March 28, 2024

Dispute over $45B Hanford tank contract resumes in appeals court

By Wayne Barber

Contractors and the U.S. Department of Justice filed extensive legal arguments in federal appeals court last week in a dispute over a Department of Energy liquid waste contract potentially worth $45 billion over a decade at the Hanford Site in Washington state.

Two teams, one headed by BWX Technologies and another by AtkinsRéalis Nuclear, have together with the government, filed more than 150 pages of legal papers with the U.S. Court of Appeals for the Federal Circuit, since March 18.

The losing bidder — both in the original April 2023 award and the agency’s more recent Feb. 29 re-award — is Hanford Tank Disposition Alliance. The Alliance is a team of Atkins, Jacobs and Westinghouse. 

In its March 18 filing, the Atkins team says U.S. Court of Federal Claims Judge Marian Blank Horn was correct in ruling  last June that BWXT-led Hanford Tank Waste Operations & Closure was ineligible for the contract due to failure to stay registered in a federal procurement tracking system. The legal dispute concerns only the first DOE award from 2023, not the re-award from last month.

DOE on Feb. 29 announced it would re-award the Hanford Integrated Tank Disposition Contract to the BWX Technologies-led group, Hanford Tank Waste Operations & Closure. The joint venture, which also includes Amentum and Fluor, has in past filings said its failure to stay registered with the System for Award Management (sam.gov) is a mere technical error and not a fatal flaw.

A DOE contracting officer in October 2023 agreed the lapse in registration was a fixable mistake.

“DOE’s evaluation of the two proposals was very close,” said the AtkinsRéalis-led group.  The actual contract prices are confidential, according to the filing. But the Court of Federal Claims “has already correctly determined that HTDA [Hanford Tank Disposition Alliance] succeeded on the merits, according to the Alliance.

The AtkinsRéalis-led group goes on to say it “would lose the reasonable opportunity to compete fairly for the contract” if BWXT-led Hanford Tank Waste Operations and Closure is allowed to keep the liquid waste contract. 

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March 28, 2024

NNSA No. 2 Rose to leave agency

By Dan Leone

Frank Rose, principal deputy administrator of the National Nuclear Security Administration, will leave the nuclear weapons agency this spring, his boss said Tuesday in an all-hands email.

“Principal Deputy Administrator Frank Rose will be leaving,” National Nuclear Security Administration (NNSA) Administrator Jill Hruby wrote in the email. “Frank has been an energetic and deeply valued presence in our organization, widely known as a team player here in headquarters and across the Nuclear Security Enterprise. He will be here through the end of April.”

Rose served in the NNSA nearly as long as Hruby. He was sworn in on Aug. 2, 2021, only a week after Hruby.

Among his achievements was “increasing NNSA’s annual allocation of full-time employees, a major win,” Hruby said.

Rose worked in the Barack Obama administration’s Department of Defense and Department of State. He also worked on Capitol Hill and, just before joining the Joe Biden administration’s NNSA, he was a fellow for security strategy at the Brookings Institution think tank. He lived in Massachusetts before joining the NNSA.

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March 27, 2024

Fired worker tells Sixth Circuit UCOR lacks sovereign immunity

By ExchangeMonitor

A former radiation technician fired after refusing to take the COVID-19 vaccine told a federal appeals court last week the Department of Energy’s environmental prime at Oak Ridge Site in Tennessee is not entitled to sovereign immunity.

In a legal brief filed March 19, lawyers for Yolonda Riggs, told the Sixth U.S. Court of Appeals that UCOR, an Amentum-Jacobs partnership, is not immune from Riggs’ wrongful termination lawsuit. Riggs was fired in January 2022 after refusing vaccination, citing religious beliefs.

“Ms. Riggs does not contest that the government validly conferred upon UCOR the authority to manage and operate the Oak Ridge Cleanup project,” according to the document. But the government “did not confer authority upon UCOR to implement a vaccine mandate.”

“It is far-fetched for UCOR to argue that it was authorized, and indeed, mandated by a July 2010 contract to implement a vaccine mandate to fight against COVID-19, a pandemic that did not enter the public lexicon until 2020,” according to the Riggs brief.

