Schedules Set in Consent Decree Lawsuit
WC Monitor
10/24/2014
The schedule for hearings on amending the Hanford consent decree has been set, with arguments by the state of Washington and the Department of Justice to be heard Feb. 19 in Eastern Washington District U.S. Court in Richland, Wash. If the state of Oregon intervenes in the lawsuit, its motion to modify the consent decree and related briefings must be filed by Nov. 5, ruled Judge Rosanna Malouf Peterson late last week. Response briefs to proposed amendments are due from Washington state and the federal government Dec. 5 and replies to those briefs are due Jan. 16.
Washington state and DOE have been unable to agree on a path forward after DOE said most of the remaining deadlines in the consent decree are at serious risk. DOE says the deadlines set in the consent decree, particularly for the Hanford vitrification plant, were overly optimistic, and the state has reluctantly agreed that there is no way DOE can catch up to the consent decree schedule.
DOE Provides More Info on Missed Milestones
This week, DOE said in court documents that it did not foresee that technical issues would be a continuing concern at the Hanford Waste Treatment Plant or that national issues would cause funding constraints, explaining why milestones were missed in the 2010 consent decree. DOE thought it had issues identified in 2010 and a clear path forward, including a detailed budget and schedule for completing work, it said in court documents. That included closing out 28 technical issues identified in a March 2006 review by an expert panel, the External Flowsheet Review Team, with a DOE plan for more testing and analysis to resolve those issues. But two months after the consent decree was entered into federal court in 2010, the Defense Nuclear Facilities Safety Board identified a number of technical concerns and recommended that DOE conduct more testing than DOE had planned.
DOE and contractor Bechtel National have worked on some of the vit plant’s technical issues for years, including keeping waste in the plant well mixed to avoid a criticality and preventing a build-up of flammable gas. In 2012 it began to address another issue raised by a DOE employee, who successfully filed a “difference of professional opinion” about the risk of erosion and corrosion to vessels and piping over the life of the vitrification plant. DOE had considered that issue, one of the 28 identified by the expert panel in 2006, closed. In 2013 another issue was identified. The design of the plant would allow a potentially improper ventilation flow that would create a risk of contaminated air seeping into areas with workers. “Resolution may require significant and potentially costly changes to embedded piping systems and other equipment,” DOE said in court documents.
To resolve mixing issues, it is conducting full-scale tests. They started this summer at a new lab built for that purpose on the Washington State University Tri-Cities campus and are expected to take about three years and cost an estimated $180 million. Additional time then might be needed for redesign in the plant’s Pretreatment Facility, DOE said.
Budget Issues Also Contributed to Missed Milestones, DOE Says
DOE also did not anticipate “the highly unusual budgetary and political climate that led to sequestration, continuing resolutions and the misaligned appropriations that caused the delays at issue,” DOE said. Budget issues in 2013 led to layoffs, plus delays and halts in purchasing equipment. Some vendors accepted other orders and were no longer able to supply DOE when budget issues were resolved, and one vendor supplying a critical and unique component for an air emissions treatment system went out of business. DOE is arguing to the court that it does not want to set firm deadlines as it agreed to in the 2010 consent decree until it has issues resolved and again has a complete set of cost estimates and schedule.
DOE’s proposed amendment “reflects the fact, learned from DOE’s experience to date, that a nuclear construction project of the scale, novelty and complexity of the WTP is difficult to fit into the mold of traditional, fixed consent decree deadlines,” it said in a court document. “Despite the application of extraordinary levels of effort and expertise, the project has proved to be far more difficult, and the technical solutions for more elusive, than DOE anticipated,” it said. Ignoring the lessons of the last four years to establish a comprehensive set of construction deadlines for the plant now would be “irresponsible and counterproductive,” it said.
State Wants More Milestones
But the state is asking for a detailed list of deadlines, arguing that DOE has shown by its actions since 2010 that more specificity, accountability and enforceability are needed to avoid a repeat of the current situation. In 2010 DOE prevailed upon the state to accept fewer, more general deadlines to allow DOE more flexibility in delivering its final result, including having the vitrification plant fully operating in 2022. As a result, the state agreed to just 19 deadlines for the entire vitrification plant project to get to that goal. In retrospect those deadlines were too general, too few and spaced too widely apart to ensure that DOE’s progress was measured and monitored before the project fell too far behind to recover by consent decree deadlines, the state said.
Not only is the state proposing more than 100 deadlines for the vitrification plant and for emptying waste from some single shell tanks, but it wants more reporting from DOE to the state and the court. The 2010 consent decree had no requirements for reporting to the court. As early as February 2012 DOE was planning not to meet certain consent decree requirements, without seeking concurrence form the state or approval from the court, the state said in court documents. It based that statement on DOE’s direction to Bechtel to develop a new budget and schedule for the vitrification plant based on annual funding caps and an assumption that technical issues could only be resolved if deadlines were extended. DOE began a series of notifications to the state in late 2011 that some deadlines in the consent decree were at risk, even though there had been no indication in the quarterly reports it made to the state up until then that long-term schedule issues were looming, according to the state.
