The Department of Energy is considering appealing U.S. Judge Rosanna Malouf Peterson’s order amending the Hanford Site consent decree, according to court documents requesting a transcript of Malouf Peterson’s closed-door discussions with a panel of three technical advisers. The federal agency is analyzing the court order and amended consent decree and believes the record of the proceedings between the judge and advisers is important to understand the documents and evaluate their implications, the DOE request says. “It is also 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 said. Malouf Peterson denied the request.
If DOE is having trouble understanding the court’s order and amended consent decree, it should reread the 102-page order in which the court laid out its rationale in detail, the judge said in her order denying the request. Malouf Peterson confirmed that she had said in advance of meeting with the panel that any discussion would be recorded to preserve the record. But the court was clear that the record was preserved for “any reviewing panel,” not the parties, Malouf Peterson said. “The court recorded its discussion with the technical advisors for a possible appellate court to review the procedure, not as a study guide for the parties to understand the court’s order,” she said.
Malouf Peterson met with the panel just once, for a session that lasted about seven hours on Feb. 8. That DOE would call the discussion a “proceeding” demonstrates its continued misunderstanding of the technical advisers’ role, the judge said. “The role of the technical advisors was to assist the court in organizing and understanding how to analyze the parties’ evidence, not to assist the court in making any factual finding or conclusions of law in this case,” she said.
The judge in March set new milestones for tank waste management and treatment covered by the 2010 consent decree for cleanup of the former plutonium production site, including ordering the Waste Treatment Plant to be fully operational by 2036, 14 years after the prior deadline. The primary issue on which DOE did not prevail was its proposal that it be allowed near-automatic and unlimited milestone extensions for Hanford cleanup, the judge noted. The transcript would not help the department in considering whether any of the issues on which it did not prevail warrant an appeal, according to the judge.
The panel included one expert picked by DOE, one picked by the state of Washington, and a third the two parties picked jointly. DOE has twice filed court documents objecting to the state’s choice of Suzanne Dahl-Crumpler, the Washington Department of Ecology expert on high-level radioactive waste. DOE said she could not serve without bias, did not have the proper credentials, and that state law prevented her from providing a private perspective that might differ from the state’s perspective. Malouf Peterson denied both motions.
Unlike DOE, top leaders for the state of Washington have appeared pleased with the judge’s order closing the case and the amended consent decree. “This ruling represents a big step in the right director for our state,” said Gov. Jay Inslee when the amended consent decree was issued last month. Attorney General Bob Ferguson called the ruling “a significant victory for the people of Washington.” The state went to court to hold DOE accountable and the court agreed with the state of Washington, he said.
