Washington will hold off on Hanford vit plant dispute resolution

The state of Washington will not immediately go to dispute resolution over court-enforced deadlines that will be missed at the Hanford vitrification plant, Gov. Chris Gregoire said Friday.

But she also will not allow the Department of Energy to "throw in the towel" on the deadlines and tell the state to trust the federal government without full information, she told the Herald editorial board.

Technical problems should be fixed at the $12.2 billion plant, but DOE needs to show a plan and a schedule to the state, she said.

The plant is being built to turn as much as 56 million gallons of waste into a stable glass form for disposal. The waste, stored in underground tanks, is left from the World War II and Cold War production of weapons plutonium.

A lawsuit filed by the state against DOE in Eastern Washington U.S. District Court was settled in October 2010 with a consent decree requiring DOE to meet new court-enforced deadlines to get the vit plant built and begin waste treatment.

The consent decree outlines a dispute resolution process that requires one of the parties to send a written demand for the start of good faith negotiations with the other.

If the matter has not been settled after 40 days, either party can petition the court to take action.

Just a year after the consent decree was signed, DOE told the state that it could not meet the deadlines and provided little other information, Gregoire said. She's been concerned about a lack of information and DOE's "trust us" attitude, she said.

The Department of Justice sent the state a letter in November 2011 saying "DOE is continuing to assess the risk that it may be unable to meet one or more of the required schedules, and until that analysis is complete, we cannot identify what consent decree deadlines may require modification."

However, schedules beginning Dec. 31, 2014, for the vitrification plant could be affected, the letter said, and suggested the state and federal government meet for a discussion.

The state attorney general's office responded, saying no new information had been presented by the federal government that did not exist when the consent decree was entered by the court.

In addition, monthly reports from DOE to the state as required by the consent decree did not indicate the schedule was at risk.

In fact, a draft report from DOE Hanford officials to the Washington State Department of Ecology in December 2011 showed all consent decree deadlines were on schedule, the letter said.

"The state expects DOE to do everything within its power to implement and meet all requirements under the consent decree," the letter said. "This includes proactively addressing technical concerns and aggressively pursuing funding from Congress, internal DOE sources and any other federal sources."

The state and the federal government finally met for a discussion in the spring, and again exchanged letters after that meeting.

DOE confirmed then that 10 vitrification plant deadlines were at risk, starting with a Dec. 31, 2014, deadline to place concrete floor slabs at the 98-foot elevation for the vitrification plant's Pretreatment Facility.

The 10th deadline at risk was the one requiring the plant to be fully operational at the end of 2022.

The deadlines were at risk because of issues related to keeping waste well mixed, erosion and corrosion of metal components of the plant over its operating lifetime and the documented safety analysis, the state was told.

But the state is concerned that DOE is assuming funding limitations rather than exploring all options for meeting deadlines, said Mary Sue Wilson, senior assistant attorney general for the state.

At the time of the last exchange of letters, DOE had told its contractor, Bechtel National, to create a new schedule for the plant based on $690 million a year, which DOE said was insufficient to keep the plant on its previously agreed schedule.

"DOE appears to have unilaterally taken steps that will preclude its ability to comply with the decree," the state letter said.

DOE instead should direct Bechtel to create a new schedule that meets consent decree requirements, the state said.

If technical issues preclude meeting the schedule, then a schedule should be developed that addresses those while coming as close as possible to meeting deadlines, the state said.

On June 22, the Department of Justice replied that it anticipated soon providing more information on technical issues and their affect on the plant, and it hoped discussions could continue without the threat of litigation.

But it was unwilling to have Bechtel propose a schedule not tied to the $690 million limit, it said.

A few days later, DOE announced it was postponing work to develop a new cost and schedule for the vit plant until technical issues had been resolved.

Gregoire, who is not running for re-election, said Friday that she would discuss the importance of the consent decree with her successor.

Congress has realized that the state has used its authority concerning Hanford responsibly, she said.

"But why there is one concern after another gets to be a problem," Gregoire said. "Time is of the essence. The tanks are not going to be put on hold. The ground water is not going to be put on hold. We've got to get going."