The state waited for two and a half years for DOE to engage it and the court on how it planned to rectify its noncompliance, the state said in a court document. But there was no requirement in the consent decree for that, and DOE defined a new direction without state and court approval, the state said. That included steps such as building a new facility outside the vitrification plant to prepare some waste to bypass the plant’s troubled Pretreatment Facility and solving some technical issues with another new facility outside the plant to mix and blend waste before it is sent to the plant.
State Wants ‘Aggressive, But Technical Possible’ Milestones
The state has accused DOE of having “a persistent lack of institutional awareness” of project management issues, technical details and safety design concerns. The state is asking for what it calls “aggressive, but technically possible” deadlines. DOE would have up to nine additional years for some work, including a requirement that all currently planned facilities at the plant be operating in 2031.To improve communication, the state wants the court to require quarterly status reports to the state and the court that include any emerging technical or procurement issues. Second, the state wants a requirement for timely notification to the state and court both of deadlines at risk and proposed schedules to get back on track.
The state also is concerned that DOE has not submitted the clear and specific budget information the state has requested, leaving the state unable to determine whether the funding situation is beyond DOE’s control, according to a court document. The state is asking the judge to require DOE to submit an annual report describing how much money it will need to meet all requirements in the consent decree.
Judge Denies Dismissal Request in Hanford Time Card Fraud Case
WC Monitor
10/24/2014
Two jurors whom defense attorneys asked to have dismissed will continue to serve on the trial of four Hanford supervisors accused of aiding timecard fraud under former contractor CH2M Hill Hanford Group. Late this week, Judge Edward Shea ruled in Eastern Washington District U.S. Court that the two jurors would continue to serve and also denied a defense request to dismiss charges against the four supervisors. The motion to acquit came after the prosecution finished presenting evidence and as the defense began to call its witnesses to the stand Oct. 23 in the fourth week of the trial.
Defense attorney John Crowley, representing Kenneth Baird, said there had been three incidences that demonstrate juror bias. Baird’s wife reported that as she was walking down some steps from the courtroom, she overheard one juror tell another, “can you believe how much money.” The juror stopped talking when she noticed Baird’s wife behind her on the stairs. The conversation occurred shortly after evidence of the amount of pay the defendants received was discussed in court. One of the two jurors also had reported hearing one of the defense attorneys apparently discussing the case as she waited in line to purchase food in the courthouse cafeteria. In addition, the two jurors also said that one or two people watching the trial had acted in a way that could be intended to influence the jury, according to court documents.
One of the jurors told the judge under questioning Oct. 23 that a woman watching the case was looking directly at the jury as she mouthed words and “made big head gestures,” nodding in approval or shaking her head in disagreement in support of the defendants. The other juror whom the defense asked to be dismissed described the woman and her companion as “staring right at us” and smirking and “reacting pretty largely to what was being said.” One juror said the behavior was distracting, but both said they would not let it influence their decision. The juror accused of talking about the case on the stairs said she could not remember discussing any financial matters in the case outside the courtroom, even to her husband, but she hesitated before answering. When Shea asked her if she could have been talking about the changes in the financial market in recent weeks, she agreed that must have been what she was talking about. The juror works in the financial industry and had been going to work daily before court convenes, during lunch and after court ends.
Attorney Peter Schweda, representing James Hay, said he was concerned that the juror paused before answering, but Shea said he took that as a sign that she was being thoughtful and deliberate in her answer. Crowley said he was concerned that the jurors knew that Baird’s wife had reported she believed they were talking about the defendants’ pay and that might make them resent the defendants. Jurors are ordered not to discuss the case with each other until all evidence is presented. The attorney overheard talking in the cafeteria line has said the conversation was not about the case. Although that is likely, that may not change what the juror believes, Crowley said. Both jurors told Shea they had not made up their minds in the case, and Shea denied the motion to dismiss them.
Defense Attorneys Argued Prosecution Hadn’t Proven Case
Attorneys for defendants Baird, Hay, Mark Johnson and Perry Howard argued that the prosecution had failed to provide proof as it finished presenting evidence against the Hanford supervisors, and they called for the judge to dismiss charges. The four men supervised workers who claimed more overtime than they worked, prosecutors said. That allegedly was a wide-spread practice under CH2M Hill Hanford Group. Baird has denied any knowledge of workers being allowed to go home early while claiming pay for a full overtime shift, his attorney said in court documents. If workers finished early on the task Baird was supervising, they had other work they could do for the remainder of the shift, the attorney said.
None of the four defendants was responsible for approving the timecards of the workers they supervised, Crowley said. The trial underway is the first of three scheduled for CH2M Hill Hanford Group supervisors and managers accused of aiding timecard fraud. CH2M Hill agreed in 2013 to pay $18.5 million to settle civil and criminal allegations of defrauding taxpayers through widespread timecard fraud at the Hanford nuclear reservation.
