A federal judge has set new consent decree milestones for tank waste management and treatment at the Hanford Site in Washington state, extending the deadline to have the Waste Treatment Plant fully operating by 14 years to 2036. The order also sets milestones for emptying waste from the 11 storage tanks under the consent decree that still hold waste and increases requirements for DOE to provide information to the states of Washington and Oregon. “These milestones should be viewed as enforceable legal duties rather than optimal, idealistic goals,” said Judge Rosanna Malouf Peterson in an order filed late March 11 in U.S. District Court for Eastern Washington. She said that a significant portion of the consent decree’s value had been undermined by DOE’s insertion of litigation tactics into proceedings, wasting the time and money of all parties. The judge’s revised consent decree for Hanford cleanup closes the court case, although DOE and Washington state have 30 days to request modifications. The judge will only allow filings if both parties jointly request a change.
The Department of Energy released only a brief statement saying it is reviewing the court’s decision and “remains committed to the successful treatment of tank waste at Hanford as soon as practicable.” It had proposed a complete list of deadlines for the vitrification plant and tank farms, only after Malouf Peterson had insisted. DOE initially had wanted to set deadlines only as technical issues were resolved, saying that would ensure the deadlines were realistic. The complete list of deadlines it eventually submitted were tempered with a proposed system of near-automatic extensions if it encountered any of a variety of problems that could put deadlines at risk. Malouf Peterson rejected that concept. “DOE’s 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 judge said in her ruling. “DOE must be accountable.”
Malouf Peterson also rejected the state proposal to set a lengthy list of pacing deadlines to keep work, particularly at the vitrification plant, on schedule. Instead, she stuck close to the original list of about 20 deadlines in the 2010 consent decree for the vitrification plant, including a few that have already been met. Key deadlines for the vitrification plant would include completing hot commissioning of the Low-Activity Waste Facility – demonstrating it could immobilize radioactive waste in glass of acceptable quality – by 2023. The judge did not require construction of a new facility to provide some limited pretreatment of low-activity waste because it was not in the original consent decree. But that facility likely will be needed to meet the 2023 deadline. Hot commissioning of the High-Level Waste Facility and the Pretreatment Facility, both of which have technical issues now, would be required to be completed in 2033, three years ahead of having all parts of the plant fully operating. Other deadlines cover construction of various parts of the plant and the start of cold commissioning, or operation of facilities without using radioactive materials. The deadline for full operations is three years earlier than DOE’s proposed date of 2039, but two years after Washington state’s goal of 2034.
Despite the long deadline extensions approved by the judge, state officials called the ruling a victory for the people of Washington. “This ruling represents a big step in the right direction for our state,” said Washington Gov. Jay Inslee. “I have been repeatedly frustrated by the delays and lack of progress toward meeting key milestones in waste cleanup and treatment. We cannot consider any further delays, and I am pleased that the court clearly agrees.” Inslee also said he hopes the revised consent decree is the start of a new level of collaboration. Attorney General Bob Ferguson said, “We went to court to hold them accountable and the court agreed with the state of Washington.” He also applauded the judge for taking DOE to task for keeping information from the states of Washington and Oregon. The judge said various technical issues have led to delays but “DOE has no excuse for its total lack of transparency concerning the resolution process.” If DOE had kept the states of Washington and Oregon informed of delays as required by the consent decree, they might have had sufficient notice of the extent of the department’s funding issues to be able to assist DOE politically to obtain additional financial support, Malouf Peterson said. DOE has been more focused on excusing its delays than on being a good partner with the state in cleanup, Ferguson said. “I am optimistic that with this decision, the federal government’s track record of hiding the ball is now behind us,” he said.
The judge increased the information the Department of Energy is required to share with the states of Washington and Oregon. DOE will be required to expand its already mandatory quarterly reports to Washington to include an accounting of the total labor expended on single-shell tank retrieval, including the hours workers spend on self-contained breathing apparatus and any effect that had on retrieval operations. The reports also must include a description of progress made toward resolving technical issues. DOE will be required to provide both monthly and quarterly reports prepared for Washington to Oregon. The judge stopped short of requiring that the reports be submitted to the court, saying she “encourages the parties to return to the cooperative nature of a consent decree” and that the court will only be involved when its services are absolutely required. Because of past failures by DOE to keep the state of Washington informed of serious risks of missing milestones, the department must notify Washington within 14 days of DOE receiving notice of that risk and provide a preliminary report. The state can request a meeting with DOE within 30 days. If the state believes DOE is not forthcoming, it may petition the court for an expedited hearing. Oregon must be notified of any meetings or hearings.
The new deadlines for emptying the waste storage tanks would give DOE more flexibility to decide the order in which the 11 remaining single-shell tanks covered by the order are emptied. The tanks include two in the C Farm that were supposed to be emptied by now and nine tanks in the A and AX farms. At least four of the 11 would need to be emptied in 2020 and the remainder by March 2024. Malouf Peterson is not requiring, at least for now, that more double-shell tanks be built, as the state had requested to be certain there is adequate space for waste emptied from single-shell tanks. However, if the 2020 tank waste retrieval deadline is not met, she would consider requiring new double-shell tanks be built. DOE could miss the 2020 deadline if it runs out of double-shell tank space to hold the waste. The federal agency has said it can maintain adequate space in the double-shell tanks by increased use of the 242-A Evaporator to reduce the volume of liquid waste in storage. Malouf Peterson also rejected a state proposal that DOE start working on permitting and design of double-shell tanks now to shorten the time it would take to build them if they were needed. “The court finds that compelling DOE to expend limited resources preparing for projects that may not be needed would not be a suitably tailored modification,” the judge said.
The consent decree as originally approved in 2010 set new milestones to resolve a lawsuit brought by Washington state against DOE in 2008 over missed cleanup deadlines at Hanford. It also made the new deadlines enforceable by the federal court. But almost immediately after the consent decree was signed, DOE gave Washington notice that one or more deadlines were already at risk of being breached. “A variety of DOE’s unilateral actions, including ceasing construction of the Waste Treatment Plant and failing to reasonably adhere to the mandatory reporting requirements, have resulted in the motions before the court,” the judge said. The longer DOE takes to satisfy its obligations under the consent decree, the greater the likelihood of irreversible damage to the environment, she 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.”
