JOHN C. CRUDEN United States Attorney Eastern District of ... · Consent Decree. DOE’s proposed modification included several key features to align the Consent Decree with the ongoing

U.S. BRIEF IN SUPPORT OF ITS SECOND PROPOSED CONSENT DECREE MODIFICATION

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JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice MICHAEL C. ORMSBY United States Attorney Eastern District of Washington DAVID J. KAPLAN ELIZABETH B. DAWSON CHLOE H. KOLMAN AUSTIN D. SAYLOR Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 (202) 514-2219 VANESSA WALDREF Assistant United States Attorney 920 West Riverside Ave., Suite 300 Spokane, WA 99201 (509) 353-2767

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY,

Plaintiff,

v. ERNEST MONIZ, Secretary of the United States Department of Energy, and the UNITED STATES DEPARTMENT OF ENERGY, Defendants.

NO. 2:08-cv-5085-RMP UNITED STATES’ BRIEF IN SUPPORT OF ITS SECOND PROPOSED CONSENT DECREE MODIFICATION

Case 2:08-cv-05085-RMP Document 196 Filed 11/13/15


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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................. iv

INTRODUCTION .................................................................................................. 1

BACKGROUND .................................................................................................... 1

I. PROCEDURAL HISTORY ......................................................................... 2

II. FACTUAL BACKGROUND ...................................................................... 3

ARGUMENT .......................................................................................................... 4

I. DOE’S PROPOSAL REGARDING THE WTP IS SUITABLY TAILORED BECAUSE IT PRESERVES THE ORIGINAL OBJECTIVES OF THE CONSENT DECREE WHILE ACCOUNTING FOR PRESENT UNCERTAINTIES. ............................... 5

A Suitably Tailored Proposal Must Account for the Significant Uncertainty Created by Persistent Technical Issues. ......................... 5

B. DOE’s Second Proposal Ensures the Enforceability of Milestones While Accounting for Present Uncertainties. .................. 8

1. DOE’s Proposal Pairs Enforceable Milestones with a Narrow Extension Mechanism Based on Three Areas of Uncertainty. ......................................................................... 8

2. DOE’s Proposal for WTP Milestones Is Suitably Tailored to the Changed Circumstances. ............................... 15

II. DOE’S REVISED PROPOSAL TO COMPLETE SINGLE-SHELL TANK RETRIEVALS IS SUITABLY TAILORED TO ADDRESS ONGOING VAPOR-RELATED DELAYS AND FUNDING CONSTRAINTS. ........................................................................................ 17

III. DOE’S PROPOSED ACCOUNTABILITY MEASURES ARE SUITABLY TAILORED TO ASSIST THE PARTIES IN RESPONDING TO PROJECT DISRUPTION. ......................................... 20

A. Suitable Accountability Proposals Must Reflect the Particular Factual Causes of Disruption Underlying the Changed Circumstances. ................................................................................. 21



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B. DOE’s Proposal is Suitably Tailored to Increase Transparency Without Constraining Effective and Safe Management of the WTP ................................................................. 29

IV. A CONTINGENT REQUIREMENT TO CONSTRUCT NEW DOUBLE-SHELL TANKS IS NOT SUPPORTED BY—OR SUITABLY TAILORED TO ADDRESS—ANY CHANGED CIRCUMSTANCE IN THIS CASE. ......................................................... 25

A. No Changed Circumstances Warrant New Double-Shell Tanks. ............................................................................................... 26

1. No Relevant Changed Circumstances Exist. ......................... 26

2. Construction of New Double-Shell Tanks Would Not Be Suitably Tailored to Address Any Changed Circumstances. ....................................................................... 29

B. New Double-Shell Tanks Are Beyond the Scope of the Decree, Not Realistically Achievable, and Contrary to the Public Interest. .................................................................................. 30

1. New Double-Shell Tanks Are Beyond the Scope of the Consent Decree Because They Are Exclusively Addressed By the Tri-Party Agreement and are Unnecessary to Complete Retrievals ..................................... 30

2. Building New Double-Shell Tanks Is Not Realistically Achievable or in the Public Interest. ...................................... 34

C. Mandating New Double-Shell Tanks on a Contingent Basis Is Inconsistent with the Atomic Energy Act. ................................... 36

D. In the Alternative, DOE Proposes that New Double-Shell Tanks Be Required Only If Failure to Achieve Yearly Targets for Aggregate Tank Waste Volume Reduction Cannot Be Mitigated. ....................................................................... 37

1. Any Contingent Obligation to Build New Double-Shell Tanks Should Be Based on Failure of the Evaporator To Achieve Predetermined Annual Tank Waste Volume Reductions. .................................................... 38

2. Placing Conditions on Double-Shell Tank Construction Is Necessary Because There are More Effective Means of Maintaining the Pace of Retrievals. ....... 39



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CONCLUSION ..................................................................................................... 40



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TABLE OF AUTHORITIES

CASES

Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376 (7th Cir. 2003) ........................................................................... 27

Keith v. Volpe, 784 F.2d 1457 (9th Cir. 1986) ................................................... 8, 10, 15, 31, 40

Labor/Cmty. Strategy Ctr. v. L.A. Cnty. Metro. Transp. Auth., 564 F.3d 1115 (9th Cir. 2009) ......................................................................... 26

Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367 (1992) .............................................. 11, 16, 24, 25, 27, 30, 34, 35

United States v. Armour & Co., 402 U.S. 673 (1971) ........................................................................................ 31

STATUTES

42 U.S.C. § 6972(a)(1)(B) .................................................................................. 18



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INTRODUCTION

The Department of Energy’s (“DOE”) remediation project at the Hanford

Site represents an unprecedented effort to safely and responsibly dispose of

wastes generated by nuclear weapons development from World War II through

the Cold War. Central to this cleanup effort is the Hanford Waste Treatment and

Immobilization Plant (“WTP”), a multi-facility, multi-billion dollar project to

treat approximately fifty-six million gallons of mixed radioactive and hazardous

waste stored in single- and double-shell tanks on site. However, progress has

been delayed by persistent unresolved technical issues at two WTP facilities that

have necessitated lengthy resolution efforts and that will require extensive

reworking of current plans for, and contracts supporting, the project. In addition,

unpredictable annual funding constraints, unanticipated equipment failures, and

worker safety issues have affected the pace of single-shell tank waste retrievals.

Given these challenges, DOE’s second proposed modification, submitted as

required by the Court’s August 13, 2015 Order and subject to the reservation of

rights set forth below, presents a reasonable, responsible, and suitably tailored

approach to achieving WTP initial operations and retrieving the waste from the

single-shell tanks covered by the Consent Decree. DOE’s proposal is tailored to

the changed circumstances because they preserve and promote the original

objectives of the Consent Decree—initial operations at the WTP and retrieval of

waste from nineteen tanks—while ensuring that DOE is able to effectively and

safely address current and potential obstacles at the Site.

BACKGROUND

DOE’s original Motion to Modify the Consent Decree sets forth in detail

much of the relevant background in this matter. U.S. Mot. to Modify Consent

Decree (“U.S. Br.”) (ECF 76) at 5-16 (factual and legal background). The



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following supplemental background provides a short overview of proceedings in

this case and the status of the WTP and single-shell tank retrievals.

I. Procedural History

On October 3, 2014, DOE submitted its first proposed modification of the

Consent Decree. DOE’s proposed modification included several key features to

align the Consent Decree with the ongoing work and the significant uncertainty at

the WTP, while maintaining the original objectives of the Consent Decree.

Primary among these features was a new, sequenced, and more realistic process

for setting WTP construction and commissioning milestones once adequate

certainty is achieved, i.e., technical issues are resolved, new or revised project

baselines are established, and contracts are executed. Absent this information,

DOE cannot accurately predict or responsibly commit to certain key construction

deadlines. Following briefing and two oral arguments, the Court issued two

significant Orders regarding the Parties’ proposals.

First, on May 11, 2015, the Court held that both the State and DOE

identified significant and unanticipated changed factual conditions that make

certain aspects of the Decree unworkable and detrimental to the public interest.

Order Regarding Mots. to Amend Consent Decree (“First Order”) (ECF 139) at

52-53. Second, on August 13, 2015, the Court: (1) concluded that the Decree must

include “predetermined, enforceable deadlines” for the WTP rather than

milestones set on a rolling basis, Second Order Regarding Mots. to Modify

Consent Decree (“Second Order”) (ECF 170) at 16-17; (2) declined to modify the

Decree to incorporate a direct feed capability for either low- or high-activity

waste, id. at 21; (3) determined that, if certain as-yet-to-be-determined events

regarding DOE’s 242-A Evaporator (“Evaporator”) occur, the Court will require

DOE to build one or more new double-shell tanks, id. at 27; and (4) stated its



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intent to adopt additional reporting requirements and accountability measures, id.

at 32. Rather than deciding how the Decree should be modified, the Court ordered

that the parties “must submit revised Consent Decree modifications consistent

with [these] rulings.” Id. at 36; see also id. at 36-37. In particular, the Court

directed that the modifications should contain “specific milestone deadlines” for

WTP construction and initial operations as well as for the twelve remaining

single-shell tank retrievals, a conditional requirement to build new double-shell

tanks, and reporting requirements and “recovery plan[s]” should there occur a

serious risk of not meeting a milestone. Id. at 32. The Court also stated its intent to

appoint three “technical advisors” to “organize, advise on, and help the [C]ourt

understand relevant scientific evidence and the engineering and project

management issues relevant to this case.” Id. at 33-35 (internal quotations

omitted). The Court has “presumptively selected” three individuals to serve on

that panel. ECF 192 at 3.

II. Factual Background

Unresolved technical issues continue to delay progress at the High-Level

Waste (“HLW”) and Pretreatment (“PT”) Facilities and prevent compliance with

the 2010 Consent Decree milestones. Resolution efforts are ongoing, but

construction at the PT Facility remains suspended. Third Supp. Decl. of Benton J.

Harp (“Harp 3d Supp. Decl.”) ¶¶ 2, 5. At the HLW Facility, DOE has resumed

production engineering and civil construction, though construction work is still

suspended in areas affected by outstanding technical issues. Id. ¶¶ 3, 5. Work at

the Low-Activity Waste (“LAW”) Facility continues; DOE is presently

negotiating a modified performance baseline and contract to reflect adjustments

and new capacity necessary to support “direct feed” of waste to that Facility,

which will allow the treatment of low-activity waste to proceed before the PT and



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HLW Facilities are completed. Id. ¶ 4. In addition, twelve single-shell tanks

remain to be retrieved under the Consent Decree: three C Farm tanks and nine A

and AX Farm tanks. Fifth Supp. Decl. of Thomas Fletcher (“Fletcher 5th Supp.

Decl.”) ¶ 3. Retrievals are ongoing, but have been slowed by the use of enhanced

personal protective equipment related to tank vapors. Id. ¶¶ 5-11. Progress on

retrievals has been further affected by current funding limits under a continuing

resolution that keeps funding at 2015 levels rather than the increased levels

requested for fiscal year 2016. Id. ¶¶ 25-27. Appropriations after the continuing

resolution expires on December 11, 2015, are still unknown.

ARGUMENT

As directed by the Court’s Second Order, DOE submits: enforceable WTP

milestones paired with a reasonable, collaborative extension mechanism; adjusted

dates for tank retrievals to reflect worker safety and funding concerns; and

accountability measures to bolster transparency in the face of compliance

obstacles. Although a requirement to build new double-shell tanks would be

inappropriate for the reasons discussed below, DOE also proposes a modification

to specify when and under what circumstances such tanks might be built.1

1 Particularly because the Court has not yet determined how the Consent Decree

will be amended, DOE submits all of these proposed modifications with the

express reservation of, and without prejudice to, DOE’s prior positions, including

DOE’s arguments that its first proposed modification should be entered by the

Court. DOE reserves and preserves all rights to appeal the Court’s prior rulings

regarding DOE’s and the State’s first proposed modifications.



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I. DOE’s Proposal Regarding the WTP Is Suitably Tailored Because It Preserves the Original Objectives of the Consent Decree While Accounting for Present Uncertainties. DOE continues to believe that given existing project uncertainties, its first

proposed Consent Decree modification is the appropriate approach to address the

changed circumstances and to establish a WTP construction and commissioning

schedule. The milestone-setting process in DOE’s original proposal would ensure

that the milestone dates are meaningful and enforceable, without requiring

constant further adjustments as information develops. DOE’s second proposed

Consent Decree modification, however, responds to the Court’s direction that new

modification proposals “address . . . specific milestone deadlines for constructing

and achieving initial operations of the WTP.” Second Order at 32. Along with a

table of enforceable milestones, DOE’s second proposal includes a narrow but

essential mechanism that would extend WTP milestones, if necessary, based upon

reliable new information. In light of significant information gaps in three areas—

resolution of technical issues, completion and verification of facility redesign, and

development and execution of new or modified performance baselines and

contracts—DOE’s proposed extension mechanism is a necessary and suitably

tailored modification of the Consent Decree.

A. A Suitably Tailored Proposal Must Account for the Significant Uncertainty Created by Persistent Technical Issues.

Any modification of the Consent Decree must account for the pervasive

uncertainties presently facing the WTP. As DOE explained in its previous filings,

the persistence of certain WTP technical issues has resulted in a period of

significant project uncertainty that prevents the parties and the Court from

projecting firm milestone dates. U.S. Br. at 57-58; U.S. Reply (ECF 113) at 3-9.



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Until the five primary technical issues affecting the HLW and PT Facilities are

resolved, see Second Order at 6, DOE cannot complete and verify the updated

WTP design, or develop new or modified performance baselines and contracts to

define and direct the execution of that design. Id.; Supp. Decl. of Todd Shrader

(“Shrader Supp. Decl.”) (ECF 106-5) ¶¶ 11-13. The absence of this critical

information is not, as the State alleges, a mere inconvenience. See Wash. Resp. at

29. Each of these elements is necessary to determine the scope of the project and

the tasks necessary to reach initial operations. U.S. Resp. at 24-25; Supp. Decl. of

Delmar Noyes (“Noyes Supp. Decl.”) (ECF 113-1) ¶ 22; Shrader Supp. Decl. ¶¶

11-13. And each may cause significant additional delay if not addressed as part of

the Court’s modification order. U.S. Reply at 18-20. An order that fails to account

for these uncertainties increases the likelihood that the WTP will not operate as

intended, jeopardizing the cleanup mission and risking a malfunction that could

endanger workers, the public, and the environment. U.S. Resp. at 23-24; Decl. of

Todd Shrader (“Shrader Decl.”) (ECF 76-5) ¶ 10; Shrader Supp. Decl. ¶¶ 9-10.

First among the persistent project uncertainties is the time and work needed

to resolve the primary technical issues. These issues are highly complex and their

inadequate resolution would risk significant consequences, including possible

releases of radiation once the WTP is operational. Decl. of Robert A. Gilbert

(“Gilbert Decl.”) (ECF 76-6) ¶¶ 45-46, 48, 54, 57, 59; Shrader Decl. ¶ 10.

Resolving the technical issues is an iterative and evolving scientific inquiry. U.S.

Br. at 40-42; U.S. Resp. at 21-22; Supp. Decl. of Robert A. Gilbert (“Gilbert

Supp. Decl.”) (ECF 106-1) ¶ 5; Shrader Supp. Decl. ¶ 3. Constraining the time

available to complete this inquiry may put the project and the public at risk.

Second, the parties’ proposals must account for the uncertain amount of

time and work needed to redesign the HLW Facility and, more significantly, the



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PT Facility. Redesigning these facilities in response to technical issue resolution

may require altering designs for equipment, components, or processes, with any

changes verified to ensure that they still meet DOE’s extensive quality assurance,

nuclear safety, and other specifications. Shrader Supp. Decl. ¶¶ 3-5; Gilbert Decl.

¶ 10. However, if design changes do not meet these specifications, new issue

resolution, redesign, and verification efforts may be necessary. Id. Like technical

issue resolution, the redesign process is an engineering endeavor where results are

not guaranteed and an iterative approach is often necessary. Shrader Supp. Decl.

¶¶ 4-5; see U.S. Response Brief (“U.S. Resp.”) (ECF 106) at 21-22.

Third, substantial uncertainty will persist so long as primary WTP facilities

lack new or modified performance baselines and contracts (i.e., the documents

that define and implement how the project will be constructed, at what expected

cost, and on what schedule). U.S. Resp. at 24-25; see Noyes Supp. Decl. ¶ 22.

DOE cannot prepare an approved performance baseline, and thereafter a contract,

until technical issue resolution and redesign have concluded. Even at that point,

the preparation schedule can be unpredictable, as the contractor completes its

analysis of necessary equipment, labor, suppliers, cost, space, and other factors,

and as DOE negotiates each document consistent with federal contracting laws.

Shrader Supp. Decl. ¶¶ 12-13; Harp 3d Supp. Decl. ¶ 10(c). Although this process

is not a scientific endeavor like technical issue resolution or facility redesign, it

requires complex engineering and project planning tasks that can be time-

consuming due to the nuclear safety issues, project management concerns, and

substantial taxpayer dollars at stake. Harp 3d Supp. Decl. ¶ 10(c).

The uncertainties now affecting the WTP schedule are considerable and

consequential. When the parties agreed to the original Consent Decree, they

premised their milestones on a fully defined project. The technical issues then



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identified had an approved path for resolution, and performance baselines and

contracts were in place for every WTP facility—outlining detailed schedules for

procurement, installation, and construction. See U.S. Br. at 61. Today, that is not

true of a single WTP facility. Noyes Supp. Decl. ¶ 22. As the Court stated in its

Second Order, “a consent decree modification should ‘retain the essential features

and further the primary goals’ of the decree, and . . . in making modifications, the

court ‘should consider the original expectations of the parties.’” Second Order at

13 (quoting Keith v. Volpe, 784 F.2d 1457, 1460, 1462 (9th Cir. 1986)). Primary

among the parties’ expectations in 2010 was that the project was governed by a

workable, reasonable plan—embodied in approved baselines and contracts—and

that the agreed-upon milestones could be achieved based upon that plan and

without risks to the public and the environment. U.S. Br. at 31, 61; see Decl. of

Benton J. Harp (ECF 76-2) (“Harp Decl.”) ¶ 52; Noyes Supp. Decl. ¶ 22. That

expectation has been turned on its head. Consequently, a modification cannot be

suitably tailored to the changed circumstances unless it thoughtfully addresses the

period of project uncertainty created by the unresolved technical issues.

B. DOE’s Second Proposal Ensures the Enforceability of Milestones While Accounting for Present Uncertainties.

1. DOE’s Proposal Pairs Enforceable Milestones with a Narrow Extension Mechanism Based on Three Areas of Uncertainty.

DOE’s second proposed modification regarding construction and

commissioning of the WTP is designed to realistically address the many variables

that affect project uncertainty. It is built on two interrelated components. First, the

modification identifies new dates for the fourteen outstanding milestones in the

original Consent Decree. United States’ Second Proposed Order (“2d U.S.P.O.”)

App. D ¶ 1. Given the uncertainties facing the project, these dates rely on



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numerous assumptions, noted below and described further in Mr. Harp’s Third

Supplemental Declaration. See ¶¶ 6, 25-44. Second, DOE’s proposal establishes

an extension mechanism within the Consent Decree itself to negotiate and adjust

milestones if more complete information demonstrates that need. 2d U.S.P.O.

App. D ¶ 2. This mechanism ensures that the WTP is not governed by inflexible

deadlines that ignore the changing realities of the project and that will lead to

inefficiency, waste, and further delay. See U.S. Resp. at 20-25; U.S. Reply at 4-9.

It allows instead for reasonable adjustment of WTP milestones where accurate

information regarding the scientific, technical, and management constraints

demonstrates that certain assumptions used to set the milestones no longer reflect

the circumstances of the project. Harp 3d Supp. Decl. ¶¶ 8, 10-11, 21. Together,

these two components—enforceable milestones paired with a narrow extension

mechanism—will allow DOE to safely and responsibly advance Hanford’s waste

treatment mission, while maintaining the underlying structure of the Consent

Decree.

Table of Enforceable Milestones: In compliance with the Court’s Second

Order, DOE’s second proposal maintains and updates the table of enforceable

milestones included in the original Decree. Under DOE’s new enforceable

milestones, construction will be substantially complete for the LAW Facility in

2030,2 the HLW Facility in 2032, and the PT Facility in 2033. Hot commissioning

of all three facilities will be completed in 2036, with WTP initial operations to

begin in 2039. See 2d U.S.P.O. App. D ¶ 1.

2 As described below, LAW Facility dates provide for simultaneous operations

of the WTP, notwithstanding DOE’s intent to pursue Direct Feed LAW.



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The significant uncertainties described above restrict DOE’s ability to

predict precise and accurate timelines for the WTP. Consequently, the milestones

provided in the table reflect the delay to-date as well as a number of general

assumptions regarding the path forward. First, DOE assumes that technical issue

resolution will be completed on June 30, 2019, based on the present progress of

efforts to resolve the primary technical issues. Harp 3d Supp. Decl. ¶¶ 14, 34-35;

see Gilbert Decl. ¶¶ 120-23. DOE also assumes that, in light of the commitment of

resources necessary to advance and operate the LAW Facility (described below),

redesign work for the HLW Facility will be completed on December 31, 2021,

and for the more complex PT Facility on December 31, 2024. Harp 3d Supp. Decl.

¶¶ 15, 30-31, 33, 36-38. The development and execution of baselines and

contracts for each facility is assumed to take three years once redesign is

completed and verified. Id. ¶¶ 16, 32, 39-40. Ensuing periods for construction are

based on information currently being developed for the LAW Facility—where

DOE is presently working on a modified baseline and contract—with adjustments

for the greater complexity of the HLW and PT Facilities. Id. ¶¶ 32, 41; see id. ¶

43. Commissioning periods for all three facilities are set to align with the PT

Facility, which will feed waste to the other two. Id. ¶¶ 26, 42. These, and

additional, assumptions underlying the milestone dates are described in further

detail in Mr. Harp’s Third Supplemental Declaration. Id. ¶¶ 25-43.

The milestone dates incorporate a number of additional considerations to

reflect what is “realistically achievable.” See Keith, 784 F.2d at 1460. First, the

milestone dates assume that funding at current (and historical) levels is

maintained. Harp 3d Supp. Decl. ¶¶ 27-28. Excepting fiscal years 2011 and 2012,

DOE’s annual funding for the WTP has remained at $690 million (or below) over

the past eight years, Decl. of James M. Owendoff (ECF 106-6) (“Owendoff



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Decl.”) ¶¶ 19-26, and is likely to remain at $690 million in the current fiscal year

and in the foreseeable future. Harp 3d Supp. Decl. ¶¶ 27-29. Aligning WTP

Consent Decree obligations with historical WTP funding is the prudent course and

is a proper consideration for the Court. Rufo v. Inmates of Suffolk Cnty. Jail, 502

U.S. 367, 392-93 (1992) (“Financial constraints . . . are a legitimate concern of

government defendants . . . and therefore are appropriately considered in tailoring

a consent decree modification.”).

Second, the milestones account for DOE’s commitment to accelerate waste

treatment by sequencing the LAW Facility to come online first, as supported by

Direct Feed LAW, as soon as practicable. Harp 3d Supp. Decl. ¶¶ 30, 33. In its

Secord Order, the Court declined to modify the Consent Decree to include the

Direct Feed LAW approach proposed by both parties, and instructed the parties to

provide milestone dates consistent with the original Consent Decree, which

contemplates simultaneous operations of the WTP facilities. Second Order at 17-

21. However, the Court did conclude that the parties should pursue Direct Feed

LAW “voluntarily” because it “likely furthers the goals of the [Tri-Party

Agreement] to treat all of Hanford’s tank waste as expeditiously as possible”; the

Court thus concluded it “will not prohibit DOE from moving forward with the

Direct Feed LAW approach at this time.” Second Order at 19, 21.

It is DOE’s continued judgment that Direct Feed LAW is essential to

advance tank waste treatment and to support additional tank waste retrievals, and

so DOE is proceeding with steps to voluntarily bring the LAW Facility online as

soon as practicable. Harp 3d Supp. Decl. ¶ 30; see Shrader Decl. ¶ 18. This early

focus on the LAW Facility will place near-term constraints on the availability of

funding and skilled labor for other projects, and so is reflected in the timing of

construction and commissioning of the HLW and PT Facilities. Harp 3d Supp.



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Decl. ¶¶ 30-31, 33. Notwithstanding DOE’s commitment to Direct Feed LAW,

however, DOE has proposed milestones for the LAW Facility consistent with

simultaneous operation of the WTP and the Court’s Second Order. See 2d

U.S.P.O. App. D ¶ 1; Second Order at 17-21.

Milestone Conditions and Extensions: The milestone table set forth in

DOE’s proposal cannot stand alone given the pervasive uncertainties at the WTP

and the substantial variability in the time that may be needed for (1) technical

issue resolution, (2) completion and verification of redesign, and (3) re-baselining

and contracting. Harp 3d Supp. Decl. ¶¶ 6, 8-10, 21-25, 44. Consequently, DOE’s

proposal establishes a mechanism that adjusts the milestone table according to

three “conditions”—one for each of those three sources of WTP uncertainty. 2d

U.S.P.O. App. D ¶ 2; Harp 3d Supp. Decl. ¶ 10-12.

Each “condition” functions in the same manner, through a four-step

process. First, for each condition there is an established trigger date. See, e.g., 2d

U.S.P.O. App. D ¶ 2.A.iii. Trigger dates represent the date by which the specified

work (i.e., resolution of technical issues, completion of redesign, or preparation of

a construction contract) can be completed without impacting identified

milestones.3 If the specified work extends past its trigger date, it demonstrates that

the underlying assumptions in DOE’s milestone table were inadequate, thus

justifying an extension of the associated milestone dates. Harp 3d Supp. Decl. ¶

11; see id. ¶ 25. Second, each condition provides for negotiations between DOE 3 As further explained in Mr. Harp’s Third Supplemental Declaration, trigger

dates for technical issue resolution and redesign work are fixed dates, while the

trigger date for re-baselining and contracting adjusts to account for any

extensions already triggered. See Harp 3d Supp. Decl. ¶¶ 14-16.



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and the State as to the proper length of an extension once the condition is

triggered. See, e.g., 2d U.S.P.O. App. D ¶ 2.A.iv. This provides the State with an

opportunity to consider up-to-date information about the project status and discuss

appropriate schedule adjustments. DOE’s proposal provides 30 days for the

parties to commence such negotiations, followed by a 90-day negotiation period.

Harp 3d Supp. Decl. ¶ 12(a)-(b). If the parties do not agree on the duration of the

extension within the 90-day period, an automatic extension will apply to the

associated milestones unless and until the extension is replaced by the Court. See,

e.g., 2d U.S.P.O. App. D ¶ 2.A.v. That automatic extension, the third step in the

process, is one year in duration (for all associated milestones) unless DOE

determines, in writing, that a different extension period is necessary. Id.; Harp 3d

Supp. Decl. ¶ 12(c). Fourth, DOE’s proposal allows the State to challenge the

duration of the automatic extension (including where DOE has determined more

than one year is necessary) in Court, where DOE’s scientific, technical, or project

management judgment may be overturned if it is found to be arbitrary or

capricious. See, e.g., 2d U.S.P.O. App. D ¶ 2.A.vi; Harp 3d Supp. Decl. ¶ 12(d).

Under DOE’s proposal, the extensions are each triggered and apply

independently; if necessary, a single milestone could be separately extended for

each of the conditions above as distinct information in each category is developed

and distinct assumptions in each category are shown to be inadequate. 2d U.S.P.O.

App. D ¶ 2.D; Harp 3d Supp. Decl. ¶ 18. In addition, the four-step mechanism

could be repeated, and an additional extension provided, for any of the conditions

if DOE later notifies the State that the work remains unresolved and a further

extension is required. See, e.g., 2d U.S.P.O. App. D ¶ 2.A.vii. During the

pendency of any extension under this process, DOE must provide the State with

regular briefings on the status of the ongoing work. See, e.g., id. ¶ 2.B.xi.



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In addition to the above mechanism, DOE’s condition for performance

baselines and contracts provides for separate adjustment of the milestone dates in

the event that the construction and commissioning dates in the ultimate contract

conflict with the dates in the table. Id. ¶ 2.C.ix. When the re-baselining and

contracting process begins, DOE will have more complete information about the

scope of the project that may contradict present assumptions about the time

needed to reach WTP initial operations. See Noyes Supp. Decl. ¶ 22. Although

DOE will seek to align the final negotiated contract to the milestone table dates,

that may not be possible due to project constraints, including budgetary limitations

and the availability of skilled labor and equipment vendors. Harp 3d Supp. Decl.

¶ 17. Accordingly, the condition for performance baselines and contracts provides

that, in the event of a conflict, DOE will designate a new milestone that reflects

current information and that will substitute for the existing milestone, unless the

Court finds that the new milestone date is arbitrary and capricious.

Finally, the proposal provides for extensions of facility hot and cold

commissioning dates as necessary to maintain simultaneous operations of the

WTP. 2d U.S.P.O. App. D ¶ 3. Because hot commissioning uses tank wastes—

which must be separated in the PT Facility and then vitrified in the HLW and

LAW Facilities—and because cold and hot commissioning must be sequenced

together, commissioning milestones for all three WTP facilities4 must remain in

alignment. Harp 3d Supp. Decl. ¶¶ 19-20, 26. Consequently, if commissioning

4 As described above, DOE has aligned LAW Facility dates to provide for

simultaneous operations, consistent with Court Order, notwithstanding its intent

to pursue Direct Feed LAW.



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milestones for the PT or HLW Facilities are extended, commissioning milestones

for the remaining facilities will be realigned accordingly.

2. DOE’s Proposal for WTP Milestones Is Suitably Tailored to the Changed Circumstances.

The approach described above is suitably tailored to the changed

circumstance, and is a measured, reasonable response to present conditions at the

WTP—conditions that differ dramatically and materially from the conditions that

existed when the Consent Decree was entered in 2010. DOE’s modification

addresses the primary changed circumstance and cause of delay: technical issues

that may require significant but still unknown changes to the plan and design of

the WTP. Harp 3d Supp. Decl. ¶¶ 6, 8-10(a), 21. The combination of enforceable

milestones and an extension mechanism responds to the changed circumstances

and promotes what is “realistically achievable” by ensuring that WTP milestones

are responsive to the uncertain timeframes for completing technical issue

resolution, redesign, and performance baselines and contracts. See Keith, 784 F.2d

at 1460; Harp 3d Supp. Decl. ¶¶ 8-12, 21-24, 44. At the same time, DOE’s

proposal ensures the State will, at all times, have enforceable Consent Decree

milestones and an opportunity to negotiate or challenge the duration of any

automatic extension period affecting those milestones. Harp 3d Supp. Decl. ¶¶ 8,

12(d).

DOE cannot reasonably or responsibly project fixed dates for the HLW and

PT Facilities at this time, and so cannot commit to a proposal that sets milestones

for these Facilities without an extension process. U.S. Br. at 57-58; U.S. Reply at

3-5. The work necessary to resolve the unforeseen technical issues, and to

incorporate resolutions into the design and management of the project, is too

uncertain, and the potential harm to workers, the public, and the environment from



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ill-chosen and inflexible milestones is too large. Shrader Supp. Decl. ¶¶ 9-10;

Harp 3d Supp. Decl. ¶ 6, 10, 21-24, 44. Together, however, DOE’s milestone

table and extension mechanism are suitably tailored to address both the

uncertainty created by the technical issues and the Court’s conclusion that the

Decree must contain enforceable milestones.

Because numerous Consent Decree modifications are likely to be needed as

information becomes more complete, a new modification mechanism is required.

Pursuing individual extensions as each need arises may have been suitable in 2010

when there was a fully defined project and the parties had far more confidence in

the milestones. But that process does not account for the current status of the

project or the need to realign milestones with constantly developing project

information. Lengthy, recurrent extension proceedings would undermine efficient

project management and advance planning, and result in irretrievable

commitments of resources in the pursuit of impossible or unsuitable tasks that

only serve to harm the project—all while imposing unnecessary burdens on the

Court and the parties. Harp 3d Supp. Decl. ¶¶ 22-24. Securing extensions under

the current Consent Decree for milestones the parties already anticipate will need

adjusting would thus create further delay and disruption at the WTP. Id.; id. ¶ 44.

Moreover, because DOE can already anticipate the types of extensions that

may become necessary due to the uncertainties described above, provisions

addressing these extensions should be express in the Consent Decree. Otherwise,

the identified uncertainties may not later serve as a basis for an extension under

this Court’s application of Rufo. See First Order at 21 (“[I]f the change was

actually anticipated when the decree was entered, then ordinarily, modification is

not warranted.”). The State has already taken that position in this case, Wash.

Resp. at 14-15 n.13, and may do so again. Accordingly, the identified



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uncertainties that will affect WTP milestones must be addressed by the express

terms of the modified Consent Decree, as DOE has proposed through the

extension mechanism.

Finally, because the present obstacles involve technical questions of nuclear

safety and engineering, DOE’s determinations regarding additional time needed to

resolve technical issues or verify facility redesign will reflect its expertise in such

matters. See Harp 3d Supp. Decl. ¶ 10(a)-(b), 21; U.S. Br. at 7-10. Extension

requests pursued through the Decree’s existing dispute resolution process fail to

give appropriate deference to that expertise and authority, especially given the

new issues confronting the project. And because the existing process was never

designed to address the issues inherent in establishing a new or modified baseline

or negotiating federal contracts, it fails to give adequate weight to the issues and

restrictions DOE must consider when undertaking these activities, including the

substantial public funds at stake. See Harp 3d Supp. Decl. ¶¶ 10(c), 21. When the

Decree was negotiated in 2010, the work to be performed and the estimated time

to perform it had already been determined—at DOE’s sole discretion. U.S. Br. at

31; see Harp Decl. ¶ 52. Thus, in DOE’s proposal, its determinations as to

extensions are properly assessed under an arbitrary and capricious standard, rather

than the Decree’s de novo standard for extensions under Section VII.

II. DOE’s Revised Proposal to Complete Single-Shell Tank Retrievals Is Suitably Tailored to Address Ongoing Vapor-Related Delays and Funding Constraints.

DOE proposes to complete the remaining twelve tank retrievals covered

under the Consent Decree by a new milestone date of March 31, 2024. The

Consent Decree deadline of 2022 is no longer viable due to ongoing delays

associated with tank vapor-related protective measures and funding constraints.



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In addition, DOE is proposing new and revised milestone deadlines for

completing the retrievals of two tanks—C-105 and C-111—that have proven

especially challenging to retrieve. DOE also re-proposes adjustments to

milestones concerning the staging of tank retrievals to account for best practices

developed through retrievals to date.

DOE previously explained that an average fifty percent reduction in worker

productivity associated with use of additional protective equipment (including

self-contained breathing apparatus (“SCBA”))5 will extend retrievals until

September 30, 2023. Fletcher 3d Supp. Decl. ¶¶ 2-5; ECF 148-1 at 12. The State

is well aware of these delays and the underlying conditions, having filed a lawsuit

against DOE and its contractor on September 2, 2015, alleging that tank vapors

pose an “imminent and substantial endangerment” under the Resource

Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B). State of Wash. v. U.S.

Dep’t of Energy, et al., E.D. Wash. No. 4:15-cv-05087. DOE still anticipates, and

its proposal assumes, that vapor-related SCBA will continue in the A and AX

Farms (which contain nine of the remaining twelve tanks to be retrieved) through

the end of September 2016. Fletcher 5th Supp. Decl. ¶ 23. However, DOE’s

proposal contains a mechanism for further extending tank retrieval milestones if

use of SCBA in the A and AX Farms continues beyond September 30, 2016. See

id. ¶ 10; 2d U.S.P.O. App. B ¶ 3. In that case, certain retrieval milestones would

5 SCBA, already in use for specific retrieval-related tasks, was instituted on a

full-time basis in an abundance of caution to guard against potential high-dose,

short-term vapor exposures. See Third Supp. Decl. of Thomas Fletcher

(“Fletcher 3d Supp. Decl.”) (ECF 148) ¶¶ 2-5.



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be extended automatically by one day for every two days in SCBA, until DOE

notifies the Court that the extension is no longer necessary. See Fletcher 5th Supp.

Decl. ¶¶ 26-27; 2d U.S.P.O. App. B ¶ 3.

In addition, the funding climate in Congress has been increasingly

constrained in recent years, with funding levels subject to disruption through

Congress’s frequent resort to “continuing resolutions” in place of appropriations

bills. See U.S. Br. at 42-45. The September 30, 2015 continuing resolution to fund

the federal government through December 11, 2015, holds funding at the fiscal

year 2015 level, although DOE needed and requested additional funds for fiscal

year 2016 to enable continued progress toward completing tank waste retrievals.

Fletcher 5th Supp. Decl. ¶¶ 18-20. This has resulted in a delay of at least two

months, primarily by limiting DOE’s ability to hire and train tank farm workers.

Id. ¶ 19. DOE’s proposed retrieval completion date of March 31, 2024, reflects

this delay, and includes a reasonable period for operational flexibility in the wake

of further effects from funding-related disruption (e.g., inability to execute

contracts for the fabrication of certain equipment). Id. ¶¶ 19-20.

Significantly, completing Consent Decree retrievals by 2024 would not

increase risks to public health or the environment as compared to 2022 or 2023.

DOE has concluded based on ongoing monitoring that the single-shell tanks are

structurally sound and that interim stabilization has greatly reduced the risk of

leakage. See Supp. Decl. of Thomas Fletcher (“Fletcher Supp. Decl.”) (ECF 106-

4) ¶¶ 12-16. In the unlikely event that an interim-stabilized single-shell tank were

to leak during the additional time to complete the twelve remaining Consent

Decree retrievals, it would not pose a threat to groundwater or to the Columbia

River. See U.S. Resp. at 43-46; Fletcher Supp. Decl. ¶¶ 22-25; Second Supp. Decl.

of Thomas Fletcher (“Fletcher 2d Supp. Decl.”) (ECF 113-2) ¶ 36.



