL.”
EM Focusing on State Communications
Given the large number of potential missed milestones and penalties DOE’s cleanup program is facing in the coming years, EM is focusing on communications with stakeholders, Whitney said last week. “We have a budget environment that generally is more constrained than it was 10 years ago when the EM program that had a $7 billion budget. We had milestones that we committed to that were based on that, and probably a little too aggressively to be quite honest with you. Those are coming to bear right now in a lot of cases,” he said. “I’ve committed to having a direct line of communication with each of the regulators at the states as well as at [U.S. Environmental Protection Agency]. I’ve spoken with each one of them on the issues we have, being open and honest in the ability to work together. We all want the same thing. We all want to get cleanup done and drive down the environmental risk.”
