DOE, Wash. State Argue in Court Over Proposed Consent Decree Changes
WC Monitor
2/20/2015
The state of Washington would inappropriately expand the Hanford consent decree beyond what the parties signed onto in 2010, including adding new double-shell tanks, the Department of Justice argued in Eastern Washington District U.S. Court late this week. “We have a different view of the scope and objective of the decree,” replied Andrew Fitz, senior counsel for the Washington state attorney general. Judge Rosanna Malouf Peterson heard the first round of arguments this week on proposed changes to the court-enforced consent decree after it became apparent that the Department of Energy could not meet the remaining deadlines in the consent decree. The consent decree resolved an earlier state lawsuit.
The opening hearing focused on whether conditions had significantly changed since 2010 at the Hanford tank farms and Waste Treatment Plant, whether changes were anticipated when the consent decree was signed and whether the court may consider outside evidence, such as the effect of delays on other milestones. DOE had requested that the judge tour the vitrification plant and Cold Test Facility for tank equipment before hearings in the reopened case began. She declined, ruling that a visit in advance of the hearing would not have been appropriate. If there is a later request for a visit, she will reconsider, she said. The visit, to be led by a Hanford tour guide, would have helped the judge understand the scale and complexity of the vitrification plant and become familiar with Hanford operations, according to attorneys for DOE. The state of Washington and Oregon opposed the visit, saying it was not warranted now and that it would be unfair to allow DOE to plan and lead a tour.
Washington State Wants New Double-Shell Tanks
The Department of Justice argued in court that only issues addressed in the 2010 consent decree should be considered in its modification. The consent decree covered emptying waste from 19 of 149 single-shell tanks, work on the vitrification plant to have it fully operating in 2022 and certain records, said attorney David Kaplan for DOE. The state took DOE to court, resulting in the consent decree, after it became apparent it could not meet an earlier set of milestones in the Tri-Party Agreement, including having the vitrification plant operating in 2011. As part of negotiations for the consent decree, additional requirements were added to the Tri-Party Agreement. All single-shell tanks were required to be emptied by 2040, an extension of 22 years, and all 56 million gallons of waste were required to be treated for disposal by 2047, an extension of 19 years.
The importance of getting the vit plant fully operating in 2022 can only be understood in the context of the second part of the settlement, Fitz said. Failing to meet deadlines in the consent decree likely will mean missed deadlines further out under the Tri-Party Agreement. If the court blesses a radical change in the consent decree, then the state has to have some mitigation, or the state will no longer be getting its part of the bargain from the consent decree, he said. The state has asked for up to 12 new 1-million-gallon capacity tanks to be built because of delays in treating waste. It wants the court to require half of the waste to be removed from single-shell tanks by 2031. It also wants the court to set additional requirements for DOE to file reports and make notifications to the court.
DOE Says It Didn’t Anticipate Changes After Decree Was Signed
Attorneys for DOE have said DOE did not anticipate changes after it signed the consent decree in 2010. The vitrification plant has serious and unresolved technical issues that need to be resolved to allow safe and effective operations over 40 years, said Kenneth Amaditz of the Department of Justice. DOE thought it had a reasonable and sound path to resolve most of those issues — the ventilation balancing issue was identified later — when the consent decree was signed, Amaditz said. “Nobody anticipated the technical issues would have the impact they have,” he said.
Construction has been stopped at the plant’s Pretreatment Facility and on part of its High-Level Waste Facility to resolve them. DOE has made an exceptional effort to resolve issues, including launching three years of full-scale vessel testing for the vitrification plant at a cost of $180 million and coming up with a plan to vitrify some low-activity waste before the Pretreatment Facility at the vitrification plant opens, he said. DOE was unable to empty three of 16 tanks into newer double shell tanks because of a combination of equipment failures, questions about how much waste double shell tanks could safely hold and unanticipated budget issues, including sequestration and a continuing resolution, Amaditz said.