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DOE also proposes specific Consent Decree modifications for two tanks.

First, DOE continues to experience difficulties with retrieval of the waste in tank

C-111. See id. ¶ 21. Although DOE recently resolved two nuclear safety-related

issues that arose earlier this year, those issues have further delayed C-111

retrievals. Fletcher 5th Supp. Decl. ¶¶ 10-16. In light of these issues, DOE has

identified April 30, 2016, as the most appropriate date for completing the C-111

retrieval. Id. ¶ 16. Second, as DOE described in previous filings, retrieval of tank

C-105 has been delayed due to funding constraints, ECF 94 ¶ 44; ECF 76-4 ¶ 22,

and difficulties identifying tank waste properties, Fletcher 2d Supp. Decl. ¶¶ 18-

20. DOE has initiated negotiations regarding retrieval technology for tank C-105,

as anticipated by milestone B-1A in DOE’s original proposal, and now commits to

propose within sixty days after the State’s approval of a Tank Waste Retrieval

Work Plan a milestone for completion not to exceed September 30, 2022. Fletcher

5th Supp. Decl. ¶¶ 7-9. Finally, DOE re-proposes to stage retrieval milestones to

allow for the efficient installation of tank infrastructure before retrievals. See U.S.

Br. at 59; Shrader Decl. ¶ 44; 2d U.S.P.O. App. B ¶ 1.

III. DOE’s Proposed Accountability Measures are Suitably Tailored to Assist the Parties in Responding to Project Disruption. DOE re-proposes the three new accountability measures set forth in its first

proposal. First, DOE will file annual reports describing DOE’s compliance with

the Consent Decree. Second, DOE will provide more detailed reporting if there is

a “serious risk” that DOE will not meet a milestone. Third, DOE will provide a

comprehensive analysis and regular briefings regarding technical issue resolution.

These measures, which augment numerous reports already required by the Decree,

address the Court’s interest in greater transparency when unforeseen obstacles



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disrupt DOE’s compliance with Consent Decree milestones. They are also tailored

to the specific underlying facts warranting modification of the Decree.

A. Accountability Proposals Must Reflect the Particular Factual Causes of Disruption Underlying the Changed Circumstances.

In its Orders, the Court found two changed circumstances relevant to

additional accountability in the Consent Decree: “(1) the extent of DOE’s failure

to comply with the Consent Decree terms; [and] (2) DOE’s unilateral decision to

cease construction of the WTP.” Second Order at 6. As the record demonstrates,

the bases for both of these changed circumstances identified by the Court—the

extent of the present disruption and DOE’s corresponding management decisions

to address that disruption—are direct consequences of the unresolved technical

issues themselves (another changed circumstance). Moreover, the unresolved

technical issues, and the resulting disruption, would not have been prevented by

additional reporting measures. These facts must be considered in evaluating the

suitability of the parties’ accountability proposals.

First, as the Court has recognized, DOE’s inability to meet the remaining

milestones in the Consent Decree is a result of the persistence of unresolved

technical issues at the WTP. However, the fact that DOE has been confronted with

unforeseen obstacles that will impact its compliance going forward does not mean

it has failed to comply with the terms of the Consent Decree. In fact, the Decree

anticipates that unforeseen obstacles might affect milestones and so specifically

provides that “if DOE has requested an extension of a deadline, DOE shall not be

deemed to be in violation of that deadline while DOE’s request is being

evaluated” and until “the date on which the Court acts on the request.” CD ¶ IX–C

(emphasis added). DOE has fully complied with that process, and thus with the

Consent Decree, providing notices of risk before any milestones were missed and



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before construction was suspended at the WTP;6 engaging the State on the issues;

and developing a proposal—after necessary consideration of the problem and

potential solutions—to modify the Decree to account for the changed

circumstances.7 See U.S. Br. at 26-28; U.S. Resp. at 12-16. Consequently,

although the Court notes the “extent of DOE’s failure to comply with the Consent

Decree terms,” the “extent” of milestones at risk does not reflect non-compliance

but rather reflects the pervasive nature of the unresolved technical issues. 8

Second, DOE directed its contractor to suspend construction at the HLW

and PT Facilities in August 2012 as a direct consequence of the technical issues.

U.S. Br. at 49. In doing so, DOE acted consistent with its exclusive expertise in

matters of nuclear safety under the Atomic Energy Act (“AEA”), and its necessary

management discretion to prevent wasteful expenditure of taxpayer funds and 6 The Court in fact rejected Intervenor State of Oregon’s allegation that DOE

provided insufficient information when reporting risks to milestones—a report

the Court noted was “the same notification . . . that it submits to Washington,”

First Order at 15—or that this constituted a changed circumstance. Id. at 64. 7 Had this process been insufficient, the State could have filed a motion to

enforce the Consent Decree or sought sanctions (which, as the Court noted, the

State did not do, see First Order at 17 n.7). 8 These facts are also relevant to the parties’ positions concerning double-shell

tanks, as the Court’s Second Order found that “DOE’s history of noncompliance

with Consent Decree milestones and repeated delay retrieving Hanford’s

[single-shell tanks]” justified a contingent requirement to build new double-shell

tanks. Second Order at 25, 27. As discussed infra, Section IV, such a contingent

requirement is not appropriate on those or any other grounds.



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minimize the work to be redone after issue resolution. Id. The mere fact that the

Decree “contains no mention of a unilateral cessation of construction,” First Order

at 58, cannot be a prohibition, or DOE could take virtually no actions at the Site at

all. On the contrary, because the suspension of construction was not a new cause

of milestone delay—the delay being attributable to the underlying technical

issues—it falls within DOE’s management discretion. Nor should the cessation of

work have come as a surprise to the State. By the time the decision was made,

DOE had already notified the State that technical issues imperiled construction

and commissioning milestones at the HLW and PT Facilities, and the potential

disruption posed by the technical issues was already apparent. U.S. Resp. at 14-

16; Harp Decl. ¶ 57; Supp. Decl. of Benton J. Harp (ECF 106-3) ¶¶ 10-11.

Third, even if additional accountability provisions—including the State’s

unduly burdensome proposals, see U.S. Resp. at 36-38—had been part of the

Consent Decree from the start, they would not have forestalled the persistence of

the technical issues, the consequent “risk” notices, or the sound conclusion that

these issues required suspension of construction at portions of the WTP. The

unresolved technical issues were complex and unforeseen, as the Court has held,

First Order at 45-47, and were the subject of extensive expert oversight. Gilbert

Decl. ¶¶ 12-13, 65; Gilbert Supp. Decl. ¶ 23. And as noted above, DOE’s actions

in the face of the technical issues were consistent with good project management.

U.S. Reply at 16-17. Because the changed circumstances flow from the underlying

technical issues, they should not be interpreted as an invitation to propose

sweeping modifications to constrain DOE’s project management (or to justify new

project elements, such as new double shell tanks). Rather, accountability

provisions must be tailored to increase the flow of information when responding

to project disruption—like that caused by the unresolved technical issues. See



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Rufo, 502 U.S. at 391 (“A court should do no more” than what is suitably

tailored). As explained below, DOE’s proposal properly accounts for the

circumstances that have necessitated changes to the Decree, while preserving the

flexibility needed to safely and efficiently respond to new challenges.

B. DOE’s Proposal Is Suitably Tailored to Increase Transparency Without Constraining Effective and Safe Management of the WTP.

DOE’s proposal supplements DOE’s existing reporting obligations with

three additional accountability measures. These measures are suitably tailored

because they support judicial enforceability of the Decree, bolster the information

available to the State when issues arise that may impede the project, and apprise

the State of developments and operational decisions regarding the current issues

impeding the project. First, the requirement for DOE to file annual reports with

the Court assessing DOE’s compliance with the Decree will assure that the Court

is aware of DOE’s current compliance efforts and informed about developments

that may necessitate modifications in the future. 2d U.S.P.O. App. D ¶ 5.A. This

requirement conforms to the Court’s direction that the parties’ proposals address

additional reporting “regarding DOE’s progress toward completing [the Consent

Decree] milestones.” See Second Order at 32.

Second, DOE will be required to provide detailed reporting in the event

obstacles—including new technical issues—arise that threaten DOE’s ability to

comply with the Consent Decree milestones. 2d U.S.P.O. App. D ¶ 5.B. This

measure is consistent with the Court’s conclusion that the Decree should include

provisions that “explain[] why DOE cannot meet a certain milestone and how it is

remedying the delay.” Second Order at 32. Specifically, DOE would be obligated

to augment its current notifications under the Decree that “a serious risk has arisen

that DOE may be unable to meet” a milestone, see CD ¶ IV-C-3, by providing the



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State with an explanation of the reasons for the notification and DOE’s planned

actions to address the identified risk. 2d U.S.P.O. App. D ¶ 5.B.

Third, DOE will enhance reporting related to the technical issues that have

caused the present need for modification. DOE will provide the State with a

detailed update on the progress of and forthcoming work to advance technical

resolution one year after the Court’s modification is entered. In addition, DOE

will provide progress briefings to the State every 90 days to keep it informed as to

the course of technical issue resolution.9 Id. ¶¶ 2.A.viii-ix; U.S. Br. at 54.

Together, these proposals strengthen DOE’s obligations under the Consent

Decree to provide the State and the Court with timely, and sound, information

regarding unresolved technical issues. Broader modifications aimed at

constraining DOE’s sphere of operational discretion (or delaying such discretion

until after a court proceeding) would improperly curtail DOE’s ability to protect

public health and safety. Contrary to the Supreme Court’s warning that consent

decree modifications should address changed circumstances but “do no more,”

Rufo, 502 U.S. at 391, such modifications would also impede DOE’s ability to

manage the project efficiently, cost-effectively, and consistent with its extensive

obligations under federal project guidelines and the AEA.

IV. A Contingent Requirement to Construct New Double-Shell Tanks Is Not Supported By—or Suitably Tailored to Address—Any Changed Circumstance in this Case. The Consent Decree should not be modified to require construction of new

double-shell tanks. As discussed below, the Court has rejected the State’s proposal

9 Additional reporting requirements would apply if an extension is triggered

under the WTP milestone appendix. See supra at 13.



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that DOE be required to construct additional double-shell tank capacity either as

“mitigation” for WTP delays, or because retrieval delays under the Consent

Decree may (the State alleges) delay the tank retrievals governed by the Tri-Party

Agreement. See Second Order at 22. Yet, the Court has indicated that it will

nonetheless modify the Consent Decree to require construction of new double-

shell tanks as mitigation if DOE fails to “reduce a predetermined amount of waste

through Evaporator campaigns [to support the retrievals required by the Decree]

by a given date,” and directed the parties to submit proposed conditions for

building double-shell tanks. Id. at 27. Such a contingent obligation to construct

new double-shell tanks is neither authorized nor suitably tailored to address any

relevant changed circumstances in this matter.

Should the Court nonetheless proceed to modify the Consent Decree to

include a contingent requirement for DOE to construct new double-shell tanks,

DOE submits a proposal, as directed by the Court, describing the terms and

conditions to govern such potential construction (infra Section IV.D).

A. No Changed Circumstances Warrant New Double-Shell Tanks. 1. No Relevant Changed Circumstances Exist.

Modifying the Consent Decree to require double-shell tank construction

would be improper because it would not address any existing changed

circumstances the Court has identified. Modification of a consent decree may

occur only where there has been an unanticipated and “significant change either in

factual conditions or in the law” that makes “compliance with the consent decree

more onerous, unworkable, or detrimental to the public interest.” Labor/Cmty.

Strategy Ctr. v. L.A. Cnty. Metro. Transp. Auth., 564 F.3d 1115, 1120 (9th Cir.

2009). Further, a proposed modification must be closely tied to a particular

changed circumstance; specifically, the modification must be “suitably



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tailored . . . to resolve the problems created by the change in circumstances” and

“do no more[.]” Rufo, 502 U.S. at 391. Contingent double-shell tank construction

does not meet this tailoring principle because there are no relevant “changed

circumstances” that new tanks are suitably tailored to address.

Requiring new double-shell tanks based on potential future changed

circumstances—in particular, the failure of the evaporator DOE routinely uses to

reduce the volume of retrieved wastes—would be improper for at least two

reasons. See Second Order at 27. First, the State never argued in its prior briefs,

and the Court has never found, that any aspect of DOE’s present retrieval

protocol, including the Evaporator, constitutes a changed circumstance. The

State’s mere speculation, raised for the first time during the July 23, 2015 oral

argument, that DOE’s existing protocols may not prove adequate in the future to

reduce enough waste for DOE to timely retrieve the remaining twelve Consent

Decree tanks does not establish a changed circumstance. To the contrary, by not

previously raising the assertion in its briefs, the State waived this argument. See

Second Order at 32 (describing the scope of the current stage of the proceedings

as limited to submission of modified proposals and briefs in support, and directing

that the proposal “may not incorporate any additional tasks not previously

submitted to the Court”); see Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349

F.3d 376 (7th Cir. 2003) (argument raised for the first time in a district court

summary judgment reply brief is waived).

Second, implicit in the case law is the concept that a court’s authority to

modify a consent decree is limited to situations where circumstances have already

changed (past tense). See, e.g., Rufo, 502 U.S. at 385 (unanticipated upsurge in

inmate population); First Order at 53 (finding these existing changed

circumstances cited by DOE: technical issues affecting WTP design, funding and



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manpower issues, and technical difficulties and equipment failures affecting tank

retrievals); id. at 61 (finding these existing changed circumstances cited by the

State: “the quantity of at-risk milestones, the missed deadlines, DOE’s unilateral

cessation of the WTP construction, and the leaking [double-shell tank]”).

Indeed, the Court’s predicate inquiries as to whether the parties had

anticipated the changed circumstances—and whether those changed

circumstances would make compliance with the Decree more onerous,

unworkable, or detrimental to the public interest—logically depended on whether

the changes at issue had already occurred. See First Order at 43-51, 55-60.

Modifying the Consent Decree now to address potential Evaporator performance

shortfalls in the future would exceed the Court’s authority in these proceedings

because there are no relevant existing changed circumstances to justify any such

modification.

Nor is DOE’s alleged “history of non-compliance with the Consent Decree

milestones and repeated delay retrieving Hanford’s [single-shell tanks]” a valid

basis for imposing a contingent obligation to construct new double-shell tanks.

See Second Order at 25; id. at 27. DOE’s alleged past non-compliance with

certain Consent Decree terms could not possibly support a new (and unrelated)

contingent requirement—pegged solely to future potential changed

circumstances—to build new double-shell tanks. As discussed above, courts lack

authority to predicate consent decree modifications on events that have not yet

(and may never) occur. Moreover, past retrieval delays have been tied to specific

causes (e.g., specific equipment failures and funding challenges) that are unrelated

to failures with use of the Evaporator. An exceedingly costly and resource-

intensive requirement to build double-shell tanks would not be commensurate

with or tailored to address those past delays. Nor would such a requirement be



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appropriate to address the limited delay that might result from any future issues

with the Evaporator.

2. Construction of New Double-Shell Tanks Would Not Be Suitably Tailored to Address Any Changed Circumstances.

Nor are the existing changed circumstances identified by the Court a basis

for requiring double-shell tanks. Among those changed circumstances, the only

one arguably related to DOE’s ongoing retrieval protocols is the internal leak in

double-shell tank AY-102. See First Order at 59-60. The Court found that having

that tank offline will “likely . . . slow the tank retrieval process.” Id. at 61. But this

circumstance does not justify the Court’s proposed contingency for new double-

shell tanks, and nothing in the record establishes otherwise. Evaporator

performance is not influenced by the need to retrieve the waste from AY-102, and

DOE has already explained that the loss of AY-102 storage space “was never

necessary to” and “will not affect DOE’s schedule for completing the remaining

single-shell tank retrievals required by the Consent Decree,” Fletcher 3d Supp.

Decl. ¶¶ 7-9. The State has provided no evidence to rebut that conclusion.

Nor did the State in its briefs argue that the potential loss of AY-102

necessitated construction of double-shell tanks to facilitate the Consent Decree

tank retrievals. To the contrary, the State argued only that the AY-102 leak was a

changed circumstance requiring DOE to construct new double-shell tanks to

facilitate Tri-Party Agreement tank retrievals. Wash Br. at 51-54. Indeed, the State

estimated that there would be approximately 4.8 million gallons of excess usable

double-shell tank space even after the remaining twelve tanks under the Consent

Decree are retrieved and tank AY-102 is taken out of service. Wash. Resp. at 38

n.23; Decl. of Jeffery Lyon (“Lyon Decl.”) (ECF 84) ¶¶ 24, 29. Moreover, the

Court rejected the State’s argument, concluding that the Tri-Party Agreement and



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the single-shell tank retrieval milestones contained therein are beyond the Court’s

modification authority in these proceedings. Second Order at 22. Accordingly, the

Court’s earlier finding regarding tank AY-102 provides no basis for requiring

double-shell tanks to support Consent Decree tank retrievals. In sum, a

modification requiring new double-shell tanks on a contingent basis if the

Evaporator fails to perform as expected is not tailored to address any relevant,

existing changed circumstance. Accordingly, such a modification is neither lawful

nor suitably tailored.

B. New Double-Shell Tanks Are Beyond the Scope of the Decree, Not Realistically Achievable, and Contrary to the Public Interest.

A consent decree modification must not expand the scope of the decree,

impose new requirements that are unduly burdensome, costly, or otherwise

unjustified, or be inconsistent with existing law. See Rufo, 502 U.S. at 391

(modification must be tailored to address problems created by changed

circumstances and “do no more”). Even if one or more of the alleged changed

circumstances discussed above were relevant, a contingent obligation to build new

double-shell tanks would not satisfy these modification criteria.

1. New Double-Shell Tanks Are Beyond the Scope of the Consent Decree Because They Are Exclusively Addressed By the Tri-Party Agreement and Are Unnecessary to Complete Retrievals.

The Court has acknowledged that the Consent Decree covers a defined,

limited scope: construction and operation of the WTP, the retrieval of waste from

nineteen single-shell tanks, and related reporting. CD ¶ X-A (defining “matters

covered” by the Decree); see Second Order at 4-5; id. at 25-26 (acknowledging

the well-established limits on courts’ authority to impose new obligations).

Modification of a consent decree is not an invitation to reconsider or renegotiate

the parties’ essential agreement, see Rufo, 502 U.S. at 391-92, and courts may not,



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absent exceptional circumstances, impose burdens on the defendant beyond those

required by the decree’s original terms. United States v. Armour & Co., 402 U.S.

673, 681-82 (1971); Keith, 784 F.2d at 1460.

As an initial matter, and as the State has pointed out, the Tri-Party

Agreement governs potential adoption of new double-shell tank construction

requirements “as a response to potential . . . insufficient [double-shell tank]

capacity[.]” Wash. Br. at 20. The parties explicitly agreed in the Consent Decree

that such requirements are within the exclusive province of the Tri-Party

Agreement. See CD ¶ XI-A (“the Decree shall not give the court jurisdiction over

the [Tri-Party Agreement] or otherwise govern the [Tri-Party Agreement] or its

enforcement”). The Court should decline to modify the Consent Decree to impose

an obligation to build new double-shell tanks because that issue is addressed

within the exclusive bounds of the Tri-Party Agreement. See U.S. Br. at 65-67;

see also ECF 106-7 (TPA, Appendix D, Milestone M-062-45, Item 2 (providing

for negotiations between the Washington State Department of Ecology and DOE

regarding potential construction of new double-shell tanks)). Construction of new

double-shell tanks is fundamentally different in kind and scope than the limited

tank retrieval and WTP construction and initial operations requirements in the

Consent Decree, and should therefore be rejected.

Moreover, the Court’s stated plan to require DOE to build additional

double-shell tanks in the event of Evaporator failure, see Second Order at 27,

would not further—and in fact would hinder—DOE’s completion of the

remaining Consent Decree tank retrievals. Such a requirement is unnecessary in

light of the improbability of a future shortfall in double-shell tank space, see

Fletcher 5th Supp. Decl. ¶¶ 28-45, and also unjustified in light of more tailored

options to mitigate any potential shortfall should the Evaporator fail.



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Evaporator performance is highly unlikely to impede single-shell tank

retrievals under the Consent Decree. DOE currently has 3.31 million gallons of

double-shell tank storage capacity available for retrievals, and will need an

additional 5.9 million gallons to accomplish the twelve remaining retrievals.

Fletcher 5th Supp. Decl. ¶ 81; see 2d U.S.P.O. App. E ¶ 1.A. A series of planned

Evaporator campaigns will allow DOE to create the additional space needed, and

likely more. As noted above, even the State’s own estimates confirm that a lack of

double-shell tank space is not expected to impede those retrievals. Wash. Resp. at

38 n.23; Lyon Decl. ¶¶ 24, 29. Indeed, the State only suggested that Evaporator

performance might affect needed double-shell tank space after the retrieval of

these twelve tanks, see Wash. Br. at 53, but the Court has already ruled that such

future additional retrievals are beyond the scope of the Consent Decree, Second

Order at 22.

DOE’s most recent assessment of the capability, reliability, and projected

performance of the Evaporator confirms that the facility will reduce waste volume

in double-shell tanks by at least 5.9 million gallons between 2016 and 2021. See

Fletcher 5th Supp. Decl. ¶¶ 32-45; id., Ex. C at 14, Table 3-3. The Evaporator is

“mechanically sound and capable of sustained operation,” and has a demonstrated

ability “to process large volumes of feed in a short period of time.” Fletcher 5th

Supp. Decl., Ex C. at 19. Even using a conservative assumption that the

Evaporator will operate approximately fourteen percent of its permitted operation

time, and taking into account contingencies such as the possibility of an 18-month

outage, DOE estimates that the Evaporator will reduce an average of

approximately one million gallons of waste per year. Fletcher 5th Supp. Decl. ¶¶

42-43; id., Ex. C. at 14, Table 3-3. Analysis demonstrates that the Evaporator will

perform reliably and ensure adequate double-shell tank space to complete the



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remaining retrievals required under the Consent Decree. Fletcher 5th Supp. Decl.

¶¶ 33-39. Additional measures such as new double-shell tanks are not needed to

meet the retrieval obligations of the Decree, and are therefore beyond its scope

and unnecessary.

As DOE has noted previously and above, the State’s recent skepticism

regarding the Evaporator’s performance conflicts with its own proposal and

declarations in this case, and is not substantiated by the facts. See Fourth Supp.

Decl. of Thomas Fletcher (“Fletcher 4th Supp. Decl.”) (ECF 153) ¶¶ 7-14;

Fletcher 5th Supp. Decl. ¶ 30; Wash. Resp. at 38 n.23; Lyon Decl. ¶¶ 24, 29. This

precludes the State from now reversing course to challenge the adequacy of the

Evaporator or the estimated tank space available. In any event, the State’s latest

contrary argument regarding the Evaporator, raised for the first time during the

July 23, 2015 oral argument, is unsupported. For example, the State’s declarations

rely heavily on statements in River Protection Project System Plans 6 and 7

regarding uncertainty in double-shell tank space management. Fourth Supp. Decl.

of Jeffrey Lyon (ECF 150) ¶¶ 8-19. But System Plans are long-term planning

documents that do not reflect the current status of facts on the ground. The State’s

reliance on System Plan 7 is particularly unhelpful, as it was based solely upon

certain project assumptions selected by the State that DOE believes are unrealistic.

Fletcher 5th Supp. Decl. ¶¶ 78-79. DOE’s current assessment confirms that the

Evaporator is mechanically sound and will perform at a level of efficiency

sufficient to ensure ample double-shell tank space and accomplish the retrievals.

Fletcher 5th Supp. Decl. ¶¶ 33-39; see also Fletcher 4th Supp. Decl. ¶¶ 8-14. New

double-shell tanks would shatter the bargain agreed to by the parties.

Nor would new double-shell tanks be appropriate even as a backstop. From

a technical perspective, as set forth in detail in Mr. Fletcher’s Fifth Supplemental



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Declaration, DOE has several much more efficient and effective options if

unanticipated Evaporator performance issues were to result in a shortfall in

double-shell tank space. Fletcher 5th Supp. Decl. ¶¶ 52, 63-69. Among DOE’s

potential mitigation options would be: (1) additional or longer evaporation

campaigns, (2) modifications to the Evaporator to improve efficiency, (3)

implementation of alternative technologies or waste management practices, or (4)

construction of a new evaporator. Id. ¶¶ 65-67. Compared to double-shell tank

construction, each of these options would be a less expensive, more efficient, and

faster means of addressing any Evaporator waste-reduction shortfalls. Id. ¶ 53.

Finally, as DOE has observed before, new double-shell tanks would not be

built in time to affect the pace of the twelve remaining retrievals. Fletcher 4th

Supp. Decl. ¶ 16; Fletcher 5th Supp. Decl. ¶¶ 52, 62. Given that a double-shell

tank would take approximately eight to ten years to construct, Fletcher 4th Supp.

Decl. ¶ 16; Fletcher Supp. Decl. ¶ 37, it is almost certain that the tank would not

be available until long after the twelve remaining retrievals required under the

Consent Decree are complete. Fletcher 5th Supp. Decl. ¶¶ 52, 62. A contingent

requirement to construct new double-shell tanks thus would not further the

primary objectives or comport with the limited scope of the Consent Decree. The

Court therefore should not impose such a modification.

2. Building New Double-Shell Tanks Is Not Realistically Achievable or In the Public Interest.

A significant, inherent impediment to building new double-shell tanks is the

financial cost of such an endeavor. See Rufo, 502 U.S. at 392-93 (“Financial

constraints . . . are appropriately considered in tailoring a consent decree

modification.”). DOE projects that new double-shell tanks would cost between

$85 million to $150 million per tank for one-million-gallon tanks, depending on



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their number, configuration, and location. Fletcher Supp. Decl. ¶ 35; Fletcher 5th

Supp. Decl. ¶ 55. DOE has previously explained the financial constraints on the

tank waste treatment mission at Hanford, and why the excessive cost of

constructing new double-shell tanks would likely jeopardize other important

nuclear cleanup activities at Hanford and around the Nation. U.S. Resp. at 41-43;

Owendoff Decl. ¶¶ 16-35; Fletcher Supp. Decl. ¶¶ 22-38. Accordingly,

construction of new double-shell tanks would not be “realistically achievable.”

In any event, there are no countervailing benefits in the public interest. See

Rufo, 502 U.S. at 392 (“a court should surely keep the public interest in mind in

ruling on a request to modify”). To the contrary, construction of new double-shell

tanks would not appreciably reduce the risk of groundwater contamination at

Hanford. As DOE has described in detail, the evidence indicates that the risk of

single-shell tank leakage will not be significantly greater due to the delay in WTP

operations. U.S. Resp. at 43-46; U.S. Reply at 26. Moreover, future leaks from

Hanford’s single-shell tanks would not pose an immediate or near-term threat to

public health, and long-term modeling demonstrates that even a large-volume leak

would not significantly increase risks to groundwater or the Columbia River. Id.;

Fletcher Supp. Decl. ¶¶ 22-25; Fletcher 2d Supp. Decl. ¶ 36; Fletcher 5th Supp.

Decl. ¶ 69. Construction of new double-shell tanks is therefore not justified from a

risk-reduction perspective.

Nor is the public interest served by rigid adherence to a given retrieval

completion date (whether 2022, 2023, or 2024) as a basis to compel new double-

shell tank construction. In the event of an Evaporator performance issue, it may

well be in the public interest (and appropriate based on resource considerations) to

move that completion date rather than construct new double-shell tanks. Fletcher

5th Supp. Decl. ¶ 69. The Court should not at this juncture foreclose such a



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potentially suitably-tailored modification, especially given that the Consent

Decree itself recognizes that moving dates may be an appropriate solution to a

changed circumstance. Consent Decree ¶¶ VII.B (allowing amendment to

milestone deadlines), VII.D. While the Court has accepted the State’s assertion,

offered for the first time at oral argument, that certain dates in the Consent Decree

are “material,” such a distinction makes little sense. See Second Order at 19

(ruling that “2022” is a “material term” in the context of WTP initial operations).

Any term of the Consent Decree could conceivably be material, depending on the

context in which it is invoked. The Court should reject the State’s attempt to

elevate certain dates in the Consent Decree in such a way that they are sacrosanct:

if a consent decree deadline becomes unworkable or contrary to the public interest

due to changed circumstances, then a court should assess a full range of potential

solutions, including an extension of that deadline.

C. Mandating New Double-Shell Tanks on a Contingent Basis Is Inconsistent with the Atomic Energy Act.

A contingent requirement to build new double-shell tanks would be

inconsistent with DOE’s determination pursuant to the AEA that new double-shell

tanks are not required for the retrieval of waste from single-shell tanks. DOE has

concluded in the Final Tank Closure & Waste Management EIS that new double-

shell tanks would not benefit the tank waste treatment mission. U.S. Resp. at 52.

The present delays have not altered that conclusion. Fletcher Supp. Decl. ¶ 30.

Indeed, building new double-shell tanks would likely further delay WTP initial

operations due to funding and logistical constraints. Id. ¶ 31. As DOE has

explained, new double-shell tanks would be a massive capital construction project

that would require years to complete and could cost hundreds of millions of

dollars (or more, depending on the mandated amount of new tank space), see U.S.



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Resp. at 51–55, without reducing risks to groundwater, id. at 43-46. These

determinations, made pursuant to DOE’s AEA authority, deserve substantial

weight and militate against a contingent requirement to build new double-shell

tanks.

D. In the Alternative, DOE Proposes That New Double-Shell Tanks Be Required Only If Failure to Achieve Yearly Targets for Aggregate Tank Waste Volume Reduction Cannot Be Mitigated.

For the reasons discussed above, it would be improper to modify the

Consent Decree to include a contingent obligation to construct new double-shell

tanks. Most critically, the lack of double-shell tank space is not projected to limit

retrieval of the remaining twelve single-shell tanks and would inevitably impede

rather than expedite retrievals given funding and other resource constraints.

However, in accordance with the Court’s Second Order, and subject to

DOE’s reservation of rights, DOE proposes a modification that ensures that

double-shell tanks will only be built if more efficient, cost-effective measures are

not available. DOE’s proposal sets annual benchmarks for Evaporator

performance; if these targets are not met, DOE’s proposal ensures that DOE has a

first opportunity to implement alternative measures adequate to mitigate any

unexpected shortfalls in Evaporator performance. Only after consideration of

these alternatives will double-shell tanks be considered. This process, paired with

additional conditions that address public interest factors, is designed to capture

salient variables that responsible engineers, project managers, and policy makers

must consider to ensure that faster and more cost-effective alternatives are

exhausted before launching upon a costly new construction project. For this

reason, DOE’s proposal is necessarily complex and deliberate. The alternative of a



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rigid and simplistic requirement to construct double-shell tanks may be

superficially appealing, but would be imprudent and unworkable in practice.

1. Any Contingent Obligation to Build New Double-Shell Tanks Should Be Based on Failure of the Evaporator To Achieve Predetermined Annual Tank Waste Volume Reductions.

Under DOE’s longstanding tank retrieval protocol, DOE plans to reduce

tank waste volume by at least 5.9 million gallons through a series of planned

Evaporator campaigns between 2016 and 2021 (with the potential for additional

campaigns in 2022 and 2023). 2d U.S.P.O. App. E ¶ 1.A. This reduction will be

sufficient to complete the nine A and AX Farm tank retrievals without the need

for new double-shell tanks. Fletcher 5th Supp. Decl. ¶ 44.10 Accordingly, DOE’s

proposal premises contingent tank construction on DOE’s ability to meet this

Evaporator target, or to otherwise demonstrate that adequate space exists to

complete the nine retrievals. DOE would file annual reports with the Court

identifying the target amount of tank waste volume to be reduced that year (which

will vary year-to-year based on the specific contents of the tanks being retrieved),

to reach the overall target of 5.9 million gallons. 2d U.S.P.O. App. E ¶ 2.B.

In addition to the annual Evaporator target, each annual report will also

contain a statement and supporting data as to whether the Evaporator achieved the

waste volume reduction target from the prior year. Id. ¶ 2.A. If at the end of the

year the anticipated waste volume reduction has not been achieved, DOE will

explain in the report whether and how it will be able to recover the shortfall. Id. ¶¶

2.D-E. If DOE identifies a means of recovering the shortfall that will meet DOE’s

10 There is currently adequate double-shell tank space to accomplish retrievals of

the C Farm tanks without use of the Evaporator. Fletcher 5th Supp. Decl. ¶ 33.



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total Evaporator target for the nine retrievals, including by reducing additional

waste volume in future Evaporator campaigns, then the obligation to build new

tanks will not be triggered. See id. But, if the Evaporator cannot meet its annual

target due to inadequate waste feed, the obligation to build new tanks will not be

triggered; instead, the time to achieve the required waste volume reduction would

be extended in proportion to the amount of time that sufficient waste feed was

unavailable, unless DOE determines a different extension is necessary. Fletcher

5th Supp. Decl. ¶ 50; see 2d U.S.P.O. ¶ 1.B. Accordingly, a new double-shell tank

will only be constructed if DOE cannot first identify an alternative means to meet

its waste volume reduction target. Id. ¶ 2.F. If this obligation is triggered,

consistent with further conditions noted below, a tank (or tanks) must be placed

into service within ten years to hold a volume of waste equivalent to the shortfall

(i.e., the difference in volume between the target and actual waste volume reduced

when the tank building obligation was triggered). Id. ¶¶ 4.A-B.

Linking the conditional requirement to build new double-shell tanks to

actual Evaporator performance, as demonstrated by reductions in double-shell

tank waste volume, is consistent with the Court’s emphasis on keying construction

to whether the Evaporator “reduce[s] a predetermined amount of waste . . . by a

given date,” Second Order at 27.

2. Placing Conditions on Double-Shell Tank Construction Is Necessary Because There Are More Effective Means of Maintaining the Pace of Retrievals.

In addition to the process described above, DOE’s proposal identifies

additional necessary conditions on the obligation to construct new double-shell

tanks. The obligation to build new double-shell tanks, if triggered, will be

suspended if DOE determines at any time that either (1) “[t]he cost of constructing



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and placing in service additional double-shell tanks would result in diversion of

funds that would jeopardize DOE’s ability to undertake cleanup activities

important to protect public health and the environment,” or (2) “[t]he detriments

of constructing and placing in service additional [double-shell tanks] are greater

than the detriments to the Hanford tank waste project or the risk to public health

and the environment from any delay in completing” the remaining Consent

Decree retrievals. 2d U.S.P.O. App. E ¶¶ 3.A-B. The tank construction obligation

would also be suspended if mitigation measures implemented thereafter can

recapture the shortfall or if the remaining retrievals can be completed as soon as or

sooner than would be achieved were new DSTs to be constructed. Id. ¶¶ 3.C-D.

These conditions are vital not only to ensure that any such modification to

the Consent Decree is “realistically achievable,” Keith, 784 F.2d at 1460, but to

ensure that tanks are not mandated despite the ready availability of equally (or

more) effective alternative means of addressing or compensating for Evaporator

performance issues, or where compliance with such a mandate would endanger

public health or the environment. DOE’s proposal also accommodates practical

engineering and project management considerations as a check against what might

otherwise constitute an illogical or environmentally-unsound undertaking.

CONCLUSION

For these reasons, the United States respectfully requests that the Court

grant DOE’s original proposed Consent Decree modification (except as to

Appendix B, which should be modified as set forth in new Appendix B in the

attached Proposed Order). Alternatively, the United States submits that the

attached Proposed Order contains revised Consent Decree modifications

consistent with the Court’s rulings in its August 13, 2015 Order.

Respectfully Submitted,



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JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice MICHAEL C. ORMSBY United States Attorney Eastern District of Washington /s/ David. J. Kaplan DAVID J. KAPLAN ELIZABETH B. DAWSON CHLOE H. KOLMAN AUSTIN D. SAYLOR Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 (202) 514-0997 (Kaplan) (202) 514-8293 (Dawson) (202) 514-9277 (Kolman) (202) 514-1880 (Saylor) VANESSA WALDREF Assistant United States Attorney 920 West Riverside Ave., Suite 300 Spokane, WA 99201 (509) 353-2767



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CERTIFICATE OF SERVICE

I hereby certify that on November 13, 2015, I electronically filed the foregoing (along with attachments) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to counsel of record in this action. I hereby certify that I have mailed by United States Postal Service the document to the following non-CM/ECF participants: NA s/Austin D. Saylor Austin D. Saylor Trial Attorney U.S. Department of Justice


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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON


Plaintiff,


NO. 2:08-cv-5085-RMP [PROPOSED] ORDER

Pursuant to Federal Rule of Civil Procedure 60(5), and for the reasons set

forth in the corresponding Memorandum and Opinion issued this day, the Court

hereby ORDERS that the Consent Decree in this matter be modified as follows:

The milestones in Paragraph IV-A and Appendix A that have not passed

as of the filing of United States’ Motion to Modify Consent Decree (filed

October 3, 2014), are hereby VACATED and are SUPERSEDED by the new

milestones in the new Appendix D set forth in pages 2–3 of this Order.

The milestones in Paragraphs IV-B-1 and IV-B-2 of the Consent Decree,

and Paragraph 1 of Appendix B of the Consent Decree, are hereby VACATED

and REPLACED with a new Paragraph 1 of Appendix B as set forth in page 18

of this Order. Appendix B of the Consent Decree shall also be modified by

adding new Paragraphs 3 and 4 as set forth in pages 18–20 of this Order.

New Appendix E is added to the Consent Decree as set forth in pages 20-

29 of this Order.

Paragraph XV-B of the Consent Decree (Effective and Termination

Dates) is hereby VACATED and is REPLACED with the following:

Case 2:08-cv-05085-RMP Document 196-1 Filed 11/13/15

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“This Consent Decree shall terminate when the milestones in Appendix B

and Appendix D have been met, and initial plant operations for the Waste

Treatment Plant, as defined in Paragraph IV-A-3 of the Consent Decree,

have been achieved. As appropriate, a Party, or the Parties jointly, will

notify the Court of this event by a motion to terminate the Consent

Decree.”