In its filing in February, UCOR said days after the Biden executive order, the Safer Federal Workforce Task Force issued its initial guidance for federal contractors and subcontractors. The guidance said contractors must “ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation.” The task force set a deadline of Dec. 8, 2021, which was later extended to Jan. 18, 2022. The guidance was not lifted until May 2023. 

UCOR has argued it is immune from the lawsuit, saying it was following President Joe Biden’s executive order 14042, the COVID-19 federal contractor mandate in September 2021. Riggs’ attorneys, however, say any immunity is not absolute — because the cleanup contract explicitly says UCOR will comply with Tennessee law.

In November 2021 the Tennessee General Assembly passed a law blocking various private and government entities from compelling workers to provide proof of vaccination in order to keep a job. The vaccination mandate announced by UCOR president Ken Rueter in August 2021, however, said workers must “provide proof” of vaccination.  

UCOR operated without any mandate from the start of the pandemic in early 2020 until November 2021, “and there is no reason it could not have accommodated Ms. Riggs (and complied with Tennessee law) by continued use of alternative measures,” according to the brief. Measures such as remote work, physical distance, frequent testing and mandatory masking, were used at various times by UCOR.

“UCOR cannot have it both ways—either UCOR was in violation of the contract if allowed employees to remain unvaccinated or it was not,” according to the Riggs brief. “The fact that UCOR allowed some employees to remain unvaccinated contradicts its argument that it would be in violation of the contract if it did not mandate vaccines.”

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March 27, 2024

No possibility of settling enviros’ suit against S.C. pit plant

By ExchangeMonitor

Settlement talks collapsed weeks ago between the Department of Energy and environmental groups who sued the agency over its plan to produce nuclear-weapons cores in South Carolina, a Tuesday court filing shows.

“Both parties were hopeful that the nearly two-month mediation process would bear fruit and focused their attention on those settlement efforts,” Todd Kim, assistant attorney general for the environment and natural resources division at the Department of Justice, wrote in Tuesday’s filing. But “it became clear several weeks ago that an amicable resolution of this dispute is unlikely.”

With a settlement out of the question, the parties have asked the U.S. District Court for South Carolina for two more weeks to complete briefings in the long-running lawsuit from June 2021, which has now dragged on for more than two years and eight months.

If the judge grants the request for an extension, the government and the environmentalists would finish briefing their cases by June 28. The next filing in the case, a joint stipulation of facts that catalogs things the parties agree about, was supposed to be due April 5th, according to Tuesday’s filing.

Plaintiffs in the suit are Savannah River Site Watch of South Carolina; Tom Clements, director of Savannah River Site Watch; The Gullah Geechee Sea Island Coalition, a group representing the interests of some descendants of enslaved Africans dwelling on the lower Atlantic coast; Nuclear Watch New Mexico of Santa Fe, N.M.; and the Tri-Valley Communities Against a Radioactive Environment, of Livermore, Calif. 

The environmentalists say that the Department of Energy’s National Nuclear Security Administration (NNSA) cannot build the Savannah River Plutonium Production Facility before completing a programmatic environmental impact statement about the agency’s plan to produce plutonium pits, nuclear-weapon first-stage cores, at the Savannah River Site and the Los Alamos National Lab in New Mexico.

The NNSA said it satisfied its environmental obligations for the Savannah River Plutonium Production Facility by completing a site-specific review of the planned facility, which will be constructed from the partially completed Mixed Oxide Fuel Fabrication Facility. 

The estimated cost of the Savannah River pit plant has soared in recent years. In its 2025 budget request, the NNSA estimated the final construction bill could be between $18 billion and $25 billion, or up to double the estimate provided last year in the agency’s 2024 budget request.

Los Alamos will be the first of the two sites to start casting pits for the planned W87-1 land-based, intercontinental ballistic missile warhead. Lab officials estimate they will begin producing pits for the stockpile by December and be making 30 pits per year in 2028.

The agency has a legally binding deadline to make at least 30 pits a year by 2026 and at least 80 a year by 2030, when the Savannah River facility was supposed to open. The South Carolina plant now may not begin making pits until sometime next decade, the NNSA has said.