The state argued that the circumstances that have caused delays at the vitrification plant were there when DOE signed the consent decree. The problem was DOE’s own judgment of the issue, Fitz said. He gave the judge a chart showing numerous reports on technical issues before the consent decree was signed, including from the Defense Nuclear Facilities Safety Board, expert review teams and employees who had filed professional difference of opinion reports to be addressed by DOE. The state also has argued in court documents that DOE should have started work sooner on some tanks to meet the consent decree deadline and then would have had more time to resolve problems before the fiscal 2014 deadline to have the C Farm tanks emptied.
No Lawsuits Yet Over Tank Vapor Concerns
WC Monitor
2/20/2015
Neither the state of Washington nor a coalition supporting Hanford tank farm workers filed lawsuits this week 90 days after threatening to sue the Department of Energy and Washington River Protection Solutions over Hanford tank farm chemical vapor issues. Because of a delay in getting the official notification to DOE, the state cannot file a lawsuit until March. Hanford Challenge and Local 598 chose to hold a public meeting near Hanford as the 90-day clock expired. They are expected to wait to see what the state does. Some of the approximately 75 Hanford workers and others who gathered at the meeting at the Local 598 union hall for the public meeting are already having health problems, said Pete Nicacio, business manager for the United Association of Steamfitters and Plumbers, Local 598. It’s too soon to say what health problems may lie in the future for workers exposed in the last two years to chemical vapors from Hanford waste held in underground tanks, he said.
The independent review commissioned by WRPS and a plan to implement all 47 recommendations in it sounds good, Nicacio said. But it is the latest of more than two dozen studies over more than two decades that have not resolved issues, he said. The independent review team led by the Savannah River National Laboratory “did a pretty good report,” said Tom Carpenter, executive director of Hanford Challenge. But he had some criticisms, including with the implementation plan. The final report was watered down substantially from an initial draft, he said. The review team lacked a medical doctor and the implementation team lacked a labor member. The implementation plan also did not look at the issue of denied worker compensation claims. “We’re worried it will not result in anything meaningful into the future,” he said. The lawsuit threatened by Hanford Challenge and Local 598, along with Washington Physicians for Social Responsibility, and a second lawsuit that the state attorney general could file next month are intended to hold DOE accountable for resolving vapor issues by requiring enforceable actions and deadlines.
Workers Express Frustration
Much of the talk at the meeting was about Hanford workers who had become ill. Hanford Challenge said workers have been diagnosed with respiratory illness, brain damage and other illnesses due to exposure to Hanford’s chemical vapors. Ron Johnson, who has worked at Hanford for eight years, said he fears his son is disabled because he works at Hanford. Workers remain frustrated with too little effort to protect them, according to those who spoke. One talked of a strong, perfumey smell as recent as Wednesday between Hanford’s AP and AW tank farms. Within the last two weeks, work instructions had called for sending a worker without respiratory protection to loosen a cap on a riser going into one of the underground tanks to let fumes disperse, Nicacio claimed. Workers got the plan changed, but it should not be up to workers to set the safety standards, he said. DOE and its contractor have said that supplied-air respirators are required for most work in the tank farms as improvements are being made to better control vapors.
Worker compensation is difficult to obtain, workers said. Rocklin Fandrich said he was threatened with having his claim dropped when he was too sick to drive to Seattle for a scheduled evaluation. DOE and its contractors have been blamed for problems, said James Hart, the director of metal trades for the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry. But the state also shares some of the blame because it has the final say about whether worker compensation claims for ill workers are approved, he said. You know something is wrong when in 2014 worker protection from chemical vapors still relies on workers’ sense of smell to determine when air is unsafe to breath, Nicacio said. Many of the chemicals in the vapors have no odor, he said. Some of the chemicals that are known to be in the tanks could be fatal if inhaled, including dimethyl mercury, said Mike Cain, a Hanford worker. Union 598 is collecting names of workers having problems. “We’re committed to helping all of you,” Nicacio said.