The following shall be ADDED to the Consent Decree:

APPENDIX D: WTP CONSENT DECREE MILESTONES, SCHEDULE,

AND ASSUMPTIONS

1. WTP Construction and Startup

The milestones referred to in Section IV of the Consent Decree are as follows,

subject to the conditions outlined in Paragraphs 2 and 3 of this Appendix D:

Project Description Date A-1 Achieve Initial Plant Operations for the

Waste Treatment Plant12/31/2039

A-2

Interim HLW Facility Construction Substantially Complete

12/31/2032

A-3 Interim

Start HLW Facility Cold Commissioning 6/30/2035

A-4 Interim

HLW Facility Hot Commissioning Complete

12/31/2036

A-5 Interim

LAB Construction Substantially Complete

12/31/2012 (COMPLETED)

A-6 Interim

Complete Methods Validations 12/31/2034

A-7 Interim

LAW Facility Construction Substantially Complete

12/31/2030

A-8 Interim

Start LAW Facility Cold Commissioning 6/30/2035

A-9 Interim

LAW Facility Hot Commissioning Complete

12/31/2036

A-12 Interim

Steam Plant Construction Complete


A-13 Interim

Complete Installation of Pretreatment Feed Separation Vessels FEP-SEP-00001A/1B

12/31/2033


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A-14 Interim

PT Facility Construction Substantially Complete

12/31/2033

A-15 Interim

Start PT Facility Cold Commissioning 6/30/2035

A-16 Interim

PT Facility Hot Commissioning Complete 12/31/2036

A-17

Hot Start of Waste Treatment Plant 12/31/2036

A-18 Interim

Complete Structural Steel Erection Below Elevation 56' in PT Facility


A-19 Interim

Complete Elevation 98' Concrete Floor Slab Placements in PT Facility

12/31/2033

A-20 Interim

Complete Construction of Structural Steel to Elevation 14' in HLW Facility


A-21 Interim

Complete Construction of Structural Steel to Elevation 37' in HLW Facility


2. Conditions Affecting HLW and PT Milestones

The milestones identified in Paragraph 1 of this Appendix D have been

established in the absence of necessary information regarding the HLW and PT

Facilities, including critical information concerning the resolution of outstanding

primary technical issues, potential redesign activities necessitated by the

resolution of those issues, and the creation and negotiation of new or modified

Performance Baselines and contracts that reflect those activities. Given the

substantial uncertainty that presently exists at the HLW and PT Facilities, the

milestones in Paragraph 1 are expressly subject to the conditions and extensions

specified in this Paragraph 2. Extensions of milestones at the HLW and PT

Facilities may be triggered, as provided below, as greater certainty develops

with respect to the time needed for technical issue resolution, facility redesign to

implement the results of technical issue resolution, and the establishment and

execution of new or modified Performance Baselines and contracts. Paragraphs

2.A.iv-vi, 2.B.iii-v and vii-ix, and 2.C.iii-v establish procedures for the United


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States Department of Energy (“DOE”) and the Washington Department of

Ecology (the “Parties”) to reach agreement on the appropriate duration of the

extension period for any extension triggered, subject to an automatic extension

and opportunities for judicial review if agreement cannot be reached.

A. Technical Issue Resolution

i. Milestones for the HLW and PT Facilities cannot be accurately and

responsibly established before the unresolved primary technical issues at the

WTP are resolved. This Paragraph shall apply to the following unresolved

primary technical issues associated with the WTP:

a. hydrogen gas events in pulse jet mixed vessels and in piping and

ancillary vessels;

b. criticality in vessels in the PT Facility;

c. pulse jet mixer control;

d. erosion and localized corrosion in WTP vessels and piping; and

e. ventilation balancing.

ii. The unresolved primary technical issues listed above are

interrelated such that resolution of one technical issue may create additional

problems with another unresolved technical issue, as well as with a

previously resolved technical issue.

iii. In the event that all primary technical issues identified in

Subparagraph 2.A.i. above, are not resolved by June 30, 2019, then the

continuing need for work to resolve the primary technical issues shall extend

the date for completing each of the following milestones (as provided

below): - Milestone A-1


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- Interim Milestone A-2








- Milestone A-17


iv. Extension Period. DOE shall notify the Washington Department of

Ecology if DOE determines that all primary technical issues will not be

resolved by June 30, 2019. Within 30 days of such notification, the Parties

shall start discussions as to the appropriate period of extension for

completion of the above milestones that incorporates the additional time

expected for full resolution of all primary technical issues. If agreement

cannot be reached in the time period specified in Subparagraph 2.A.v, the

automatic extension set forth in Subparagraph 2.A.v shall be applied and the

Parties shall have the opportunity to dispute the duration of the automatic

extension period pursuant to Subparagraph 2.A.vi.

v. In the event the Parties cannot reach agreement as to the duration of

an appropriate extension within 90 days of the start of the discussions

provided for in Subparagraph 2.A.iv, the milestones identified in

Subparagraph 2.A.iii shall be automatically extended by a period of one year

or such other period that DOE determines in writing to be necessary.


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vi. If the Washington Department of Ecology disputes the duration of

the extension period established pursuant to Subparagraph 2.A.v, it may seek

the Court’s review of the duration of the extension. The Court shall not alter

the extension period established pursuant to Subparagraph 2.A.v unless it

determines that the extension period provided is arbitrary and capricious.

vii. If, at any time after the provision of an extension pursuant to

Subparagraphs 2.A.iv-vi, the primary technical issues remain unresolved and

DOE determines that a further extension is necessary, DOE shall notify the

Washington Department of Ecology. Within 30 days of such notification, the

Parties shall start discussions pursuant to Subparagraph 2.A.iv regarding a

further extension of the above milestones. If the parties cannot reach

agreement as to the duration of an appropriate extension within 90 days of

the start of those discussions, as provided in Subparagraph 2.A.v, an

additional automatic extension shall apply to the milestones according to the

terms of that Subparagraph 2.A.v, and the Washington Department of

Ecology may seek review of that additional automatic extension pursuant to

Subparagraph 2.A.vi.

viii. Not later than 12 months after entry of the Court’s order

modifying the Consent Decree, DOE shall submit to the Washington

Department of Ecology a report detailing the progress made on the

unresolved technical issues identified in Subparagraph 2.A.i and the steps

DOE plans over the subsequent 24 months toward resolution of those issues.

ix. Until such time as DOE resolves each of the technical issues

identified in Subparagraph 2.A.i above and notifies the Washington

Department of Ecology of such resolution in writing as provided in


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Subparagraph 2.A.x below, DOE shall brief the Washington Department of

Ecology, either in person or by teleconference or other electronic means,

every 90 days to advise the Washington Department of Ecology on DOE’s

progress towards resolving those technical issues.

x. DOE shall notify the Washington Department of Ecology and the

Court upon resolution of all primary technical issues identified in

Subparagraph 2.A.i.

B. Facility Redesign

i. Milestones for each WTP facility cannot be accurately and

responsibly established before DOE and its contractors have completed and

verified any redesign work necessary to implement the outcomes of technical

issue resolution. Accordingly, this Paragraph provides for certain extensions

of the milestones in Paragraph 1 in the event redesign work cannot be

completed safely and responsibly on the timeframes assumed in Paragraph 1.

ii. High-Level Waste Facility. In the event that redesign work at the

HLW Facility is not completed and verified by December 31, 2021, then the

continuing need for work to complete and verify any redesign work shall

extend the date for completing each of the following milestones (as provided









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- Milestone A-17


iii. Extension Period. DOE shall notify the Washington Department of

Ecology if DOE determines that redesign at the HLW Facility will not be

completed and verified by December 31, 2021. Within 30 days of such

notification, the Parties shall start discussions as to the appropriate period of

extension for completion of the above milestones that incorporates the

additional time expected for the completion and verification of all redesign

work necessary to implement the outcomes of technical issue resolution at

the HLW Facility. If agreement cannot be reached in the time period

specified in Subparagraph 2.B.iv, the automatic extension set forth in

Subparagraph 2.B.iv shall be applied and the Parties shall have the

opportunity to dispute the duration of the automatic extension period

pursuant to Subparagraph 2.B.v.

iv. In the event the Parties cannot reach agreement as to the duration of


provided for in Subparagraph 2.B.iii, the milestones identified in

Subparagraph 2.B.ii shall be automatically extended by a period of one year,

or such other period that DOE determines to be necessary.

v. If the Washington Department of Ecology disputes the duration of

the extension period established pursuant to Subparagraph 2.B.iv, it may seek



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the extension period established pursuant to Subparagraph 2.B.iv unless it


vi. Pretreatment Facility. In the event that redesign work at the PT

Facility is not completed and verified by December 31, 2024, then the

continuing need for work to complete and verify any redesign work shall

extend the date for completing each of the following milestones (as provided







- Milestone A-17


vii. Extension Period. DOE shall notify the Washington Department of

Ecology if DOE determines that redesign at the PT Facility will not be

completed and verified by December 31, 2024. Within 30 days of such

notification, the Parties shall start discussions as to the appropriate period of

extension for completion of the above milestones that incorporates the

additional time expected for the completion and verification of all redesign

work necessary to implement the outcomes of technical issue resolution at

the PT Facility. If agreement cannot be reached in the time period specified

in Subparagraph 2.B.viii, the automatic extension set forth in Subparagraph


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2.B.viii shall be applied and the Parties shall have the opportunity to dispute

the automatic extension period pursuant to Subparagraph 2.B.ix.

viii. In the event the Parties cannot reach agreement as to the duration of


provided for in Subparagraph 2.B.vii, the milestones identified in

Subparagraph 2.B.vi shall be automatically extended by a period of one year

or such other period that DOE determines to be necessary.

ix. If the Washington Department of Ecology disputes the duration of

the extension period established pursuant to Subparagraph 2.B.viii, it may

seek the Court’s review of the duration of the extension. The Court shall not

alter the extension period established pursuant to Subparagraph 2.B.viii

unless it determines that the extension period provided is arbitrary and

capricious.

x. If, at any time after the provision of an extension pursuant to

Subparagraphs 2.B.iii-v or Subparagraphs 2.B.vii-ix, redesign work at either

the HLW or PT Facility has not yet been completed or verified, and DOE

determines that a further extension is necessary, DOE shall notify the

Washington Department of Ecology. Within 30 days of such notification, the

Parties shall start discussions pursuant to Subparagraph 2.B.iii or 2.B.vii

regarding a further extension of the above milestones for the affected facility.

If the Parties cannot reach agreement as to the duration of an appropriate

extension within 90 days of the start of those discussions, as provided in

Subparagraph 2.B.iv or 2.B.viii, an additional automatic extension shall

apply to the milestones for that facility according to the terms of either

Subparagraph 2.B.iv or 2.B.viii, as applicable, and the Washington


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Department of Ecology may seek review of that additional automatic

extension pursuant to Subparagraph 2.B.v or 2.B.ix.

xi. During the pendency of any extension under Subparagraph 2.B,

DOE shall brief the Washington Department of Ecology, either in person or

by teleconference or other electronic means, every 90 days to advise the

Washington Department of Ecology on DOE’s progress towards completing

redesign work at the WTP.

xii. DOE shall inform the Washington Department of Ecology and the

Court upon completion of redesign work at each of the HLW and PT

Facilities.

C. Performance Baseline & Contract

i. Milestones for each WTP facility cannot be accurately and

responsibly established until each facility has a current Performance Baseline

(as defined in Paragraph 4) and a new or modified contract in place, because

these documents provide necessary information regarding cost, schedule, and

contractor capacity with regard to each facility and the WTP as a whole.

Accordingly, this Paragraph provides for certain extensions of the milestones

in Paragraph 1 in the event preparation and negotiation of new or modified

Performance Baselines and contracts cannot be completed consistent with

Paragraph 1, and in the event that the timeframes embodied in the

Performance Baselines and contracts conflict with and require amendments

to the timeframes in Paragraph 1.

ii. In the event that a Performance Baseline is not established and a

new or modified contract has not been executed by the date provided for each

facility identified in this Subparagraph, then the continuing need for work to


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establish a Performance Baseline and execute a new or modified contract

shall extend the milestones applicable to that facility, as identified in this

Subparagraph 2.C.ii (as provided below):

FACILITY DATE AFFECTED MILESTONES

HLW December 31, 2024, plus any extension period(s)

under 2.A-B

Milestone A-1 Interim Milestone A-2 Interim Milestone A-3 Interim Milestone A-4 Interim Milestone A-6 Interim Milestone A-13 Milestone A-17

PT December 31, 2027 plus any extension period(s)

under 2.A-B

Milestone A-1 Interim Milestone A-6 Interim Milestone A-13 Interim Milestone A-14 Interim Milestone A-15 Interim Milestone A-16 Milestone A-17 Interim Milestone A-19

iii. Extension Period. DOE shall notify the Washington Department of

Ecology if DOE determines that a Performance Baseline will not be

established and a new or modified contract will not be executed for any

facility by the date provided in Subparagraph 2.C.ii for that facility. Within

30 days of such notification, the Parties shall start discussions as to the

appropriate period of extension for completion of the above milestones that

incorporates the additional time expected for the establishment of a

Performance Baseline and the execution of a new or modified contract. If

agreement cannot be reached in the time period specified in Subparagraph

2.C.iv, the automatic extension set forth in Subparagraph 2.C.iv shall be


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applied and the Parties shall have the opportunity to dispute the duration of

the automatic extension period pursuant to Subparagraph 2.C.v.

iv. In the event the Parties cannot reach agreement as to the duration of


provided for in Subparagraph 2.C.iii, the milestones identified in

Subparagraph 2.C.ii shall be automatically extended by a period of one year,

or such other period that DOE determines in writing to be necessary.

v. If the Washington Department of Ecology disputes the duration of

the extension period established pursuant to Subparagraph 2.C.iv, it may seek


the extension period established pursuant to Subparagraph 2.C.iv unless it


vi. If, at any time after the provision of an extension pursuant to

Subparagraphs 2.C.iii-v, a new or modified contract has not been executed

for that facility and DOE determines that a further extension is necessary,

DOE shall notify the Washington Department of Ecology. Within 30 days of

such notification, the Parties shall start discussions pursuant to Subparagraph

2.C.iii regarding a further extension of the milestones identified in

Subparagraph 2.C.ii for that facility. If the Parties cannot reach agreement as

to the duration of an appropriate extension within 90 days of the start of those

discussions, as provided in Subparagraph 2.C.iv, an additional automatic

extension shall apply to the milestones according to the terms of that

Subparagraph 2.C.iv, and the Washington Department of Ecology may seek

review of that additional automatic extension pursuant to Subparagraph

2.C.v.


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vii. During the pendency of any extension under Subparagraph 2.C,

DOE shall brief the Washington Department of Ecology, either in person or

by teleconference or other electronic means, every 180 days to advise the

Washington Department of Ecology on DOE’s progress towards establishing

a Performance Baseline and executing a new or modified contract for the

subject facility.

viii. DOE shall inform the Washington Department of Ecology and the

Court upon execution of a new or modified contract for each facility

identified in Subparagraph 2.C.ii.

ix. If, for any facility identified in Subparagraph 2.C.ii, the

Performance Baseline and new or modified contract, once established, are

inconsistent with a milestone date or milestone dates identified in Paragraph

1 (as modified by any extensions under this Paragraph 2), DOE shall

designate a substitute milestone date or dates informed by the dates

established in the contract and the substitute date or dates shall replace the

date or dates identified in Paragraph 1, unless the Court determines that one

or more dates is arbitrary and capricious.

D. Unless the parties agree otherwise, the extensions provided for in

Subparagraphs 2.A through 2.C are not mutually exclusive; in the event more

than one condition identified above is met, each extension shall be

independently (i.e., cumulatively) added to the appropriate milestones. In the

event one or more conditions in Subparagraphs 2.A through 2.C is met and

automatic or negotiated extensions are established, the applicable milestone

dates identified in Paragraph 1 shall be automatically replaced for all purposes

by the new date as extended by the appropriate Subparagraph(s).


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///

///

3. Maintaining Simultaneous Operations

DOE shall meet the milestone dates identified in Paragraph 1 for the

LAW, HLW, and PT Facilities (including any extensions pursuant to the

conditions in Paragraph 2), provided, however, that milestone dates for the

commissioning of these Facilities shall remain in alignment to ensure

simultaneous operations of the WTP. Accordingly, in the event of an extension

of the HLW or PT milestones under Paragraph 2, the commissioning milestone

dates for the LAW, HLW, and PT Facilities in Paragraph 1 shall be substituted,

as follows:

Project Description Date A-3

Interim Start HLW Facility Cold Commissioning

6/30/2035, plus an extension period equivalent to that established for the HLW or PT Facility under Paragraph 2.A-2.C, whichever is greater

A-4 Interim

HLW Facility Hot Commissioning Complete


A-8 Interim

Start LAW Facility Cold Commissioning


A-9 Interim

LAW Facility Hot Commissioning Complete


A-15 Interim

Start PT Facility Cold Commissioning



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A-16 Interim

PT Facility Hot Commissioning Complete


4. Additional Definitions

“Performance Baseline” is a group of data sets such as work packages,

schedules, and costs that is developed between DOE-ORP and its prime

contractor to define the entire project budget (total cost of the project including

contingency), the project completion date (including a detailed schedule), and

the scope of the project. The Performance Baseline is based on and subject to a

DOE-approved funding profile.

5. Additional Reporting Requirements

A. DOE shall file status reports with the Court on an annual basis,

beginning one year after entry of the Court’s order modifying the Consent

Decree, to apprise the Court of DOE’s progress in complying with the

requirements of this Consent Decree.

B. Within 90 days of the date that DOE provides the Washington

Department of Ecology notice pursuant to Section IV-C-3 of this Consent

Decree that DOE has determined that a serious risk has arisen that DOE may be

unable to meet a schedule as required in Section IV and/or Appendix D, DOE

shall provide the Washington Department of Ecology with an explanation of the

reasons for that notice and the steps DOE is taking to address the issue (or

issues) requiring such notice.


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6. Conforming Provisions

A. Except as set forth in Paragraphs 2 and 3 of this Appendix D,

amendment of milestones established pursuant to this Appendix D shall be

governed by the standards and procedures in Section VII of the Consent Decree.

B. The milestones and schedule set forth in Appendix D above are subject

to the WTP Construction and Startup Concerns and Assumptions set forth in

Paragraph 2 of Appendix A of this Consent Decree. However, the conditions

and automatic extensions set forth in Paragraphs 2 and 3 of this Appendix D

shall operate independent of Paragraph 2 of Appendix A of this Consent Decree,

and are not subject to the conditions established in therein.

C. DOE shall provide the notice required by Section IV-C-3 of the

Consent Decree, as applicable, with respect to milestones established pursuant to

this Appendix D. Such notice shall be consistent, where applicable, with any

automatic extension of such milestones under Paragraphs 2 or 3 of this

Appendix D.

D. Section IX-C of the Consent Decree shall be applicable to any DOE

requests for extensions of milestones established pursuant to this Appendix D,

except for those extensions provided under Paragraphs 2 or 3 of this Appendix

E. Except as provided in Subparagraphs 6.A, 6.B, and 6.C of this

Paragraph, milestones extended under Paragraphs 2 or 3 shall be governed, as

extended, by the provisions of this Consent Decree and of this Appendix D. The

provision of an extension or extensions under Paragraphs 2 or 3 shall not

prevent DOE from seeking further modification of the milestones in this

Appendix D pursuant to Sections VI or VII of this Consent Decree.


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7. Savings Provision: Nothing in this Consent Decree shall be interpreted

to require DOE to undertake any obligation that is inconsistent with applicable

law.

* * * * * * * * * * *

APPENDIX B:

1. Tank Waste Retrievals

Project Description DateB-1 Complete retrieval of tank wastes from Waste

Management Area C single-shell tank C-102. 12/31/2015

B-1A Propose milestone, not to exceed 9/30/2022,

for completion of retrieval of C-105. 60 days after

approval of a Tank Waste Retrieval

Work Plan modification in accordance with

Section IV-B-4 and Appendix C

B-1B Complete retrieval of tank wastes from single-shell tank C-111

4/30/2016

B-2 Complete retrieval of tank waste, with retrievals initiated by the deadlines specified in B-3, B-4, and B-5 below, from the following single-shell tanks in Tank Farms A and AX: A-101, A-102, A-104, A-105, A-106, AX-101, AX-102, AX-103, and AX-104. Subject to the requirements of Section IV-B-3, DOE may substitute any of the identified nine single-shell tanks and advise the Washington State Department of Ecology accordingly.

3/31/2024

B-3 Initiate startup of retrieval in two of the single-shell tanks referred to in B-2.

12/31/2018

B-4 Initiate startup of retrieval in two additional single-shell tanks referred to in B-2.

12/31/2020

B-5 Initiate startup of retrieval in five additional single-shell tanks referred to in B-2.

3/31/2023


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“Initiate startup of retrieval” means that actual pump operations in the

single-shell tank have commenced and that transfers from the single-shell tank

have totaled an estimated 5% of the waste in the tank.

3. SCBA-Based Extension:

A. The dates set forth in milestones B-1, B-2, B-3, B-4, and B-5 above are

based upon the assumption that Self-Contained Breathing Apparatus (“SCBA”)

will continue to be used during all retrieval work at the A and AX Tank Farms

through Federal fiscal year 2016 (September 30, 2016). Unless, on or before

September 30, 2016, DOE determines that SCBA is no longer necessary to be

used for all retrieval work, milestones B-2, B-3, B-4, and B-5 shall be extended

automatically by one day for every two days SCBA continues to be used after

September 30, 2016. DOE shall notify the Court within 30 days of making a

determination that SCBA is no longer necessary for all retrieval work. Absent

such notification to the Court, the automatic extension shall be presumed to have

begun.

B. If, regardless of whether DOE has made a determination pursuant to

Subparagraph 3.A above, a significant number of tank farm workers voluntarily

choose to continue using SCBA for all retrieval work at A and AX Tank Farms

beyond September 30, 2016, milestones B-2, B-3, B-4, and B-5 shall be

extended automatically by one day for every two days SCBA continues to be

used after September 30, 2016. DOE shall notify the Court within 30 days of the

initiation of the automatic extension. Pending such notification to the Court, the

automatic extension shall be presumed to have begun.

C. If the B-2, B-3, B-4, and B-5 milestones are extended pursuant to

either Subparagraph 3-A or 3-B above, DOE shall notify the Court when the

extension is no longer necessary.


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D. If the Washington Department of Ecology disagrees with DOE’s

interpretation of the term “significant” in a notification to the Court pursuant to

Subparagraph 3.B above, then Washington Department of Ecology may invoke

the Dispute Resolution mechanism of Section IX of this Consent Decree. In the

event either party petitions the Court for review of such a dispute, the Court

shall review DOE’s determination under the arbitrary and capricious standard of

review.

E. Other than as provided in Subparagraph 3.C above, nothing in this

Paragraph 3 shall be subject to judicial review.

4. Savings Provision: Nothing in this Appendix B shall be interpreted to

require DOE to undertake any obligation that is inconsistent with applicable law.

* * * * * * * * * * * *

APPENDIX E: EVAPORATOR CAMPAIGNS AND DST

TRIGGERS

1. Background Regarding DOE’s Planned 242-A Evaporator Campaigns

A. DOE estimates that, between Federal fiscal year (“FY”) 2016 and

FY2021, the 242-A Evaporator will achieve, through multiple campaigns spread

over those years, a total waste volume reduction (“WVR”) of at least 5.9 million

gallons (“Mgal”) of liquid from the waste in A and AX Farm tanks (“Total

WVR Target”). To achieve the Total WVR Target, DOE estimates that, on a

year-by-year basis, the aggregate WVR (“Yearly Aggregate WVR Target”) will

be as follows:

Federal Fiscal Year Yearly Aggregate WVR Target

FY2016 At least 0.6Mgal


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TOTAL: At least 5.9Mgal

B. DOE’s ability to achieve each Yearly Aggregate WVR Target and the

Total WVR Target is subject to sufficient waste feed being available and ready

to process through the 242-A Evaporator. The Total WVR Target need not be

achieved until the March 31, 2023, or the end of the calendar year prior to the B-

2 Milestone date in Appendix B of this Consent Decree, should it be extended

(the “Target WVR Date”). Therefore, to account for disruptions in waste feed

availability and any other events that may delay the ability of the 242-A

Evaporator to meet a Yearly Aggregate WVR Target, DOE shall adjust the

Yearly Aggregate WVR Targets as necessary in accordance with Paragraph 2 of

this Appendix E to meet the Total WVR Target by the Target WVR Date,

including adding campaigns in FY2022 and FY2023 as necessary. If a reduction

in the expected waste feed for processing necessitates an adjustment to the

Target WVR Date, or if the B-2 Milestone in Appendix B to this Consent

Decree is extended, DOE shall adjust the Target WVR Date and the remaining

Yearly Aggregate WVR Targets as necessary in accordance with Paragraph 2 of

this Appendix. If DOE determines that the Total WVR Target should be revised,

DOE shall adjust the Total WVR Target and remaining Yearly Aggregate WVR

Targets as necessary to achieve the Target WVR Date in accordance with

Paragraph 2 of this Appendix E.


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C. The performance of the 242-A Evaporator, both in terms of efficiency

and gallons of liquid evaporated, will vary on a campaign-by-campaign basis,

depending upon factors such as the composition and characteristics of the tank

waste.

i. To increase the accuracy of DOE’s assessment of how individual

campaigns will perform, before each 242-A Evaporator campaign DOE will

perform a small-scale test of the waste to be evaporated during the campaign

to determine with greater certainty what WVR the campaign may be

anticipated to create. DOE shall make the results of these tests publicly

available in advance of each 242-A Evaporator campaign.

ii. Although any individual 242-A Evaporator campaign may not

achieve the WVR estimated in the test described above in Subparagraph

1.C.i, DOE may be able to recover any shortfall by, among other mitigation

efforts, undertaking additional 242-A Evaporator campaigns, extending the

duration of time that 242-A Evaporator campaigns were otherwise expected

to run, achieving greater performance efficiency than anticipated in other

campaigns, or taking other measures that achieve the equivalent of the

projected WVR.

D. If, without regard to DOE’s achievement of any prior Yearly

Aggregate WVR Target, DOE determines that the Total WVR Target should be

revised, whether because that amount of WVR is not necessary to achieve the B-

2 Milestone in Appendix B or because a reduction in the expected waste feed for

processing necessitates an adjustment, it shall so state in the next Annual Report

following such determination as required by Paragraph 2 below, and shall adjust

all subsequent Yearly Aggregate WVR Targets as necessary.


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2. Annual Report of 242-A Evaporator Performance

No later than December 31 of each year until DOE has achieved the Total

WVR Target, or is otherwise relieved of that obligation due to intervening

events, DOE shall file an Annual Report with the Court on the operational

performance of the 242-A Evaporator. In this report, DOE shall:

A. State whether the 242-A Evaporator achieved the Yearly Aggregate

WVR Target for the FY for which the report is due (hereinafter, the “Reporting

Period”), either as identified in Paragraph 1.A, or as modified pursuant to

Paragraphs 1.B or 1.D above, or Paragraph 2.B.ii below, in a prior Annual

Report, and shall provide the data supporting DOE’s conclusions. If the 242-A

Evaporator did not achieve the Yearly Aggregate WVR Target, DOE shall

provide additional explanation pursuant to Subparagraphs 2.D and 2.E below, as

necessary, consistent with the assumptions as stated in Subparagraph 1.C above,

that evaporator campaigns are variable in nature and that, on an annual basis,

variation in one campaign may be offset by another.

B. State whether DOE anticipates it will achieve the Yearly Aggregate

WVR Target for the following FY, either as identified in Subparagraph 1.A, or

as modified pursuant to Subparagraphs 1.B or 1.D above, or Subparagraph 2.B.ii

below, in a prior Annual Report. If DOE states that it does not anticipate

achieving the Yearly Aggregate WVR Target for the following FY, either as

identified in Subparagraph 1.A above, or as modified pursuant to Subparagraph

1.A, or as modified pursuant to Subparagraphs 1.B or 1.D above, or

Subparagraph 2.B.ii below, in a prior Annual Report, DOE shall address the

following:


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i. Whether and how DOE’s updated WVR projection for the

following FY is still on track to meet the Total WVR Target, either as

identified in Subparagraph 1.A above, or as modified pursuant to

Subparagraph 1.A, or as modified pursuant to Subparagraphs 1.B or 1.D

above, or Subparagraph 2.B.ii. below, in a prior Annual Report, by the Target

WVR Date identified in Subparagraph 1.B, consistent with the assumptions

as stated in Subparagraph 1.C above, that evaporator campaigns are variable

in nature and that, on an annual and multi-annual basis, variation in one

campaign may be offset by another.

ii. Whether, consistent with the explanation described in

Subparagraph 2.A.i above, DOE can identify updated Yearly Aggregate

WVR Targets to replace those previously identified to achieve the Total

WVR Target by the Target WVR Date. If DOE can identify such updated

Yearly Aggregate WVR Targets, they shall then replace those previously

identified for all future Annual Reports. If DOE cannot identify such updated

Yearly Aggregate WVR Targets, DOE shall state in the Annual Report at the

end of the following FY whether, pursuant to Subparagraph 2.A above, DOE

is in fact no longer on track to meet the Total WVR Target by the Target

WVR Date.

C. Achievement of the Yearly Aggregate WVR Target constitutes

compliance with this Appendix for the Reporting Period.

D. In the event that DOE states, pursuant to Subparagraph 2.A above, that

the 242-A Evaporator did not achieve the Yearly Aggregate WVR Target for the

Reporting Period, DOE shall explain the reason for the failure to meet the target.


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i. DOE shall also describe whether, and in what manner, the 242-A

Evaporator may be operated in future campaigns to still achieve the Total

WVR Target by the Target WVR Date. This may include an explanation of

additional or longer evaporation campaigns, or improvements to the total

operating efficiency of the 242-A Evaporator in the event of malfunction. If,

consistent with this explanation, DOE identifies updated Yearly Aggregate

WVR Targets to replace the targets either as identified in Subparagraph 1.A

above, or as modified pursuant to Subparagraphs 1.B or 1.D above, or

Subparagraph 2.B.ii above in a prior Annual Report, that will still achieve the

Total WVR Target by the Target WVR Date, those updated Yearly

Aggregate WVR Targets shall replace those previously identified for all

future Annual Reports.

ii. If the reason the 242-A Evaporator did not achieve the Yearly

Aggregate WVR Target was that inadequate waste feed was available and

ready to process, then the Target End Date as identified in Subparagraph 1.B

above is extended by a duration of time equivalent to the duration that

adequate feed was not available and ready for processing in the 242-A

Evaporator, and DOE shall adjust the Yearly Aggregate WVR Targets

accordingly, unless DOE determines that some other extension is necessary

and adjusts the Target End Date and Yearly Aggregate WVR Targets

accordingly.

E. In the event that DOE cannot demonstrate pursuant to Subparagraph

2.D above that the 242-A Evaporator can meet the Total WVR Target by the

Target WVR Date (either as identified in Subparagraph 1.B above, or as

amended pursuant to Subparagraph 2.D.ii above), then DOE shall explain any


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alternative technologies or waste management practices that are available to

meet the Total WVR Target or its equivalent.

F. If DOE is unable to demonstrate, after providing explanations pursuant

to Subparagraphs 2.D and 2.E above, that it will achieve the Total WVR Target

by the Target WVR Date (either as identified in Subparagraph 1.B above or as

amended pursuant to Subparagraph 2.D.ii above) due to the performance of the

242-A Evaporator during the Reporting Period, then DOE shall, subject to the

provisions in Paragraph 3 of this Appendix E, be conditionally required to

construct and place in service additional double-shell tanks (“DSTs”).

G. If, pursuant to this Paragraph 2, DOE becomes conditionally required

to construct and place in service additional DSTs subject to the provisions in

Paragraph 3 of this Appendix, DOE’s obligation to file an Annual Report shall

be suspended for such time as DOE is conditionally required to construct and

place in service such DSTs.

3. Conditions on the Construction of Additional DSTs

If DOE becomes conditionally obligated to construct and place into

service additional DSTs pursuant to Paragraph 3 of this Appendix, such

obligation shall be suspended if, and at such time that, DOE determines that any

of the following conditions apply and has either made such determination in an

Annual Report or in a separate notification to the Court (“Paragraph 3

Notification”):

A. Notwithstanding any statement in a previous Annual Report, the cost

of constructing and placing in service additional DSTs would result in the

diversion of funds that would jeopardize DOE’s ability to undertake cleanup

activities important to protect public health and the environment.


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B. Notwithstanding any statement in a previous Annual Report, the

detriments of constructing and placing in service additional DSTs are greater

than the detriments to the Hanford tank waste project or the risk to public health

and the environment from any delay in achieving the B-2 Milestone in Appendix

B of this Consent Decree, including any amendments thereto.

C. Notwithstanding any statement in a previous Annual Report, the

conditions of Subparagraphs 2.D or 2.E above have been satisfied such that any

shortfall in previous performance can be appropriately mitigated and the Total

WVR Target will be achieved.

D. Notwithstanding any statement in a previous Annual Report, DOE can

still achieve the B-2 Milestone in Appendix B of this Consent Decree, including

any amendments thereto, or the retrievals subject to the B-2 Milestone can be

completed by a date after that date that is the same as or sooner than they would

be completed before additional DST space from the construction of new DSTs

would be available and useful to expedite the retrieval of the remaining single-

shell tank retrievals.

If DOE’s conditional obligation to construct and place in service

additional DSTs remains suspended through such time as DOE achieves the B-2

Milestone in Appendix B of this Consent Decree, then DOE shall be relieved of

any obligation under the Consent Decree to construct and place in service

additional DSTs. If at any time a condition described in Subparagraphs 3.A, 3.B,

3.C, or 3.D above ceases to apply, DOE will notify the Court in a Paragraph 3

Notification.


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4. Terms and Schedule for Construction of Additional DSTs

If DOE becomes conditionally obligated to construct and place into

service additional DSTs pursuant to Paragraph 2 of this Appendix E, and DOE’s

conditional obligation is not suspended pursuant to Paragraph 3 of this

Appendix E, then DOE shall construct and place into service additional DSTs in

accordance with the following:

A. DOE shall construct additional DST capacity sufficient to replace the

WVR not accomplished by the failure of the 242-A Evaporator to meet DOE’s

Total WVR Target identified in Subparagraph 1.A.

B. The additional DST capacity required pursuant to Subparagraph 4.A

shall be constructed and placed into service no later than 10 calendar years from

the date that requirement was triggered under Paragraph 2 (hereinafter “the

Trigger Date”).

C. However, the deadline calculated in Subparagraph 4.B above shall be

suspended if, after the Trigger Date, any condition in Paragraph 3 above applies.

If any condition in Paragraph 3 ceases to apply thereafter, the deadline

calculated in Subparagraph 4.B above shall be extended by the amount of time

the condition in Paragraph 3 above applied. If more than one condition in

Paragraph 3 applies, and subsequently ceases to apply, the deadline shall be

calculated from the last date a condition in Paragraph 3 applied.

5. Judicial Review

A. If Washington Department of Ecology takes issue with an alteration to

a Yearly Aggregate WVR Target, the Total WVR Target, or the Target WVR

Date pursuant to Paragraph 2 above, or with a Paragraph 3 Notification, then

Washington Department of Ecology may invoke the Dispute Resolution


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mechanism of Section IX of this Consent Decree. In the event either party

petitions the Court for review of such a dispute, the Court shall review DOE’s

determination under the arbitrary and capricious standard of review.

B. Other than as provided in Subparagraph 5.A above, nothing in this

Appendix E shall be subject to judicial review.

6. Conforming Provision: In addition to the conditions and assumptions set

forth in Paragraph 1 to this Appendix E, the milestones and schedule set forth in

this Appendix E are subject to the Tank Retrieval Milestones and Schedule

Concerns and Assumptions set forth in Paragraph 2 of Appendix B.

7. Savings Provision: Nothing in this Appendix E shall be interpreted to

require DOE to undertake any obligation that is inconsistent with applicable law.

* * * * * * * * * * *

The foregoing is so ORDERED this ___ day of 20__.

______________________ United States District Judge


THIRD SUPPLEMENTAL DECL. OF BENTON J. HARP

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JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice MICHAEL C. ORMSBY United States Attorney Eastern District of Washington DAVID J. KAPLAN ELIZABETH B. DAWSON CHLOE H. KOLMAN AUSTIN D. SAYLOR Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 (202) 514-2219 VANESSA WALDREF Assistant United States Attorney 920 West Riverside Ave., Suite 300 Spokane, WA 99201 (509) 353-2767 UNITED STATES DISTRICT COURT



Plaintiff,


NO. 08-5085-RMP THIRD SUPPLEMENTAL DECLARATION OF BENTON J. HARP



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I, Benton J. Harp, pursuant to 28 U.S.C. § 1746, declare, under penalty of

perjury, that the following statements are true and correct based upon my

personal knowledge or upon information provided to me by colleagues.

1. This declaration supplements my three previous declarations, filed

in the Court’s docket as ECF Nos. 76-2, 106-3 and 184-1. As further described

in my first declaration, ECF No. 76-2 ¶ 1, I am the Assistant Manager for the

Waste Treatment Plant (“WTP”) Startup Commissioning and Integration at the

U.S. Department of Energy (“DOE”) Office of River Protection in Richland,

WA. I have held this position since 2010. In this role, I am accountable for start-

up and commissioning issues, project and contractor performance, and technical

issue identification and resolution for issues that affect the interfaces between

the Tank Farm and Waste Treatment Plant (“WTP”) contractors.

Current Status of the WTP

2. At present, all design and construction work at the Pretreatment

Facility remains suspended, in light of the significant project uncertainties and

ongoing technical issue resolution work described below and in previous

declarations. Construction work at the Pretreatment Facility will not restart until

after resolution of the technical issues, described in Paragraph 5 below, and the

completion and verification of necessary redesigns. Additional information is

provided in my first declaration. ECF No. 76-2 ¶¶ 44, 56, 63.