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March 27, 2024

New Mexico says not so fast to shipments of stranded transuranic waste to WIPP from WCS

By ExchangeMonitor

New Mexico wants assurance transuranic waste, held 10 years at a commercial storage facility in Texas, won’t pose an ignition threat before signing off on shipment to the Department of Energy’s Waste Isolation Pilot Plant near Carlsbad, N.M.

As a result, DOE is now facing pressure from both Texas and New Mexico. The Texas attorney general has been pushing DOE to move the remaining 74 containers of transuranic waste away from Waste Control Specialists. DOE has said it will do so by the end of 2026, but now the agency is running up against new authority New Mexico got from the WIPP permit it issued the federal agency last year.

“The WCS cannot show up at the WIPP [Waste Isolation Pilot Plant] until DOE and [its contractor] SIMCO demonstrate compliance with our permit,” state Environment Secretary James Kenney said in a statement emailed Wednesday to the Exchange Monitor

A New Mexico Environment Department spokesman said Wednesday the state is awaiting replies to recent letters to DOE field office managers in the state and DOE’s WIPP prime, Bechtel’s Salado Isolation Mining Contractors.

WIPP’s state permit prohibits disposal of waste showing traits of potential corrosion or ignition, Richard Maestas, acting head of the Environment Department’s Hazardous Waste Bureau, said. He cited state concerns in a March 20 letter to DOE managers at the Los Alamos National Laboratory in New Mexico. A nearly-identical letter was sent Feb. 29 to the WIPP contractor and the head of DOE’s Carlsbad field office.

“It is imperative” DOE provide adequate documentation on technology proposed “to remove hazardous waste codes” from the 74 containers at Waste Control Specialists since 2014, Maestas said.

This is a big deal, Maestas said, given the waste comes from the same remediated nitrate salt waste stream at Los Alamos as the drum that overheated, ruptured and caused WIPP’s underground radiation leak on Valentine’s Day 2014. The accident forced the disposal site offline for about three years.

Like the drum in the 2014 WIPP accident, the containers at Waste Control Specialists were originally remediated with kitty litter, Maestas added. Los Alamos contractors Triad National Security and Newport News Nuclear-BWXT-Los Alamos have responsibility for waste generated by the lab. The Los Alamos transuranic waste in question was bound for WIPP when the 2014 accident happened and was rerouted to Waste Control Specialists.

DOE has received the New Mexico letters and will respond to its information requests, said a DOE spokesperson in a Wednesday evening email. The federal agency “remains committed to removing the TRU waste from WCS in a manner that is protective of the workforce, the environment and the public, while remaining in full compliance with applicable laws and regulations.”

For more than four years, Texas officials have said the waste has worn out its welcome.

New Mexico and DOE “successfully negotiated a ten-year renewal permit for the Waste Isolation Pilot Project (WIPP) that prioritizes cleanup and emplacement of legacy waste from our state,” Kenney said. “Until the Department of Energy realizes that all roads lead from WIPP — not to WIPP — they will continue to stumble with their permit implementation.”

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March 27, 2024

Holtec conditionally gets its $1.5 billion loan from DOE to restart Palisades

By ExchangeMonitor

Holtec will receive a $1.52 billion loan from the Department of Energy’s Loan Programs Office to restart the shuttered Palisades Nuclear Generating Station in Michigan, the agency announced Wednesday.

Secretary of Energy Jennifer Granholm announced the conditional commitment ahead of a planned tour of the Holtec Palisades Training Center in Covert, Mich. Granholm is visiting the Great Lakes region this week to promote investments in the region made by Congress at the behest of the administration of President Joe Biden (D).

The conditional commitment “demonstrates the Department’s intent to finance the project [but] the company must satisfy certain technical, legal, environmental, and financial conditions before the Department enters into definitive financing documents and funds the loan,” DOE wrote in a press release emailed to the press on Wednesday morning.

According to a Holtec grant application obtained this year by an antinuclear group through a Freedom of Information Act request, the most expensive piece of new equipment the company needs to restart Palisades is a new steam generator that will cost about $510 million.

