The Department of Energy is attempting to rewrite the Hanford consent decree to minimize DOE’s accountability and the federal court’s ability to enforce the decree, according to the state of Washington.
“The state is profoundly disappointed,” wrote the state’s attorneys in the latest round of court filings on amending the 2010 consent decree.
The decree sets deadlines for building and operating the Hanford vitrification plant and for emptying certain leak-prone single-shell tanks of radioactive waste at the nuclear reservation.
DOE is no happier with the state’s latest proposal. It would intrude into areas that are, by law, the exclusive authority of the federal government, dramatically expand the scope of the decree and hinder progress, DOE said.
The latest round of court filings could be the last before U.S. Judge Rosanna Malouf Peterson sets new deadlines, according to the state. She is considering new deadlines after it became clear that DOE cannot meet the current deadlines.
The judge has notified a panel of technical experts that she plans to meet with them to discuss the filings in February or March, but has not indicated when a ruling may be expected.
DOE has proposed having the vitrification plant fully operating in 2039, and the state has proposed a deadline of September 2034. The current consent decree deadline for full operations is in 2022, and both sides say limited operations may be possible then.
The state’s case
The state is objecting to what it says are automatic deadline extensions. Those extensions could be triggered by delays in resolving technical issues at the vitrification plant or delays caused by the extended use of supplied air respirators to protect tank farm workers from chemical vapors.
One-year automatic extensions could be triggered multiple times for the same deadline and would extend all subsequent deadlines for the vitrification plant, the state said.
The state would be limited to asking the court to review the length of the extension, but not whether the extension was needed in the first place, the state said.
2039: DOE’s proposed deadline to have vitrification plant fully operating. 2034: State’s proposed deadline. 2022: Current deadline for full operations. Both sides say limited operations may be possible then.
“They remove any real incentive for Energy to meet the decree’s schedule and reward Energy for missing dates,” the state said.
The automatic extension provision rewrites the consent decree as radically as DOE’s first proposed amendments to the decree, the state said. Malouf Peterson made clear that DOE’s earlier proposal to set firm deadlines only for some near-term work was unacceptable.
The state also criticized DOE’s assumptions on how much double-shell tank space will be available to accept waste from the single-shell tanks covered by the consent decree.
The judge may require new double-shell tanks to be built if the 27 usable tanks DOE has now become too full to allow the 11 tanks to be emptied. DOE proposes keeping the volume in the double-shell tanks in check by regularly operating the Hanford evaporator plant to reduce the liquid volume of waste.
“The assumptions underlying Energy’s reduced volumes are unreasonable,” the state said.
DOE’s numbers and assumptions keep changing, “demonstrating the inexact nature of such projections compared to on-the-ground realities,” it said.
DOE objects to a state proposal that work start immediately to design new tanks and prepare to build them, in case they should be needed.
The preparatory work could cost $75 million to $105 million for two tanks, DOE said.
“This expenditure would not only be an extraordinary waste of taxpayer funds, but could divert resources from other tank retrieval and (vitrification plant)-related activities mandated by the consent decree,” DOE said.
DOE opposes the state’s proposal to replace the consent decree’s 14 deadlines for vitrification plant construction with 35 step-by-step deadlines for construction and operation, plus numerous semi-annual construction deadlines subject to state approval.
“Dozens of rigid construction milestones would result in further delays by tying DOE’s hands even where a different construction approach is more efficient,” DOE said.
The state has failed to recognize the high level of uncertainty related to resolution of technical issues, which have stopped some construction on the vitrification plant, DOE said. The state’s proposal would routinely insert the state and the court into technical matters that are within DOE’s authority and expertise.
DOE has proposed deadlines based on “scientific, fiscal and project management realities,” DOE said. But the state “has maintained an approach based on little more than conjecture.”