3. As described in my previous declarations, at the High-Level Waste

Facility, construction work related to areas affected by the unresolved technical

issues—in particular areas that might be affected by erosion-corrosion concerns

and ventilation issues—remains suspended. This work will not restart until after

resolution of the technical issues and the completion and verification of

necessary redesigns. However, design and structural work (like the construction



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of walls and slabs) has restarted in areas of the High-Level Waste Facility that

are not impacted by the technical issues. Additional information is provided in

my first declaration, ECF No. 76-2 ¶¶ 44, 56, 64, and in the Declaration of Todd

Shrader (ECF No. 76-5).

4. The Low-Activity Waste Facility was not affected by the primary

unresolved technical issues affecting the Pretreatment and High-Level Waste

Facilities. Accordingly, work at the Low-Activity Waste Facility continues. In

particular, because DOE remains dedicated to a “direct feed” approach to begin

waste treatment at the Low-Activity Waste Facility as soon as practicable

(known as “Direct Feed LAW”), DOE has committed significant resources to

advancing the construction and design of the components of that approach.

These activities have included modifications of support facilities known as

Balance of Facilities, design of the Effluent Management Facility, and design of

the interface between the Low-Activity Waste Facility and the Low-Activity

Waste Pretreatment System (“LAWPS”). LAWPS, which will treat the low-

activity waste being directly fed into the Low-Activity Waste Facility, received

“Critical Decision-1” approval on May 19, 2015, which recognizes that LAWPS

represents the best of several alternatives to meet the mission need. This

approval authorizes DOE to begin executing the project. As a next step, DOE

will work with the contractor to establish a performance baseline (defined

below) for LAWPS. DOE and its contractor have also begun the process of

developing a modified performance baseline and negotiating a modified contract

for the Low-Activity Waste Facility. The status of the Low-Activity Waste

Facility is discussed in my first declaration, ECF No. 76-2 ¶¶ 44, 65. LAWPS

and Direct Feed LAW, and their importance to the success of DOE’s cleanup



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mission, are discussed in my second declaration, ECF No. 106-3 ¶¶ 2-27, and

the Declaration of Todd Shrader (ECF No. 76-5).

5. Technical issue resolution for the Pretreatment and High-Level

Waste Facilities is ongoing. The five primary unresolved technical issues are:

(1) hydrogen gas events in pulse jet mixed vessels and in piping and ancillary

vessels; (2) criticality in vessels in the Pretreatment Facility; (3) pulse jet mixer

control; (4) erosion and localized corrosion in WTP vessels and piping; and (5)

ventilation balancing. At present, DOE is, among other things, completing

“Phase 2” of its full-scale vessel testing plan, preparing simulants and designing

prototypes for erosion and corrosion experiments, reviewing contractor studies

on criticality risk, and performing other safety and engineering calculations and

analyses.

6. Because technical issues have not yet been resolved, DOE cannot

finalize designs of necessary components, equipment, or processes at the High-

Level Waste and Pretreatment Facilities, which may be redesigned as part of

issue resolution or in response to it. Likewise, because redesign work has not yet

been completed or verified, both Facilities continue to lack up-to-date

performance baselines and contracts, which will have to be negotiated once all

resolution and redesign work is completed. As a result, there is very little

reliable information available from an engineering, scientific, and project-

management standpoint about the scope of work necessary for the WTP to

progress to completion or the time it will take to do so. During this period of

uncertainty, DOE cannot accurately predict when certain project steps will be

taken, and cannot responsibly commit to schedules for achieving milestones.

This uncertainty reflects the scarcity of necessary information, but not the

absence of adequate expertise; there is simply no way to set a firm schedule until



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these fundamental tasks have been completed and the scope and timing of the

remaining work is determined.

7. Because of this uncertainty, DOE continues to believe that

milestones for the WTP must be established only after critical information is

developed concerning the resolution of outstanding primary technical issues,

potential redesign activities necessitated by the resolution of those issues, and

the creation and negotiation of new or modified performance baselines and

contracts that reflect those activities. This is the approach that DOE laid out in

its first proposed modification to the Consent Decree. ECF No. 76-1 at App. D.

DOE continues to believe that its first proposed modification, and specifically its

milestone-setting process, is the proper and responsible path forward given the

uncertainties associated with primary technical issue resolution, redesign, and

baselining and contracting. However, in response to the Court’s August 13, 2015

Order (“Second Order”), ECF No. 170, DOE has prepared a second proposed

modification to the Consent Decree (also referred to as DOE’s “proposal” and

attached as Exhibit A to the United States’ brief) that is consistent with the

direction of the Court. This second proposed modification is described below.

DOE’s Second Proposed Modification to the Consent Decree

8. The Court’s Second Order required that the parties submit new

proposals that include “specific milestone deadlines for constructing and

achieving initial operations of the WTP.” Second Order at 32. In consideration

of this instruction, DOE’s second proposal includes specific milestone deadlines

for the fourteen outstanding milestones in the original table of milestones in

Appendix A of the Consent Decree. The new milestone dates are proposed in

accordance with the assumptions described below. However, because the results

of and timeframes for completing technical issue resolution, redesign, and re-



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baselining and contracting cannot be predicted with certainty at this time, these

assumptions and resulting milestones cannot account for the significant

variability in the time that may be necessary to reach WTP initial operations.

Accordingly, DOE’s proposal pairs enforceable milestones with a mechanism,

in the Consent Decree itself, to extend the milestones if highly uncertain

underlying assumptions about technical issue resolution, redesign, and re-

baselining and contracting are shown to be inaccurate. This mechanism,

described below, provides for reasonable extensions, subject to initial

negotiations between the parties and reviewable by the Court if the parties are

unable to agree. It is intended to ensure that enforceable milestones remain

aligned with the project as necessary scientific, engineering, and project

management processes progress. Because of the pervasive project uncertainties,

DOE cannot reasonably commit to milestones without this extension process.

9. Pairing enforceable milestones with the proposed extension

mechanism also reflects the changed status of the project since the Consent

Decree was entered in 2010. DOE’s ability to negotiate and agree to fixed

milestones in 2010 reflected the fact that it had at that time firm project

information for all WTP facilities, including performance baselines and

contracts to define the scope and schedule of the project. This is also discussed

in my first declaration. ECF No. 76-2 ¶ 52. Providing an extension mechanism

as part of this new proposal is necessary so that enforceable milestones can be

adjusted if the key project information, once available, like the project

information that DOE had during the original Consent Decree negotiations,

indicates the need. This will ensure that, as the parties believed in 2010, the

milestones guiding the project will ultimately reflect an accurate scope and

schedule for the WTP project.



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10. DOE’s proposed extension mechanism provides for necessary

extensions based on three specific categories where the present uncertainty is

substantial and precludes establishing fixed milestones:

a. Technical Issue Resolution. As described in previous

declarations, significant unresolved technical issues affect the High-Level

Waste and Pretreatment Facilities. These unresolved primary technical

issues, noted in Paragraph 5 above, are the main reason the parties seek

modification of the Consent Decree and were a key factor in the decision

to suspend construction in August 2012 at the two affected facilities. The

unresolved technical issues must be resolved before proceeding with

redesign and construction. However, it is impossible to predict the

outcome of and time needed for issue resolution; as previous declarations

have discussed, technical issue resolution is an iterative, scientific process

that must take as long as necessary to ensure that the WTP can operate

safely and complete the mission. The technical issues and their resolution

are discussed at length in the Declaration of Robert A. Gilbert (ECF No.

76-6) and the Supplemental Declaration of Robert A. Gilbert (ECF No.

106-1).

b. Redesign. After technical issues are resolved, additional

work will be required to redesign the WTP to incorporate those

resolutions. This redesign work might include changes to components,

equipment, or processes. There is no way to determine the scope and

nature of the work that will be necessary before the technical issue

resolutions are known. Once completed, a new design must be verified to

ensure it meets the nuclear safety and other required specifications. If

redesigned components, equipment, or processes cannot be verified as



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meeting applicable standards, DOE may need to undertake additional

rounds of issue resolution and redesign. As discussed in previous

declarations, like issue resolution, the design and verification processes

are iterative, scientific processes that must continue until a safe and

effective solution is found. Facility redesign, verification, and nuclear

safety specifications are further discussed in the Declaration of Robert A.

Gilbert (ECF No. 76-6) and in the Supplemental Declaration of Todd

Shrader (ECF No. 106-5).

c. Performance Baseline and Contract. In contrast to the

circumstances in 2010, the High-Level Waste and Pretreatment Facilities

do not presently have up-to-date performance baselines and contracts,

which are the documents that define the work to be done, establish the

detailed project schedule, and set the overall project cost. New or

modified baselines and contracts cannot be developed until after redesign

is complete and the changes that need to be made are known. At that

point, the re-baselining and contract process will require DOE and its

contractor to analyze and negotiate the scope, schedule, and cost of the

work. Although this process is not a scientific inquiry, developing and

negotiating these critical framework documents involves extensive

engineering work and project planning regarding necessary equipment,

labor, suppliers, cost, space, and other factors. It is an iterative process

that cannot be completed on a set timeframe. The performance baseline is

subject to a third-party review, described below, and to management

approval, both of which could take longer than anticipated or result in

changes necessitating new negotiations between DOE and its contractor

regarding the performance baseline. In addition, forcing negotiations of



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the contract modifications necessary to implement the modified

performance baseline to end on a predetermined date could compromise

DOE’s negotiating position, ultimately resulting in a higher cost to the

taxpayer and extending the length of the mission. Performance baselines

and contracts are further discussed in the Supplemental Declaration of

Todd Shrader (ECF No. 106-5).

11. Under DOE’s second proposal, the extension mechanism is

triggered only if DOE’s assumptions as to the three categories noted above—(1)

technical issue resolution, (2) redesign, and (3) performance baselines and

contracts—are proven to be incorrect. To accomplish this, the extension

mechanism takes the completion dates that DOE assumed when estimating the

milestones and uses these dates as triggers. If the work in one of the three

identified categories cannot be completed on the timeframe DOE assumed when

developing its proposed milestones, then an extension is triggered and applies to

all of the milestones listed in the proposal that are affected by that category of

work.

12. The extension mechanism is a four-part process:

a. First, if DOE determines that the necessary work in any

category will not be completed by the trigger date, then DOE notifies the

State that an extension will be necessary for all affected milestones.

Separate trigger dates are set for (1) all technical issues, as defined above,

affecting both the High-Level Waste and Pretreatment Facilities, (2)

redesign for the High-Level Waste Facility, (3) redesign for the

Pretreatment Facility, (4) re-baselining and contracting for the High-Level

Waste Facility, and (5) re-baselining and contracting for the Pretreatment



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Facility. From the date of notification, the parties have 30 days to begin

negotiations on the proper duration of the extension.

b. Second, once negotiations begin, the parties have 90 days to

come to an agreement as to the appropriate duration of the extension. A

90-day period should provide the parties with sufficient time for thorough

negotiations, which will likely include discussions between technical staff

regarding the status of these technical matters, while ensuring that

negotiations do not extend so long that they slow progress at the WTP or

impact responsible project management.

c. Third, if the parties agree to an extension within 90 days,

then the listed milestones for that category will be automatically adjusted

by the period agreed to by the parties. If the parties cannot reach

agreement as to the duration of an appropriate extension within the 90-day

negotiation period, then an extension is triggered. The extension will be

one year in duration unless DOE determines in writing that a different

extension period is warranted. Once triggered, the extension becomes

effective and will immediately apply to each of the affected milestones.

d. Fourth, if the parties do not reach agreement and the State

disagrees with the duration of the extension triggered—whether the

automatic one-year extension or a different extension period determined

by DOE—the State may seek the Court’s review of the extension’s

duration. Because the extensions deal with highly technical matters, such

as the additional time needed to redesign WTP components and processes,

the proposal provides that the Court may only supplant the extension if “it

determines that the extension period provided is arbitrary and capricious.”



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13. In addition to the set triggers and extensions, DOE’s proposal

allows the parties to repeat this four-step process in the event the first extension

is not adequate to account for the completion of issue resolution, redesign, or re-

baselining and contracting. In that case, DOE can notify the State in writing that

the relevant work is still not complete, which will once again trigger the

negotiation process, and the steps outlined above. This ensures that the

milestones will account for additional work that the parties did not anticipate

when the first extension was triggered but that will nonetheless further delay

DOE’s ability to construct and commission the WTP facilities.

14. The extension for technical issue resolution has a trigger date of

June 30, 2019. The extension is triggered if all five primary unresolved technical

issues identified in DOE’s proposal and above are not resolved by that date. The

proposal requires that all five primary issues identified be resolved because

these technical issues are highly interrelated and need to be considered as a

whole: the proposed resolution of one issue may impact, and perhaps disrupt, the

proposed resolution of another issue. Likewise, because the technical issues

affect both the High-Level Waste and Pretreatment Facilities, if the extension is

triggered it applies to milestones at both Facilities. Finally, if an extension is

triggered, DOE will be obligated to brief the State every 90 days until the

technical issues are resolved and will be required to notify the State and the

Court upon resolution.

15. The extension for facility redesign has a trigger date of December

31, 2021, for the High-Level Waste Facility and a trigger date of December 31,

2024, for the Pretreatment Facility. Each extension will be independently

triggered by the progress of redesign work at the subject facility and will apply

only to the milestones for that facility (plus milestones for the WTP as a whole);



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this ensures that work can continue to progress—and re-baselining and

contracting can begin—at one facility, even if the other is delayed. The trigger

dates are fixed dates, i.e., they do not shift even if issue resolution is taking

longer than expected, because issue resolution and redesign work are

interrelated and may be going on concurrently or on an iterative basis.

Accordingly, DOE will know by the specified trigger dates whether its

assumptions regarding the time needed for the redesign process at each facility

are accurate. As with extensions on the basis of technical issue resolution, if an

extension is triggered by the need for additional redesign work, DOE will be

obligated to brief the State every 90 days until redesign is complete.

16. The extension for re-baselining and contracting has a trigger date

of December 31, 2024, for the High-Level Waste Facility and a trigger date of

December 31, 2027, for the Pretreatment Facility. Each extension will be

independently triggered by delay in developing new or modified performance

baseline and contract at the subject facility and will apply only to the milestones

for that facility (plus milestones for the WTP as a whole); this ensures that work

can continue to progress at one Facility, even if the other is delayed. In contrast

to the other two categories, however, the trigger dates for re-baselining and

contracting shift to account for any delay in completing issue resolution or

redesign. Until those two preceding processes are completed, DOE will not have

the information necessary to begin re-baselining and contracting and so will not

be able to determine whether re-baselining and contracting will take longer than

anticipated. Accordingly, the trigger date for each Facility will be the date

identified above plus the extension period applicable to that Facility because of a

delay in resolving technical issues or completing redesign. If an extension is

triggered by the need for additional time to complete performance baselines and



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contracts, DOE will be obligated to brief the State every 180 days until re-

baselining and contracting is complete. Briefings on a more extended schedule

are appropriate for baseline and contract issues because information develops

less quickly than for issue resolution and redesign.

17. The extension for re-baselining and contracting also includes a

provision to address potential discrepancies between the eventual baseline and

contract and the pre-existing milestone schedule. It provides that in the event the

baseline and contract result in a date (or dates) for an activity that is inconsistent

with the existing milestone, then DOE will designate a new milestone date (or

dates) that reflects the new information and that will serve as a substitute, unless

the Court “determines that one or more dates is arbitrary and capricious.” While

DOE hopes that these conflicts will not arise, adjusting the milestone dates after

the baseline and contract are developed ensures that the milestones are informed

by important engineering, project management, and contracting realities—such

as the scope of work to be performed, the sequence of particular construction or

installation steps, vendor and personnel availability, and funding—that could not

have been known earlier.

18. Under DOE’s proposal, the extensions triggered in each of these

categories would be independent and cumulative; that is to say, a milestone

extended one year because of a delay in technical issue resolution may be

delayed another year if it takes more time than anticipated to finalize a contract.

Extensions are cumulative because the process of building a facility—including

resolving all primary technical issues, redesigning based on the technical issue

resolution, and re-baselining and contracting—is sequential. As discussed

above, redesign of a facility cannot occur until there is a resolution of technical

issues. Likewise, DOE will establish a baseline and contract only after redesign



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is complete. A delay in any of these phases would likewise delay subsequent

phases, so extensions must be cumulative to accurately reflect the time needed

to complete the project.

19. Finally, to make sure that the Consent Decree continues to provide

for simultaneous operations, DOE’s proposal provides that the commissioning

milestones for the Low-Activity Waste, High-Level Waste, and Pretreatment

Facilities will all be extended to align with whichever facility—once all

extensions are accounted for—is expected to come on line last. As discussed in

previous declarations, maintaining the alignment of the commissioning

milestones for the High-Level Waste and Pretreatment Facilities is necessary

because hot commissioning will use tank waste from the Tank Farms: once that

waste moves through the Pretreatment Facility it must have somewhere to go.

Likewise, for the High-Level Waste Facility to begin making glass, it must have

waste feed that has been treated in the Pretreatment Facility. Additional

information is provided in my first declaration. ECF No. 76-2 ¶¶ 20-21. DOE

expects that hot commissioning will follow closely after cold commissioning

because certain equipment like melters must continue to run; therefore, cold

commissioning dates are also aligned.

20. Like the High-Level Waste Facility, the Low-Activity Waste

Facility would also need to commission at the same time as the Pretreatment

Facility to ensure simultaneous operations. However, Direct Feed LAW will

allow the Low-Activity Waste Facility to begin making glass before the

Pretreatment Facility is finished by moving the waste through LAWPS.

Nonetheless, DOE’s proposal provides that the commissioning milestones for

the Low-Activity Waste Facility will remain in alignment with the other two

facilities, consistent with the Court’s order and the original Consent Decree that



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provides for simultaneous operations even if DOE is, voluntarily and outside of

the Decree, pursuing Direct Feed LAW.

21. The extension mechanism is necessary because, notwithstanding

DOE’s best efforts to develop and comply with milestones, DOE cannot in good

faith attest that the milestones in its second proposal—were they adopted

without a mechanism for extension—would reflect an informed or reasonable

path to completing the WTP or that DOE would be able to meet those

milestones. Until the present uncertainties are resolved, it is not possible to make

that representation. Prematurely cutting off the time to resolve technical issues

or to redesign the facility could have disastrous consequences for human health

and the environment, including a possible release of radiation. These are

complex scientific and engineering processes that must be allowed to run their

course to ensure that the WTP will operate as designed, fulfill its mission, and

protect public health and the environment. Similarly, the re-baselining and

contracting process involves extensive engineering work and project planning,

and is critical to developing necessary project information and providing

direction to the contractor. To require performance baselines and contracts to be

set on a particular schedule would improperly limit these efforts and undermine

DOE’s ability to adequately negotiate scope, schedule, and cost by giving

contractors leverage to force DOE to accept a deal simply because the deadline

was up. This would have consequences for efficient project management, would

drive up costs to the taxpayer, and would almost certainly extend the overall

schedule of the project by requiring DOE to spend more of its limited

appropriations to get less done.

22. Providing a specific process for extensions in these three categories

is also vital because the project impacts of an incompatibility between the



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Consent Decree obligations and the new information to be developed in these

areas would be particularly acute. The need to confirm a safe and successful

design of these facilities and to establish that those designs can be constructed is

fundamental to the success of the treatment mission; without an extension

process, any discrepancy between the milestones and actual project conditions

would create undue pressure to manage the project in a manner reflective of

outdated information and inaccurate expectations, despite the fact that another

course or schedule would be safer or more efficient. This would impair DOE’s

long-term project planning and destabilize the project.

23. Having an extension mechanism and automatic default extensions

for these categories built into the Consent Decree, rather than seeking piecemeal

extensions through contested litigation, prevents this potential friction by

establishing clear and definite expectations as to how the parties and the Consent

Decree will accommodate significant developments in these areas. DOE’s

proposed extension mechanism makes extensions for these narrow, technical

causes more certain; provides DOE with a default extension of one year around

which it can plan ongoing activities; and provides for judicial review that gives

appropriate weight to the technical nature of these issues and to DOE’s expertise

in considering them.

24. In addition, the automatic extension mechanism helps to preserve

the parties’ resources, which could otherwise be drained by serial litigation over

extending Consent Decree milestones. Negotiations that include technical staff

discussions of these engineering and management-focused issues are more

efficient and more likely to result in mutual agreement. The presence of an

automatic extension period, set at a default of one year, will help guide these

discussions and give the parties a starting place from which to advance their



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negotiations. By contrast, going to Court for every possible extension requires

significant staff resources and for a much longer time period, which can mean

that valuable resources are continually diverted away from the project itself. By

creating a simple, collaborative process limited to the narrow technical question

of how much more time is needed to complete particular tasks, DOE’s extension

mechanism gives the parties the best opportunity to come to agreement about the

duration of the extension needed.

Assumptions Used to Propose Milestones in DOE’s Second Proposal

General Assumptions and Parameters

25. Because the WTP does not presently have up-to-date performance

baselines and contracts, DOE has had to rely on a number of assumptions to

propose enforceable milestones (and associated extension triggers, noted above).

Primary among these, and as described further below, are that DOE will

continue to receive appropriations that align with current and historical patterns;

that DOE will accelerate work at the Low-Activity Waste Facility to begin waste

treatment as soon as practicable; and that the primary technical issues will be

resolved by June 30, 2019. In addition, DOE proposes milestones that are

sequenced to ensure simultaneous operations, consistent with the Court’s

Second Order. DOE has also made a number of specific assumptions about the

durations of redesign, re-baselining and contracting, construction, and

commissioning that are further described below.

26. Consistent with the Court’s Second Order and with the original

Decree, DOE’s proposal maintains a milestone sequence that supports

simultaneous operations. The purpose of the Pretreatment Facility within the

WTP system is to separate high-level waste from low-activity waste and send

the two separate streams of waste to the High-Level Waste and the Low-Activity



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Waste Facilities, respectively, for vitrification. If the Pretreatment Facility is to

be operational and processing waste, the other two facilities would have to be

operational at the same time to receive that waste. To enable this approach,

construction and commissioning milestones are set so that construction will

conclude at the three facilities in close succession—at the Low-Activity Waste

Facility on December 31, 2030, at the High-Level Waste Facility on December

31, 2032, and at the Pretreatment Facility on December 31, 2033—and so that

both cold and hot commissioning at all facilities will occur simultaneously (cold

commissioning by June 20, 2035, and hot commissioning by December 31,

2036). As noted above, DOE actually intends to construct and commission the

Low-Activity Waste Facility earlier than the dates included in the milestone

table—consistent with Direct Feed LAW—but aligning milestones for all three

facilities is consistent with the Court’s order and the original Consent Decree,

which provides for simultaneous operations.

27. A fundamental, key assumption underlying the projected milestone

dates in DOE’s proposal is that WTP funding will continue at its present, and

historical, levels. If Congress were to reduce funding for the WTP, DOE’s

projected proposal milestone dates would no longer be accurate.

28. As described in previous declarations, DOE has received $690

million (or below) in appropriations for WTP work nearly every fiscal year from

2008 to 2014 (except in Fiscal Year 2011, when appropriations did not specify

amounts for particular facilities; and Fiscal Year 2012, when WTP received

$740 million in funding). This material is discussed in the Declaration of James

M. Owendoff (ECF No. 106-6). In Fiscal Year 2015, the WTP received an

appropriation of $667 million. (The remainder of the $690 million requested for

the WTP was appropriated to LAWPS.) For the first part of Fiscal Year 2016,



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which began on October 1, 2015, DOE has been funded under a “continuing

resolution”—maintaining funding levels and distribution from the previous year.

DOE does not yet know how much money Congress will appropriate for the

WTP after the continuing resolution expires on December 11, 2015. Consistent

with this history, DOE assumed when setting milestone dates that it will

continue to receive $690 million in annual funding for the WTP.

29. Funding is an important factor in setting milestones, because it

affects the scope of work that can be undertaken in a particular year. Using

present and historical funding levels—from which there has been little

deviation—is a necessary and responsible assumption.

30. DOE’s milestone dates were also projected consistent with its intent

to sequence the three main WTP facilities and to implement Direct Feed LAW

as soon as practicable. Advancing completion and operation of the Low-Activity

Waste Facility, as supported by Direct Feed LAW, has two chief project

benefits: beginning vitrification of waste as soon as 2022 and freeing up

additional space in the double-shell tanks. Getting the Low-Activity Waste

Facility up and running will also give project managers and personnel important

operational experience that will assist DOE in managing construction,

commissioning, and operations of the more complex and higher “hazard

category” High-Level Waste and Pretreatment Facilities. These points are also

discussed in my second declaration, ECF No. 106-3 ¶¶ 2-27, and the Declaration

of Todd Shrader, ECF No. 76-5. Advancing operations at the Low-Activity

Waste Facility and necessary support facilities, however, will mean that a larger

portion of DOE’s annual funding will be directed in the near term to the Low-

Activity Waste Facility. Accordingly, less funding will be available to advance

design and construction of the High-Level Waste and Pretreatment Facilities in



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the early years, with that proportion reversed later in the project. DOE’s

assumptions as to the timing of the High-Level Waste and Pretreatment

Facilities reflect this sequencing.

31. While funding is a limitation on DOE’s assumptions for the High-

Level Waste and Pretreatment Facilities, it is not the only limitation. Even with

additional funds, there are physical and operational limits on how many people

and pieces of equipment can be in a single workspace at one time. These

limitations are more pronounced at the WTP because many spaces are small and

closed off (to prevent any spread of radiation when in operation), but house

intricate and complex systems and equipment. Likewise, the sequence of work

to be performed limits the pace of construction within a facility. For example, to

build a facility, first the concrete must be placed and then the pipes installed, and

then electrical systems built, and so on.

32. Finally, DOE’s milestone assumptions have been informed by its

experience in developing a modified performance baseline and negotiating a

modified contract at the Low-Activity Waste Facility. Unlike the other major

WTP facilities, this process is underway at the Low-Activity Waste Facility

because that facility has not been affected by the primary unresolved technical

issues. DOE’s experience in re-baselining and contracting this Facility has been

instructive: although the work is not complete, the process to date has suggested

that re-baselining and contracting might take longer for the WTP than for other

projects, given the complexity of the work and the types of issues that have

arisen. The work to develop a modified performance baseline and negotiate a

modified contract has also suggested that the WTP facilities may be more

costly—and so, with fixed appropriations, may take longer to build—than

anticipated under the original Decree.



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33. Given these assumptions, DOE’s milestones assume that design and

construction work will proceed first at the Low-Activity Waste Facility, then at

the High-Level Waste Facility, and finally at the Pretreatment Facility (though

work to resolve the primary technical issues is already underway). This

assumption aligns with DOE’s expectations about the relative burden at each

facility to resolve technical issues and effectuate redesign work, with the

Pretreatment Facility subject to greater uncertainties than the other two facilities.

It also allows DOE to effectively manage its workforce: as the Low-Activity

Waste Facility progresses through redesign, the on-site engineering resources

previously devoted to that facility can be applied to the High-Level Waste

Facility, and then—in sequence—to the Pretreatment Facility. In this way, DOE

will transition engineering resources over to each facility when those resources

are available, and avoid the need to lay off and re-hire experienced engineers.

Specific Assumptions

34. Technical Issues. To establish WTP milestones, DOE assumed that

the five primary technical issues affecting the High-Level Waste and

Pretreatment Facilities will be resolved by June 30, 2019. This date assumes that

technical issues will be favorably and completely resolved through the current

testing or modeling approaches, along with a small amount of contingency built

in to account for the possibility of minor re-testing or other limited follow-on

work. Any additional work, which would become necessary if scientific

outcomes were instead unfavorable, would necessitate an extension under

DOE’s proposed extension mechanism. DOE’s assumed date for resolution of

the technical issues also includes the time necessary for testing results, data, and

findings to be reviewed by experts in the field, often including external experts,



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and for the appropriate project manager to authorize issue closure and the

commencement of redesign.

35. DOE continues to work to resolve the primary technical issues, and,

as described above, is making progress. However, technical issue resolution has

been somewhat delayed by funding complications: in Fiscal Year 2015,

Congress reduced the funds available for the Pretreatment Facility. As a result,

DOE was forced to slow down the technical issue resolution process. Resolution

work is not yet back to full capacity because the present continuing resolution

has caused the budget shortfall to continue at least until December 11, 2015.

This delay has pushed back the timeframe for issue resolution.

36. Redesign Work. In estimating milestones, DOE also assumed that

redesign work will be completed at the High-Level Waste Facility by December

31, 2021, and at the Pretreatment Facility by December 31, 2024. These

timeframes are very difficult to predict, as discussed above, because the full

scope of the work to be done will not be known until after issue resolution is

complete. Redesigning a facility includes completing architectural drawings,

safety design, and all the calculations that support changes to address the

technical issues. Redesign is not limited to the narrow modification that resolves

the technical issue: for example, if technical issue resolution determines that a

new type of vessel must be used, then the redesign process will include that new

vessel, but must also consider how piping associated with the vessel is

redesigned. Similarly, a new vessel or the way that material is mixed in the

vessel could potentially change the power requirements for the facility. Thus,

redesign is not just about changing specific equipment, it is about identifying the

significant ripple effects in the structural layout, piping, power, ventilation, and

other systems that could themselves require detailed redesign. Moreover, even



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after components, equipment, and processes are designed, DOE must still verify

the new work to ensure that it meets nuclear safety and other specifications.

37. Accordingly, DOE based its assumptions on its professional

judgment that facility redesign would take a minimum of two years after the

resolution of technical issues, plus some additional time to account for the

likelihood of a more-complicated-than-average redesign at the High-Level

Waste Facility, and a significantly more-complicated-than-average redesign at

the Pretreatment Facility. Given funding constraints and sequencing

expectations, described above, these dates also reflect the fact that redesign will

begin at the High-Level Waste Facility first, with work at the Pretreatment

Facility starting more slowly and ramping up as redesign at the High-Level

Waste Facility reaches completion. Redesign is complete and verified when

each layer of design has been approved. One layer of redesign, for example, is

updating and approving the piping and instrument drawings. Another example

of a layer of design is completing and approving the vessel specifications.

Layers of design are approved by the appropriate contractor engineers and site

managers. Because the design changes to the High-Level Waste and

Pretreatment Facilities will have to be reflected in changes to the performance

baseline, DOE will also have to approve the changes.

38. Notably, the two-year assumption for redesign does not account for

the time that may be necessary to perform further issue resolution and additional

rounds of redesign activities if designs cannot be verified as meeting nuclear

safety or other specifications. For example, technical issue resolution may result

in a new vessel design. But verification of the vessel’s design could show that

the new design does not meet seismic requirements for structural stability. If

meeting these requirements would require additional seismic supports within the



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vessel itself, that could affect how the vessel operates and require a new round

of technical issue resolution and, likely, redesign. This additional work could

(very likely) not be completed in the two-year redesign period assumed as part

of the milestone dates and so would require an extension under the mechanism

described above.

39. Baseline and Contract. To establish WTP milestones, DOE also

assumed that development of performance baselines and execution of new or

modified contracts will be completed at the High-Level Waste Facility by

December 31, 2024, and at the Pretreatment Facility by December 31, 2027.

Typically, DOE estimates that it will take at least one year for the contractor to

develop a proposed performance baseline, followed by one to three years of

review and approvals regarding the final baseline and its embodiment in a

negotiated contract. In this instance, DOE has assumed that the baseline

proposal will take one year and that the review and approval process will take

two years, the median amount of time. The two-year period includes time for the

baseline and contract to be approved within DOE. It must also account for the

time necessary for a third-party review of the performance baseline under DOE

Order 413.3B, which is conducted by DOE’s Office of Acquisition and Project

Management in consultation with outside subject matter experts. This results in

a total of three years to complete re-baselining and contracting after the

conclusion of redesign at each facility.

40. Re-baselining and contracting for the WTP, however, will involve

negotiating difficult issues, including how new work relates to work already

provided for in the existing baselines and contracts. If negotiations become

especially complicated, and take more than two years to complete, then an

extension will be necessary under DOE’s extension mechanism. DOE’s



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assumptions for re-baselining and contracting also do not account for any

possible delay that could result if management or third-party reviews of the

performance baseline were to suggest changes requiring DOE and the contractor

to restart negotiations.

41. Construction. To propose WTP milestones, DOE also had to make

assumptions about the duration of construction expected for each facility. In

contrast to 2010, when baselines and contracts were in place, DOE does not

presently have an up-to-date schedule for redesign and construction. Without

baselines and contracts to determine the schedule, estimating construction

timeframes is a highly speculative inquiry. DOE developed the assumptions

used to support its “construction substantially complete” milestones by basing

construction estimates on the only up-to-date information available: the work

being performed to propose a modified baseline for the Low-Activity Waste

Facility. That work suggests a lengthier construction schedule for the Low-

Activity Waste Facility than the original, approved baseline that informed the

milestones in the 2010 Consent Decree. DOE’s assumptions for construction

times for the High-Level Waste and Pretreatment Facilities build upon the

information learned through the development of the Low-Activity Waste

Facility schedule and presume a similar extension of the schedule will be

necessary for these two more complex facilities. On top of these factors, DOE

added time to approximate the new work needed to resolve the technical issues

and complete and verify redesign, and considered the fundamental workforce,

space, and equipment constraints on how much work, as a practical matter, can

be completed in the facilities at one time. The result is a highly uncertain

projection of the time needed to construct these two facilities, which will remain

uncertain until a baseline and contract are established.



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42. Commissioning. Finally, DOE has assumed that cold and hot

commissioning of the Pretreatment Facility will each take 1.5 years rather than

one year. This slightly extended schedule reflects the information presently in

development at the Low-Activity Waste Facility, which indicates that

commissioning times may be longer than expected. As noted above,

commissioning dates for the High-Level Waste and Low-Activity Waste

Facilities are set to align with those for the Pretreatment Facility so that the

waste fed into and separated by the Pretreatment Facility during hot

commissioning can be fed to the two vitrification facilities to support their own

hot commissioning.

43. In applying these assumptions to the original table of milestones,

DOE has generally maintained the same relative timing of the milestones.

However, independent from the assumptions above, DOE has altered the

proposed sequence of two of the more specific construction milestones—A-13

(vessel installation in the Pretreatment Facility) and A-19 (completing a concrete

floor in the Pretreatment Facility). Because the actual sequencing of these steps

will not be known until a baseline and contract are developed, the dates included

in DOE’s proposed milestone table align milestones A-13 and A-19 with the

“construction substantially complete” milestone for the Pretreatment Facility.

Once the new or modified baseline for the Pretreatment Facility provides detail

on how specific construction tasks will be sequenced, these milestones may be

updated to reflect actual construction plans.

44. DOE’s proposal reflects the informed projections presently

available regarding the timeframe for completing the WTP. However, even these

assumptions, developed by experts in the field, cannot adequately and

reasonably define a firm schedule. There is simply too much uncertainty



FIFTH SUPPLEMENTAL DECLARATION OF THOMAS FLETCHER

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JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division United States Department of Justice MICHAEL C. ORMSBY United States Attorney Eastern District of Washington DAVID J. KAPLAN ELIZABETH B. DAWSON CHLOE H. KOLMAN AUSTIN D. SAYLOR Environmental Defense Section P.O. Box 7611 Washington, D.C. 20044 (202) 514-2219 VANESSA WALDREF Assistant United States Attorney 920 West Riverside Ave., Suite 300 Spokane, WA 99201 (509) 353-2767 UNITED STATES DISTRICT COURT



Plaintiff,


NO. 08-5085-RMP FIFTH SUPPLEMENTAL DECLARATION OF THOMAS FLETCHER

I, Thomas Fletcher, pursuant to 28 U.S.C. § 1746, declare, under penalty

of perjury, that the following statements are true and correct based upon my



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personal knowledge or upon information provided to me by persons under my

supervision, or federal and contractor personnel with whom I routinely interact.

1. This declaration supplements my five previous declarations, filed

with this Court on October 21, 2014 (Corrected Declaration of Thomas Fletcher)

(ECF No. 94); December 5, 2014 (Supplemental Declaration of Thomas

Fletcher) (ECF No. 106-4); January 16, 2015 (Second Supplemental Declaration

of Thomas Fletcher) (ECF No. 113-2); June 5, 2015 (Third Supplemental

Declaration of Thomas Fletcher) (ECF No. 148); and June 19, 2015 (Fourth

Supplemental Declaration of Thomas Fletcher) (ECF No. 153). In this

declaration, I explain the Hanford Tank Farms-related elements of the U.S.

Department of Energy’s (“DOE”) Second Proposed Consent Decree

Modification in accordance with this Court’s Order of August 13, 2015 (ECF

No. 170), including an explanation of the facts relevant to revised proposed

deadlines for the remaining 12 tanks to be retrieved subject to the Consent

Decree and the basis for DOE’s proposal regarding use of the 242-A Evaporator

and contingent construction of new double-shell tanks (“DSTs”).

2. As explained more fully in my first declaration, ECF No. 94 ¶¶ 1–

6, I am currently the Assistant Manager for the Tank Farms in the Hanford

Office of River Protection (“ORP”). As Assistant Manager, I manage the day-to-

day operations of the Tank Farms, overseeing both federal employees and

contractors. I have bachelor’s and master’s degrees in civil engineering, and I

am a Registered Professional Engineer in the State of Washington, as well as a

Certified Project Management Professional and a DOE Certified Senior

Technical Safety Manager.



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APPENDIX B TANK RETRIEVAL COMPLETION MILESTONES

3. Appendix B of the Consent Decree currently requires that DOE

complete the retrieval of waste from a total of 19 single-shell tanks: ten by

September 30, 2014, and the remaining nine by September 30, 2022. ECF No.

59 at 33. DOE has already completed the retrieval of waste from seven of these

tanks, leaving 12 single-shell tanks subject to the Consent Decree remaining to

be retrieved. Nine of these remaining 12 tanks are located in the A and AX

Tank Farms. The other remaining three tanks, tanks C-102, C-105 and C-111,

are located in the C Tank Farm.