Meanwhile, Holtec also needs permission from the Nuclear Regulatory Permission to restart the single-reactor plant. The biggest regulatory hurdle at the NRC is reversing a modification to Palisades’ operating license that forbids refueling the reactor now that the facility has legally started decommissioning. Holtec has said that it has done no substantial decommissioning work at the site.

The NRC on March 18 said it could probably review a license amendment request to lift the prohibition on refueling by March 15, 2025, the date by which Holtec says it needs the amendment granted if it is to make its self-imposed deadline to restart Palisades by August 2025.

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March 26, 2024

NRC staff think they can finish one Holtec license amendment request to restart Palisades by March ‘25

By ExchangeMonitor

Nuclear Regulatory Commission staff need a little less than a year to review a request for a license amendment Holtec needs to restart Michigan’s Palisades Nuclear Generating Station, according to a letter published Tuesday.

“With respect to your requested completion schedule of March 15, 2025, the NRC staff believes that it will complete the safety review by then,” reads the letter to Jean Fleming, Holtec’s vice president of licensing and regulatory affairs from Justin Poole, NRC project manager for Plant Licensing Branch III in the Division of Operating Reactor Licensing in the Office of Nuclear Reactor Regulation.

The letter was dated March 18 and published online by NRC on Tuesday. Holtec, Jupiter, Fla., wants to restart Palisades in August 2025. To do that, the company needs the NRC to amend the plant’s operating license to remove a clause that forbids refueling of the reactor. 

The clause is a standard addition to any operating license for a plant that has moved into the decommissioning phase of its life. Removing the clause would be an unprecedented action for the NRC, but it would not be the only NRC action required for the restart.

When it applied for this particular license amendment in February, Holtec repeated what it has said since the state of Michigan and Covert, Mich., locals agreed to attempt to reopen the plant: that the Jupiter, Fla., company had done “[n]o major decommissioning activities” at Palisades.

Though getting permission to reload the Palisades reactor is the biggest regulatory hurdle standing in the way of a Palisades restart, there are others. These include multiple “future requests for license amendments” aside from the one NRC corresponded with Holtec about on the 18th, according to Poole’s letter

Taken together, all the looming license amendment requests might prompt the NRC to conduct new environmental reviews of the Palisades site to see what effects a plant restart could have on the shores of Lake Michigan, the lake itself, and wildlife around the plant, Poole wrote.

Meanwhile, the biggest barrier to a Palisades restart could be financial.

Holtec needs somewhere between $1 billion and $2 billion to pay for major equipment maintenance and replacement at Palisades, including $510 million for a new steam generator, according to a grant application obtained this year by an antinuclear group through a Freedom of Information Act request. The company is seeking the money from the Department of Energy’s Loan Programs Office.

In a Tuesday press release, Beyond Nuclear, the group behind the Freedom of Information Act request, said that Secretary of Energy Granholm on Wednesday “will tour the Palisades nuclear power plant” and “will announce a $1.5 billion U.S. Department of Energy “bridge” loan guarantee for Holtec, towards the unprecedented restart of the closed reactor.”

Granholm this week traveled to the Midwest, stopping in Ohio before arriving Tuesday in Michigan, according to posts on the website X from multiple U.S. government accounts.

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March 26, 2024

Second Hanford vit plant melter reaches 2,100 degrees

By ExchangeMonitor

The Department of Energy and contractor Bechtel National at the Hanford Site in Washington state have heated up the second melter at the vitrification plant to its operating temperature of 2,100 degrees Fahrenheit.

The agency announced the heat up of the second melter in a Tuesday press release, calling it a big step toward operation of the Waste Treatment and Immobilization Plant. The plant is expected to start converting some of Hanford’s less-radioactive tank waste into a glass form in the first half of next year.

DOE announced earlier this month it had started heating up the second 300-ton melter at the vitrification plant.

With both melters hot enough to operate, crews will start running a non-radioactive simulant through plant systems over the next several months, according to the DOE release.

Once a molten glass pool is established, the startup heaters will be removed and replaced with bubblers, equipment that will mix the molten glass with air and maintain an even temperature.

Bechtel started working on the vitrification plant in December 2000 under a contract that is now valued at $15.5 billion, and currently runs through September. 

