Federal government responds in Hanford lawsuit

The Department of Justice’s initial response to the state of Washington’s lawsuit against the Department of Energy over Hanford cleanup says the federal government cannot be held liable for deadlines that have not been missed.

The state filed a lawsuit against DOE in late November after DOE missed some cleanup deadlines and acknowledged it was unlikely to meet other deadlines in the legally binding Tri-Party Agreement.

The Department of Justice response also questions whether the state had authority over some of the issues it raised, pointing out for example that radioactive materials are governed by the federal Atomic Energy Act.

Gov. Chris Gregoire’s hope and goal is to get an enforceable new schedule from the Obama administration for retrieval of radioactive waste from Hanford’s underground tanks and treatment of the waste, said Mary Sue Wilson, senior assistant attorney general for the state of Washington.

But if the Obama administration is not willing to take a different approach than the Bush administration, the state believes the lawsuit offers a good opportunity to obtain a cleanup schedule that is enforceable by the courts, Wilson said.

Nothing in the Department of Justice filing “makes us think we don’t have a strong case,” she said.

The state negotiated with DOE for 18 months before filing the lawsuit in what Gregoire said was a last resort. The Tri-Party Agreement calls for Hanford’s $12.2 billion vitrification plant to be treating radioactive tank waste for disposal in 2011, but DOE’s schedule calls for treatment to begin in 2019.

In addition, DOE has fallen behind schedule on emptying waste from Hanford’s 149 leak-prone underground tanks. It already has missed deadlines to have all tanks in the C Tank Farm and one in the S Tank Farm emptied. And with seven tanks emptied so far, it cannot meet the Tri-Party Agreement deadline to have the remaining 142 tanks emptied by 2018.

In negotiations, the state and DOE had reached an agreement in principle on new cleanup deadlines. But when the Department of Justice stepped in to hammer out legal language with the state, the two could not agree on enforcement provisions, state officials said.

The federal government listed four defenses in its response, including that it could not be held liable for deadlines not yet reached and that the state lacks authority to regulate radioactive waste. It also said that the lawsuit failed to state a claim for which relief could be granted and that DOE is not liable for certain claims not established by enforceable provisions of the Resource Conservation and Recovery Act permit for Hanford.