LANL - Clean Air Act

Weapons Lab Settles Landmark Citizens Clean Air Act? -
Lawsuit On Radioactive Air Emissions

Los Alamos National Laboratory Submits To Citizen Review For First Time?

Facing $2.5 billion in possible penalties and the potential shut down of many of its facilities, Los Alamos National Laboratory (LANL), the nation's premier weapons laboratory, has settled a landmark lawsuit based on LANL's violations of the federal Clean Air Act regulating levels of radioactive air emissions.

"We have testimony from whistleblowers documenting the lab's intentional violations of the Clean Air Act's radioactive air emissions requirements. We have evidence that the lab willfully ignored the Act's legal requirements during its history of continuous violations since 1990," stated Jay Coghlan, LANL Program Director for Concerned Citizens for Nuclear Safety (CCNS), the Santa Fe-based nuclear safety citizens group which brought the suit against LANL. The lab routinely emits plutonium and other radionuclides into the air.

In a precedent setting resolution of a five-year legal battle, CCNS and the Department of Energy (DOE) have entered into a consent decree that requires independent, non-governmental auditing of the radioactive air emissions monitoring program at LANL. The consent decree, filed in federal District Court in Albuquerque on Tuesday, January 14th, is believed to be the first time in U.S. history that the nuclear weapons complex has agreedto citizen auditing of any aspect of its program.

LANL has admitted that 31 of its 33 stacks emitting radionuclides to the air were not in compliance with the law. "What this means," says Coghlan, "is that LANL, which prides itself on its scientific reputation, didn't know how much radioactivity it was emitting, because its monitoring systems were non-complying."

LANL claims that it achieved full compliance with the law in June of 1996. CCNS disputes that claim. To date, there has been no independent verification of LANL's claim by EPA or by any outside authority.

"Under the Clean Air Act, citizens groups like ours don't receive money awards," stated Lee Lysne, Executive Director of CCNS. "The penalties would simply have gone to the U.S. Treasury. Instead, we obtained agreement for the independent audits, as well as improvements to the LANL air monitoring system, and several projects which the DOE is going to fund." The consent decree between CCNS and DOE requires DOE to pay for as many as four independent audits of LANL's radioactive air emissions program, to be conducted by a team led by John Till, Ph.D., President of Radiological Assessments Corporation in South Carolina. Dr. Till is a national expert in dose assessments and has participated in numerous studies of nuclear weapons plants. The audits will occur in 1997, 2000, and if the independent auditor believes it desirable, again in 2002 and 2003.

Although the results of the audit are non-binding, LANL is expected to take them seriously. "If the auditor finds significant problems, we expect LANL to rectify them promptly, or we'll be back in court to see that they do," stated Carol Oppenheimer, partner in Simon & Oppenheimer, counsel for CCNS.

The consent decree also requires the DOE to pay for CCNS to monitor the work of the independent auditor, as an additional safeguard for the independence of the process. CCNS' scientific consultant, Institute for Energy and Environmental Research (IEER), based in Takoma Park, Maryland, is nationally recognized for its pioneering work in assessing environmental damage and estimating compliance with air pollution regulations from the operation of nuclear weapons plants.

"The burden of proof that a facility is in compliance with environmental laws should lie on the party that is emitting the pollutants, not on those who are exposed to them," said Dr. Arjun Makhijani, President of IEER. "Otherwise, it encourages polluters to avoid making measurements and instead to make unsubstantiated claims of compliance. This is anhistoric settlement agreement. We shall have little to pass on to our children if we do not protect the environment from pollutants, some of which have half lives longer than the history of human civilization."

Bernd Franke, IEER's Executive Director, who provided consulting advice to CCNS in the lawsuit, said "IEER has found that claims of compliance by nuclear weapons plants have often been made on the basis of poor and incomplete data or inappropriate models. Our goal over the next several years will be to ensure that Los Alamos makes the efforts that are needed to go from a mere claim of compliance to one that can be clearly demonstrated from the monitoring data."

The consent decree also requires LANL to change its air monitoring system to include some additional air monitoring stations between LANL and Santa Fe, and some increased monitoring of its diffuse emissions. According to Coghlan, "Diffuse emissions are radioactivity which comes from waste dumps and open air firing sites, for example, rather than from a stack. They need to be monitored, too, and we believe that current DOE monitoring is inadequate. These changes to the air monitoring system should give better and more complete data about what LANL is really putting into the air and serve to better protect the public."
As an additional part of the settlement, DOE will make its air emissions data available by Internet for the next five years. The settlement also requires DOE to fund $450,000 to the University of New Mexico (UNM) Masters in Public Health Program to establish a curriculum in environmental health issues related to the Clean Air Act.