4. Since the filing of my prior declarations and the submission of

DOE’s revised proposal, DOE has determined that a revised milestone date of

March 31, 2024 (including a provision allowing for additional extensions

should workers continue to use self-contained breathing apparatus (“SCBA”)

equipment beyond September 30, 2016), is the earliest date DOE can

reasonably propose for completing the retrieval of the nine A and AX tanks

subject to the Consent Decree. Regarding the three C Farm tanks to be

retrieved, DOE proposes to retrieve tank C-102 by December 31, 2015, which

is the same date in DOE’s prior proposal and 15 months beyond the September

30, 2014, date currently in the Consent Decree. DOE is also proposing revised

milestones for tanks C-105 and C-111, based on current progress toward

retrieving those tanks. Specifically, tank C-105 would be retrieved by a date not

to exceed September 30, 2022, with a retrieval milestone to be set 60 days after

the tank-retrieval technology to be utilized is approved by the State, as detailed

further below. DOE also proposes that the retrieval date for tank C-111 be



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extended from the current Consent Decree date of September 30, 2014, to April

30, 2016.

5. As described more fully below, DOE has three primary reasons for

proposing these revisions: (1) DOE is taking a cautious approach to the

continued use of additional protective equipment for workers related to tank

vapors; (2) the recent continuing resolution enacted by Congress on September

30, 2015, has caused delays that have resulted in a need to extend the final

retrieval deadline for the nine A and AX tanks; and (3) current progress towards

completing retrievals at C-Farm and the difficult retrieval circumstances

encountered require an extension of these milestones.

Tank C-102

6. Tank C-102 is one of the remaining 12 tanks to be retrieved under

the Consent Decree. Pursuant to DOE’s revised Milestone B-1, and consistent

with our first proposed modification, DOE proposes to retrieve tank C-102 by

December 31, 2015. ECF No. 94 ¶ 44.

Tank C-105

7. Tank C-105 is another one of the remaining 12 tanks to be retrieved

under the Consent Decree. As I noted previously, the identification of tank waste

properties at tank C-105 required additional time and resources beyond what

was expected. ECF No. 113-2 ¶ 18. DOE has already initiated negotiations of

retrieval technology for C-105 (as anticipated in DOE’s first proposed

modification). Accordingly, DOE is proposing a new B-1A milestone that would

require that, 60 days after the State approves a Tank Waste Retrieval Work Plan

revision in accordance with Section IV-B-4 and Appendix C of the existing



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Consent Decree, DOE must propose a milestone, not to exceed September 30,

2022, to complete the retrieval of waste from tank C-105.

8. DOE and the State have ongoing discussions about the retrieval

technology for C-105; once the discussions are complete DOE will transmit a

formal revision to the Tank Waste Retrieval Work Plan for the State’s approval.

After the revision is approved by the State, DOE can proceed to proposing a

new milestone for completing retrieval of C-105. The requirement to complete a

Tank Waste Retrieval Work Plan for tank C-105 that includes a discussion of

the retrieval technologies to be used is not new; indeed, such a discussion is

required to comply with the Consent Decree. ECF No. 59 at 37–41. DOE had

prepared a Tank Waste Retrieval Work Plan for C-105, which the State

approved, before the retrieval issues arose. ECF No. 113-2 ¶ 18.

9. DOE’s proposed new B-1A milestone therefore accurately captures

the current state of planning for C-105 and provides a clear and achievable goal

for setting a date to complete retrieval of C-105, in light of the difficulties with

retrieving waste from the tank as described in my prior declarations. ECF No. 94

¶ 44; ECF No. 113-2 ¶¶ 18–20.

Tank C-111

10. Tank C-111 is also one of the remaining 12 tanks to be retrieved

under the Consent Decree. The current Consent Decree requires tank C-111 to

have been retrieved by September 30, 2014. As discussed in my prior

declarations, DOE has encountered particularly difficult conditions at tank C-

111 that have delayed retrieval of waste from that tank. ECF No. 94 ¶ 44; ECF



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No. 113-2 ¶ 21. For those reasons, DOE had proposed that the date for retrieval

of C-111 be moved to December 31, 2015. ECF No. 76-1 at 12.

11. Since proposing a revised date, DOE has identified and made

progress towards resolving two nuclear safety-related issues that have delayed

the retrieval of the waste from the C-111 tank.

12. First, on June 15, 2015, DOE identified a problem that raises

significant safety issues concerning heat that can be transferred to waste transfer

process hoses during retrievals. Hoses used to transfer waste during retrieval

operations are bundled (co-located) with the high pressure hydraulic hoses that

operate the retrieval system pumps and sluicers. The fluid temperature in the

hydraulic hoses is a heat source and could result in the adjacent waste transfer

hoses exceeding their design temperature and potentially degrading and failing.

By the end of September 2015, DOE had completed the final calculations

needed to allow C-111 retrievals to commence, lowering temperature set points

on the high pressure units that operate retrieval pumps and sluicers based on the

new thermal analyses.

13. Second, on April 18, 2015, a component failed in the waste transfer

system located in the C-102 extended-reach sluicer hose reel assembly resulting

in a waste leak into the containment pit. Our nuclear safety procedures require

that DOE determine whether the leak was caused by a new failure mode that

may impact similar equipment including the sluicers that were to be installed in

C-111. If DOE were to determine that a new failure mode had been identified,

the C-111 sluicers would need to be redesigned, new controls would need to be

added to the nuclear safety basis, or similar potentially significant actions would

need to be taken to protect people and the environment from a waste leak. DOE



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performed an analysis that identified the most probable components that could

have been involved with the waste leak. These components were checked during

an additional Factory Acceptance Test of the new C-111 sluicer unit prior to

tank installation. No anomalies were found and this issue was completed on

August 20, 2015. Attached as Exhibit A to this declaration is an Occurrence

Report that documents the identification, investigation, and resolution of these

issues.

14. Although these two nuclear safety issues have now been resolved,

they have delayed retrieving the waste from the tank, which makes the

previously-proposed deadline of December 31, 2015, unworkable.

15. As with other retrievals, the use of SCBA equipment due to vapors-

related concerns, described below, has also impacted retrievals at C-111.

16. Taking into consideration all of these issues, DOE has identified

April 30, 2016, as the most reasonable milestone deadline for completing the

retrieval of C-111.

A/AX Tanks: Revision to the Proposed B-2 Milestone Date

17. As described in my declaration supporting DOE’s revision to its

first proposed modification, and as discussed further below, retrieval of the nine

remaining A and AX Farm tanks had been delayed by a year, from September

2022 to September 2023, due to impacts from the vapors issue. ECF No. 148 ¶

3–5. This retrieval date assumed that the use of SCBA will conclude by the end

of Fiscal Year (“FY”) 2016.

18. In addition, on September 30, 2015, Congress passed and the

President signed H.R. 719, the Continuing Appropriations Act, 2016, which

continued to fund the federal government only through December 11, 2015.



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That continuing resolution held funding at the level appropriated for FY2015,

which is less than what was requested for FY2016 to allow DOE to continue to

make progress towards completing tank waste retrievals. DOE does not yet

know what its appropriations will be after December 11, 2015.

19. Due to the gap in funding, the September 30, 2023 retrieval

completion date previously proposed by DOE has been delayed by at least two

months, and likely as much as six months. This delay is attributed to, among

other consequences, limitations on DOE’s ability to hire and train Tank Farm

workers. Additionally, the gap in funding has resulted in the inability to execute

contracts for “long lead” equipment, i.e., equipment that takes a significant

amount of time to build. After adequate funding resumes, DOE can execute the

contracts, but then it will be in the back of the line for fabrication of the long

lead equipment, resulting in additional delay.

20. In light of that delay, DOE is proposing a milestone deadline of

March 31, 2024, for completion of retrievals. This date accounts for the

operational flexibility necessary to recover from the disruption caused by the

funding shortage. It also accounts for the use of SCBA until FY2016, although,

as explained below, DOE proposes automatic extensions in the event of

continued use of SCBA beyond FY2016.

Vapors

21. As I previously explained, waste tanks emit excess vapor to the

atmosphere to prevent the unsafe buildup of flammable gasses as part of normal

operation. ECF No. 113-2 ¶ 49. DOE and its Tank Farms contractor,

Washington River Protection Solutions (“WRPS”) received reports from

workers indicating that they may have experienced health-related impacts from



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exposure to these vapors. ECF No. 113-2 ¶ 51. As discussed in previous

declarations, the Tank Vapor Assessment Team (“TVAT”) report prepared in

response to this issue hypothesized that potential short, intermittent, higher

concentration vapor emissions could result in brief but intense exposures for

some workers. ECF No. 113-2 ¶ 53. DOE is carefully studying the issue and is

taking a protective approach to worker safety; this includes directing Tank

Farm workers to wear additional protective equipment such as SCBA. ECF No.

113-2 ¶¶ 52–54; ECF No. 148 ¶¶ 2–5. The use of SCBA reduces the efficiency

of the tank waste retrievals for several reasons, among them physiological

constraints on workers from increased heat, weight, and reduced mobility; the

need for new compressed air tanks after only 20–40 minutes of work, ECF No.

148 ¶ 3; and regulatory requirements that prevent the use of SCBA when the air

temperature rises above a certain degree. SCBA has always been and will

continue to be used during Tank Farm work for specific tasks, but this across-

the-board use of SCBA for the retrieval of waste from tanks is a new

development.

22. Due to the uncertainty of how long the use of SCBA for all retrieval

work will be directed, DOE has reassessed whether the B-2 Milestone for

retrievals at the remaining nine A and AX Farm tanks is realistically

achievable. ECF No. 113-2 ¶¶ 56–57. In DOE’s June 5, 2015 revision to its first

proposed modification, DOE proposed that the September 30, 2022 date be

extended to September 30, 2023, to account for the inefficiencies caused by the

use of SCBA and DOE’s assessment, based on what was known at the time, of

how long SCBA might be used. ECF No. 148 ¶¶ 3–5.



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23. As previously indicated, DOE, in coordination with WRPS, still

anticipates that it may be able to verify the technical basis for the conclusion

that ending the vapor-related use of SCBA at the end of FY2016 is warranted,

as stated in my prior declaration. ECF No. 148 ¶ 4. Accordingly, as noted

above, DOE has set retrieval dates for the A and AX tanks on the assumption

that SCBA use will conclude by the end of FY2016.

24. However, it is possible that SCBA use may extend past FY2016—

which would necessitate further extension of the A and AX retrieval date. First,

because DOE is taking a cautious approach to worker safety, DOE may

determine based on available information that it is in the best interests of the

Tank Farm retrieval employees to continue using SCBA beyond FY2016.

Second, DOE cannot be certain that it will have the scientific evidence by the

end of FY2016 to be able to determine whether SCBA equipment is no longer

appropriate. DOE does not yet have all of the data it requires to make that

determination. Actions taken pursuant to Phase I of the TVAT Report

Implementation Plan and other research work may provide the needed

information to return to a level of respiratory protection that is commensurate

with the risks of retrieval work, as opposed to the blanket SCBA use currently

in place for the A and AX Tank Farm work scope—or they may not. Inability

to successfully return to a level of respiratory protection that is commensurate

with the risks of retrieval work by the end of FY2016 will further impede

DOE’s ability to meet the milestones and schedule DOE proposes for Appendix

B, because the continued use of SCBA may be directed.

25. Moreover, Tank Farm workers maintain the option to continue

using SCBA equipment, even if DOE, in conjunction with WRPS, determines



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that it is not technically necessary. DOE expects that some workers will opt to

do so based on past and current experience. Because DOE cannot accurately

estimate how many workers will personally elect to use SCBA equipment or for

how long, it cannot accurately estimate the precise delay that could result from

optional use of SCBA beyond FY2016. However, I do expect that if a

significant number of employees choose to use SCBA, additional delays will

occur.

26. Due to this uncertainty regarding when across-the-board SCBA will

no longer be continued, DOE’s proposal includes an automatic extension of the

proposed B-2, B-3, B-4, and B-5 Milestones in the event that SCBA continues

to be used beyond September 30, 2016 (whether per a DOE and WRPS

direction or at the option of a significant number of employees). The extension

would begin to apply on October 1, 2016, if SCBA is still being used, and

would add an additional day to each milestone mentioned above for every two

days beyond September 30, 2016, that SCBA is used. For example, if SCBA is

used for an additional 60 days after September 30, 2016, then the proposed B-2

Milestone would be extended by 30 days, to April 30, 2024. This automatic

extension is a reasonable way to address a contingency—the possible need to

use SCBA for an indeterminate amount of time beyond FY2016—that may

occur, and that we know will impact retrievals if it does occur. The 2:1 ratio of

the extension is also reasonable, because experience has shown that SCBA

reduces the efficiency of retrieval work inside the Tank Farm by approximately



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50%, and therefore only one additional day is needed for every two days of

continued SCBA use.

27. This automatic extension process reflects DOE’s present inability

to determine when SCBA will no longer be technically necessary for all

retrieval work, or when its use due to employees’ individual choice will end,

and therefore its inability to ascertain at this time the full impact that across-the-

board use of SCBA will have on the retrieval timeframe. Without the automatic

extension, DOE would not be able to responsibly set March 31, 2024 as the

milestone for completing Consent Decree retrievals. Instead, DOE would have

to propose a date well beyond 2024 to reasonably accommodate this

contingency and the very real risk it currently poses to completing the retrievals

in a timely fashion. Rather than providing a speculative date, DOE’s proposed

automatic extension is directly tied—and proportional—to the length of any

continued delay beyond FY2016 due to the use of SCBA equipment.

THE 242-A EVAPORATOR

28. The 242-A Evaporator reduces the waste volume stored in the

DSTs by concentrating the liquid waste, thereby creating additional storage

space for waste retrieved from single-shell tanks.

29. As I have previously explained, DOE planned to use the 242-A

Evaporator to create space to facilitate single-shell tank retrievals at the time

that the Consent Decree was entered in 2010. ECF No. 153 ¶ 5. I have

referenced DOE’s planned use of the 242-A Evaporator throughout the briefing

of proposals to modify the Consent Decree. ECF No. 113-2 ¶ 31; ECF No. 106-

4 ¶¶ 27–28.



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30. The State has also acknowledged DOE’s plan to run 242-A

Evaporator campaigns to create additional DST space during the Consent

Decree retrievals and expressed no reservations about the 242-A Evaporator’s

fitness for the task. ECF No. 102 at 38 n.23 (State Response Brief in Support of

Petition to Amend Consent Decree); ECF No. 84 ¶ 26 (Declaration of Jeffrey

Lyon in Support of Washington’s Petition to Amend Consent Decree). The

State raised concerns only regarding the ability of the Evaporator to create

adequate DST space to handle retrievals occurring after the Consent Decree

timeframe, as part of the Hanford Federal Facility and Compliance Order

(“HFFACO”). ECF No. 84 ¶¶ 34–38; ECF No. 102 at 37–39. ECF No. 150 ¶¶

8–19 (Fourth Declaration of Jeffrey Lyon in Support of Washington’s Petition

to Amend Consent Decree). The State has only recently questioned whether the

242-A Evaporator will reliably function as planned.

31. At the outset, it is important to keep in mind how the 242-A

Evaporator will be used for the A and AX Tank Farm retrievals. For those

retrievals, the 242-A Evaporator serves two distinct functions in two phases:

a. First, it evaporates liquid from the existing waste in the

DSTs, thereby creating additional capacity.

b. Second, the 242-A Evaporator operates to remove liquid that

was added to the single-shell tanks during the retrieval process.

During this second phase, the 242-A Evaporator will reduce the

overall volume of the waste in the DSTs after retrieval, including

the liquid that was added to the single-shell tanks. However,

because a portion of the added liquid cannot be completely

evaporated from the retrieved waste in the DSTs, roughly two times



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as much waste will remain in the DSTs after the 242-A Evaporator

campaigns as compared to the original volume of waste in the

single-shell tanks. Additional background regarding the retrieval

process can be found in my first declaration. ECF No. 94 ¶ 48.

32. Attached as Exhibit C to this declaration is a report entitled

“Capability of the 242-A Evaporator to Support A and AX Farm Retrieval”

(“Evaporator Report”), which was prepared by WRPS at my direction. The

Evaporator Report describes in detail the history, use, and status of the 242-A

Evaporator, and explains why DOE is confident that the 242-A Evaporator is up

to the task of achieving sufficient waste volume reduction to support retrievals.

33. The Evaporator Report primarily focuses on the nine A and AX

Farm tanks remaining to be retrieved under the Consent Decree, and not on

those remaining to be retrieved in C-Farm. This is because the current available

space in the 200 East Area of the DST system—where C-Farm is located—is

greater than the space necessary to complete retrievals. More specifically, as of

the beginning of FY2016 the East Area has 3.31 million gallons (“Mgal”) of

available space. Evaporator Report at A-2, Table A-1b. The estimated volume

of as-retrieved waste (original waste plus liquid necessary for retrievals) for

tanks C-105 and C-111 is only 0.42 Mgal. Evaporator Report at A-2, Table A-

1c. Therefore, use of the 242-A Evaporator is not necessary to accomplish

retrievals at C-Farm.

34. The 242-A Evaporator was first put into service in 1977. Through

2015, it has processed over 130 Mgal of waste, for a total waste volume

reduction of over 80 Mgal. Evaporator Report at 2.



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35. Most of the 242-A Evaporator campaigns were conducted during

the 1970s and the 1980s, after which its use declined due to lack of mission

necessity (rather than inability to perform). Indeed, between 2010 and 2014, the

242-A Evaporator was not used at all because it was not needed to reduce waste

volume at that time. Instead, DOE used that time to perform equipment and

safety upgrades to the 242-A Evaporator, which extended its useful life.

Evaporator Report at 8. Because, as noted above, DOE has always been

planning to use the 242-A Evaporator to facilitate retrievals, DOE undertook

the upgrades between 2010 and 2014 to ensure that it could operate as needed.

Evaporator Report at i, 2–5.

36. The 242-A Evaporator was put back into service in September

2014, and between September 2014 and September 2015 achieved a waste

volume reduction of 1.9 Mgal from a waste feed of 4.6 Mgal over four

campaigns. Evaporator Report at 2.

37. A 2011 reliability assessment performed by a DOE contractor

concluded that, due to the equipment upgrades and other maintenance that was

performed prior to that assessment, and assuming continued ability to upgrade

and perform maintenance as necessary, the 242-A Evaporator would be capable

of operating for another 30 years. Evaporator Report at i, 18.

38. Past upgrades include expansion of the facilities; upgrading pumps,

slurry systems, and ancillary systems; replacing condensers and air

compressors; and upgrading ventilation systems. Evaporator Report at 25.

39. In addition to past upgrades, DOE has a suite of testing,

surveillance, and maintenance programs for the 242-A Evaporator to keep it in

good working order. Evaporator Report at 5–6.



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40. To assess the anticipated waste volume reductions the 242-A

Evaporator could achieve by evaporating liquid from A and AX Farm tanks,

DOE conducted both a steady-state evaluation and dynamic modeling using

DOE software (the Hanford Tank Waste Operations Simulator, or “HTWOS”).

The HTWOS model estimates the amount of waste volume reduction that will

be achieved on a tank-by-tank basis, using input parameters such as the specific

characteristics of the waste in each tank and estimates of the volumes of liquid

necessary to retrieve the waste in each tank. Evaporator Report at 7–8, 17,

Table 3-5. The HTWOS model assumes that the Low Activity Waste

Pretreatment System and the Direct Feed Low Activity Waste facility do not

become operational until FY2022. Therefore, the model does not assume that

the operation of those facilities would create any tank space for the time period

between FY2016 and FY2021, inclusive, which is when DOE plans to run the

242-A Evaporator to reduce waste volume to facilitate retrievals of the nine A

and AX Farm tanks. Evaporator Report at 8.

41. The steady-state evaluation demonstrated that the 242-A

Evaporator is not a limiting factor in having the tank space necessary to

complete the remaining A and AX Farm tank retrievals. Evaporator Report at

10.

42. Using the modeling software to evaluate a dynamic scenario

accounting for the current variables in A and AX Farms, DOE has also

concluded that the 242-A Evaporator will achieve a waste volume reduction

more than sufficient to provide space for the next nine A and AX Farm

retrievals. Evaporator Report at 11–14. The dynamic modeling shows that DOE

will only need to use the 242-A Evaporator for approximately 6% of the total



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number of days from the beginning of FY2016 to the end of FY2021, and at

approximately 14% percent of its State-permitted capacity, to achieve a waste

volume reduction sufficient for these retrievals. Evaporator Report at 13. In

other words, although the 242-A Evaporator is permitted to operate up to 152

days per year, or 912 days from FY2016 through FY2021, DOE projects that it

will only need to operate it for 130 days total over that period to achieve its

goal for waste volume reduction.

43. DOE did not limit itself to modeling based on current variables.

DOE also modeled scenarios where the 242-A Evaporator would be out of

operation for 18 months, either at the start of retrieval of the last two A-Farm

tanks, or after retrieval of the first two AX-Farm tanks. Even then, the models

show that the 242-A Evaporator has sufficient capacity to achieve the necessary

waste volume reduction to retrieve the nine remaining A and AX Farm tanks in

compliance with the B-2 Milestone in Appendix B, either as now proposed by

DOE (i.e., March 31, 2024) or as subsequently modified pursuant to DOE’s

proposal. Evaporator Report at 15–16.

44. Based on these modeling scenarios, DOE has developed an

estimated schedule of 242-A Evaporator campaigns to be conducted over the

next six years that will reduce sufficient waste volume to facilitate tank waste

retrievals. Evaporator Report at 14, Table 3-3. The schedule as it appears in the

Evaporator Report describes the amount of waste volume reduction DOE’s

model suggests it will achieve, which is more than what DOE actually needs to

facilitate retrievals. Although in my Fourth Supplemental Declaration I

described DOE’s estimated 242-A Evaporator campaigns as running through

FY2022, ECF No. 153 ¶ 8, the Evaporator Report attached to this declaration



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reflects DOE’s most updated estimates, i.e., campaigns running from FY2016

through FY2021, with the possible addition of campaigns in FY2022 and

FY2023 if necessary.

45. The Evaporator Report also demonstrates that the current schedule

for the 242-A Evaporator campaigns may be adjusted in a number of ways and

still achieve the required waste volume reduction in time to complete the

retrieval of the nine A and AX Farm tanks by DOE’s proposed B-2 Milestone

of March 31, 2024. In addition to extra time, because organic emissions from

the 242-A Evaporator campaigns have not reached a level where they would

approach regulatory limits, multiple campaigns could be conducted each year

without anticipated regulatory exceedances.

DOE’S PROPOSAL FOR DST CONSTRUCTION, CONTINGENT UPON

242-A EVAPORATOR PERFORMANCE

46. The following section of my declaration first describes the core

concepts underlying DOE’s proposal, in response to the Court’s Order, to make

the construction of new DSTs contingent upon the performance of the 242-A

Evaporator. I then describe the mechanics of the proposal, and how the

underlying concepts inform the proposal in practice.

Core Concepts Underlying DOE’s Proposal for DST Construction

Targets for Waste Volume Reduction

47. As described above, DOE has identified estimated annual waste

volume reductions from 242-A Evaporator campaigns from FY2016 through

FY2021 that will provide more than enough space to facilitate the retrieval of

the nine A and AX Farm tanks by March 31, 2024. For the purpose of DOE’s

proposal, DOE is identifying the estimated annual waste volume reductions that



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are actually necessary to facilitate those retrievals. These estimated annual

waste volume reductions serve as the targets (subject to future modification) for

timely completion of those retrievals. This approach to identifying targets is the

most practicable way to ensure that sufficient waste volume reduction is

achieved without requiring extraordinary measures to achieve an estimated, but

unnecessary, waste volume reduction.

48. Although DOE plans to achieve all necessary waste volume

reduction by the end of FY2021, it does not actually need to be completed until

March 31, 2023 (i.e., one calendar year prior to the B-2 Milestone in Appendix

B, which DOE proposes to be March 31, 2024). Having approximately 1.5

years of “float” at the end of the proposed schedule provides additional

operational flexibility to adjust and recover from a lack of waste volume

reduction in a given campaign or from missing an annual waste volume

reduction goal.

49. The Evaporator Report explains that DOE’s estimates for waste

volume reduction are also based on DOE’s current knowledge regarding each

tank’s waste characteristics. To provide more specific knowledge in advance of

a campaign on an individual tank, DOE conducts a “boil-down” test run with

actual waste from the tank. It is possible that, after a boil-down test, the

estimated waste volume reduction could decrease or increase. In the event an

estimate is adjusted downward, DOE may be unable to achieve a waste volume

reduction target for that year. However, as noted above, DOE’s current plan

represents a very small amount of annual 242-A Evaporator usage compared

with what is allowed under DOE’s permit. This means that even if DOE could

not run enough campaigns in one year to make up a shortfall (whether due to a



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changed estimate or otherwise), it could do so in the following year. DOE has

also built into its targets an extra one and a half years—FY2022 and the first

half of FY2023—to run additional campaigns as necessary. This provides DOE

with additional reasons why it is confident it can achieve sufficient waste

volume reduction to facilitate retrievals in compliance with DOE’s new

proposed deadline of March 31, 2024.

50. One variable that could cause a delay that could not be mitigated

within the approximate 1.5 year float time is a lack of sufficient waste feed to

process through the 242-A Evaporator. Obviously, without sufficient feed, the

242-A Evaporator cannot do its job. Therefore, if sufficient waste feed is

unavailable, DOE may be unable to achieve a waste volume reduction target for

one year or several. In contrast to the flexibility DOE proposes with respect to

other variables that would make use of the approximate 1.5 year float time in

the current plan, DOE’s proposal includes an extension of time that would be

triggered if sufficient waste feed is unavailable. Under DOE’s proposal, the

time to achieve the required waste volume reduction would be extended in

proportion to the amount of time that sufficient waste feed was unavailable,

unless DOE determines a different extension is necessary.

51. In sum, because the targets in DOE’s proposal are based upon

estimates—highly specialized though those estimates are—it is necessary to

have the flexibility to adjust both the time- and waste volume reduction-related

targets to adapt to subsequent events and analysis. With respect to timing,

because the 242-A Evaporator is planned to be used for so little of its actual

capacity, additional or longer campaigns can be readily scheduled and run to

account for unanticipated events either with respect to the 242-A Evaporator



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itself or other areas of A and AX Tank Farm operations that delay planned

campaigns. With respect to waste volume, again, the ability to run additional

campaigns mitigates less-than-anticipated reductions. Moreover, over the

course of the next several years, DOE may determine that the original total

waste volume reduction target was either more or less than actually required to

facilitate retrievals.

Conditions on the Construction of a New DST

52. The construction of new DSTs is not only unnecessary, but would

also be a barrier to the timely retrieval of the 12 remaining tanks subject to the

Consent Decree. I have already discussed many of these reasons, chief among

them being (1) the staggering amount of resources, both financial and

otherwise, needed to construct a DST that can undermine DOE’s ability to meet

other important cleanup requirements at Hanford or at other DOE sites, ECF

No. 106-4 ¶¶ 35–38; (2) the detriments to the overall mission at Hanford due to

a shift in focus from waste treatment to tank construction and waste storage,

ECF No. 106-4 ¶ 31; and (3) apart from the drain on resources DSTs would

cause, any new DSTs would not be ready in time to provide extra space to

conduct retrievals required under the Consent Decree. ECF No. 106-4 ¶ 33;

ECF No. 153 ¶ 8. With respect to the relationship between DST construction

and the 242-A Evaporator in particular, two additional reasons support DOE’s

conclusion that DST construction is unnecessary. First, DOE would likely have

the ability to mitigate waste volume reduction shortfalls through other less

expensive, more efficient means than DST construction. Second, regardless of

any 242-A Evaporator shortfall in waste volume reduction, DOE likely can still

achieve the proposed B-2 Milestone for retrieving the remaining nine A and



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AX Tank Farm tanks (i.e., March 31, 2024), and, even if that milestone date

cannot be met, DOE can still complete the retrievals subject to the B-2

Milestone more quickly without DST construction than with it.

53. DOE’s proposal therefore places important conditions on the

construction of DSTs in the event of 242-A Evaporator performance problems.

These conditions are necessary to ensure that DOE will not, by diverting time

and resources to DST construction, adversely affect cleanup activities that

protect public health and the environment. Without these conditions, DOE

would not be able to responsibly propose triggers to construct DSTs that are

linked to the performance of the 242-A Evaporator. In the ordinary course,

DOE would consider the benefits and detriments to DST construction before

determining that such a drastic measure—one that in these circumstances is

fundamentally at odds with DOE’s current approach for accomplishing its tank

waste cleanup mission at Hanford, ECF No. 94 ¶¶ 28–30; ECF No. 106-4 ¶

30—would be necessary to offset unexpectedly poor 242-A Evaporator

performance. Indeed, as I describe below, many other, less expensive and

easier-to-implement measures are available to compensate for 242-A

Evaporator shortfalls. Without the conditions in DOE’s proposal, a trigger for

constructing new DSTs would not help DOE achieve what the Court has

indicated is the purpose for construction, i.e., timely retrieval of waste from the

tanks subject to the Consent Decree, because such construction could actually

delay retrievals and be counterproductive to protecting public health and the

environment.

54. Resources: In my prior declarations I have highlighted the

irrationality of spending a large portion of already constrained resources on the



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construction of new waste storage when DOE already has the means, through

waste volume reduction campaigns of the 242-A Evaporator, to establish more

than adequate space needed for retrievals, and DOE’s finite resources are better

spent towards bringing the Waste Treatment Plant online. Because building

new DSTs would divert resources and shift focus from waste treatment to waste

storage, it would be counterproductive to DOE’s mission at Hanford of

reducing nuclear safety risks. ECF No. 106-4 ¶ 30.

55. As I have previously stated, DOE is unlikely to be appropriated the

funds needed to design, review, and construct one, much less multiple, new

DSTs that could cost between $85 and $150 million apiece. ECF No. 106-4 ¶¶

33–36. Therefore, to bring a new DST into service, DOE would likely have to

divert resources from other projects at Hanford and potentially elsewhere,

risking other important operational goals and jeopardizing compliance with

other agreements or court orders.

56. Diversion of funds is not the only concern. DOE has not built a

DST in almost 30 years at the Hanford site, and a significant amount of time

and personnel resources would need to be devoted to the effort to design,

review, and construct the DST. ECF No. 106-4 ¶ 37. The supply of personnel

specially qualified to work at Hanford is limited; DOE cannot afford to remove

people from work that is essential to Hanford’s nuclear waste treatment mission

to build a DST that would not be usable until after all relevant Consent Decree

retrieval deadlines have passed.

57. Detriments to DOE’s Mission at Hanford: The detriments to the

Hanford tank waste project from DST construction would likely outweigh the

detriments to the project or the risk to public health and the environment from



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any delay in completing retrievals. As I have previously explained, DOE has

published an environmental impact statement documenting DOE’s conclusion

that the Waste Treatment Plant is the appropriate mechanism through which to

address nuclear-safety risks from tank waste. ECF No. 106-4 ¶ 30.

58. As I have also explained at length in prior declarations, the

additional risk to groundwater or the Columbia River posed by allowing the

waste to remain in single-shell tanks beyond 2040 is not significant. ECF No.

106-4 ¶¶ 22–24; ECF No. 113-2 ¶¶ 38–44. Taking into account the existing

contamination and the relatively small amount of additional contamination that

could potentially occur, even under a conservative analysis, potential risk to

groundwater is not a credible justification for DST construction.

59. Nor would the construction of additional DSTs increase the rate at

which retrievals could occur or make it more likely that DOE could meet a

retrieval milestone. In fact, just the opposite. In the event the 242-A Evaporator

misses a target and triggers the requirement to build a DST, the diversion of

resources alone that would be required to begin the DST design and

construction process virtually guarantees waste retrieval delay. And even if a

provisional trigger to begin the process to construct new DSTs were to occur as

early as January 1, 2017, for example, and DOE did not determine that any

condition applied to suspend the DST requirement, the earliest the DSTs could

be constructed and put into service is 2025.

60. Additionally, due to the addition of liquid to facilitate single-shell

tank retrievals, the generation of liquid waste would outpace the construction of

the DSTs, which would take 8–10 years to come into operation. ECF No. 106-4

¶¶ 33, 37. But as I have explained, the construction of new DSTs is not



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necessary, even considering the potential loss of the storage capacity provided

by AY-102. ECF No. 153 ¶¶ 2–6.

61. Therefore, even if there were uncertainty about the ability of the

242-A Evaporator to facilitate tank waste retrievals, DST construction would be

an illogical response. ECF No. 153 ¶ 16.

62. At the July 23, 2015 hearing on the Parties’ motions to modify the

Consent Decree, counsel for the State suggested that DST construction could

“guard against significant slips past 2022” even if the tanks would not be done

in time to “guarantee 2022.” Transcript of the July 23, 2015 Motion Hearing

Before Hon. Rosanna Malouf Peterson, Chief U.S. District Court Judge (“Mot.

Hr’g Tr.”) 101. That statement defies logic, implying that somehow DOE could

start using a half-constructed DST to have more retrieval space and “guard

against” missing a deadline. The DSTs cannot be used until they are finished,

and they would not be finished, even if construction started today, until late

2023, at the earliest.

63. Ability to Mitigate 242-A Evaporator Shortfalls: DOE has many

options at its disposal short of DST construction to mitigate a shortfall in waste

volume reduction caused by the failure of the 242-A Evaporator to perform as

expected.

64. DOE’s history of using the 242-A Evaporator demonstrates that,

even when unforeseen mechanical issues arise, DOE can fix them and still

achieve significant waste volume reduction. The 13-month period from

September 2014 through September 2015 demonstrates this, because DOE

revised its feed staging strategy to adjust for a failed transfer pump, installed a

new ammonia monitor, repaired a feed line valve, replaced a pump, and still



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achieved a 1.9 Mgal volume reduction over the course of four campaigns.

Evaporator Report at 19. Note that some of these issues—like the failed transfer

pump—did not originate at the 242-A Evaporator facility.

65. In the event of less-than-anticipated waste volume reduction due to

mechanical issues that would delay operation of the 242-A Evaporator, DOE

has sufficient extra time already built into the 242-A Evaporator campaign

schedule to compensate for any such reduction. The same is true for an event

unrelated to the waste feed or 242-A Evaporator itself, such as a worker strike

or other work stoppage. Because the 242-A Evaporator only runs during a

portion of each calendar year, DOE could add campaigns to that year’s

schedule or add campaigns in future years, extend the duration of time that 242-

A Evaporator campaigns were otherwise expected to run, or expand the number

of tanks subject to 242-A Evaporator campaigns. Evaporator Report at 19.

Indeed, as stated above, DOE has modeled scenarios where the 242-A

Evaporator would be out for 18 months, or 25% of the total calendar time span

the 242-A Evaporator is currently expected to run campaigns for the purpose of

DOE’s proposal, and still reduce the amount of volume necessary to facilitate

retrievals of the next nine A and AX Farm tanks in compliance with DOE’s

proposed Appendix B milestones for retrievals. Evaporator Report at 15–16.

This is because the current plan for the 242-A Evaporator’s use already builds

in sufficient contingency to mitigate unexpected events.

66. In the event of a total breakdown, and in the event the 242-A

Evaporator cannot be repaired or replaced within 18 months, the time it would

take to construct an entirely new evaporator would only be 5–7 years. Since a

DST would take 8–10 years to construct, that means there would be 3 years



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when a new evaporator could be processing waste feed and reducing waste

volume that would instead be delayed due to waiting for the construction of a

DST to be finished.

67. Moreover, although the 242-A Evaporator is the technology that

DOE plans to use to create enough tank space to facilitate the timely retrieval of

the nine A and AX Farm tanks, DOE has other options and contingency

measures it could deploy if the 242-A Evaporator fails to perform as expected.

These include constructing and using mini-evaporators, increasing the specific

gravity level of the waste (which means increasing the amount of water

evaporated from the waste in the tanks during the 242-A Evaporator runs), and

increasing the maximum allowable waste level in some double-shell tanks by

verifying that additional waste in those tanks will not increase environmental

risks. Evaporator Report at 16.

68. Achieving the B-2 Milestone: The entire purpose of the 242-A

Evaporator, and indeed, this entire aspect of DOE’s proposal, is to facilitate

retrieval of the A and AX Farm tanks. As such, if DOE can achieve the

proposed B-2 Milestone of March 31, 2024 without construction of a DST,

notwithstanding any waste volume reduction shortfall by the 242-A Evaporator,

DOE should not be required to construct a DST. Similarly, if the tanks subject

to the B-2 Milestone can be retrieved, even beyond a milestone date, but more

quickly without construction of a DST than with it, DOE should not be required

to construct a DST, especially where DST construction would have significant

and detrimental impacts on the Hanford cleanup mission. As I mention above,

DOE has identified several alternatives that, in the absence of sufficient

performance by the 242-A Evaporator, can recover waste volume reduction



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shortfalls more quickly than the 8–10 years it would require to construct a DST.

These alternatives include everything from repairing the 242-A Evaporator or

building a new evaporator, to implementing other space-saving and space-

creating technologies.

69. Depending on the circumstances, it may also make more sense to

simply extend the proposed B-2 Milestone date of March 31, 2024, even

assuming DSTs could somehow mitigate some retrieval delays. As I have

explained, when weighing the great cost and detriment to the project of building

DSTs against both the lack of any significant risk to groundwater or the

Columbia River if retrievals were delayed and the absence of any specific

public health risk that makes 2024 a particularly-significant milestone, the

balance weighs in favor of milestone extension.

Mechanics of DOE’s Proposal

70. DOE’s proposal is structured in a way that most closely aligns with

the realities of engineering project management. For example, although DOE

has an estimate of the waste volume reduction the 242-A Evaporator campaigns

could achieve based upon detailed modeling scenarios, it is impossible to know

precisely how an individual tank’s waste characteristics will behave when being

processed through the 242-A Evaporator until a boil-down test occurs.

Accordingly, the proposal allows DOE to make adjustments to account for

actual results, but still achieve the total waste volume reduction goal in time to

facilitate tank waste retrievals.

