Criticism Goes Back and Forth on Proposals to Modify Consent Decree
Staff Reports
WC Monitor
12/12/2014
New Hanford milestones the state of Washington has asked a federal judge to approve would require an extra $18 billion by Fiscal Year 2029, jeopardizing other Department of Energy cleanup projects across the nation, according to the federal government. “Those funding levels are simply not realistic,” the Department of Justice argued in legal documents filed electronically in federal court at the end of last week. The state of Washington also filed documents, criticizing DOE’s management of Hanford and urging the court to require tight oversight of Hanford’s leak-prone single-shell tanks and its Waste Treatment Plant. Dec. 5 was the deadline in Eastern Washington U.S. District Court for both parties to respond to competing proposal for new milestones for the Hanford consent decree after DOE said most of the remaining milestones in the 2010 court-enforced consent decree were at serious risk of being missed.
The state wants a highly structured consent decree with more than 100 new milestones to keep DOE on track to manage and treat tank waste. “The state’s proposal would … require a dramatic and unrealistic increase in funding that, if mandated, would jeopardize DOE’s ability to carry out ongoing cleanup operations on other parts of the Hanford Site and at other sites across the country,” the Department of Justice said in the new filings. The vitrification plant project and tank waste management already receive about $1.2 billion annually, which is more than one-fifth of the annual budget for DOE environmental cleanup work across the nation. The state’s proposal just over the next five years would require $4 billion in addition to the current level of annual funding, the federal government said.
The federal government also objected to the state’s proposal to provide new tanks that could hold up to 12 million gallons of radioactive waste, saying that alone would cost more than $1 billion. The increased costs come at a time when the federal government is operating “under significant fiscal constraints and there is no foreseeable scenario in which those constraints ease,” the Department of Justice said. “The result would be devastating” with operations at other cleanup sites severely curtailed, creating potential risks to human health and the environment, it said.
DOE Says Any Large Leak Would Not Significantly Impact Groundwater Risk
The state has argued that its proposed requirements and milestones are needed to reduce the likelihood of future leaks from Hanford’s underground tanks and reduce risks at Hanford. However, DOE disagrees, saying its computer modeling shows that the long-term impacts of the unrealistic scenario of tanks leaking a large volume of waste would not significantly increase risk to groundwater or the Columbia River. An estimated 1 million gallons of tank waste has previously leaked or spilled in central Hanford, several miles from the Columbia River.
Although at least one tank continues to leak waste into the ground, most pumpable liquids have been removed from Hanford’s single-shell tanks. In addition, contaminated groundwater and soil is being remediated and barriers are being used over tanks to further reduce risk of waste reaching groundwater.
State Proposal Would Illegally Expand Consent Decree Scope, Feds Say
The Department of Justice also raises legal arguments, saying the state’s proposal would illegally expand the scope of the consent decree. The state wants to alter the original consent decree agreement by requiring new storage tanks and new treatment facilities, including adding a second Low Activity Waste Facility at the vit plant. The consent decree, signed in 2010, resolved a 2008 lawsuit by the state as it became apparent that DOE could not meet an earlier set of milestones for the vitrification plant and waste tanks. In 2008 the vitrification plant was required to begin operating in 2011, and current proposed amendments would require some limited operation in 2022.
The state’s proposed milestones would violate the Constitution’s Supremacy Clause, shifting control over the construction and operation of a federal nuclear facility from the federal government to the state, according to the Department of Justice. Congress has given the federal government control over nuclear matters. The state does have regulatory authority over hazardous chemical waste, which also is a component in Hanford tank waste. But the vitrification plant is being built because of the radioactive component of the waste, the federal government argued.
Work has fallen being schedule at the vitrification plant primarily because of technical issues, but the state proposal does not realistically address those, the federal government said. DOE cannot say with certainty when technical issues that have caused some construction to be stopped will be resolved to ensure safe operation of the plant, it said. The arbitrary milestones proposed by the state and the ballooning number of milestones would virtually ensure that the parties will “be involved in continuous rounds of consent decree amendment proceedings in the years to come,” the federal government said.
State Criticizes DOE’s Proposal of Small Number of Initial Milestones
DOE wants just five enforceable milestones to be set in the amended consent decree, by the state’s count. DOE would commit to setting more milestones as technical issues are resolved. DOE does not seek just an extension of consent decree milestones, but a complete restructuring to eliminate most hard milestones in favor of a process for establishing future milestones, the state said in court documents. The proposed process would give DOE exclusive control of establishing milestones with “no meaningful accountability to the state or court,” the state said. Milestones would be set only after DOE had determined and was working toward its path to completion, giving the state meaningful input so late in the process that objection by the state would further slow work, the state said. “Nothing in Energy’s proposal gives comfort that a clear structured path to success is even known to Energy, much less will be followed,” the state said. “To the contrary, Energy’s proposal promises even more WTP delay.”
DOE has not shown it has addressed its project management difficulties, the state said, pointing out that key technical concerns it is addressing now have been brought to DOE’s attention for nearly a decade. DOE has not said how it could be “so startlingly misinformed” that only a year after signing the 2010 consent decree it determined those technical concerns would contribute toward it missing almost all vitrification plant milestones, the state said. “The largest capital construction project in the country should be matched with the best project management plans in the country,” the state said. “Even in the face of unresolved technical issues, every contingency should already be anticipated and planned for. Energy, however, implies that such planning is impossible.” DOE’s proposal would slow work and would strip the consent decree of the specificity, accountability and enforceability the state bargained for when it agreed to the decree in 2010, it said.
