Specific cleanup requirements and deadlines are needed in the Hanford consent decree to hold the Department of Energy accountable, U.S. Judge Rosanna Malouf Peterson said Thursday.
The federal and Washington state governments can assume that she will reject DOE’s proposed amendment procedure for the court-enforced consent decree and lean closer to the state’s proposal, she said at the conclusion of a four-hour hearing in the Richland federal courtroom.
The state has submitted a lengthy list of deadlines for emptying waste from certain leak-prone waste tanks and getting the vitrification plant built and operating to treat the waste. DOE had proposed not setting most new deadlines until technical issues are resolved and it has more certainty about the work to be done and the cost and schedule.
The judge will appoint a panel of experts to help her with technical and scientific issues outlined in more than 6,000 pages of documents, she said.
She gave DOE and the state 21 days to each appoint a representative to the panel. If they can agree on the third member of the panel, she will consider their recommendation, she said.
Malouf Peterson made only brief remarks Thursday after listening to arguments from DOE and the states of Washington and Oregon. She will issue a written opinion, she said.
Her ruling will focus on whether the proposed amendments would resolve problems caused by DOE’s inability to meet deadlines agreed to in 2010 and the issue of holding DOE accountable rather than focusing on specific deadlines.
The state of Washington’s job as a Hanford regulator is to hold DOE accountable, but the history of trying to get tank waste treated for disposal is one of moving deadlines and delays, said Andrew Fitz, lead attorney in the case for the Office of Attorney General.
The 2010 consent decree resolved a lawsuit filed by the state in 2008 when it became apparent that DOE could not meet deadlines related to emptying waste from underground tanks and treating the waste. The consent decree set new deadlines to be enforced by the court.
But now most of the remaining deadlines in the consent decree are at serious risk of being missed by DOE.
“Effectively we are back where we were when we filed the lawsuit,” Fitz said, adding DOE wants to move deadlines out and says “trust us.”
The point of the consent decree was to make DOE accountable and get waste treated for disposal for the good of the region, he said.
Under DOE’s proposal it would regularly update the state on progress it is making, but nothing ensures that progress would be made or requires that technical issues be resolved, he said.
Kenneth Amaditz, a lead attorney for the U.S. Department of Justice, countered that “technical issues cannot be predictably resolved by certain dates.”
Resolution can be lengthy and expensive, Amaditz said. For example, testing of full-scale vessels for the plant’s Pretreatment Facility may take three to four years and cost up to $180 million.
The judge’s choice is to establish deadlines based on guesses or wait until there is enough information to make them meaningful, he said. It’s impossible to know now if extensive work may be needed, such as changing out tanks in the plant, redoing ventilation systems or pulling piping out of concrete to resolve technical issues.
But aren’t hard deadlines part of the consent decree, Malouf Peterson asked. Should the court modify the consent decree or eviscerate it?
DOE will get back to firm deadlines, it will just take time to figure out what they should be, Amaditz said.
The state and DOE also argued about whether the state’s proposed requirement that new double-shell tanks be built was appropriate under the consent decree. The state has proposed four new million-gallon tanks be built by 2022 and possibly another eight after that. Waste from leak-prone single-shell tanks is being emptied into double-shell tanks until it can be treated for disposal, much of it at the vitrification plant.
DOE has enough double-shell tank space to meet its obligations to empty the 19 tanks covered by the consent decree, said David Kaplan, a lead attorney for the U.S. Department of Justice. It will use the Hanford evaporation system to reduce the liquid portion of the waste held in double-shell tanks, giving it 2.42 million gallons of space to spare, he said.
Requiring more double-shell tanks is outside the scope of the consent decree and would be extremely expensive, Kaplan said. DOE has estimated that each tank could cost $85 million to $150 million and that could take money from other projects at Hanford or at other DOE nuclear cleanup sites.
The state believes DOE will need more space to finish emptying the 19 tanks, which are among 149 single-shell tanks. It does not believe the evaporator system can reliably operate to reduce the liquid volume of waste sufficiently to fit in Hanford’s 27 stable double-shell tanks. The 28th tank will be taken out of service after developing a leak between its shells.
Malouf Peterson said the expert panel could help her determine the validity of the science being argued, such as the likelihood of evaporation campaigns creating enough space in double-shell tanks.
The state and DOE also argued over the state’s proposal that DOE be required to start treating high-level radioactive waste before the Pretreatment Facility is ready to prepare the waste for treatment. Construction has stopped at the Pretreatment Facility because of technical problems.
The state wants that option pursued because DOE cannot meet its consent decree deadline to have the vitrification plant fully operating by 2022, although it may be able to have a portion of the plant operating to treat some low-activity radioactive waste by then.
DOE has discussed that option for high-level waste treatment but did not include requirements in its proposed consent decree amendment. The project would be expensive and could present more technical issues that would further slow progress, Kaplan said.
The state believes DOE may want to delay work so the cost can be spread out over more years, Fitz said. If DOE concludes direct feed of high-level waste is not appropriate, the state would not force it to build the facilities for it. But in the meantime including it in the consent decree would keep work on track.
Hanford Communities, a coalition of Hanford-area local governments, said in a statement after the hearing that it appears that the Department of Justice, anticipating legal action, has prevented the free flow of information and collaboration that occurred before the consent decree was filed.
The state of Washington has not been able to obtain information about progress and the strategy to deal with remaining technical issues, Hanford Communities said.
“Both parties have proposed a path forward that requires communication on a regular basis about progress that has been made and the plan to deal with technical issues,” Hanford Communities said. “It is unfortunate that a judge needs to impose these requirements.”