71. Targets: Although DOE continues to believe that DSTs are an

inappropriate solution to the perceived problem of 242-A Evaporator

performance, to comply with the Court’s Order, DOE is proposing a schedule



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for the use of the 242-A Evaporator that, if not met (either as initially set forth

in the proposal or as subsequently amended), will trigger a requirement to begin

constructing a DST to compensate for waste volume reduction not achieved by

the 242-A Evaporator, subject to the conditions described above.

72. DOE proposes to use its existing plan for the 242-A Evaporator to

identify waste volume reduction goals to measure performance and, if

necessary, trigger the construction of DST capacity sufficient to compensate for

a shortfall in 242-A Evaporator performance. The targets and reporting

mechanism DOE is proposing represent a workable path forward, consistent

with how project managers conceive of using the 242-A Evaporator and the

countervailing considerations that would negate any potential benefit of a new

DST.

73. Annual Report: The heart of DOE’s proposal is the Annual Report,

wherein DOE will (1) report on the performance of the 242-A Evaporator

during the prior fiscal year, i.e., whether it met the waste volume reduction goal

and, if not, whether and how that shortfall may be mitigated later to achieve

DOE’s overall waste volume reduction goal; and (2) provide an update as to

whether DOE believes its goals for the following fiscal year are achievable, and

if not, whether DOE is able to estimate whether and how the ultimate goal for

waste volume reduction can be met. If DOE has been unsuccessful in achieving

its waste volume reduction goals, but the reason is because of inadequate waste

feed to process through the 242-A Evaporator, DOE’s proposal provides an

automatic extension of time to achieve the required waste volume reduction in



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proportion to the amount of time during which sufficient waste feed was

unavailable, unless DOE determines a different extension is necessary.

74. DST Trigger: If any shortfall in waste volume reduction is due to

other causes besides inadequate waste feed, DOE must demonstrate how it can

still meet its overall goal in time to facilitate retrievals, either through schedule

adjustments or other mitigation measures. If DOE cannot make such a

demonstration, it would then be required to construct DST space adequate to

mitigate the shortfall, subject to several important conditions.

75. Conditions: Above, I described the conditions that, if applicable at

the time the requirement to build a DST were triggered, would weigh against

DST construction under DOE’s proposal: (1) if the cost of one or more new

DSTs would result in diversion of funds or a lack of resources that could

jeopardize other DOE cleanup activities, (2) if the detriments of DST

construction would outweigh the detriments of delayed tank retrievals to the

Hanford tank waste project or to the risk to public health and the environment,

(3) if DOE is able to otherwise mitigate a shortfall in 242-A Evaporator

performance, and (4) if DOE is able to achieve the proposed B-2 Milestone date

of March 31, 2024 notwithstanding a waste volume reduction shortfall, or if

retrievals of tank waste, even if delayed beyond the B-2 Milestone, would be

accomplished sooner than it could were new DSTs constructed. DOE will

submit a notification to the Court if it determines that any of these conditions

apply. The requirement to construct a DST would thereafter be suspended

unless a condition ceases to apply, at which time DOE would again notify the

Court, and the requirement to construct a DST would resume, with the deadline



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reflecting an extension for the length of time the construction requirement was

suspended.

76. Opportunity for State Challenges: Some elements of DOE’s

proposal include areas in which judgments must be made that affect the

schedule, as opposed to defined events that trigger extensions already defined

in the proposal. For example, DOE may determine that a change to a time- or

waste volume reduction-related target is necessary to achieve the overall waste

reduction goal, or that, subsequent to an event triggering the requirement to

build a DST, a condition applies that suspends that requirement. DOE’s

proposal accommodates disputes DOE and the State may have by identifying

those judgments that may be disputed, and establishes a process for their

resolution. Thus, the dispute resolution procedures of the Consent Decree will

apply if the State takes issue with an alteration DOE makes to its waste volume

reduction goals or timeline, or with a determination that one of the conditions

applies that would suspend DOE’s requirement to construct a DST.

Responding to State Inaccuracies

Corrections to Statements in the Fifth Declaration of Jeffrey Lyon

77. The following paragraphs respond to statements made in the Fifth

Declaration of Jeffrey Lyon, ECF No. 154, and explain how those statements

neither reflect DOE’s current plan for 242-A Evaporator usage nor undermine

current evaluations regarding the ability of the 242-A Evaporator to reduce

sufficient waste volume to provide space in the DSTs for the retrieval of the

remaining nine A and AX Farm tanks subject to the Consent Decree.

78. Mr. Lyon based the majority of his assertions in his Fifth

Declaration on outdated, incorrect, or unrealistic inputs and assumptions, which



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appear to be taken primarily from System Plan 6 and System Plan 7. ECF Nos.

154-1, 154-2 (selected excerpts of the System Plans attached to the Fifth

Declaration of Jeffrey Lyon in Support of Washington’s Petition to Amend

Consent Decree). System Plan 7, for example, did not include any scenarios or

input data endorsed by DOE. System Plan 7 included only the State’s input,

assumptions, and parameters. DOE did not believe that the State’s approach to

preparing System Plan 7 would be a useful exercise because it was based upon

certain unrealistic and incorrect inputs and assumptions, and that is still the

case. DOE’s position is clear in the document itself, as set out in the disclaimer

to the document:

These five scenarios [analyzed in System Plan 7] were selected and

defined solely by Ecology without modification by DOE. ORP elected not

to select or define scenarios for evaluation in System Plan, Rev. 7. In

comparison to System Plans previously submitted by DOE both prior to

and after implementation of HFFACO milestone M-062-40, this System

Plan, Rev. 7 is unique in that a current baseline was not evaluated. The

five presented cases . . . do not reflect the current status of ORP’s mission,

and do not reflect a complete and adequate understanding of assumptions

of facility interim and startup dates associated with resolution of technical

issues with the [WTP] and the need to established new or revised

baselines for key project components.

System Plan 7 at ii; see also System Plan 7 at ES-1. An excerpt of System Plan 7

is attached as Exhibit D to this declaration.

79. Moreover, system plans are lifecycle projections, i.e., projections

for the entire scope of the Hanford cleanup, which are required by the



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HFFACO and are not tailored to the specific subset of the cleanup that includes

retrieval of the remaining 12 tanks subject to the Consent Decree. System Plan

7 at ES-2. Therefore, references in that document to the 242-A Evaporator and

its ability to achieve necessary waste volume reduction, e.g. ECF No. 154-1 at

4-13, pertained to the context of the entire life of the tank waste cleanup, not the

limited timeframe of planned retrievals between now and FY2021 (i.e., the

relevant time period for the 242-A Evaporator’s ability to perform as needed

during the retrieval of the remaining tanks subject to the Consent Decree).

80. In addition to inappropriate references to System Plan 7, the

majority of Mr. Lyon’s declaration appears to be based on the assumption that

the 242-A Evaporator would only be used for three to four years in the

foreseeable future. ECF No. 154 ¶ 4. That assumption misconstrues a statement

I made in a prior declaration, where I said that “future Evaporator campaigns in

the next three to four years . . . will create approximately three to four million

gallons of additional DST storage capacity.” ECF No. 148 ¶ 9. That statement

is still correct. But DOE is not limiting itself to campaigns over just the next

three to four years. As discussed above, DOE plans to use the 242-A

Evaporator over at least the next six years to support the retrievals subject to the

Consent Decree, and DOE will continue to use the 242-A Evaporator after

those retrievals to support future retrieval work.

81. Additionally, DOE has 3.31 Mgal of DST space available in the

East Area as of October 1, 2015, Evaporator Report at A-2, Table A-1b, not the

1.8 or 1.2 Mgal mentioned in Mr. Lyon’s declarations, ECF No. 154 ¶ 5. That

3.31 Mgal figure does not include the additional space that already exists and is

set aside for an emergency pursuant to DOE Order 435.1, or the additional



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existing space reserved for tank headspace requirements. Evaporator Report at

A-2, Table A-1b. The tank headspace is the space that is operationally unusable

due to nuclear safety and waste incompatibilities within the DST system.

Corrections to Statements Made at Motion Hearing

82. The misunderstandings apparent in Mr. Lyon’s declarations were

also reflected at the hearing on July 23, 2015. In my prior declaration, ECF No.

153 ¶ 13, I explained that, contrary to the implication in Mr. Lyon’s fourth

declaration that DOE is assuming a 60% efficiency rate for 242-A Evaporator

campaigns, ECF No. 150 ¶¶ 11–12, and thereby using an overly-optimistic

estimate of performance to inform its conclusions, DOE does not assume that

each campaign will achieve 60% efficiency. Rather, I explained that DOE

“instead bases its estimates on the available data for each campaign. For the

Evaporator campaigns planned between now and fiscal year 2018, DOE

projects that waste volume reductions will range from 18% to 59%, depending

on the particular campaign.” ECF No. 153 ¶ 13 (emphasis added). Described

as the range of “Waste Volume Reduction Factors” in the Evaporator Report,

Evaporator Report at 2 n.3, 14, Table 3-3 n.a, this percentage range reflects the

low and high values of expected results over all the different campaigns, taken

together. This percentage range does not in any way indicate that any one tank

or campaign is expected to exhibit anywhere from an 18% to a 59% reduction

in waste volume. Rather, the Waste Volume Reduction Factor range (e.g., 18%

to 59%) provides a picture of the overall performance range that can be

expected across all evaporator campaigns on multiple tanks. For example, for

all the campaigns DOE plans to run from FY2016–FY2021 specifically, DOE’s

modeling suggests that the Waste Volume Reduction Factors are expected to be



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from 21–57%. Evaporator Report at 14, Table 3-3. That means that one tank

may have an estimated individual Waste Volume Reduction Factor of 21%, and

another tank may have an estimated individual Waste Volume Reduction Factor

of 57%—not that DOE’s estimate for one tank’s Waste Volume Reduction

Factor could be anywhere from 21% to 57%. That is why I stated in my prior

declaration that the particular expected reduction efficiency for any one

campaign depends upon the particular campaign and that tank’s waste

constituents. ECF No. 153 ¶ 13.

83. This is also why in my prior declaration, where I identified the

expected variability in total waste volume reduction under the prevailing

assumptions, it was quite small. As I explained: “The amount of additional

storage capacity created by the Evaporator could be slightly higher (8.84

million gallons) if the specific gravity achieved by evaporation of the waste is

higher than anticipated, or slightly lower (8.55 million gallons) if the specific

gravity achieved by evaporation of the waste is lower than anticipated. In either

case, however, DOE would have more than two million gallons of available

DST capacity after completing the retrievals required by the Consent Decree.”

ECF No. 153 ¶ 5.

84. At the July 23, 2015 motion hearing, counsel for the State distorted

my correction of the errors in Mr. Lyon’s fourth declaration, when he

interpreted my declaration as saying that the Waste Volume Reduction Factor

“can’t be known until you actually start feeding the evaporator, and it could

vary between 18 percent and 59 percent.” Mot. Hr’g Tr. 98. As explained

above, this statement distorts the import of my prior declaration, and thus




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CERTIFICATE OF SERVICE

I hereby certify that on November 13, 2015, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system which will send

notification of such filing to counsel of record in this action.

I hereby certify that I have mailed by United States Postal Service the

document to the following non-CM/ECF participants: N/A

/s/ Elizabeth B. Dawson

ELIZABETH B. DAWSON Trial Attorney U.S. Department of Justice


EXHIBIT A


EM-RP--WRPS-TANKFARM-2015-0006

file:///M|/...Local/Microsoft/Windows/Temporary Internet Files/Content.Outlook/3D04YL0V/EM-RP--WRPS-TANKFARM-2015-0006.htm[11/11/2015 9:06:01 PM]

EM-RP--WRPS-TANKFARM-2015-0006 FINAL

Occurrence ReportAfter 2003 Redesign

Tank Farms

(Name of Facility)

Nuclear Waste Operations/Disposal

(Facility Function)

Hanford Site Washington River Protection Solutions, LLC

(Site) (Contractor)

Name: Tavelli, Mark FTitle: Manager, Engineering Telephone No.: (509) 373-5330

(Facility Manager/Designee)

Name: WATERS, SHAUN FTitle: OPERATIONS SPECIALIST Telephone No.: (509) 373-3457

(Originator/Transmitter)

Name: Date:

(Authorized Classifier (AC))

1. Occurrence Report Number: EM-RP--WRPS-TANKFARM-2015-0006

Supernate/Slurry Pump Process Hoses May Exceed Design Temperatures (PISA)

2. Report Type and Date: FINAL

Date TimeNotification: 06/25/2015 15:29 (ETZ)Initial Update: 07/01/2015 20:17 (ETZ)Latest Update: 10/05/2015 17:39 (ETZ)Final: 10/05/2015 17:39 (ETZ)

3. Significance Category: 4

4. Division or Project: Washington River Protection Solutions LLC (WRPS)

5. Secretarial Office: EM - Environmental Management




6. System, Bldg., or Equipment: Waste/241-C and 241-AN Farms/Supernate and Slurry Pumps

7. UCNI?: No

8. Plant Area: 200 East

9. Date and Time Discovered: 06/23/2015 10:45 (PTZ)

10. Date and Time Categorized: 06/23/2015 10:45 (PTZ)

11. DOE HQ OC Notification:

Date Time Person Notified OrganizationNA NA NA NA

12. Other Notifications:

Date Time Person Notified Organization06/23/2015 12:00 (PTZ) Sondag, J. M. DOE-ORP10/02/2015 11:14 (PTZ) Baker, S. G. MSA-EOC06/23/2015 12:01 (PTZ) Ringo, S. D. WRPS06/23/2015 11:55 (PTZ) Woodford, T. L. DOE-ORP10/02/2015 11:05 (PTZ) Frink, R. L. DOE-ORP10/02/2015 11:20 (PTZ) Smith, D. K. WRPS

13. Subject or Title of Occurrence:

Supernate/Slurry Pump Process Hoses May Exceed Design Temperatures (PISA)

14. Reporting Criteria:

3B(3) - Determination of a negative Unreviewed Safety Question (USQ).

15. Description of Occurrence:

A condition was identified which could result in temperatures in excess of design temperatures for the process hosesused in 241-AN-101, 241-AN-106, and 241-C-111 slurry and supernate pumps.

During engineering review of the design calculations described in RPP-RPT-42297 for the AX Retrieval System, acondition was identified for the slurry pump which could result in temperatures in excess of design temperatures forthe process hose in the hose cage located at the top of the pump assembly. Because the pump design proposed for theAX Retrieval System is very similar to those being utilized for C-Farm Retrievals, a review of the supporting analysisfor the pumps in use was performed. Subsequent review of the thermal analysis performed on the adjustable slurry andsupernate pumps used in 241-AN-101, 241-AN-106, and 241-C-111 identified that they do not consider a conditionthat may result in temperatures in excess of the 180 degrees Fahrenheit (F) design temperature of the process hose.

The process hose is an EPDM (ethylene propylene diene monomer) hose jumper (same material used for Hose-in-HoseTransfer Lines) and is safety significant as waste transfer primary piping systems (Section 4.4.1 of the Tank FarmDocumented Safety Analysis). The condition that is not analyzed is the temperature that can be reached within the hosecage assembly that results from the net heat generation within the hose cage from the hydraulic and process hoses and




the heat trace. The thermal analysis performed to date has only considered the bulk air temperature that can beachieved in the pit which surrounds the hose cage and not of components within the hose cage. The hose cage is anenclosure that contains the process and hydraulic hoses so they may "coil" as the pump height is adjusted. In off-normal conditions, the hydraulic hose fluid temperature can reach 195 F before the general service interlock at thehydraulic power unit (HPU) reservoir shuts down the HPU, which stops both hydraulic fluid and process fluid flows.This hydraulic fluid temperature as a heat source has not been considered in the calculation of the process hosetemperature within the hose cage.

The pump assemblies for 241-AN-106 and 241-C-111 (drawing H-14-109603) have hose cages that are heat tracedand insulated. The pump assembly for 241-AN-101 (drawing H-14-109608) has a hose cage that is not insulated orheat traced. Neither of these arrangements have a thermal analysis which demonstrates that the process hosetemperature remains below 180 F for all operating conditions. The slurry pump assembly for 241-C-105 is not anadjustable height pump and does not have the hose cage. Note that the 241-C-111 slurry pump has not yet been putinto service, therefore the temperature rating of the safety significant components has not been exceeded.

UPDATE 07/01/2015

On July 1, 2015, the Plant Review Committee (PRC) reviewed and approved Unreviewed Safety QuestionDetermination (USQD) TF-15-1079-D, Rev. 0. The USQD on the evaluation of supernate pump process hose for tank241-AN-106 utilizing HPU POR353 (retrieval function) was negative. The conclusion in this USQD was based on thesupporting analysis documented in RPP-CALC-60458 (Rev. 0), "Maximum Steady-State Temperature Analysis for241-AN-06A Pump Pit," which indicates that the 180 F design temperature for the processes hose in the hose cage inthe 241-AN-06A pump pit will not be exceeded and thus, there is no increase in the probability of failure of thisequipment important to safety.

The evaluation of the safety of the situation for removal of the operational restriction on the 241-AN-106 supernatepump utilizing HPU POR353 (retrieval function) only was provided the U.S. Department of Energy, Office of RiverProtection (DOE-ORP) via letter WRPS-1502852.

The USQD for tanks 241-AN-101 and 241-C-111 are pending.

UPDATE 07/14/2015

On July 13, 2015, Washington River Protection Solutions LLC (WRPS) notified DOE-ORP via letter WRPS-1503025,dated July 13, 2015, additional thermal analysis is required to complete the USQD for the other configurationsencompassed within the potential inadequacy of the safety analysis (PISA) (e.g., 241-AN-101 supernate pump, 241-AN-106 supernate pump utilizing HPU POR352 [decant function], and 241-C-111 slurry pump). These thermalanalyses are complex and will require significant effort to complete. Therefore, the USQD is expected to be completedprior to September 30, 2015.

The July 1, 2015, revised Red Arrow, "Do not remove Admin. Lock condition for adjustable slurry and supernatepumps for [tanks] C-111, AN-106 utilizing HPU POR352 (decant function), and AN-101 until engineeringtemperature evaluation is performed for associated hose cage assemblies," will remain in place until necessary actionsassociated with the PISA are complete.

UPDATE 07/30/2015

On July 29, 2015, the PRC reviewed and approved USQD TF-15-1239-D, Rev. 0. The USQD on the evaluation ofsupernate pump process hose for tank 241-AN-106 utilizing HPU POR352 (decant function) was negative. Theconclusion in this USQD was based on the supporting analysis documented in RPP-CALC-60458 (Rev. 1),"Maximum Steady-State Temperature Analysis for 241-AN-06A Pump Pit," which indicates that the 180 F design




temperature for the processes hose in the hose cage in the 241-AN-06A pump pit will not be exceeded and thus, thereis no increase in the probability of failure of this equipment important to safety.

The evaluation of the safety of the situation for removal of the operational restriction on the 241-AN-106 only wasprovided the DOE-ORP via letter WRPS-1503261.

The USQD for tanks 241-AN-101 and 241-C-111 are pending.

UPDATE 10/05/2015

Recategorization

On October 2, 2015, at 11:05 hours, Ronald L Frink of the DOE-ORP was notified this occurrence was recategorizedto a 3B(3) SC-4 occurrence.

Justification

The USQD TF-15-1604-D (Rev. 0), which evaluated the maximum temperature of the associated safety-significant 2-inch EPDM process hoses for the interior of the hose cage for the 241-C-111 slurry pump, the 241-C-111 extendedreach sluicing system (ERSS), and the 241-AN-101 supernate pump, was negative.

The PRC had reviewed and on September 29, 2015, approved USQD TF-15-1604-D, "Final Evaluation of ProcessHose May Exceed Design Temperature PISA Identified in Occurrence Report EM-RP--WRPS-TANKFARM-2015-0006 and WRPS-PER-2015-1158 (Includes Evaluation of RPP-CALC-60494, Rev. 0, RPP-CALC-48072, Rev. 2,RPP-CALC-46225, Rev 3, and RPP-RPT-42297, Rev. 14)."

PISA Evaluation

Waste transfer leak accidents are evaluated in the "Tank Farms Documented Safety Analysis" (RPP-13033) and in the"Hazard Evaluation Database Report" (RPP-15188). Both RPP-13033 and RPP-15188 indicate that fine spray leaks arenot postulated due to failures of the EPDM portion of non-metallic flexible hose jumpers or Hose-in-Hose TransferLine primary hose assemblies because the EPDM hose cannot maintain the fine crack geometry required for a finespray leak release (i.e., the EPDM hose leak location would expand [fish mouth] rather than form the narrow crackrequired for a fine spray leak that could exceed onsite guidelines). Thus, the hazard of concern with respect to aprocess hose failure due to high temperatures is a significant facility worker hazard due to a flammable gasdeflagration in a waste transfer-associated structure, which in the cases being evaluated are leaks into the 241-C-111saltwell pump pit, the 241 C-111 ERSS shield box, and the 241-AN-01A pump pit. Note that the 241 C-111 ERSSwas not identified in the original PISA but was added as part of the extent of condition.

The conclusions in USQD TF-15-1604-D (Rev. 0), which evaluated the maximum temperature of the associatedsafety-significant 2-inch EPDM process hoses, are supported by the thermal analysis for the interior of the hose cagewhen the 241-C-111 slurry pump (RPP-CALC-60494, Rev. 0), the 241 C-111 ERSS (RPP-CALC-48072, Rev. 2), andthe 241-AN-101 supernate pump (RPP-CALC-46225, Rev 3) are being operated are summarized below.

Note that RPP-CALC-46225 (Rev. 3) evaluates both HPU POR350 (retrieval function) and HPU POR348 (decantfunction) for the 241-AN-101 supernate pump.

Conclusions

The assumed conditions in RPP-CALC-60494 (Rev 0), RPP-CALC-48072 (Rev. 2), and RPP-CALC-46225 (Rev. 3)include high ambient temperature, solar heat gain, and a postulated failure of the waste transfer pump (or ERSS) HPUtemperature control, resulting in heat generation inside the pit (or ERSS shield box) from hot hydraulic hoses. Includedin the analysis is a Sol-Air temperature evaluation, a calculation of the maximum heat generation in the pit due to the




HPU hydraulic hoses (with worst-case failure of the HPU temperature control), a calculation of heat generation due toheat trace on jumpers, hydraulic hoses, and the pump hose cage, and a detailed heat transfer evaluation of the safety-significant 2-in, EPDM primary process hose that is contained inside the hose cage.

RPP-CALC-60494 (Rev. 0), "Maximum Steady-State Temperature Analysis for 241-C-111 Saltwell Pump Pit,"concluded that the maximum internal air and component temperature within the 241-C-111 saltwell pump pit duringthe hottest month of the year is 146 F, the maximum hose cage internal air and component temperature under steady-state operating conditions is 165 F, and the steady state temperature of the process hose after the HPU is shut downand process flow is lost is 167 F (which conservatively accounts for all the energy of the hot hydraulic hoses beingtransferred to the process hose and to the energy chain in which all the hoses are contained).

RPP-CALC-48072 (Rev. 2), "Extended Reach Sluicer Box Assembly Heat Trace Sizing and Maximum TemperatureAnalysis," concluded that the maximum internal air and component temperature within the 241-C-111 ERSS shieldbox during the hottest month of the year is 151 F and the maximum hose cage internal air and component temperatureduring the hottest month of the year is 170 F.

RPP-CALC-46225 (Rev. 3), "Maximum Steady-State Temperature Analysis for the 241-AN-01A Pump Pit and PumpHose Cage," concluded the maximum internal air and component temperature within the 241-AN-101A pump pitduring the hottest month of the year is 123 F, the maximum hose cage internal air and component temperature understeady-state operating conditions is 171 F, and the steady state temperature of the process hose after the HPU is shutdown and process flow is lost is 178 F, (which conservatively accounts for all the energy of the hot hydraulic hosesbeing transferred to the process hose and to the energy chain in which all the hoses are contained).

These conclusions indicate that the 180 F design temperature for the safety-significant process hoses in the hose cagein the 241-C-111 saltwell pump pit, the 241 C-111 ERSS shield box, and the 241-AN-01A pump pit will not beexceeded and thus, there is no increase in the probability of failure of this equipment important to safety.

Change to RPP-RPT-42297

In Rev. 13, RPP-RPT-42297, "Safety-Significant Waste Transfer Primary Piping Systems - Functions andRequirements Evaluation Document," was updated (per USQD TF-15-1079-D) to indicate that the primary pipingsystems and components may be affected by high temperatures when the systems are configured with an adjustableslurry or supernatant pump that feature a 2-inch, EPDM process hose together with hydraulic hoses routed inside aninsulated hose cage and RPP-CALC-60458, "Maximum Steady-State Temperature Analysis for 241-AN-06A PumpPit," was referenced. In Rev. 14, RPP-CALC-60494, Rev 0, RPP-CALC-48072, Rev. 2, and RPP-CALC-46225, Rev.3, are added to the description of calculations that evaluate various pits and above-grade enclosures for maximumsteady-state temperatures.

The evaluation of the safety of the situation for removal of the operational restriction on tanks 241-AN-101 and 241-C-11was provided the DOE-ORP via letter WRPS-1504314, dated September 30, 2015. The operational restriction for241-AN-106 was previously removed as described in the 07/01/2015 and 07/30/2015 updates above.

With the responses to USQD questions 1 through 7 being negative, an Unreview Safety Question does not exist withrespect to the PISA condition evaluated (all the hose cages within the extent of condition have now been evaluated).Therefore, this event is being recategorized as a Group 3B(3) SC-4 occurrence.

16. Is Subcontractor Involved? No

17. Operating Conditions of Facility at Time of Occurrence:

Does not apply.




18. Activity Category:

03 - Normal Operations (other than Activities specifically listed in this Category)

19. Immediate Actions Taken and Results:

Requested Engineering perform a temperature evaluation of the associated hose cage assemblies.A Red Arrow entry in the Central Shift Office logbook states, "Do not remove Admin. Lock condition for adjustableslurry and supernate pumps for [tanks] C-111, AN-106, and AN-101 until engineering temperature evaluation isperformed for associated hose cage assemblies.

UPDATE 07/01/2015

As a result of the negative Unreviewed Safety Question Determination (USQD) completed for AN-106, the Red Arrowentry has been revised to allow operation of the AN-106 supernate pump utilizing the hydraulic power unit (HPU)POR353 (retrieval function) only.

The original Red Arrow restriction was revised to, "Do not remove Admin. Lock condition for adjustable slurry andsupernate pumps for [tanks] C-111, AN-106 utilizing HPU POR352 (decant function), and AN-101 until engineeringtemperature evaluation is performed for associated hose cage assemblies."

UPDATE 07/14/2015

No new immediate actions required as the Red Arrow revised 07/01/2015 will remain in place ensuring continued safeoperations until the necessary actions associated with the PISA are complete.

UPDATE 07/30/2015

As a result of the negative USQD completed for AN-106, the Red Arrow entry has been revised to, "Do not removeAdmin. Lock condition for adjustable slurry and supernate pumps for [tanks] C-111 and AN-101 until engineeringtemperature evaluation is performed for associated hose cage assemblies."

UPDATE 10/05/2015

As a result of the negative USQD completed for tanks 241-AN-101 and 241-C-111 on September 29, 2015, and theJuly 1 and July 30, 2015, negative determination for 241-AN-106 (retrieval and decant functions), the Red Arrow entryrestricting utilization of these three tanks was removed on October 2, 2015. No further action is required.

20. ISM:

2) Analyze the Hazards 3) Develop and Implement Hazard Controls

21. Cause Code(s):

22. Description of Cause:




23. Evaluation (by Facility Manager/Designee):

24. Is Further Evaluation Required?: No

25. Corrective ActionsLocal Tracking System Name: Problem Evaluation Request

26. Lessons Learned:

27. Similar Occurrence Report Numbers:

28. User-defined Field #1:

29. User-defined Field #2:

Problem Evaluation Request WRPS-PER-2015-1158

30. HQ Keyword(s):

01H--Inadequate Conduct of Operations - Inadequate Safety Analysis/USQs12A--EH Categories - Authorization Basis14D--Quality Assurance - Documents and Records Deficiency

31. HQ Summary:

On June 23, 2015, a condition was identified which could result in temperatures in excess of design temperatures forthe process hoses used in AN-106, AN-101, and C-111 slurry and supernate pumps. Subsequent review of the thermalanalysis performed on the adjustable slurry and supernate pumps identified that they do not consider a condition thatmay result in temperatures in excess of the 180 degrees Fahrenheit (F) design temperature of the process hose. Thecondition that was not previously analyzed is the temperature that can be reached within the hose cage assembly thatresults from the net heat generation within the hose cage from the hydraulic and process hoses and the heat trace. Thethermal analysis performed to date has only considered the bulk air temperature that can be achieved in the pit whichsurrounds the hose cage and not of components within the hose cage. A temperature evaluation of the associated hosecage assemblies will be performed.

32. DOE Facility Representative Input:

33. DOE Program Manager Input:


EXHIBIT B


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OFFICIAL COURT REPORTERKIMBERLY J. ALLEN, RMR, CRR, RPR, CCR

OFFICIAL COURT REPORTER

1

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF WASHINGTON

STATE OF WASHINGTON, DEPARTMENTOF ECOLOGY,

Plaintiff,and

STATE OF OREGON,

Plaintiff-Intervenor,

v.

ERNEST MONIZ, Secretary of theUnited States Department ofEnergy, and the UNITED STATESDEPARTMENT OF ENERGY,

Defendants.

))))))))))))))))))

Case No. 2:08-CV-5085-RMP

July 23, 2015

Richland, Washington

Motion Hearing

Pages 1 to 143

BEFORE THE HONORABLE ROSANNA MALOUF PETERSONCHIEF UNITED STATES DISTRICT COURT JUDGE

APPEARANCES:

For the Plaintiff: Andrew A. [email protected] [email protected] T. WoodAttorney General of Washington -Ecology Division2425 Bristol Court SWP.O. Box 40117Olympia, WA 98504360-586-6752

For the IntervenorPlaintiff:

Nina R. [email protected] Department of Justice1515 SW Fifth AvenueSuite 400Portland, OR 97201971-673-5000


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2

For the Defendants: Kenneth C. [email protected] [email protected] B. [email protected]. Department of Justice - DC950 Pennsylvania Avenue NWWashington, DC 20530202-514-2000

Official Court Reporter: Kimberly J. Allen, CCR #2758United States District CourthouseP.O. Box 685Richland, Washington 99352(509) 943-8175

Proceedings reported by mechanical stenography; transcriptproduced by computer-aided transcription.


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OFFICIAL COURT REPORTERKIMBERLY J. ALLEN, CRR, RPR, CSR


3

INDEX

Proceedings: Page

OPENING REMARKS BY THE COURT 6ARGUMENT BY MR. AMADITZ 14ARGUMENT BY MR. KAPLAN 42ARGUMENT BY MR. FITZ 62ARGUMENT BY MS. ENGLANDER 108REBUTTAL BY MR. AMADITZ 114REBUTTAL BY MR. KAPLAN 124REBUTTAL BY MR. FITZ 131COMMENTS BY THE COURT 140

WITNESS INDEX

Plaintiff Witness: Page

None

*****

Defense Witnesses: Page

None

EXHIBITS ADMITTED

PlaintiffNumber Description Page

None

DefenseNumber Description Page

None


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OFFICIAL COURT REPORTERKIMBERLY J. ALLEN, CRR, RPR, CSR


4

GENERAL INDEX

Page

Reporter's Certificate..............................143


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03:13:06

03:13:26

03:13:49

03:14:11

03:14:29

State of Washington/State of Oregon v. Moniz, DOE/2:08-CV-5085-RMPMotion Hearing/July 23, 2015

Argument by Mr. Fitz



97

we have a three-year period where all of the facilities come

online simultaneously and all have to work together, and here

we're staggering them, so we shortened the time frame for each

individual facility. But again, you know, we're -- we're doing

as little as possible as necessitated by the circumstances to

change the existing decree.

And, again, you know, the -- the -- well, for Direct

Feed LAW, I should -- I should add about that, you know, we're

both within months of each other as far as the hot start date.

The difference is whether we have any interim milestones. And,

again, our position is that those interims are necessary so that

we can track progress and know whether we're getting off track

before it's too late.

So, moving to the DST issue, the Court's already

recognized a change in circumstance with the loss of DST AY-102,

together with Energy's larger inability to meet deadlines under

the decree. And our point isn't that AY-102 was necessary to

store waste, because it was already full. The point is the

capacity of AY-102, nearly a million gallons, now has to be

spread out among the other DSTs, and it reduces the overall

available space for the 19 retrievals -- or for, more

accurately, the 12 that are left to go.

We know right now that Energy doesn't have enough

available DST space to -- to retrieve the remaining Consent

Decree tanks plus transfer that waste over from AY-102. It's


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98

going to have to rely on the 242-A Evaporator to create space

through multiple evaporator runs.

And I'm not going to dicker about numbers. I'm just

going to use Mr. Fletcher's numbers for the sake of assuming

that all of Energy's numbers are correct, for the sake of

argument. He states that -- that there are 3.2 million gallons

in available DST space. That's currently. And we know that the

waste to be transferred over to the DSTs -- that includes the 12

retrievals plus AY-102 -- is 9.55 million gallons. So simple

math tells you we have a deficit of 6.3 million gallons.

So the solution from Energy's side -- and I should -- I

should cast it in terms of the theory from Energy's side is that

the evaporator is going to work well enough and efficiently

enough to create that space.

But, Your Honor, we can anticipate right now that

there's a good chance this plan will not work. Energy has to

bank on unprecedented performance by the 242-A Evaporator. And

there are a couple of issues here. First, it's an efficiency

issue. By its own estimates, Energy's plan -- Energy indicates

that the content of waste feed affects how efficiently the

evaporator can reduce waste volume. So Mr. Fletcher says that

that range can't be known until you actually start feeding the

evaporator, and it could vary between 18 percent and 59 percent.

So the idea here is that at a 50 percent efficiency, for

every gallon you feed in, you're going to come out with a half


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99

gallon, so you're going to create a half gallon of space at

50 percent efficiency.

So looking forward, Energy is planning 23 evaporator

campaigns over the next seven years to create what it wants in

terms of space of 8.77 million gallons. And I think it's

prudent to look for more than the 6.3 deficit because we

actually don't know whether 6.3 is going to be the right number.

Part of it depends on how much liquid is necessary to retrieve

those remaining SSTs, which are salt cake and sludge tanks and

might require a lot of liquid to retrieve them. So having a

little buffer is good.

So if we do just simple, simple math, simple algebra, we

can figure out a few things. At 40 percent efficiency, Energy

is going to have to process 21.9 million gallons of waste to end

up with that 8.77 million gallons of space created. And that's

a lot of waste to process. It's about the same volume of all

the liquid waste currently in the DST system. And if there are

any significant slips in that efficiency rate, that 40 percent,

it will make Energy's evaporator goals difficult or impossible

to meet.

The lower the efficiency, the less space you create, so

the more processing of waste you need to do. For example, at

30 percent, again, if we just use simple algebra, processing the

same 21.9 million gallons of waste is only going to create

6.5 million gallons of space. And if we look at the low end of


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100

Energy's efficiency, the 18 percent, processing that

21.9 million gallons is going to create 3.9 million gallons of

space, and right now we're below the space deficit.

So the only way to make up for that shortfall is to run

the evaporator more. But if we -- if we run at that low end of

the efficiency rate, the math tells you that if you run about a

million gallons per campaign, you're going to be running about

50 evaporator campaigns over the next seven years.

And that leads to the second issue, which is all of this

assumes that the evaporator works. But the evaporator has never

been relied on, at least recently, and there's no information

for Energy's projected 23 campaigns, let alone more than 23.

As we documented, the evaporator has been plagued with

operational issues and shutdowns and worker safety issues and

delays. In the last five years, it's performed three campaigns,

only one of which was able to start on time. Mr. Fletcher notes

that between 2003 and 2010 -- that's a similar seven-year period

to getting to 2022 -- it was used a total of ten times, and it

had a 30 percent efficiency rate.

So I'd like you to listen to the words in Mr. Fletcher's

fourth declaration. Quote, By increasing the number of

campaigns, evaporator operations should become more routine,

should avoid the gearing up and gearing down that's occurred

with past campaigns, and should minimize operational delays

caused by short-term startups and shutdowns. Continuing the


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03:20:24

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101

quote, DOE anticipates that these more routine operations will

allow for better maintenance of the facility, more efficient

operations, and improved plannings of campaigns.

So, in other words, even though we don't have any actual

experience to base it on, and even though it hasn't worked this

way in the past, we anticipate that starting now the evaporator

should work in a way it's never worked before. So we don't have

a space problem.

To borrow Mr. Kaplan's words, this is a theory for how

Energy is going to create the space it needs. It's a theory.

We don't know it's going to work.

And, again, going back to the Court's May 13th order, if

we can anticipate a problem now, we should account for it now in

the decree before we get too late.

So the way we account for it is to say, Energy, we put

in our proposal, plan for and build a minimum of four DSTs. We

still think four is the right number, given that projected

$6.3 million gap -- gallon gap, I should say. We recognize that

the tanks won't be done in time to guarantee 2022, but the point

is trying to guard against significant slips past 2022 and keep

the performance as close to that date as possible.

And just as with direct feed high-level waste, if we get

to a point -- we've got three years in our proposed schedule for

Energy to be designing the DSTs. If we get three years down the

line and the evaporator is working well, Energy can come back


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102

and say, "You know what? We don't need those DSTs." But the

prudent thing to do now is to guarantee that those 19 tanks can

be retrieved under the decree as timely as possible.

I want to end by talking about our proposal, our request

for additional accountability measures. I said earlier that

regulating Energy has been a challenge. In the Asarco case, the

Ninth Circuit spoke to the, quote, greater enforceability, end

quote, a Consent Decree provides. And we thought we'd be

getting that greater accountability with this decree, but the

past four years have felt like wrestling an elephant. As I said

at the start, we're back to where we were before we filed our

suit. Energy's unable to meet its deadlines, its actions and

its planning no longer bear relation to the legal schedule, and

the decree doesn't have real meaning as a compliance instrument.

