A federal judge has agreed to consider all three proposals to modify the court-enforced Hanford consent decree signed in 2010.
The Department of Energy, the state of Oregon and the state of Washington had asked the federal court to intervene in the case in fall 2014.
Judge Rosanna Malouf Peterson of Spokane said in an order filed Monday that all three parties in the case had shown there were significantly changed conditions that warranted modification of the consent decree.
Now her attention will turn to looking at the specific amendments proposed by each. An evidence hearing has not been scheduled, although Malouf Peterson discussed plans for it in her legal order.
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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 deadlines in the legally binding Tri-Party Agreement related to waste held in underground tanks and its treatment.
DOE has 56 million gallons of radioactive waste in the tanks left from the past production of weapons plutonium. It plans to turn much of the waste into a stable glass form for disposal at the vitrification plant.
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 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.
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 preventing an unplanned nuclear reaction, that put at risk its ability to meet deadlines to build and begin operating the vitrification plant.
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 equipment failure, that prevented it from having certain leak-prone underground tanks emptied in 2014.
DOE did not anticipate specific funding and manpower issues that slowed work, Malouf Peterson found. They included sequestration, or mandatory federal budget cuts.
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 leak-prone single-shell tanks into the sturdier double-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.