Judge sets new consent decree deadlines

Fog rolls over the vitrificaiton plant under construction at Hanford.
Fog rolls over the vitrificaiton plant under construction at Hanford.

A federal judge has set new Hanford deadlines, requiring that the Hanford vitrification plant be fully operating in 2036, a compromise between proposals from the Department of Energy and the state of Washington.

The ruling issued late Friday by U.S. Judge Rosanna Malouf Peterson closes the consent decree lawsuit.

“I am optimistic that, with this decision, the federal government’s track record of hiding the ball is now behind us,” said Bob Ferguson, the state attorney general, in a statement. “I hope today’s ruling signals the beginning of a more positive partnership and real progress on moving forward to clean up Hanford.”

The judge set new deadlines for emptying the next group of leak-prone single shell tanks at Hanford, building and starting to operate the vitrification plant to treat the waste, and strengthening reporting requirements to hold DOE accountable.

“These milestones should be viewed as enforceable legal duties rather than optimal, idealistic goals,” the judge said.

“No party can ‘win’ this litigation,” she said. “The public and environment only can ‘lose’ as more time passes without an operational solution to the radioactive waste problems at the Hanford Site.”

Hanford has 56 million gallons of radioactive waste held in underground tanks left from the past production of plutonium for the nation’s nuclear weapons program from World War II through the Cold War. Construction began on a massive vitrification plant to turn the waste into a stable glass form for disposal in 2002.

Malouf Peterson set new deadlines after DOE failed to meet or appeared certain to miss deadlines in the 2010 court-enforced consent decree. As originally signed, the consent decree set a series of deadlines to have the vitrification plant fully operating in 2022, 14 years earlier than now required under the revised consent decree.

DOE initially proposed that the revised consent decree allow deadlines to be set as technical issues that have contributed significantly to delays and missed deadlines were resolved and new plans made. Forced by the court to propose firm deadlines, it proposed a system of near-automatic extensions if it faced issues that could lead to delays or missed deadlines.

However, the judge said the extension mechanism would “create a vacuum in which DOE would be free to proceed at its own rate without any safeguards for Washington or enforcement by the court.”

The revised consent decree grants the state of Washington direct opportunities to return to court to hold DOE accountable if needed. If DOE is unable to meet deadlines, it can invoke the “good cause” amendment process included in the original consent decree to seek extensions.

However, the court also encouraged the parties to work together going forward.

She criticized the federal government for undermining the consent decree’s value by inserting litigation tactics into the agreement after previously agreeing to open-reporting requirements.

She also had sharp words for DOE after it repeated a request the judge previously had denied concerning one of the technical advisers the judge had appointed to help her better understand the case.

“The court is disappointed that while DOE repeatedly has claimed that budgetary restrictions and limited financial resources have hindered DOE’s ability to perform its agreed duties at Hanford, too much time and public money has been wasted in this case needlessly,” the judge said.

New vitrification plant deadlines

Malouf Peterson declined to dramatically expand the number of deadlines in the consent decree as requested by the state to keep DOE on track to build and commission the vitrification plant. Instead, she modified 14 of the 19 vitrification deadlines in the original consent decree.

Among key deadlines in the revised consent decree is demonstrating the Low Activity Waste Facility’s ability to turn radioactive waste into a a stable glass in 2023, while work continues to resolve technical issues at the parts of the plant that will handle high-level radioactive waste.

The plant’s Pretreatment Facility, which is planned to separate waste into low-activity waste and high-level waste for treatment, would be required to demonstrated operations with radioactive waste in 2033. To accommodate the treatment of low-activity waste at the vitrification plant earlier, a separate pretreatment facility with limited capabilities is expected to be built off the vitrification plant campus.

Malouf Peterson declined to require the separate facility because it was not part of the original consent decree, but said DOE and the state could work toward that goal outside the requirements of the consent decree. The new facility likely would be required to meet the 2023 deadline for completing commissioning of the Low Activity Waste Facility.

The High Level Waste Facility would be required to demonstrate treatment of radioactive waste in 2033.

DOE had proposed having the vitrification plant at full operation in 2039 and the state had proposed 2034, with the judge compromising on a date of 2036.

New tank deadlines, reporting requirements

The judge gave DOE some flexibility to empty waste from the 11 of 19 single shell tanks that are covered by the original consent decree and still hold waste. Four of those must be emptied by 2020 and the rest by March 2024, but DOE can choose which of the tanks it empties to meet both deadlines.

The judge declined to require DOE to build more waste storage tanks as its current 27 double shell tanks approach capacity, as the state had requested. Leak-prone single shell tanks are being emptied into the double-shell tanks.

But she did say that if DOE misses a 2020 milestone for certain single shell tank work, the state may ask the court to require the federal government to build more double shell tanks. The deadline could be missed because of lack of double shell tank space to hold the waste.

Malouf Peterson said in the ruling that if the federal government had done reporting required in the initial consent decree, the states of Washington and Oregon would have had sufficient notice of DOE funding issues to help DOE fight for additional federal money to conduct required work.

“While the various technical issues may have caused the delay, DOE has no excuse for its total lack of transparency concerning the resolution process,” Malouf Peterson said in her ruling.

She is requiring DOE to provide more information in some reports already required to be prepared for the states of Washington and Oregon. DOE also will have just two weeks to notify Washington if it learns it is at risk of missing a deadline.

“This ruling represents a a big step in the right direction for our state,” said Gov. Jay Inslee, in a statement. “We cannot consider any further delays, and I am pleased that the court clearly agrees.”

DOE issued a statement Saturday saying it was reviewing the court’s decision.

“DOE remains committed to the successful treatment of tank waste at Hanford as soon as practicable,” it said.

DOE and Washington state have 30 days to ask the judge for modifications to the new deadlines, but she will only consider changes if both parties agree.

Annette Cary: 509-582-1533, @HanfordNews

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