In addition to the UNM funding, which will be administered by Nina Wallerstein, Ph.D., the DOE will be required to fund radiation training for individuals to be appointed by the counties, cities and pueblos surrounding the lab, as well as CCNS members. The lab is also required to make available a repository of radiation detection equipment so that the persons who have completed the training course can borrow the equipment to evaluate citizens concerns about radioactive contamination in surrounding communities. Lastly, DOE will pay $150,000 in compromise of the CCNS penalty claim to the U.S. Treasury.

According to Lysne, "This decision represents a major victory for citizen activism and the community's right to know. Public support enabled CCNS to fight the lab and win. We believe our victory will inspire communities across the country to demand environmental accountability. This settlement seems to indicates a new willingness by the lab and DOE to cooperate with citizen's groups in monitoring environmental safety issues, in contrast to their historic pattern of denial and resistance. It's a whole new ballgame now."

Contact: Lee Lysne, or Jay Coghlan CCNS
505-986-1973 or

Dr. Arjun Makhijani, or Bernd Franke of IEER
301-270-5500 for further details.

Press Statement: Clean Air Act Settlement

In our democracy, citizens cannot simply assume that the federal government will always act in the best interests of the public. Fortunately though, if citizens are vigilant and determined, there are legal avenues that can be pursued and victories that can be won that will help rectify federal environmental wrongdoing. We present such a case today, in which Los Alamos National Laboratory (LANL) arrogantly placed itself above the lawfor six years before it could claim compliance with the Clean Air Act. This is a case in which a citizens group not only fought hard and successfully to compel compliance, but also put into place the necessary steps to verify and enforce future compliance.

Today is the culmination of what seems like a long struggle. I remember another press conference in August 1992 in which Concerned Citizens for Nuclear Safety (CCNS) announced its filing of a notice of intent to sue. How seriously did LANL and DOE take us at the time? The answer is not very. In response to our information requests, we were told to go to the library for information that wasn't likely to be there. How that contrasts to today, now that we have boxes and boxes of useful and detailed information pried out of the laboratory through this litigation. And how different the situation will be in the near future. With the filing of this consent decree, implementing up to four successive independent audits of LANL's radioactive air emissions monitoring program, CCNS can now pledge to the public that the lab will fully comply with the Clean Air Act or face a court order to shut down offending facilities.

As an example of resolute citizen enforcement, we believe that this consent decree is without precedent. With the involvement of both an auditor and independent experts known for their rigorous pursuit of the facts and their commitment to openness, the citizens of northern New Mexico can now be assured that the adequacy of the lab's radioactive air monitoring will be made fully transparent. Any substantial deficiencies that are found will be rectified. In addition, the incorporation of additional monitoring stations will provide an increased level of protection for the population east and south of the lab. The plume from last year's forest fire over Santa Fe offered a compelling illustration of how a major fire or accident on lab property could quickly impact our area.

My overall point today is to underline the need for citizen enforcement. LANL put itself above the law for over six years with the condonation of its manager, its owner and its regulatory enforcer. The lab deliberately chose to remain in noncompliance rather than incur what it saw as the expense and inconvenience of complying with the law. It chose noncompliance rather than reprioritizing some relatively modest resources from its amply funded nuclear weapons programs that would have enabled theearly achievement of compliance. Instead of immediately responding to the warnings of the head of its own radioactive air emissions monitoring program, the lab chose the path of retaliation and spent a half million dollars of taxpayers money unsuccessfully defending itself against his subsequent whistleblower claim. That money could have been better spent in achieving compliance early on.

The lab's manager, the University of California, has failed to play a forceful role in promoting LANL's environmental compliance. As a New Mexican, I have to wonder if UC would have tolerated a similar situation in a facility located in California. UC's poor past management and lack of demonstrated concern for New Mexican citizens speaks ill of its future management. It shows why no manager should be indemnified from environmental liabilities. The Department of Energy, Los Alamos's nominal boss, is also culpable for having countenanced continuing LANL noncompliance with the Clean Air Act. It, in effect, illegally extended noncompliance at Los Alamos through prolonged negotiations on a much delayed and watered down compliance agreement. In turn, the Environmental Protection Agency, the supposed regulatory enforcer, went into thosenegotiations with one hand tied behind its back by relinquishing in advance the ultimate enforcement tool, that is the threat of ordering the shut down of offending facilities in the face of continuing violations. In sum, three different institutions failed in their oversight and management of the lab. Given their failure, it was all that much more important that CCNS pursued this case to a successful conclusion. We hope, in turn, that it will offer encouragement to citizens across the country in redressing federal environmental wrongs.

CCNS looks forward to working with the auditor and our experts in verifying and enforcing present and future compliance with the Clean Air Act at LANL. In that manner, we will continue to help protect the public in the face of multi-institutional failures to observe the law.

Jay Coghlan
LANL Program Director