A federal judge has declined to release a court transcript that the Department of Energy asked to see as it considers whether to appeal a ruling setting new Hanford deadlines.
In March, U.S. Judge Rosanna Malouf Peterson set new deadlines for building and starting to operate the Hanford vitrification plant to treat up to 56 million gallons of radioactive waste held in underground tanks.
She rejected DOE’s proposal for near-automatic extensions for issues that could cause delays and missed deadlines as she set new milestones in the court-enforced consent decree.
To help her understand the technical issues in arguments by the state of Washington and the Department of Energy in the case, she appointed a panel of technical advisers. She met with them just once, in a seven-hour meeting on Feb. 8.
The meeting was closed to the public and the attorneys in the case, but she had said any meetings with the technical advisers would be recorded to preserve a record for any reviewing panel.
The state and DOE each were allowed to propose an adviser and agreed on a third. However, DOE has twice objected to the state’s choice of Suzanne Dahl, the state’s expert on high-level radioactive waste.
It also is necessary for the United States to consider whether or not any of the issues on which it did not prevail may warrant an appeal at this juncture.
DOE in court brief
DOE argued that Dahl could not serve without bias. She had provided sworn testimony in the consent decree litigation, which would affect her ability to impartially tutor the court, DOE said. It also questioned her expertise, saying panel members would need engineering or nuclear safety expertise.
Malouf Peterson named Dahl as an adviser over DOE’s objections.
DOE brought the matter up again just days before Malouf Peterson issued the modified consent decree with new deadlines, saying state law prohibited Dahl from serving in a capacity that would require her to provide a private perspective that might differ from the state’s perspective.
The judge appeared annoyed in her response, writing in her ruling against DOE that “it is surprising that DOE’s counsel fails to understand the court’s orders regarding the scope and purpose of the technical adviser panel.”
The advisers did not serve as expert witnesses or advocates, the judge said. They merely assisted the court by providing it “with appropriate analytical frameworks through which to evaluate the parties’ submissions.”
The court recorded its discussion with the technical advisers for a possible appellate court to review the procedure, not as a study guide for the parties to understand the court’s orders.
Judge Rosanna Malouf Peterson
DOE believes that the record of the proceedings between the court and the technical adviser panel is important to help all parties understand the amended consent decree and to evaluate its implications.
“The court recorded its discussion with the technical advisers for a possible appellate court to review the procedure, not as a study guide for the parties to understand the court’s orders,” Malouf Peterson said in an order rejecting DOE’s request for a record of the meeting.
If DOE needs more help understanding the amended consent decree, it should “reread the 102-page order in which the court laid out its rationale in detail,” the judge said.
Nothing in the transcript of the meeting with the advisers would help DOE consider whether any of the issues on which it did not prevail warrant an appeal, she said.