You look at the decree, and it's not reality.

When we talk about the enforceability of a decree, a lot

of people think that means sanctions. But we're in the

position -- if we're in the position of having to enforce the

decree, it's really already too late for us, because what we

need is to get the operating WTP and the tanks retrieved. We

don't need to club Energy over the head. We need it to do the

job right first.

The events of the past four years show that the current

terms of the decree aren't sufficient to ensure that kind of

accountability. Energy's early reporting under the decree gave


EXHIBIT C


RPP-RPT-59046Revision 0

Capability of the 242-A Evaporator to Support Aand AX Retrieval

Prepared for the U.S. Department of EnergyAssistant Secretary for Environmental Management

Contractor for the U.S. Department of EnergyOffice of River Protection under Contract DE-AC27-08RV14800

P.O. Box 850 Richland, Washington 99352

Approved for Public Release; Further Dissemination Unlimited



Capability of the 242-A Evaporator to Support A and AXRetrieval

P. J. CertaWashington River Protection Solutions

Date PublishedNovember 2015

Washington River Protection Solutions

Prepared for the U.S. Department of EnergyAssistant Secretary for Environmental Management

Contractor for the U.S. Department of EnergyOffice of River Protection under Contract DE-AC27-08RV14800


Copyright License By acceptance of this article, the publisher and/or recipient acknowledges the U.S. Government's right to retain a non exclusive, royalty-free licensein an to any copyright covering this paper.

Release Approval Date


By Janis D. Aardal at 4:55 pm, Nov 12, 2015



LEGAL DISCLAIMER This report was prepared as an account of work sponsored by an agency ofthe United States Government. Neither the United States Government norany agency thereof, nor any of their employees, makes any warranty,express or implied, or assumes any legal liability or responsibility for theaccuracy, completeness, or any third party's use or the results of such useof any information, apparatus, product, or process disclosed, or representsthat its use would not infringe privately owned rights. Reference herein toany specific commercial product, process, or service by trade name,trademark, manufacturer, or otherwise, does not necessarily constitute orimply its endorsement, recommendation, or favoring by the United StatesGovernment or any agency thereof or its contractors or subcontractors. Theviews and opinions of authors expressed herein do not necessarily state orreflect those of the United States Government or any agency thereof.

This report has been reproduced from the best available copy.

Printed in the United States of America


RPP-RPT-59046 Rev. 0

Capability of the 242-A Evaporator to Support A and AX 1

Farm Retrieval 2

3

4

5

6

P. J. Certa 7

J. D. Belsher 8

J. M. Conner 9

L. J. Eslin 10

J. E. Meacham 11 Washington River Protection Solutions, LLC 12

13

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17

Date Published 18

November 2015 19

20

21

Prepared for the U.S. Department of Energy 22

Assistant Secretary for Environmental Management 23

24

25

Contractor for the U.S. Department of Energy 26 Office of River Protection under Contract DE-AC27-08RV14800 27

28

Post Office Box 850 29 Richland, Washington 30

31



i

1

Capability of the 242-A Evaporator to Support 2

A and AX Farm Retrieval 3

4

Executive Summary 5

6

The Hanford Site 242-A Evaporator entered service in 1977 and is used to reduce waste volume 7

stored in the double-shell tanks by concentrating radioactive waste solutions. Through 2015, 8

over 130 Mgal has been processed through the facility, and a waste volume reduction of over 9

80 Mgal has been achieved. The 242-A Evaporator has undergone numerous upgrades since 10

construction to improve safety, increase efficiency, and extend its operating life. The facility 11

was operated more frequently in the 1970s and 1980s than it is currently; however, the Tank 12

Farms and site missions have also changed, resulting in reduced demand on the 242-A 13

Evaporator. 14

The U.S. Department of Energy has evaluated a modeled operating scenario (sequence and 15

timing of retrievals, level rises, waste transfers, and evaporator campaigns) and hypothetical 18-16

month evaporator outages; the operating scenario shows that there is sufficient double-shell tank 17

space and 242-A Evaporator capacity to complete the Consent Decree single-shell tank waste 18

retrievals by the milestone date. The model indicates only approximately 14% of the 152 days 19

per calendar year (the most limiting operational regulatory restriction: the Treated Effluent 20

Disposal Facility annual flow limit in the State Water Discharge Permit) is required to complete 21

the next nine A and AX SST retrievals. Approximately 2.9 Mgal of space remains in the East 22

Area double-shell tanks after the retrievals of the “next nine” tanks in the 241-A and 241-AX 23

Tank Farms have been completed (about 1.3 Mgal of emergency space plus 1.6 Mgal of space 24

available for operational flexibility). 25

This operating scenario requires the 242-A Evaporator to reduce the volume of waste in the 26

double-shell tanks by 6.4 Mgal over the next six years. The number of evaporator campaigns 27

and waste volume reduction needed to meet the proposed Consent Decree milestone dates are 28

well within the 242-A Evaporator capability as demonstrated over a recent 13-month period. 29

From September 2014 through September 2015, four campaigns were performed, with a waste 30

volume reduction of 1.9 Mgal. 31

Hypothetical outage scenarios also show that retrieval dates can still be met in the event of 32

reasonable contingencies such as an 18-month 242-A Evaporator outage. Additionally, a simple 33

steady-state evaluation demonstrates that the 242-A Evaporator capacity is not a limiting 34

constraint in meeting the proposed milestones. 35

The 242-A Evaporator receives routine integrity assessments on a frequency recommended by an 36

Independent Qualified Registered Professional Engineer. The last integrity assessment was 37

performed in 2007 and the report concluded that the minimum remaining life of each major 38

vessel tested is greater than 20 years. A 2011 reliability assessment concluded that continued 39

integrity assessments and equipment upgrades, along with a proactive maintenance strategy, 40

should keep the evaporator operating for another 30 years. The Tank Operations Contractor 41

maintains an integrated team of Operations, Engineering, Nuclear Safety, Environmental, and 42



ii

Design staff to monitor facility operation, identify issues and improvements, and provide an 1

ongoing upgrade and maintenance capability that can support maintaining facility availability. 2

Recent and historical performance of the 242-A Evaporator demonstrates that the facility will be 3

able to support the planned 241-A and 241-AX Tank Farms’ retrieval activities. 4

Even though the operating scenario and the outage scenarios show that the 242-A Evaporator's 5

capacity is adequate to ensure that DOE’s proposed retrieval milestones can be readily met, the 6

U.S. Department of Energy is also evaluating other contingencies and enhancements. Examples 7

include increasing the maximum allowable waste level in some double-shell tanks and 8

maintaining an inventory of critical spare parts. Level rises in six tanks in the 241-AN and 9

241-AW Tank Farms could result in approximately 600 kgal of usable tank space, but a major 10

structural engineering study would be required prior to approving these increases. The Tank 11

Operations Contractor already maintains a supply of spare waste transfer pumps to support 12

double-shell tank transfers that stage waste for delivery to the 242-A Evaporator and is actively 13

identifying critical spare parts for the 242-A Evaporator. 14

The 242-A Evaporator facility has demonstrated the ability to process large volumes of feed in a 15

short period of time, and to meet the operational needs of the Tank Farms. The 242-A 16

Evaporator is mechanically sound and capable of the sustained operation required to support the 17

retrieval of A and AX Tank Farms. 18



iii

CONTENTS 1

1.0 EVAPORATOR DESCRIPTION .........................................................................................1 2

2.0 242-A EVAPORATOR HISTORICAL PERFORMANCE .................................................2 3

2.1 242-A Evaporator Production ...................................................................................2 4

2.2 Facility Upgrades ......................................................................................................2 5

2.2.1 Project B-534 Upgrades ................................................................................3 6

2.2.2 Upgrades between 1996 and 2003 ................................................................3 7

2.2.3 Upgrades after 2003 ......................................................................................3 8

2.2.4 242-A Documented Safety Analysis and Technical Safety 9

Requirement Upgrades ..................................................................................4 10

2.2.5 Conclusions Regarding Upgrades .................................................................5 11

2.3 Testing, Surveillance, and Maintenance Progams ....................................................5 12

2.3.1 Testing Program ............................................................................................5 13

2.3.2 Surveillances and Inspections .......................................................................5 14

2.3.3 Maintenance Program ...................................................................................6 15

3.0 PLANS FOR USING THE 242-A EVAPORATOR ............................................................7 16

3.1 Assumptions ..............................................................................................................7 17

3.2 Steady-State Evaluation of Required Evaporator Capability ....................................9 18

3.3 Dynamic Evaluation of Modeled Operating Scenario ............................................11 19

3.3.1 Raw Schedule Results .................................................................................12 20

3.3.2 Reliability, Availability, and Maintainability Considerations ....................12 21

3.3.3 Limiting Permit Condition Assessment ......................................................13 22

3.3.4 242-A Evaporator Demand .........................................................................13 23

3.3.5 Overall Volume Balance for Modeled Operating Scenario ........................14 24

3.4 Contingency Evaluation ..........................................................................................15 25

3.4.1 Evaporator Outage at Start of Retrieval of Last Two A Tank Farm 26

Tanks ...........................................................................................................15 27

3.4.2 Evaporator Outage after Retrieval of First Two AX Tank Farm 28

Tanks ...........................................................................................................15 29

3.5 ADDITIONAL Opportunities to Improve Waste Volume Reduction 30

Posture .....................................................................................................................15 31

4.0 WHY THE U.S. DEPARTMENT OF ENERGY HAS CONFIDENCE IN THE 32

EVAPORATOR ..................................................................................................................18 33

4.1 242-A Evaporator Integrity, Life Extension, and Contingency Planning ...............18 34

4.2 242-A Evaporator Operating Strategy Provides Contingency ................................19 35

4.3 Conclusion Regarding 242-A Evaporator Capability .............................................19 36

5.0 REFERENCES ....................................................................................................................20 37

38

39



iv

APPENDICES 1

Appendix A Detailed Volume Balance for Modeled Scenarios ............................................... A-i 2

3

FIGURES 4

Figure 1-1. Simplified Pictorial Flow Diagram for the 242-A Evaporator. ....................................1 5

Figure 3-1. Steady-State Average Annual Waste Volume Reduction Requirements. ..................11 6

7

TABLES 8

Table 3-1. Proposed Milestones. .....................................................................................................9 9

Table 3-2. Example Steady-State Volume Balance Calculation. .................................................10 10

Table 3-3. Estimated Demand on the 242-A Evaporator. .............................................................14 11

Table 3-4. Summary of Double-Shell Tank Space Evaluation for Next Nine Retrievals. ...........14 12

Table 3-5. Single-Shell Tank Retrieval Demands on Double-Shell Tank Space. ........................17 13

14

15



v

TERMS 1

Acronyms 2 ALARA as low as reasonably achievable 3

DFLAW direct feed low-activity waste 4

DOE U.S. Department of Energy 5

DSA Documented Safety Analysis 6

DST double-shell tank 7

Ecology Washington State Department of Ecology 8

ETF Effluent Treatment Facility 9

FY fiscal year 10

HFFACO Hanford Federal Facility Agreement and Consent Order 11

HTWOS Hanford Tank Waste Operations Simulator 12

IQRPE Independent Qualified Registered Professional Engineer 13

LAW low-activity waste 14

LAWPS Low-Activity Waste Pretreatment System 15

LERF Liquid Effluent Retention Facility 16

M&TE measuring and test equipment 17

MMR Modeling Modification Request 18

RAM reliability, availability, and maintainability 19

RCRA Resource Conservation and Recovery Act 20

RPP River Protection Project 21

SpG specific gravity 22

SIS safety instrumented system 23

SSC structures, systems, and components 24

SST single-shell tank 25

SVF Spreadsheet Verification and Release Form 26

TEDF Treated Effluent Disposal Facility 27

TOC Tank Operations Contractor 28

TRU transuranic 29

TSR Technical Safety Requirements 30

TWINS Tank Waste Information Network System 31

WRPS Washington River Protection Solutions, LLC 32

WVR waste volume reduction 33

WVRF waste volume reduction factor 34

WTP Waste Treatment and Immobilization Plant 35



vi

Units 1 °F degrees Fahrenheit 2

ft2 square feet 3

gpm gallons per minute 4

kgal thousand gallons 5

M molar 6

Mgal million gallons 7

Torr 1 Torr = 1/1760 of a standard atmosphere, absolute pressure 8



1

1.0 EVAPORATOR DESCRIPTION 1

The 242-A Evaporator is designed to reduce waste volume and, therefore, reduce the number of 2

double-shell tanks (DSTs) required to store liquid waste at the Hanford Site. The process uses a 3

forced-circulation vacuum evaporation system operating at low pressure (approximately 60 torr) 4

and low temperature (approximately 125°F) to concentrate radioactive waste solutions. 5

Major design features include the vapor-liquid separator, the recirculation loop, and the reboiler 6

where steam is applied to heat the waste to boiling (see Figure 1-1). A large recirculation pump 7

pumps the waste through the recirculation loop and reboiler back to the vapor-liquid separator 8

vessel. A slurry pump transfers the concentrated waste back to the DST system. Steam jets in 9

the vapor line reduce the pressure (draw vacuum) in the vapor-liquid separator vessel as the 10

steam condenses. Condensers condense the water vapor from the process and steam from the 11

vacuum jets, with condensate draining to the condensate collection tank. The forced-circulation 12

design reduces fouling, and operating at reduced pressure lowers the operating temperature, 13

resulting in less stress on operating equipment. 14

The 242-A Evaporator is operated on a campaign basis. A campaign, typically consisting of 15

approximately 1 Mgal of waste feed, is staged and sampled. Once laboratory analyses are 16

completed and the waste is approved for processing, the waste is fed to the 242-A Evaporator 17

facility from feed tank 241-AW-1021. The concentrated product (slurry) is returned to the DST 18

system. The feed rate is typically 70-120 gpm and the boil-off (waste volume reduction [WVR]) 19

rate is typically 30-40 gpm. A typical campaign has a processing time of 10 days to two weeks. 20

Figure 1-1. Simplified Pictorial Flow Diagram for the 242-A Evaporator. 21

22

1 Hereinafter, tank farms, DSTs, and single-shell tanks (SSTs) are referred to by their short name, omitting the

“241-” prefix.



2

2.0 242-A EVAPORATOR HISTORICAL PERFORMANCE 1

2.1 242-A EVAPORATOR PRODUCTION 2

The 242-A Evaporator entered into service in 1977. Through 2015, a feed volume of over 3

130 Mgal has been processed through the facility, and a WVR2 of over 80 Mgal has been 4

achieved. 5

There have been two outage periods where facility upgrades were performed to ensure the 6

operability of the facility. From 1989 to 1994 there was an outage to allow for equipment 7

upgrades and the construction of the Liquid Effluent Retention Facility (LERF). The LERF now 8

receives process condensate from the 242-A Evaporator and stores it for treatment at the Effluent 9

Treatment Facility (ETF). A Resource Conservation and Recovery Act (RCRA) permit for the 10

242-A Evaporator was issued. 11

There was another extended outage at the 242-A Evaporator from 2010 to 2014. Evaporator 12

operations were not necessary for DST space management during that time. Equipment and 13

safety basis upgrades were performed during the outage. 14

Since September 2014, when waste processing resumed, through September 2015, a total of four 15

campaigns have been performed. A feed volume of 4.6 Mgal was processed and a WVR of 16

1.9 Mgal was achieved during these four campaigns. This recent performance demonstrates the 17

facility’s capability under the current permitting and operational environment. 18

An average annual 242-A Evaporator WVR of 1.0 to 1.5 Mgal should be attainable if necessary 19

to support the Tank Operations Contractor’s (TOC) mission. This is a conservative planning 20

basis; peak facility performance is significantly higher. Taking all campaigns together, the 242-21

A Evaporator is expected to operate with a single-pass WVR Factor (WVRF)3 between 15% and 22

59%4. Within this range, the WVRF for a specific campaign depends on the chemical 23

composition and concentration of the feed relative to the target composition. The WVRFs can 24

vary significantly between campaigns due to different feed and target compositions; single-pass 25

WVRs of 150 kgal to 500 kgal are typical. Additionally, maintenance, upgrades, possible 26

equipment failure, environmental permit limitations, and other logistical issues must be 27

considered in estimating annualized performance. 28

2.2 FACILITY UPGRADES 29

The 242-A Evaporator has undergone numerous upgrades over its lifetime. The facility was 30

constructed in 1977 under Project B-100. The original design life of the 242-A Evaporator was 31

10 years. 32

2 Waste volume reduction (WVR) is the reduction in the volume of the waste stored in the DST system due to

operation of the 242-A Evaporator. 3 Waste volume reduction factor (WVRF) expresses the WVR as a percentage of the feed volume to the 242-A

Evaporator. Sometimes the term WVR is used imprecisely and interchangeably with WVRF. 4 This single-pass range, used for planning purposes, corresponds to the current operating window for the 242-A

Evaporator as described in RPP-17152, Hanford Tank Waste Operations Simulator (HTWOS) Version 8.1 Model

Design Document. This operating window considers physical limitations of the 242-A Evaporator, namely

minimum and maximum slurry flowrates, maximum feed flowrate, and maximum boil-off flowrate.



3

Portions of the 242-A Evaporator were expanded and upgraded in 1983. These modifications 1

added 1,500 ft2 to the 242-A Building and included: 2

• Expanding the control room, relocating instrumentation, and adding a new annunciator 3

panel; 4

• Expanding the men’s change room and adding a women’s change room; and 5

• Adding a pre-engineered lean-to building to house both clean and soiled laundry 6

(displaced by other expansions) and a storage area. 7

2.2.1 Project B-534 Upgrades 8

A major upgrade project (Project B-534) was initiated fiscal year (FY) 1987 and completed prior 9

to the 1994 restart. The purpose was to extend the operating life by 10 more years. The B-534 10

modifications included: 11

• Adding reboiler instrumentation to improve monitoring and control 12

• Upgrading the P-B-1 recirculation pump to increase liquid velocity through the reboiler 13

• Upgrading slurry systems to allow pumping of thicker slurry 14

• Implementing upgrades to lighting, power, service crane controls, and plant 15

communication systems 16

• Replacing old plant controls with a microprocessor-based control system 17

• Constructing a water services building to provide backflow prevention, strainer, and 18

pressure regulation to the water supply 19

• Adding insulation to the vapor-liquid separator (C-A-1 vessel) to better regulate process 20

temperatures 21

• Replacing the primary condenser E-C-1. 22

Additionally, LERF and ETF were constructed during this outage to store and treat the process 23

condensate generated from the 242-A Evaporator, in addition to other site waste streams. 24

2.2.2 Upgrades between 1996 and 2003 25

Other modifications were made after Project B-534 that included upgrades to: 26

• Re-route steam condensate from 207-A retention basins to the Treated Effluent Disposal 27

Facility (TEDF) – 1997. 28

• Re-route used condenser cooling water from B-pond to TEDF– 1997. 29

• Replace the aging coal-fired steam plant with a new package boiler annex – 1998. 30

• Add new slurry jumpers with relief valves and a coriolis meter to protect piping from 31

overpressure and improve process control – 2003. 32

• Remove the obsolete ion-exchange column – 2003. 33

2.2.3 Upgrades after 2003 34

Major facility upgrades conducted from 2004 to 2009 include: 35

• Replacement of the inter-condenser (E-C-2), the after-condenser (E-C-3), and steam jets 36

(life extension of critical process components) – 2004. 37

• Replacement of air compressors – 2006 through 2010. 38

• Instrument upgrades (e.g., pressure, temperature, and flow) for life extension and 39

improved process control – 2007 to present. 40



4

• Upgrade of the facility supply-side ventilation system from steam heating/evaporative 1

cooling to a modern electric system – 2008. 2

• Upgrade of the exhaust-side ventilation system (higher stack; improved maintainability, 3

flow, and pressure control) – 2011. 4

Major facility upgrades conducted from 2010 to 2014 include: 5

• The facility being placed in shutdown mode to address critical required upgrades and to 6

support the new Documented Safety Analysis (DSA). 7

• New steam traps and a re-designed reboiler steam condensate flow piping system to 8

improve condensate drainage. 9

• The installation of a new dip tube leg flush manifold to allow easier flushing of dip tube 10

sensing lines during operation. 11

• Upgrades to the RC-1 (steam condensate), RC-2 (used raw water), and RC-3 (process 12

condensate) effluent sampling systems. 13

• The installation of safety significant systems for the new 242-A DSA (described in 14

Section 2.2.4). 15

2.2.4 242-A Documented Safety Analysis and Technical Safety Requirement Upgrades 16

The 242-A Evaporator DSA was upgraded in 2014 to meet Change Notice 3 requirements of 17

DOE-STD-3009-94, Preparation Guide for U. S. Department of Energy Nonreactor Nuclear 18

Facility Documented Safety Analyses. 19

• The primary change in the 242-A DSA and Technical Safety Requirements (TSRs) was 20

the implementation of hazard analysis and controls to improve the protection of the 21

facility worker. 22

• The DSA upgrade also implemented the use of ISA-84 safety instrumented system 23

(SIS) to enhance the protection of the facility worker. 24

A full suite of new safety-significant structures, systems, and components (SSCs) was developed 25

and installed in the facility. These safety SSCs address potential accidents identified in the 26

hazard analysis of the new DSA, and are designed to protect the facility and collocated workers. 27

These safety SSCs are summarized below. 28

• The Flammable Gas SIS protects the facility worker and collocated worker from 29

flammable gas deflagration. 30

• The High Level SIS protects the facility worker from the effects of a waste flow-over 31

of the C-A-1 vessel. 32

• Backflow preventers prevent waste backflow into manned areas of the facility. 33

• The seismic shutdown system allows manual activation of the SISs listed above using 34

an emergency stop button. 35

• Pump P-B-2 pressure relief valve protects the facility and collocated workers from a 36

fine spray of waste from the jumpers downstream of pump P-B-2. 37

• The E-A-1 reboiler is now credited as safety significant to protect facility workers in 38

the condenser room from a tube rupture. 39



5

• The slurry line vacuum breaker protects tank farm piping from water hammer 1

damage. 2

2.2.5 Conclusions Regarding Upgrades 3

Upgrades have been carried out almost continuously during the life of the facility, with plans to 4

continue upgrades in the future. These upgrades have extended the life of the facility well 5

beyond the original 10-year projection. Refer to Section 4.1 for a discussion of ongoing life 6

extension planning and projected facility life. 7

2.3 TESTING, SURVEILLANCE, AND MAINTENANCE PROGAMS 8

The TOC maintains and implements programs for initial testing, in-service surveillance, and 9

maintenance of SSCs. These programs are described in RPP-13033, Tank Farms Documented 10

Safety Analysis.5 11

2.3.1 Testing Program 12

The TOC Testing Program ensures that SSCs comply with design, safety, and acceptance 13

criteria; that the SSCs can be started and operated efficiently and safely; and that new, modified, 14

and refurbished SSCs are thoroughly tested in an organized manner before being accepted and 15

placed in service (RPP-13033). The Testing Program is implemented through TFC-PLN-26, 16

Testing Program Plan. Testing consists of construction acceptance tests, visual inspections, leak 17

tests, factory acceptance tests, and operational acceptance tests. 18

RPP-13033 explains that testing is performed by qualified personnel in accordance with 19

approved written instructions. These instructions typically include the test objectives, test 20

methods, test conditions, sequence of testing, applicable cautions, recovery actions, and 21

acceptance criteria. Test results are evaluated to confirm that the test meets established 22

requirements and to ensure acceptability of tested SSCs. 23

2.3.2 Surveillances and Inspections 24

RPP-13033 states: 25

The TOC program for in-service surveillance, inspection, and testing activities is 26

described in TFC-PLN-29. This maintenance program contains the necessary 27

provisions sufficient to provide reasonable assurance that SSCs are capable of 28

fulfilling their intended function. In-service surveillance, inspection, and testing 29

activities are performed in accordance with TOC procedures documented in a 30

computerized maintenance management system database. 31

Surveillance requirements have been established for selected safety-significant SSCs whose 32

functional requirements can be verified through testing. There are two types of surveillance tests 33

– calibrations and functional tests. Calibration surveillances are developed to ensure components 34

perform according to manufacturer and engineering specifications. Functional tests are 35

developed to evaluate the performance of the safety-significant SSCs. Functional tests are 36

5 The 242-A DSA (HNF-14755, 242-A Evaporator Documented Safety Analysis) refers to RPP-13033 for a

discussion of the TOC maintenance, testing, and surveillance programs.



6

performed on selected safety-significant SSCs where it is practical to verify system functional 1

safety criteria. 2

The TOC controls measuring and test equipment (M&TE) to ensure the accurate performance of 3

facility instrumentation and equipment for testing, calibration, and repairs. The M&TE that is 4

used to support calibration, functional testing, and data collection on plant-installed equipment 5

must be calibrated and traceable to nationally recognized standards. Calibration of the M&TE is 6

performed offsite at an approved calibration laboratory. 7

2.3.3 Maintenance Program 8

The Maintenance Management Program is established under U.S. Department of Energy (DOE) 9

Order 433.1B, Maintenance Management Program for DOE Nuclear Facilities. The 10

Maintenance Program implementation is further described in TFC-PLN-29, Nuclear 11

Maintenance Management Plan. 12

RPP-13033 explains that the TOC is responsible for ensuring the maintenance program is in 13

place and that it meets the facility needs and requirements. The maintenance program is 14

implemented using approved TOC procedures. Maintenance organization training, maintenance 15

facilities and equipment, post-maintenance testing, control and calibration of M&TE, and 16

maintenance history and trending are described in the TOC procedures. The maintenance 17

program considers factors related to health, safety, environment, maintaining risks at a level as 18

low as reasonably achievable (ALARA), and hazardous waste management. 19

Inspections, audits, reviews, investigations, and self-assessments are incorporated into the 20

surveillance and maintenance programs. RPP-13033 states: 21

Maintenance history can be developed for SSCs through the work management 22

system database. Corrective and preventive maintenance and calibration information 23

can be accessed through the work management system or through the contractor 24

archives of completed work requests. Engineering and maintenance personnel can 25

use the records for activities such as failure analysis, conducting maintenance 26

assessments, preventive maintenance, predictive maintenance, outage planning, 27

improving the maintenance program, identifying needed equipment modifications, 28

and trending of SSC performance. 29

30



7

3.0 PLANS FOR USING THE 242-A EVAPORATOR 1

As discussed in Section 1.0, the 242-A Evaporator is used to reduce waste volume and therefore 2

reduce the number of DSTs required to store liquid waste at the Hanford Site. The 242-A 3

Evaporator supports several interdependent mission objectives: 4

• General management of DSTs 5

• Retrieval of waste from AY-102 6

• Retrieval of waste from SSTs 7

• Preparation of feed for Low-Activity Waste Pretreatment System (LAWPS) / direct feed 8

low-activity waste (LAW) (or DFLAW), and 9

• Management of returns from LAWPS / DFLAW. 10

The purpose of the subsections in this chapter are to: 11

• Section 3.1 – List key assumptions affecting the demand on the 242-A Evaporator 12

(used in both Section 3.2 and Section 3.3). 13

• Section 3.2 – Demonstrate that the 242-A Evaporator capacity is not the limiting 14

consideration in meeting the four DOE-proposed Consent Decree milestones in 15

Table 3-1 using a steady-state evaluation. 16

• Section 3.3 – Demonstrate the three proposed milestones can be met within the 17

existing WVR capability of the 242-A Evaporator. The demonstration was 18

underpinned by a sophisticated computer simulation model in conjunction with 19

considerations of reliability, availability, and maintainability (RAM). 20

• Section 3.4 – Provide additional evaluations that demonstrate the proposed milestones 21

can still be met in the event of contingencies such as an 18-month 242-A Evaporator 22

outage. 23

• Section 3.5 – List several opportunities for improving the WVR posture. 24

3.1 ASSUMPTIONS 25

Key assumptions affecting the demand on the 242-A Evaporator for the modeled operating 26

scenario, include: 27

• Retrieval of C-Farm is assumed to complete in FY 2016. 28

• The waste in AY-102 is retrieved starting in FY 2016 and the space in AY-102 is 29

assumed to be unavailable for the remainder of the evaluation. 30

• The Consent Decree milestones for initiating the retrieval of two A/AX Tank Farm 31

retrievals and initiating two additional retrievals will reflect DOE’s proposed 32

milestone dates of 12/31/2018 and 12/31/2020, respectively, accounting for a one-33

year delay due to the use of increased worker protective equipment arising from 34

concerns about tank farm vapor exposures. See Table 3-1. 35

• The Consent Decree milestones for initiating the retrieval of the five remaining 36

retrievals will reflect DOE’s proposed milestone dates of 03/31/2023, accounting for 37

a one-year delay due to the use of increased worker protective equipment arising from 38

concerns about tank farm vapor exposures. See Table 3-1. 39



8

• The Consent Decree milestone for the completion of the retrieval of the next nine 1

SSTs will reflect DOE’s proposed date of 03/31/2024, accounting for a two-year 2

delay due to the use of increased worker protective equipment arising from concerns 3

about tank farm vapor exposures. See Table 3-1. 4

• Retrieval of A-103, which is governed exclusively by the Hanford Federal Facility 5

Agreement and Consent Order (HFFACO, Ecology et al. 1989) rather than the 6

Consent Decree, begins after 03/31/2024. 7

• For operational planning purposes, the LAWPS and the Waste Treatment and 8

Immobilization Plant’s (WTP) LAW Vitrification Facility are assumed to operate in 9

the Direct Feed mode, beginning pretreatment on 10/01/2021 and vitrification on 10

12/31/2021. Note: LAWPS and WTP LAW operation are not required for the next 9 11

retrieval completion or evaporator operational success. 12

• The maximum operating level of six of the eight DSTs in AP Tank Farm have been 13

previously implemented, providing about 600 kgal of usable space. The level rise for 14

the seventh AP Tank Farm DST is planned for FY 2016, which will provide an 15

additional 100 kgal of usable space. 16

• The minimum schedule duration from sampling waste feed for the 242-A Evaporator 17

to the start of processing is a minimum of three months before that startup of 18

LAWPS/DFLAW. After the startup of LAWPS/DFLAW it is assumed that it will 19

take two months6 to sample 242-A Evaporator feed. 20

• The WVR for each 242-A Evaporator campaign is calculated based on the chemical 21

composition of the waste staged for evaporation. The historical (since 2003) average 22

terminal SpG of 1.43 is used to set the initial WVR target, which may then be reduced 23

to comply with the 242-A Evaporator safety basis, ALARA requirements and 24

operating limitations of the 242-A Evaporator 25

• The feed preparation strategy for the 242-A Evaporator uses blending to increase the 26

WVR. For example, existing concentrated supernate is blended with sparingly solute 27

dilute wastes from retrieval. 28

• Estimates of the retrieval parameters (assumed technologies, as-retrieved waste 29

volume, water and chemical additions, and minimum retrieval duration7) for each 30

SST are provided by SVF-1647, Rev. 58. 31

• The design for A Tank Farm retrievals begins in FY 2016 to enable a six-month 32

acceleration of date on which each individual A Tank Farm SST is ready to begin 33

retrieval operations. 34

• The modeled operating scenario takes no credit for DST space in West Area. 35

6 The three-month duration can be reduced to about two months if the 222-S Laboratory is fully staffed for three

shifts/day, 24/7, and given priority to support the analysis, hot boil-downs and reporting for 242-A Evaporator

operations. Current operations are based on a single shift. 7 The minimum retrieval durations for A and AX Tank Farm retrievals has been increase by 50% to account for

additional retrieval time expected based on a qualitative assessment of past retrieval performance. 8 SVF-1647, 2014, “SVF-1647 Rev 5 Calculation of SST Retrieval Volumes and Durations.xlsx,” Filename

‘SVF-1647 Rev 5.xlsx,’ Rev. 5, Washington River Protection Solutions, LLC, Richland, Washington.



9

Table 3-1. Proposed Milestones.

Event Proposed Date

Initiate 2 A/AX retrievals 12/31/2018

Initiate 2 additional A/AX retrievals 12/31/2020

Initiate 5 remaining retrievals 03/31/2023

Complete 9 retrievals 03/31/2024

3.2 STEADY-STATE EVALUATION OF REQUIRED EVAPORATOR CAPABILITY 1

A simple steady-state evaluation of the required evaporator capability was performed to estimate 2

the average annual WVR that would provide sufficient DST space to complete nine retrievals by 3

a specific date. This evaluation took no credit for the net gain in space from operating LAWPS / 4

DFLAW and conservatively allocated space for the dilution water used to prepare the DFLAW 5

hot commissioning feed. The rest of the assumptions are as described in Section 3.1. 6

The results of this evaluation show an estimate of the average annual WVR required for 7

completing the nine retrievals based on a range of assumed completion dates. Separate curves 8

are shown for three choices (0, 1, and 2 Mgal) of the desired amount of available operating 9

space9 remaining after the retrievals are complete. Table 3-2 shows an example calculation for 10

the case where 2 Mgal of space is assumed to remain in East Area DSTs and the nine retrievals 11

being completed on the proposed milestone date of 03/31/2024. In this case, the average annual 12

WVR for the eight-year period of evaluation starting at FY 2016, and maintaining the assumed 13

2 Mgal of space is about 0.84 Mgal per year (this can also be seen on Figure 3-1 at the 14

intersection of the “2 Mgal” curve with the vertical line in FY 2024). 15

9 The available operating space does not include the 1.265 Mgal of required emergency space.



10

Table 3-2. Example Steady-State Volume Balance Calculation.

Volume Balance Terms Mgal

Desired available DST space in East Area on date next 9 retrievals are

assumed to be completed 2.00

Starting available DST space in East Area at start of FY 2016 - 3.31

Space gained by AP-106 Level Rise - 0.10

As-retrieved volume of remaining C-Farm tanks, AY-102, and the 9 A/AX

tanks + 7.93

Dilution water of LAWPS / DFLAW hot commissioning feed + 0.58

Net space gain from operating LAWPS / DFLAW (no credit taken) - 0

Total WVR from FY 2016 to completion date = 7.10

Annual WVR (divide Total WVR by 8.5 years: FY2016 to 3/31/2024

inclusive) =

0.84

(Mgal/yr)

The average annual WVR for a reasonable range of assumed completion dates for the next nine 1

retrievals and the proposed milestone date of 03/31/2024 ranges between about 0.60 Mgal/yr and 2

1.35 Mgal/yr (see Figure 3-1). Both of these values are well within the previously demonstrated 3

capacity of the 242-A Evaporator (see Section 2.1). The larger values occur when an assumed 4

2 Mgal of available tank space, above and beyond emergency space requirements, remain in the 5

East Area DSTs at the completion of the retrievals. Using this model demonstrates that the 6

WVR capacity of the Evaporator is not a limiting constraint in meeting the proposed milestone 7

for completing nine retrievals. 8



11

Figure 3-1. Steady-State Average Annual Waste Volume Reduction Requirements. 1

2

3.3 DYNAMIC EVALUATION OF MODELED OPERATING SCENARIO 3

The steady-state evaluation demonstrates that the 242-A Evaporator capacity is not limiting the 4

ability to retrieve the nine A/AX Tank Farm SSTs by 03/31/2024. However, a more 5

sophisticated evaluation is required to account for the timing of retrievals, transfers, and 6

evaporator campaigns. An operating scenario (sequence and timing of retrievals, level rises, 7

waste transfers, and evaporator campaigns) was simulated using the Hanford Tank Waste 8

Operations Simulator (HTWOS). HTWOS is a computer modeling tool that per RPP-17152: 9

…accounts for the major systems required to accomplish the River Protection 10

Project (RPP) mission to store, process, and immobilize the Hanford tank wastes 11

for disposal. 12

… HTWOS simulates the movement of waste material through the tank farm 13

system in support of single-shell tank (SST) retrieval, 242-A Evaporator 14

operation, waste retrieval from double-shell tank (DST) farms, feed delivery to 15

the Waste Treatment and Immobilization Plant (WTP), as well as supplemental 16

treatment systems and transuranic (TRU) waste processing. This enables WRPS 17

to evaluate impacts to processing throughput caused by possible changes in 18

0.0

0.5

1.0

1.5

2022 2023 2024

Ave

rage

An

nu

al W

aste

Vo

lum

e R

edu

tio

n (

Mga

l per

yea

r)

Assumed Completion Date for Completion of "Next 9" Retrievals (Fiscal Year)

Remaining DST Operating Space = 2 Mgal



Proposed Milestone for Complete Next 9 Retrievals

Early A-105 Completion

See text for example calculation

Largest average annual Waste Volume Reduction (see text for explaination and assumptions) for steady-state evaluation



12

event-driven activities such as pumping, sampling, storage, recycle, separation, 1

and chemical reactions. 2

The HTWOS modeling tool uses information about waste properties, system 3

configurations, desired end-states, target milestones, and other parameters 4

associated with waste processing scenarios to: 5

• Simulate the waste storage, retrieval, feed staging, and treatment 6

processes; 7

• Evaluate the relationship between tank waste retrieval and treatment 8

activities; 9

• Link and evaluate new facility capacities, project requirements and 10

schedules, and contractor integration; 11

• Evaluate integration across multiple process steps and programs; 12

• Verify existing plans for accomplishing the RPP mission; and 13

• Develop future plans. 14

3.3.1 Raw Schedule Results 15

The modeled operating scenario10 demonstrates that there is sufficient DST space and 242-A 16

Evaporator capacity to complete the retrievals of the next nine SSTs (AX-101, -102, -103, 17

and -104; and A-101, -102, -104, -105, and -106) by the DOE-proposed 03/31/2024 Consent 18

Decree milestone date and to meet the other three proposed milestones in Table 3-1. This 19

operating scenario estimates that the four proposed milestones will be met with margin (i.e., in 20

advance of the milestone dates). That margin provides confidence in our ability to execute the 21

operating scenario and meet the proposed milestone dates in light of the following 22

considerations. 23

• As with all HTWOS scenarios, this operating scenario provides point estimates and 24

does not explicitly address RAM impacts related to the DSTs, transfer system, and 25

the 242-A Evaporator. 26

• The scope of DST upgrade projects needed to support LAWPS operations is not yet 27

defined. Therefore, the impact of scheduling necessary transfers and 242-A 28

Evaporator campaigns around those projects has not been addressed by the operating 29

scenario. 30

3.3.2 Reliability, Availability, and Maintainability Considerations 31

As discussed in Section 3.3.1, the estimated retrieval completion dates provided by the HTWOS 32

model are point estimates. As such, additional time needs to be added to the dates provided by 33

HTWOS to account for RAM considerations. This section may help inform decisions as to how 34

much additional time may be required to ensure confidence in meeting the proposed milestone 35

dates. 36

10 The modeled operating scenario was prepared using the Hanford Tank Waste Operations Simulator according

to MMR-50072, 242-A Evaporator Support of A and AX Farm Retrieval, and identified as MMR-50072-early-

AFarm-8.1-8.3r1-2015-10-11-at-20-56-06.