There are roughly 56 million gallons of radioactive and chemical tank waste at Hanford, the remnants of decades of plutonium production for U.S. nuclear weapons. 

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March 26, 2024

Cleanup boss White, Xcel Energy manager kickoff WIPP clean energy day

By ExchangeMonitor

The acting head of the Department of Energy’s cleanup branch, William (Ike) White, as well as an Xcel Energy New Mexico manager, will speak Wednesday at the clean power information day at the Waste Isolation Pilot Plant.

White, who heads the $8-billion-plus DOE Office of Environmental Management, will be one of the headliners, according to the online agenda for the Cleanup to Clean Energy program session for the Waste Isolation Pilot Plant (WIPP) near Carlsbad, N.M.

James Lackey, Xcel Energy’s manager of community & economic development in New Mexico, is like other speakers expected to make brief remarks and then answer questions. 

Minneapolis-based Xcel Energy is an electricity and natural gas supplier with operations in eight states, including Texas and New Mexico, according to its website. The company policy seeks to deliver electricity with 100% net zero carbon emissions by 2050.

Xcel Energy does not have any specific development plans for the DOE’s WIPP site, a spokesperson said by email Tuesday evening.

In February, DOE issued a request for information on potential development of carbon-free electricity projects or 200 megawatts or more on surface land at WIPP, the agency’s disposal site for defense-related transuranic waste.

DOE said in the announcement there are roughly 9,000 acres of contiguous land at WIPP suitable for non-emitting electricity from sources such as solar, wind or nuclear power.

Responses to the request for information were due last week.

Other DOE speakers will include Carlsbad Field Office manager Mark Bollinger; Candice Robertson, a special adviser working with the carbon-free power program; Robert Seifert, a DOE infrastructure manager; along with two other Carlsbad-based supervisors, Joshua Adkins and Greg Sahd.

The program will start at 8 a.m. Mountain Time in Carlsbad and should finish up by 10:30 a.m.

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March 26, 2024

UCOR receives extension to reply to wrongful discharge case

By ExchangeMonitor

The Amentum-led environmental prime at the Department of Energy’s Oak Ridge Site in Tennessee has until April 2 to respond to a lawsuit by a former employee who claims he was fired in 2019 because of disability and whistleblower retaliation.

Lawyers for plaintiff Christopher Hicks and defendant United Cleanup Oak Ridge (UCOR) agreed to the extension in a motion earlier this month in U.S. District Court for Eastern Tennessee.

The case is overseen by U.S. District Judge Katherine Crytzer and Magistrate Judge Debra Poplin, after being filed by Hicks in January, according to online court records.

“UCOR retaliated against Mr. Hicks for reporting conditions on the worksite that he reasonably believed were evidence of gross mismanagement of a federal contract, a gross waste of federal funds, an abuse of authority relating to a federal contract, and/or constituted substantial and specific danger to employees and to public health or safety related to a federal contract,” according to the complaint.

Hicks worked for UCOR 11 years before being fired in April 2019, shortly after he observed “improper dumping of potentially contaminated rainwater,” and reported it to a foreman, according to the suit.

The Equal Employment Opportunity Commission granted Hicks a notice of right to sue in November 2023. Hicks said the commission found merit to his claims of being fired in violation of the Americans with Disabilities Act.

While working at UCOR, Hicks made “protected disclosures” as part of a whistleblower complaint filed with DOE’s Office of Inspector General. In July 2023 DOE’s Office of Hearings and Appeals found Hicks’ whistleblowing contributed to his firing.

The Hearings and Appeals office also found “UCOR would have discharged Mr. Hicks anyway because of his disability,” according to the complaint.

Hicks hurt his back on the job in October 2017. Despite chronic pain and a permanent restriction against lifting more than 40 pounds, Hicks still performed multiple tasks and rarely took time off because of the injury, according to the complaint.

UCOR initially approved and then rescinded Hicks’ eligibility for a higher-paying, less physically demanding job, according to the lawsuit. The complaint states in April 2018 Hicks was moved to a Technetium 99 project and started making health and safety-related disclosures about asbestos handling and other issues.

Hicks is seeking damages including reinstatement and backpay.

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