Staff Reports
WC Monitor
5/15/2015
An Eastern Washington District U.S. Court judge has agreed to intervene in the Hanford consent decree signed in 2010 and consider proposals by all three litigants in the case to modify it. The Department of Energy, the state of Oregon and the state of Washington had asked the federal court to intervene in the case in the fall of 2014. Judge Rosanna Malouf Peterson said in an order filed this week that all three had shown there were significantly changed conditions that warranted modification of the consent decree. She also considered whether federal or state law applied to modification of the consent decree and concluded that federal law applied. Now her attention will turn to looking at the specific amendments proposed by each. Malouf Peterson discussed the possibility of an evidentiary hearing in the order, but has not scheduled a hearing.
The three litigants will have an opportunity to submit further materials supporting their proposed amendments to the consent decree. That likely will be followed by oral arguments, according to the staff of Bob Ferguson, Washington state attorney general. The case looks like it will continue for some time, said Gary Petersen, vice president of the Tri-City Development Council. TRIDEC officials have been concerned about delays to cleanup. The order did not address a brief filed by TRIDEC and Hanford Communities stressing the importance of taking a look at risks posed elsewhere at Hanford as new deadlines are set for the Waste Treatment Plant and the tank farms. “It is imperative that the federal government be held accountable for cleaning up the nuclear waste at Hanford,” Ferguson said in response to the court ruling. “The court agreed that the current consent decree is unworkable and that the federal government has failed to meet many of its obligations. We must have a legally enforceable agreement that adequately protects Washington’s environment and holds the U.S. Department of Energy accountable for cleanup.” The Department of Justice made no comment.
Many Consent Decree Milestones at Risk of Being Missed
The consent decree was signed in 2010 to resolve a lawsuit brought by the state of Washington against DOE as it became evident that DOE could not meet milestones in the Tri-Party Agreement related to tank waste and its treatment. But “almost immediately after the consent decree was entered” DOE gave notice that one or more of the new deadlines were at risk, Malouf Peterson said in the court order. The consent decree as signed discussed the possibility of changed conditions, including unforeseen technical and safety concerns that might affect the schedule. But the specific conditions that changed were not listed, the judge said. While some of the changes could have been foreseeable, Washington did not show that DOE actually anticipated them, the judge found.
DOE cited technical concerns, including preventing potential hydrogen buildup and a criticality, that put at risk its ability to meet deadlines to build and begin operating the vitrification plant. All but one of the technical issues, ensuring ventilation balancing to protect workers when the vitrification plant starts operating, were known issues when the consent decree was signed. However, DOE did not anticipate that the testing process to resolve the known issues would be so complex, DOE argued. Full-scale testing of tank vessels is expected to take at least three years, which was not contemplated when the consent decree was signed, Malouf Peterson said. Construction has been halted on key parts of the plant while technical issues are resolved. That appears to support the conclusion that the plan to begin operating all five major facilities at the same time is unworkable, Malouf Peterson said.
DOE also cited technical concerns –such as waste retrieval equipment failure and a concern of a potential explosion from deep sludge within certain double-shell tanks—that prevented DOE from having all C Farm tanks emptied in 2014 as required. A study has since concluded that sludge at heights that were in question in double shell tanks does not pose a risk of a significant hydrogen release and potential explosion. DOE also did not anticipate specific funding and manpower issues that slowed work, Malouf Peterson found. Those included sequestration and furloughs. DOE argued that sequestration, continuing resolutions and misaligned appropriations delayed vitrification plant construction and caused trained tank retrieval workers to be replaced with more senior workers transferred from other Hanford projects who had little or no retrieval experience.
Judge Finds Consent Decree Unworkable
The state of Washington said that at least 14 of the 16 consent decree deadlines still pending are at risk of being missed. It also said that one double-shell tank is out of service due to an interior leak, which affects the ability to empty waste from single-shell tanks. Although language in the consent decree addresses the possibility that DOE would again fail to meet deadlines, there is no indication that Washington anticipated that DOE would fall behind schedule as extensively as it has, the judge said. The state also could not have anticipated that DOE would halt some construction work or that a double-shell tank would be taken out of service. Those factors make the consent decree unworkable and detrimental to the public interest, the judge said. Her ruling on the motion from the state of Oregon was similar.
