Staff Reports
WC Monitor
12/18/2015
The state of Washington and the Department of Energy each have told a federal judge that the others’ proposal for new consent decree milestones at the Hanford Site would lead to delays in the massive cleanup project. Responses to the sides’ revised proposals were due this week, after U.S. District Judge Rosanna Malouf Peterson said initial proposals strayed too far from the original 2010 consent decree. DOE has acknowledged that it cannot meet the milestones set then. The filings this week could be the final round of materials filed in the case, according to the Washington state Attorney General’s Office. Malouf Peterson has not indicated when she will make a final ruling in the case, but she has told a panel of technical experts advising her in the case to be prepared for one or more video conferences in February or March as she analyzes the proposed modifications.
The state said in its court filing that it is “profoundly disappointed” with the revised proposal DOE made in November. DOE is proposing a 17-year extension, to 2039, to the current consent decree milestone that the Hanford Waste Treatment Plant be fully operational in 2022. The state is proposing a milestone just five years earlier, although both parties believe the plant’s Low-Activity Waste Facility might begin treating some waste as early as 2022. The state opposes DOE’s proposal that certain issues could trigger near-automatic extensions beyond the proposed later deadlines both sides submitted. Triggering issues would include a delay in resolving technical issues at the vitrification plant or in revising the design based on the resolution of technical issues. They also would include delays caused by workers performing much of the waste storage tank farm cleanup using self-contained breathing apparatus for protection from chemical vapors longer than now anticipated. “Such automatic one year – or more – extensions can be triggered multiple times, and they will automatically extend all subsequent WTP milestones,” the state said.
The state would be granted only a limited opportunity to seek the court’s review of the duration of an extension but not whether there is good cause for the extension in the first place. The court is limited to reviewing whether the length of the extension is arbitrary, according to the state. The extensions and other provisions proposed by DOE are neither narrow, reasonable, nor collaborative, as they have been described by the department, the state said. “They render Energy’s schedule largely unenforceable and fundamentally alter the bargain under the decree,” the state said. Malouf Peterson already has said DOE’s initial proposal to set firm near-term milestones and then wait until it has more technical information to set more is unacceptable. “Energy’s automatic extension provisions rewrite the consent decree just as radically as Energy’s original proposal,” the state said.
The conditions DOE proposes to trigger construction of new double-shell waste storage tanks to hold waste from leaky single-shell containers virtually guarantee no new tanks will ever be built, the state said. Malouf Peterson has asked the state and DOE to propose what conditions would require new tanks to be built because of limited space to empty the waste from the single-shell tanks, given the delay in treating waste. DOE has said it will use the 242-A Evaporator plant to reduce the liquid content in the existing double-shell tanks. That will provide enough space for the waste in the 11 single-shell tanks covered by the consent decree that have yet to be emptied. DOE would allow itself to unilaterally suspend the obligation to construct new tanks if it determines that building the containers would divert funds that would prevent other cleanup activities, the state said. The state then could invoke dispute resolution. The state also questioned whether the assumptions underlying DOE’s reduction of waste volumes through evaporation were reasonable. “The ever-shifting nature of Energy’s own numbers and assumptions, as well as the multiple contingencies involved, demonstrate the inexact nature of such projects compared to on-the-ground realities,” the state said. It concluded its filing by telling the judge that DOE’s proposed consent decree amendments are “yet another attempt to rewrite the consent decree in a way that minimizes enforceability, minimizes accountability and changes the position of the parties.”
DOE said the state’s proposal would “intrude into areas of exclusive DOE expertise and authority, dramatically expand the scope of the decree and hinder timely progress towards achieving the original objectives of the decree.” The department said it has proposed milestones based upon scientific, fiscal, and project management realities, while the state’s approach is based on little more than conjecture. “The state effectively acknowledges that it has simply set the dates it desires and worked backward from those dates to set interim milestones,” DOE said. It also accused the state of improperly expanding the existing consent decree, which has 14 remaining milestones to reach initial vitrification plant operations. The existing milestones reflect the two parties’ negotiated balance between operational flexibility and milestones to monitor construction progress. Now the state has proposed 35 vitrification plant milestones for an inflexible schedule for construction and operation of the plant, DOE said. In addition, the state proposes an unspecified number of interim construction milestones set every six months for each major plant facility. “Dozens of rigid construction milestones would result in further delays by tying DOE’s hands even where a different construction approach is more efficient,” the department said.
DOE called the state’s proposals regarding new double-shell tanks “deeply flawed” and “fundamentally ill-conceived.” Under the state’s proposal, DOE would be required to immediately start designing new double-shell tanks and preparing for their construction to be ready should the new tanks be needed to allow waste retrieval from single-shell tanks to continue. “In addition to being legally improper, the state’s proposal is unsound from both a fiscal and project management perspective,” DOE said. It estimated the up-front work proposed by the state would cost about $75 million to $105 million for two tanks, even though neither might be needed nor built. “This expenditure would not only be an extraordinary waste of taxpayer funds, but could divert resources from other tank retrieval and WTP-related activities mandated under the consent decree,” DOE said.
