Staff Reports
WC Monitor
8/28/2015
The Department of Energy needs enforceable deadlines and more requirements to hold it accountable for Hanford Site tank waste cleanup covered in the 2010 court-enforced consent decree, a federal judge has ruled. Judge Rosanna Malouf Peterson of the U.S. District Court for Eastern Washington has issued her second order since the state of Washington and DOE returned to court to amend consent decree requirements and deadlines. The new order has benefits and drawbacks for the state and DOE for ongoing remediation of the former nuclear-weapon site. The department, the state of Washington, and the state of Oregon, which is a plaintiff intervenor in the lawsuit filed by Washington state, have until Nov. 13 to submit revised proposals to modify the consent decree consistent with the judge’s latest ruling. Responses to those proposals then may be submitted until Dec. 14.
The state of Washington and DOE also have been given more time to propose advisors to help the judge understand technical issues in the case. Both had requested clarification regarding the panel, including whether current state and DOE employees could be nominated, the anticipated time commitment for experts, and how any allegations of bias or lack of qualifications would be addressed. Peterson has given them until Sept. 4 to file their nominations, which may be sealed. When the panel members have been selected, she will detail their duties, the judge said in a court order.
The judge sided with the state on the need for enforceable deadlines to ensure DOE makes adequate progress in emptying single-shell tanks holding radioactive waste and building and beginning operation of the Waste Treatment and Immobilization Plant. She rejected DOE’s proposal that deadlines be set as technical issues are resolved and baselines set to ensure it has the knowledge and resources to meet the deadlines. “DOE’s assurances to this court that it will perform its obligations under the consent decree despite an absence of predetermined, enforceable deadlines lacks credibility,” the judge said in the order.
Eliminating set deadlines from the consent decree would create a vacuum in which DOE would be free to proceed at its own rate without any safeguards for Washington or enforcement from the court, she said. DOE did not show that any other court has modified a consent decree that originally contained enforceable deadlines in favor of a phased approach to setting future deadlines in a piecemeal fashion, she said. She also dismissed the federal agency’s argument that Washington’s proposed construction schedule for the Waste Treatment Plant through 2027 would allow the state to usurp DOE’s role as the exclusive regulator of nuclear hazards at the site. “DOE’s position is disingenuous in light of the pre-existing consent decree that DOE voluntarily entered into, in which DOE agreed to be held accountable to achieve certain milestones by specific dates,” the judge said.
Peterson will not require DOE to build four new double-shell tanks by 2022 as the state had requested to provide safe storage for waste emptied from single-shell tanks, with more possibly required later. However, if DOE cannot meet certain requirements for retrieving waste from single-shell tanks or is unable to reduce overall waste volumes sufficiently through operation of the 242-A Evaporator, the department will be required to begin building one or more new tanks, she said. She will consider the triggering milestones for new tanks after further briefing. The original consent decree covers retrieval of waste from 19 single-shell tanks. If DOE cannot meet consent decree requirements, that might mean it is unable to meet additional tank waste retrieval mandates in the Tri-Party Agreement, the state had argued. More double-shell tanks could mitigate that. However, the judge ruled that Tri-Party Agreement matters are outside the scope of the consent decree and will not be considered by the court. DOE said it is on track to complete retrieval of waste from the 19 tanks without building new double-shell tanks to provide more space to hold the waste. It expects to operate the 242-A Evaporator to reduce the liquid waste volume in its double-shell tanks enough to make space for waste from the 19 single-shell tanks. The evaporator has been operated twice this year to remove 784,000 gallons of excess water after improvements were made to the facility between 2010 and 2014. The state has called DOE’s expected performance of the evaporator unrealistic and with no precedence in its recent history of operation.
The judge will also not require DOE to build two proposed pretreatment facilities to prepare tank waste to be fed directly to the Waste Treatment Plant’s Low-Activity Waste Facility and High-Level Waste Facility. Those proposals stray from the intent of the consent decree, she ruled. Both the state of Washington and DOE had agreed that low-activity waste should be fed directly to the vitrification plant for treatment, bypassing the plant’s unfinished Pretreatment Facility, where construction has stopped until technical issues are resolved. Tank waste would need to be prepared for treatment at a new facility proposed to be built outside the vitrification plant campus to allow direct feed as proposed in the consent decree amendments. But the proposed approach would not meet the original consent decree requirement that DOE have the plant operating to treat high-level and low-activity waste for a rolling period of three months by 2022, the judge said in the court order. “The consent decree does not state that DOE must begin treating waste by 2022 regardless of the method used,” Peterson stated. The judge said she would not prohibit DOE from moving forward with work for direct feed of low-activity waste to the vitrification plant, but it will not modify the consent decree to set deadlines for the approach. DOE is considering a second new pretreatment facility that could allow high-level waste to be fed directly to the vitrification plant for treatment. But with the proposal in the early stages of planning, it has opposed the state proposal to set deadlines for it in the consent decree.