13

RPP-RPT-55891, One System Double-Shell Tank Space Management Evaluation Assessment 1

Report, evaluated the impact of equipment failures for the DSTs, transfer system, and the 242-A 2

Evaporator on several near-term milestones, including the existing Consent Decree milestone for 3

completing nine additional retrievals. The report found that when equipment failures were 4

addressed, the average projected completion date increased about 1.5 years. 5

3.3.3 Limiting Permit Condition Assessment 6

The modeled operating scenario requires the 242-A Evaporator to operate for an approximate 7

total of 130 days11 or about 6% of the time over the six-year period from FY 2016 to FY 2021, 8

inclusive. This compares favorably to the RCRA permit, Radioactive Air Emission Licenses, 9

Air Operating Permit, and State Waste Discharge Permit (limiting) which allow the 242-A 10

Evaporator to operate up to 152 days per year12. In other words, this operating scenario requires 11

the 242-A Evaporator to operate, on average, at about 14% of the permitted capacity in order to 12

achieve what is required for thenext nine A and AX SST retrievals. Thus, permit modifications 13

are not anticipated to be needed, but can and will be requested with enough lead time to allow 14

242-A Evaporator operations to continue as planned. 15

3.3.4 242-A Evaporator Demand 16

During the above period, the 242-A Evaporator is estimated to recover 6.4 Mgal of DST tank 17

space, or WVR; this is approximately 1 Mgal of WVR per year. This compares favorably to the 18

historical and current capabilities of the 242-A Evaporator as discussed in Section 2.1. 19

The required WVR and the estimated number of 242-A Evaporator campaigns needed to 20

successfully execute the modeled scenario are shown in Table 3-3. The estimated annual WVR 21

is based on the chemical properties of the specific tanks that are projected to be processed 22

through the 242-A Evaporator that fiscal year. 23

11 This is the total estimated time during which the 242-A Evaporator is actually concentrating waste from the

model. Operating time required per campaign may vary depending on periods in which the 242-A Evaporator is

idling with the C-A-1 vessel full of waste, time in which E-C-1 condenser cooling water is running before and after

a campaign, or the time in which “cold” training runs are performed. 12 RPP-RPT-57991, One System River Protection Project Integrated Flowsheet, Table 7-2, 242-A Evaporator

Environmental Permit Constraints.



14

Table 3-3. Estimated Demand on the 242-A Evaporator.

Fiscal Year Waste Volume Reductiona Estimated Number of Campaignsc

Annualb

(kgal)

Cumulative

(kgal)

Annual Cumulative

2016 700 700 3 3

2017 1,000 1,700 4 7

2018 700 2,400 1 8

2019 1,400 3,700 3 11

2020 900 4,600 2 13

2021 1,800 6,400 3 16 a The estimated single-pass WVRFs from campaigns spanning FY 2016 through FY

2021 range from about 21% to 57%. The WVRF for individual campaigns is calculated

based on the chemical composition of the waste staged for evaporation. b The average required annual WVR is a nominal 1 Mgal per year. c The number of estimated evaporator campaigns may vary for process or operational

considerations as long as the target WVR is met.

3.3.5 Overall Volume Balance for Modeled Operating Scenario 1

Table 3-4 provides an overall DST space evaluation to complete the retrievals of the next nine 2

SSTs (AX-101, -102, -103, and -104; and A-101, -102, -104, -105, and -106) by the DOE-3

proposed 03/31/2024 Consent Decree milestone date. The accounting of DST space begins the 4

start of FY 2016 and continues until the four proposed Consent Decree milestones in Table 3-1 5

are projected to be met. At that time, there remains approximately 1.61 Mgal of available space 6

in the East Area DSTs beyond the 1.265 Mgal of space allocated for emergencies. 7

Table 3-4. Summary of Double-Shell Tank Space Evaluation for Next Nine Retrievals.

Contribution Cross

Reference

Volumea

(Mgal)

Headspace in East Area DSTs at Start of FY 2016 Table A-1a 5.26

Headspace in AY-102 and Group A DSTs, and Emergency space Table A-1b - 1.95

DST space required for retrievals of C-Farm, A-Farm (excluding A-103),

AX-Farm, and AY-102; and dilution water for preparing the LAWPS /

DFLAW hot commissioning feed

Table A-1c - 8.51

Increase maximum operating level in AP-106 (Level Rise) Table A-1d + 0.10

Net Space Gained by LAWPS / DFLAW Operation until end of “Next 9”

Retrievals Table A-1d + 0.18

Estimated 242-A waste volume reduction (FY 2016 – end of “Next 9”

Retrievals) Table A-1e + 6.43

Estimated Space Available in East Area at the end of “Next 9” Retrievals Table A-1f = 1.51 a Volume estimates are from an HTWOS model run documented by MMR-50072, identified as MMR-50072-early-

AFarm-8.1-8.3r1-2015-10-11-at-20-56-06.



15

3.4 CONTINGENCY EVALUATION 1

Two hypothetical outage scenarios were performed to assess the robustness of the modeled 2

operating scenario against reasonable contingencies. Collectively, these demonstrate there is 3

adequate tank space and 242-A Evaporator capacity to meet DOE’s proposed milestone date of 4

03/31/2024. In line with modeled operating scenario in Section 3.3.5, these outage scenarios 5

include the 576 kgal of dilution water to prepare the initial feed for LAWPS which is added to 6

DST AP-107 in February 2021. This value is part of the 8.51 Mgal in Table 3-4. 7

3.4.1 Evaporator Outage at Start of Retrieval of Last Two A Tank Farm Tanks 8

This hypothetical outage scenario demonstrates that DOE’s proposed Consent Decree milestone 9

to complete retrieval of the next nine SSTs by 03/31/2024 can still be met in spite of a 10

hypothetical 18-month outage of the 242-A Evaporator, beginning at the start of the retrieval of 11

the last two A Tank Farm SSTs under the Consent Decree. The timing of this hypothetical 12

outage, from February 2021 through August 2022, was selected to exacerbate the impacts on 13

DOE’s proposed completion milestone for the next nine tanks by overlapping the retrieval of A-14

105 which requires a nominal 1.6 Mgal of WVR. 15

The results for this outage scenario show that the estimated retrieval completion dates continue 16

to meet DOE’s four proposed milestone dates with loss of about half of the margin for the 17

completion of the nine SSTs by 03/31/2024. By design, the remaining three proposed milestones 18

are met with little change in margin. 19

3.4.2 Evaporator Outage after Retrieval of First Two AX Tank Farm Tanks 20

This hypothetical outage scenario demonstrates that DOE’s proposed Consent Decree milestone 21

to complete retrieval of the next nine SSTs by 03/31/2024 can still be met in spite of an 18-22

month outage of the 242-A Evaporator, beginning after the retrieval of the first two AX Tank 23

Farm SSTs has been completed. The timing of this hypothetical outage, from September 2017 24

through March 2019, was selected to exacerbate the impacts on DOE’s proposed completion 25

milestone for the two additional A/AX retrievals by overlapping a period in which several 242-A 26

Evaporator campaigns were planned. 27

The results for the outage scenario show that the estimated retrieval completion date for the next 28

nine SSTs continues to meet DOE’s proposed milestone date of 03/31/2024, albeit with loss of 29

about a third of the margin. The estimated dates for meeting the other three proposed milestones 30

are met with little change in margin. 31

3.5 ADDITIONAL OPPORTUNITIES TO IMPROVE WASTE VOLUME 32

REDUCTION POSTURE 33

There are other opportunities that might improve the WVR posture – some of these are 34

underway, some under consideration, and others would require the cooperation from the 35

Washington State Department of Ecology (Ecology). 36



16

These include: 1

• Preliminary AX retrieval flowsheets suggest that the total volume of waste retrieved 2

from those tanks, including necessary water and chemicals, may be reduced by up to 3

1 Mgal. 4

• Up to six additional DSTs in AN and AW Tank Farms are being reviewed as 5

potential candidates for increasing the maximum operating level. If successful, this 6

could provide up to a nominal 600 kgal of additional DST space. 7

• The TOC has been actively identifying and procuring spare parts for the 242-A 8

Evaporator, including possible procurement of a spare reboiler as discussed in 9

Section 4.1. Recovery from a failure of the reboiler would likely take longer than the 10

hypothetical 18-month outage if a spare is not available, and significantly shorter than 11

the outage if a spare is available. 12

• The TOC has recognized the need to maintain a set of spare waste transfer pumps to 13

support the DST waste transfers needed to support 242-A Evaporator operations, 14

especially the AW-102 transfer pump which provides feed to the 242-A Evaporator, 15

and other high-use DST-to-DST transfer pumps (RPP-RPT-55891). 16

• Current estimates of the volume of water and chemicals needed to retrieve the waste 17

in and under the liner of SST A-105 assume that multiple technologies will be applied 18

in an attempt to retrieve all of the waste down to the limits of the technologies. As 19

can be seen in Table 3-5, the 37 kgal of waste in A-105 is currently estimated13 to 20

result in an as-retrieved volume of 1.7 Mgal due to the required 1.6 Mgal of water and 21

chemicals (1.1 Mgal of water, 470 kgal of 1M oxalic acid, 38 kgal of 19M sodium 22

hydroxide, and 8 kgal of 3M sodium hydroxide) to reach the assumed retrieval 23

endpoint. However, the introduction of this volume of liquids could inadvertently 24

mobilize and transport the contaminants further into the underlying base materials 25

and soil. To minimize the potential for environmental harm, DOE and Ecology 26

should consult with the TOC to ensure the retrieval methods and end-points are 27

protective of human health and the environment. A risk-based retrieval approach for 28

this SST might significantly reduce the demand on DST space and the 242-A 29

Evaporator for this retrieval by reducing the quantity of water and chemicals used. 30

13 SVF-1647, 2014, “SVF-1647 Rev 5 Calculation of SST Retrieval Volumes and Durations.xlsx,” Filename

‘SVF-1647 Rev 5.xlsx,’ Rev. 5, Washington River Protection Solutions, LLC, Richland, Washington.



17

Table 3-5. Single-Shell Tank Retrieval Demands on Double-Shell

Tank Space.

Tank Current

Waste

Volume

(kgal)

As-

Retrieved

Waste

Volume

(kgal)

Post-Evap

Volume

(kgal)

Required

WVR

(kgal)

As-

Retrieved to

Current

Volume

(kgal:kgal)

AX-104 7 211 14 198 28.6

AX-102 30 428 60 367 14.3

AX-103 106 869 228 642 8.2

AX-101 357 1,630 867 763 4.6

A-102 40 231 73 157 5.8

A-101 320 1,080 676 404 3.4

A-106 79 446 172 274 5.7

A-104 28 127 52 75 4.5

A-105 37 1,734 88 1,646 47.2

Totals 1,005 6,755 2,229 4,526 6.7

1



18

4.0 WHY THE U.S. DEPARTMENT OF ENERGY HAS CONFIDENCE 1

IN THE EVAPORATOR 2

4.1 242-A EVAPORATOR INTEGRITY, LIFE EXTENSION, AND CONTINGENCY 3

PLANNING 4

As described above, since operations were initiated in 1977, two multi-year outages have 5

occurred. The first, from 1989 to 1994, was to allow for major upgrades and construction of 6

LERF/ETF. The second, from 2010 to 2014, was an operational decision to perform upgrades 7

and a DSA revision (available DST space was sufficient to support ongoing operations at that 8

time). 9

Other than these two outages, the longest outage has been 12 months between waste processing 10

campaigns or ‘cold runs’ (operating the 242-A Evaporator with water to demonstrate 11

proficiency). That is, to date the major facility outages have been strategic decisions, not due to 12

equipment breakdown. 13

The facility has had routine integrity assessments on a frequency recommended by an 14

Independent Qualified Registered Professional Engineer (IQRPE). The last integrity assessment 15

was performed in 2007 (reported in RPP-RPT-33306, IQRPE Integrity Assessment Report for the 16

242-A Evaporator Tank System). The report projected the minimum remaining life of each 17

major vessel tested (e.g., reboiler, C-A-1 vessel, recirculation loop, condensate collection tank, 18

and condensers) to be greater than 20 years. The next recommended integrity assessment is in 19

10 years, or 2017 (and is scheduled for 2017). 20

Facility upgrades are currently guided by the Life Extension Study (HNF-3327, Engineering 21

Study for the 242-A Life Extension Upgrades for Fiscal Years 2010 Through 2052) and 22

RPP-RPT-55977, Infrastructure Stewardship Plan, along with risk/probability study results. 23

These two documents contain the long-term and short-term upgrade plans, respectively. 24

A reliability assessment was issued in 2011 (RPP-RPT-49610, Reliability Assessment of the 25

242-A Evaporator at the Hanford Tank Farms). The report concluded that “continued integrity 26

assessments and equipment upgrades, along with a pro-active maintenance strategy, should keep 27

the evaporator operating for another 30 years.” 28

The E-A-1 reboiler was classified as a safety-significant component in HNF-14755 in 2014. 29

Integrity testing was performed and the component was declared leak-tight14 (RPP-RPT-57257, 30

Test Report for Leak-Tightness of Reboiler Vessel E-A-1 at 242-A Evaporator Facility). A 31

reboiler corrosion evaluation was prepared (RPP-RPT-58179, Evaluation of Halide Stress 32

Corrosion Cracking and Pitting in the 242-A E-A-1 Reboiler as it Relates to Operating 33

Parameters and Tank Waste Chemistry). This report indicates that via review of operational 34

history and leak integrity testing the reboiler tubes have not experienced any through wall 35 penetrations and that flushing procedures that follow each 242-A Evaporator campaign have been 36 effective at preventing under-deposit corrosion during idle times. In addition, recommended 37

chemistry and flushing controls have been incorporated into campaign process control plans. 38

14 Leak tightness is determined by a liquid tracer test used to verify the integrity of the vessel.



19

As the reboiler is a critical piece of equipment, there is a risk of a delay to the TOC mission if the 1

existing reboiler fails. Specification, procurement, and replacement of a safety-significant spare 2

E-A-1 reboiler is expected to take greater than two years. Procurement of a qualified spare 3

reboiler would reduce the risk to the retrieval mission by reducing the replacement time to 4

approximately one year, which is consistent with the duration of previous unplanned outages due 5

to equipment breakdown. 6

The TOC maintains an integrated Operations, Engineering, Nuclear Safety, Environmental, and 7

Design staff to monitor facility operation, identify issues and improvements, and provide an 8

ongoing upgrade and maintenance capability that can support maintaining facility availability. 9

4.2 242-A EVAPORATOR OPERATING STRATEGY PROVIDES CONTINGENCY 10

The 242-A Evaporator planned usage is a fraction of the allowable usage under the permits 11

discussed in Section 2.3, and the permits restrict usage to 152 calendar days or less. Planning to 12

operate a fraction of the available calendar days effectively builds in contingency for many 13

operational issues that might arise. Equipment issues that preclude operations for weeks to 14

months may not affect the annual operating time. 15

For example, in 2014 and 2015, numerous operational challenges arose, including: a Tank Farms 16

transfer pump failed, which led to a revised feed staging strategy for the EC-01 campaign; the 17

242-A Evaporator ammonia monitor failed and was replaced prior to EC-01; a valve in the feed 18

line failed and was repaired during EC-01; and another Tank Farms pump failed and was 19

replaced prior to performing feed staging transfers for the EC-03 campaign. Notwithstanding 20

these issues, four campaigns were completed in a span of thirteen calendar months. As these 21

issues occur, repairs are often performed during times when the facility is not processing, thus 22

repair times do not count against the permitted operating limits. 23

4.3 CONCLUSION REGARDING 242-A EVAPORATOR CAPABILITY 24

Recent and historical performance of the 242-A Evaporator demonstrates that the facility will be 25

able to support the planned A and AX Tank Farm retrieval activities. The facility has 26

demonstrated the ability to process large volumes of feed in a short period of time, and to meet 27

the operational needs of the Tank Farms. The 242-A Evaporator is mechanically sound and 28

capable of sustained operation. However, the procurement of a qualified spare E-A-1 reboiler 29

would lower mission risk by reducing the reboiler replacement time from greater than two years 30

to approximately one year. 31



20

5.0 REFERENCES 1

DOE O 433.1B, 2010, Maintenance Management Program for DOE Nuclear Facilities, U.S. 2

Department of Energy, Washington, D.C. 3

DOE-STD-3009-94, 2006, Preparation Guide for U. S. Department of Energy Nonreactor 4

Nuclear Facility Documented Safety Analyses, Change Notice No. 3, U. S. Department of 5

Energy, Washington, D. C. 6

Ecology, EPA, and DOE, 1989, Hanford Federal Facility Agreement and Consent Order – Tri-7

Party Agreement, as amended, Washington State Department of Ecology, U. S. 8

Environmental Protection Agency, and U. S. Department of Energy, Olympia, 9

Washington. 10

HNF-3327, 2009, Engineering Study for the 242-A Life Extension Upgrades for Fiscal Years 11

2010 Through 2052), Rev. 2, Washington River Protection Solutions, LLC, Richland, 12

Washington. 13

HNF-14755, 2015, 242-A Evaporator Documented Safety Analysis, Rev. 5, Washington River 14

Protection Solutions, LLC, Richland, Washington. 15

MMR-50072, 2015, 242-A Evaporator Support of A and AX Farm Retrieval, Rev. 0, Washington 16

River Protection Solutions, LLC, Richland, Washington. 17

RPP-13033, Tank Farms Documented Safety Analysis, as amended, Washington River Protection 18

Solutions, LLC, Richland, Washington. 19

RPP-17152, 2015, Hanford Tank Waste Operations Simulator (HTWOS) Version 8.1 Model 20

Design Document, Rev. 12, Washington River Protection Solutions, LLC, Richland, 21

Washington. 22

RPP-RPT-33306, 2008, IQRPE Integrity Assessment Report for the 242-A Evaporator Tank 23

System, Rev. 2, CH2M HILL Hanford Group Inc., Richland, Washington. 24

RPP-RPT-49610, 2011, Reliability Assessment of the 242-A Evaporator at the Hanford Tank 25

Farms, Rev. 0, Washington River Protection Solutions, LLC, Richland, Washington. 26

RPP-RPT-55891, 2013, One System Double-Shell Tank Space Management Evaluation 27

Assessment Report, Rev. 0, Washington River Protection Solutions, LLC, Richland, 28

Washington. 29

RPP-RPT-55977, 2014, Infrastructure Stewardship Plan, Rev. 0, Washington River Protection 30

Solutions, LLC, Richland, Washington. 31

RPP-RPT-57257, 2014, Test Report for Leak-Tightness of Reboiler Vessel E-A-1 at 242-A 32

Evaporator Facility, Rev. 1, Washington River Protection Solutions, LLC, Richland, 33

Washington. 34

RPP-RPT-57991, 2015, One System River Protection Project Integrated Flowsheet, Rev. 1, 35

Washington River Protection Solutions, LLC, Richland, Washington. 36

RPP-RPT-58179, 2015, Evaluation of Halide Stress Corrosion Cracking and Pitting in the 37

242-A E-A-1 Reboiler as it Relates to Operating Parameters and Tank Waste Chemistry, 38

Rev. 0, Washington River Protection Solutions, LLC, Richland, Washington. 39



21

State Water Discharge Permit Number ST 4502, 2012, Washington State Department of 1

Ecology, Richland, Washington. 2

SVF-1647, 2014, “SVF-1647 Rev 5 Calculation of SST Retrieval Volumes and Durations.xlsx”, 3

Filename ‘SVF-1647 Rev 5.xlsx’, Rev. 5, Washington River Protection Solutions, LLC, 4

Richland, Washington. 5

TFC-PLN-26, Testing Program Plan, as amended, Washington River Protection Solutions, LLC, 6

Richland, Washington. 7

TFC-PLN-29, Nuclear Maintenance Management Plan, as amended, Washington River 8

Protection Solutions, LLC, Richland, Washington. 9

10

11



A-i

1

APPENDIX A 2

DETAILED VOLUME BALANCE FOR MODELED SCENARIOS 3



A-1

Table A-1 provides an overall DST space evaluation to complete the retrievals of the next 9 1

SSTs (AX-101, -102, -103, and -104; and A-101, -102, -104, -105 and -106) by the DOE-2

proposed 03/31/2024 Consent Decree milestone date. The accounting of DST space begins the 3

start of FY 2016 and continues until the four proposed Consent Decree milestones (see 4

Table 3-1) are projected to be met. Each of the six sub-tables (a-f) provide one part of the 5

volume balance as explained below. Bolded terms refer to items in the sub-tables. 6

Table A-1a shows the total headspace present in the DSTs at the start of FY 2016. The 7

5.26 Mgal of Headspace in East Area DSTs at Start of FY 2016 is the unused physical DST 8

tank space in East Area without regard to any restrictions on the use of that space. 9

This physical space must be reduced by restrictions that govern the use of the space. The 10

Restricted Headspace in East Area DSTs includes the headspace over the East Area DSTs 11

containing Group A waste and by the 1.265 Mgal of required emergency space allocation. 12

Additionally, the headspace in AY-102, shown explicitly on its own line, is not available for use. 13

This results in 3.31 Mgal of Space Available for Retrievals in East Area at the Start of 14

FY 2016 (see Table A-1b). 15

The 8.51 Mgal of Total Required Space in East Area is the DST space before concentration 16

through the 242-A Evaporator that is required to receive and store the as-retrieved waste from 17

the remainder of C-Farm retrievals, the A and AX Tank Farm SSTs excluding A-103, the waste 18

to be removed from AY-102, and the dilution water needed to prepare the hot commissioning 19

feed for LAWPS (see Table A-1c). 20

Table A-1d calculates that there is a 4.92 Mgal Tank Space Deficit in East Area (without 21

Evaporator Operation). The Space Available for Retrievals at Start of FY 2016 is reduced 22

for taking AY-102 out-of-service15, increased by the one pending AP-Farm level rise, and 23

increased by the Net Space Gained by LAWPS / DFLAW Operation until end of “Next 9” 24

Retrievals. Finally, the Total Required Space in East Area is subtracted to determine the DST 25

space deficit. If the evaporator were operated to only achieve a WVR of 4.92 Mgal, then there 26

would be zero available DST space remaining in East Area at the end of the retrievals of the 27

“Next 9” SSTs. As a rule of thumb, in practice there is a significant loss in operational flexibility 28

and the ability to transfer and concentrate waste as the available space is reduced so that it 29

approaches or dips below 1 Mgal. 30

Table A-1e reports 6.43 Mgal of Estimated waste volume reduction (FY 2016 – end of 31

“Next 9” Retrievals based on the results of the HTWOS run for the modeled operating scenario. 32

The final DST Space Accounting (including Evaporator Operation) in Table A-1f shows that the 33

Estimated Space Available in East Area at the end of “Next 9” Retrievals is 1.51 Mgal 34

Tables A-2 and A-3 show similar calculations for the two outage scenarios. The only difference 35

between the calculations is slightly different waste volume reduction numbers (Section F in the 36

tables) due to the modeled evaporator outages. 37

15 Since the headspace in AY-102 at the start of the accounting period was already accounted for in Table A-1d,

only the waste in AY-102 needs to be included in Table A-1d.



A-2

Table A-1. Detailed Double-Shell Tank Space Evaluation for Next Nine Retrievals for the 1

Modeled Operating Scenario. 2

Volumea

(Mgal)

Table A-1a. Total DST Headspace in East Area at Start of FY 2016

All headspace in the 28 East and West Area DSTs 6.32

Headspace in West Area DSTs (No credit for headspace in West Area DSTs) - 1.06

Headspace in East Area DSTs at Start of FY 2016 = 5.26

Table A-1b. DST Space Available for Retrievals at Start of FY 2016

Headspace in East Area DSTs at Start of FY 2016 5.26

Restricted Headspace in East Area DSTs:

Group A (0.46 Mgal) and Emergency Space allocation (1.265 Mgal) - 1.72

Exclude headspace in AY-102 before waste is removed - 0.23

Space Available for Retrievals in East Area at Start of FY 2016 = 3.31

Table A-1c. DST Space Required for Retrievals and LAWPS (FY16 – end of “Next 9”

Retrievals)

Remainder of C Farm (C-105 and C-111) as retrieved volume 0.42

Retrieval of A and AX Farm (excluding A-103) as retrieved volume + 6.76

Retrieval of AY-102, current volume + 0.76

AP-107 Dilution (LAWPS Hot Commissioning Feed Preparation) + 0.58

Total Required Space in East Area = 8.51

Table A-1d. DST Space Accounting (without Evaporator Operation)

Space Available for Retrievals in East Area at Start of FY 2016 3.31

Increase Maximum Operating Level in AP-106 (Level Rise) + 0.10

Net Space Gained by LAWPS / DFLAW Operation until end of “Next 9” Retrievals + 0.18

Total Required Space in East Area - 8.51

Tank Space Deficit in East Area (without Evaporator Operation) = -4.92

Table A-1e. Waste Volume Reduction due to 242-A (FY2016 – end of “Next 9” Retrievals)

Estimated waste volume reduction (FY 2016 – end of “Next 9” Retrievals) 6.43

Table A-1f. DST Space Accounting (including Evaporator Operation)

2E Space Available Deficit (without Evaporator Operation) -4.92

Estimated waste volume reduction (FY 2016 – end of “Next 9” Retrievals) + 6.43

Estimated Space Available in East Area at the end of “Next 9” Retrievals = 1.51 a Volume estimates are from an HTWOS model run documented by MMR-50072, and identified as MMR-50072-early-

AFarm-8.1-8.3r1-2015-10-11-at-20-56-06. This model run begins with the Best-Basis Inventory as downloaded by the Tank

Waste Information Network System (TWINS) in 3Q FY 2015, adjusted for historical waste transfers, retrievals, and

campaigns; and reconciled as needed against actual tank waste level surface readings, also reported by TWINS in 3Q

FY 2015.



A-3


18 month Evaporator Outage after the Retrieval of First Two AX Tank Farm Tanks. 2

Volumea

(Mgal)












Retrievals)

















Estimated Space Available in East Area at the end of “Next 9” Retrievals = 1.55 a Volume estimates are from an HTWOS model run documented by MMR-50072, and identified as MMR-50072-Run1-

Middle-Campaign-8.1-8.3r1-2015-10-22-at-20-05-19. This model run begins with the Best-Basis Inventory as downloaded by

the Tank Waste Information Network System (TWINS) in 3Q FY 2015, adjusted for historical waste transfers, retrievals, and

campaigns; and reconciled as needed against actual tank waste level surface readings, also reported by TWINS in 3Q

FY 2015.



A-4


18 month Evaporator Outage at the Start of Retrieval of Last Two A Tank Farm Tanks. 2

Volumea

(Mgal)












Retrievals)

















Estimated Space Available in East Area at the end of “Next 9” Retrievals = 1.52 a Volume estimates are from an HTWOS model run documented by MMR-50072, and identified as MMR-50072-after-ax102-

8.1-8.3r1-2015-10-13-at-21-35-10. This model run begins with the Best-Basis Inventory as downloaded by the Tank Waste

Information Network System (TWINS) in 3Q FY 2015, adjusted for historical waste transfers, retrievals, and campaigns; and

reconciled as needed against actual tank waste level surface readings, also reported by TWINS in 3Q FY 2015.

3


EXHIBIT D


ORP-11242 Revision 7

RIVER PROTECTION PROJECT SYSTEM PLAN

Retrieve and Treat Hanford’s Tank Waste and Close the Tank Farms to Protect the Columbia River





Page i

River Protection Project System Plan

Date Published:

October 2014


Release Approval Date

By GE Bratton at 2:24 pm, Nov 05, 2014




Page ii

DISCLAIMERS

Some of the activities described herein may be subject to the analysis required by the National Environmental Policy Act, 42 USC §4321, et seq. They are included within this document for planning purposes only, not for decisional purposes.

System Plan, Rev. 7 is being submitted in accordance with Hanford Federal Facility Agreement

and Consent Order (HFFACO, Ecology et al. 1989) milestone M-062-40 and describes the disposition of all tank waste managed by the U.S. Department of Energy (DOE), Office of River Protection (ORP), including the retrieval of tanks not addressed by the Consent Decree in State of Washington v. Dept. of Energy, Case No. 08-5085-FVS (E.D. WA, October 25, 2010) and the completion of the treatment mission as depicted in the five scenarios selected by Washington State Department of Ecology (Ecology). These five scenarios were selected and defined solely by Ecology without modification by DOE. ORP elected to not select or define scenarios for evaluation in System Plan, Rev. 7. In comparison to System Plans previously submitted by DOE both prior to and after implementation of HFFACO milestone M-062-40, this System Plan, Rev. 7 is unique in that a current baseline was not evaluated.

The five presented cases selected and defined by Ecology for evaluation in System Plan, Rev. 7 are all what-if cases with outcomes that are based on certain key assumptions approved by Ecology, do not reflect the current status of ORP’s mission, and do not reflect a complete and adequate understanding of assumptions of facility interim and startup dates associated with resolution of technical issues with the Waste Treatment and Immobilization Plant and the need to establish new or revised baselines for key project components.

TRADEMARK DISCLAIMER

Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise, does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States government or any agency thereof or its contractors or subcontractors.

Oracle, Primavera P6®, and Java are registered trademarks of Oracle and/or its affiliates. Other names may be trademarks of their respective owners.

Scientific or technical information is available to United States government and United States government contractor personnel through the Office of Scientific and Technical Information, known as OSTI. It is available to others through the National Technical Information Service.

This report has been reproduced from the best available copy.

Printed in the United States of America.




Page iv

This page intentionally left blank.



Page v

HISTORY SHEET

Revision Date Reason for Revision Revised By

0 August 2002 Initial issuance. K.R. Wells

1 April 2003 Reflect proposed changes and additions to the waste treatment processes and facilities to accelerate mission completion.

K.R. Wells

2 September 2003 Reflect a Target Case, which depicts the mission based on how the U.S. Department of Energy, Office of River Protection expects the Waste Treatment and Immobilization Plant (WTP) to perform and a Stretch Case, which depicts the mission if significant increases in both WTP and non-WTP low-activity waste (LAW) treatment performance are realized.

P.J. Certa

3 May 2008 Reflects a Reference Case, which depicts a mission scenario based on beginning full WTP operations in 2019, in conjunction with supplemental LAW treatment and supplemental transuranic packaging. Generally aligned with key features of the fiscal year 2007 baseline.

P.J. Certa

3A July 2008 Incorporate comments from the Office of Management and Budget.

P.J. Certa

4 September 2009 Reflects a Baseline Case consistent with the Performance Management Baseline. An Initial Planning Case consistent with the interim and draft Performance Measurement Baseline under the new Tank Operations Contract and an Unconstrained Case are used to evaluate program impacts against assumed success criteria.

M.N. Wells

5 November 2010 Reflects a Baseline Case, which provides the technical basis for the Performance Measurement Baseline, and a Sensitivity Case in which all potential transuranic tank waste is processed through WTP.

M.N. Wells



Page vi

Revision Date Reason for Revision Revised By

6 October 2011 Reflects a Baseline Case, which provides the technical basis for the Performance Measurement Baseline, and nine additional scenarios jointly selected by the Office of River Protection and the Washington State Department of Ecology to meet the requirements of Hanford Federal Facility Agreement and Consent Order (Ecology et al. 1989) milestone M-062-40.

M.N. Wells

7 October 2014 Utilizes the Baseline Case originally presented in System Plan, Rev. 6, plus five additional scenarios selected and defined by the Washington State Department of Ecology only, in order to meet the requirements of Hanford Federal Facility Agreement and Consent Order milestone M-062-40D.

M.N. Wells



Page ES-1

EXECUTIVE SUMMARY

The U.S. Department of Energy (DOE), Office of River Protection (ORP), manages the River Protection Project. The mission of the River Protection Project is to retrieve and treat Hanford’s tank waste and close the tank farms to protect the Columbia River. As a result, the Office of River Protection is responsible for the retrieval, treatment, and disposal of approximately 56 million gallons1 of radioactive waste contained in the Hanford Site waste tanks and closure of all tanks and the associated equipment.

System Plan, Rev. 7 is being submitted in accordance with Hanford Federal Facility Agreement

and Consent Order (HFFACO, Ecology et al. 1989) milestone M-062-40 and describes the disposition of all tank waste managed by the U.S. Department of Energy (DOE), Office of River Protection (ORP), including the retrieval of tanks not addressed by the Consent Decree in State of Washington v. Dept. of Energy, Case No. 08-5085-FVS (E.D. WA, October 25, 2010) and the completion of the treatment mission as depicted in the five scenarios selected by Washington State Department of Ecology (Ecology). These five scenarios were selected and defined solely by Ecology without modification by DOE. ORP elected to not select or define scenarios for evaluation in System Plan, Rev. 7. In comparison to System Plans previously submitted by DOE both prior to and after implementation of HFFACO milestone M-062-40, this System Plan, Rev. 7 is unique in that a current baseline was not evaluated.

The five presented cases selected and defined by Ecology for evaluation in System Plan, Rev. 7 are all what-if cases with outcomes that are based on certain key assumptions approved by Ecology, do not reflect the current status of ORP’s mission, and do not reflect a complete and adequate understanding of assumptions of facility interim and startup dates associated with resolution of technical issues with the Waste Treatment and Immobilization Plant and the need to establish new or revised baselines for key project components.

Background

The ORP strategy2 for completing the River Protection Project mission involves a number of interrelated activities and facilities. ORP will reduce risk to the environment posed by tank wastes by:

• Retrieving the waste from the single-shell tanks and delivering the waste to the WTP.

• Constructing and operating WTP, which includes a Pretreatment Facility; a Low-Activity Waste Facility; a High-Level Waste Facility; an Analytical Laboratory; and the balance of facilities, which provides supporting services, like utilities.

• Evaluating supplemental treatment capability, which analysis includes for purposes of this SP7 a second low-activity waste vitrification facility, as set forth in the State’s defined scenarios, to treat the remainder of the low-activity waste fraction not immobilized by the Low-Activity Waste Facility.

1 Refer to HNF-EP-0182, Waste Tank Summary Report for Month Ending April 30, 2014, Rev. 316. The total volume of tank waste fluctuates over time because water and chemicals may be added to tanks to facilitate waste retrieval processes; water is also removed by evaporation. 2 Some of the activities described herein may be subject to analysis required by the National Environmental Policy

Act of 1969 and are included in this document for planning purposes only, not for decisional purposes.



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• Developing and deploying supplemental pretreatment capability.

• Developing and deploying treatment and packaging capability for potential transuranic tank waste, followed by interim storage at the Central Waste Complex pending determination of the final disposal pathway.

• Deploying interim storage capacity for the immobilized high-level waste pending determination of the final disposal pathway.3

• Disposing of packaged immobilized low-activity waste onsite at the Integrated Disposal Facility.

• Closing the single-shell and double-shell tank farms, ancillary facilities, and associated waste management and treatment facilities.

• Optimizing the overall mission with resolution of technical and programmatic uncertainties; upgrading the tank farms to provide a steady, well-balanced feed to WTP.

As opportunities arise to improve project and plant performance or reduce risk, changes are made to the Tank Operations Contract or the WTP Contract, as appropriate. Implementation of these changes is managed through the Baseline Change Request process.

The HFFACO4, also known as the Tri-Party Agreement, was signed by DOE, Ecology, and the U.S. Environmental Protection Agency in 1989. This comprehensive agreement includes milestones for regulatory compliance and environmental remediation. Between 2007 and 2009, DOE and Ecology negotiated new and revised HFFACO milestones, along with new milestones in a Consent Decree5 filed in federal district court. That Consent Decree resolved a lawsuit filed in 2008 by the State of Washington against DOE. Both the Consent Decree and HFFACO changes became effective on October 25, 2010, the date the Consent Decree was entered into federal court. One of the new HFFACO milestones, M-062-40, requires ORP to prepare a System Plan every 3 years.

Purpose

This revision of the River Protection Project System Plan (Rev. 7) is an update to the previous revision (Rev. 6) issued in October 2011. SP7 satisfies the requirements of HFFACO milestone M-062-40D. The Office of River Protection’s Baseline Case is the same case as was previously used in System Plan, Rev. 6. For purposes of SP7, the term Baseline Case refers to a reference case that is modified with additional Ecology-defined assumptions to define additional scenarios. SP7 does not form the technical basis for either the near-term baseline or the out-year planning estimate range because of uncertainties in the baseline as a result of currently unresolved technical issues at WTP. Additionally, ORP elected not to select or define any cases for this SP7.

3 Office of River Protection planning, with regard to final disposal of immobilized high-level waste, is subject to recognition of uncertainties with regard to an assumed, planned offsite geologic repository. 4 Ecology, EPA, and DOE, 1989, Hanford Federal Facility Agreement and Consent Order – Tri-Party Agreement, as amended, Washington State Department of Ecology, U.S. Environmental Protection Agency, and U.S. Department of Energy, Olympia, Washington. 5 Consent Decree, 2010, State of Washington v. DOE, Case No. 08-5085-FVS (October 25), Eastern District of Washington.
