For immediate release 9/23/10

In response to lawsuit, nuke agency admits
plutonium warhead facility needs
additional environmental analysis

White House promises full commitment to controversial project despite 10-fold cost growth and need to review alternatives under environmental law

White House seeks immediate increase in nuke weapons spending, with further requests to be announced “in the fall”

House Republicans oppose emergency nuke spending increase

Green group: environmental analysis must precede federal commitment; project must halt while agency takes “hard look” at alternatives

Contact: Greg Mello, Los Alamos Study Group, 505-577-8563 (cell);
Thomas Hnasko, Hinkle, Hensley, Shanor & Martin, LLP, 505-982-4554 (office) or 505-660-3397 (cell)

Albuquerque, NM – Attorneys at the Department of Justice (DOJ), representing officials at the National Nuclear Security Administration (NNSA) and Department of Energy (DOE), have admitted that the big “Nuclear Facility” proposed for Los Alamos National Laboratory (LANL) requires another environmental impact statement (EIS).

Their September 17 letter was released today by the Los Alamos Study Group (Study Group), which sued NNSA and DOE in August over the project’s lack of an applicable EIS (see Complaint, pdf), together with the Study Group’s reply.

The Study Group is an Albuquerque-based think-tank and educational organization specializing in nuclear weapons, energy, and climate issues.

The DOJ requests that the Study Group voluntarily drop its lawsuit, which requests a new EIS and halt to the project while a new EIS that discusses alternatives to the project is written. DOJ does not offer a new EIS, only a “supplemental” EIS (SEIS), the scope of which will be solely up to the DOE and NNSA to decide. DOJ did not offer to voluntarily halt the project, for which NNSA has requested a tripling in funding, beginning next month.

The Nuclear Facility is the second and by far the larger of the two buildings proposed in NNSA’s Chemistry and Metallurgy Research Replacement (CMRR) project. It was part of a two-building package that was proposed to Congress at a total estimated cost of $350 to $500 million (for both buildings) in 2002. By February of this year the estimated cost for the Nuclear Facility alone had increased to $3.4 billion (pdf). Costs in excess of $4 billion have been repeatedly reported in the trade press this year and there are now reliable reports, partially confirmed by the Study Group, that current estimates exceed $5.5 billion.

Estimated completion has been pushed back a decade so far. Construction is slated to start in the coming fiscal year (FY) (pdf), even though preliminary design of the building is not expected to be complete for two or more years.

According to past statements by congressional committees and the White House, the primary purpose of the facility is to facilitate large production runs of plutonium warhead cores (“pits”) for possible novel nuclear warheads (“replacement warheads”).

Pits do not wear out or significantly age. The U.S. currently maintains at least a 100% redundancy in stockpiled pits and/or reserve warheads for every type of delivery system.

In his response to DOJ, Study Group attorney Thomas Hnasko wrote that NNSA’s offer to prepare a “supplemental” EIS constitutes an admission of illegality, in that the agencies are

conducting a major federal action significantly affecting the quality of the human environment without an applicable Environmental Impact Statement (EIS). We therefore respectfully request that defendants halt all further expenditures on the Nuclear Facility until an applicable, adequate EIS is prepared and a new ROD is issued.

Hnasko also requested that NNSA notify Congress that its budget request for FY2011 funding for the project was premature. NNSA requested $166 million for the Nuclear Facility for as part of its $225 million CMRR request for FY2011, which as noted above would more than triple the current year appropriation and pay for additional detailed design as well as start construction.

Study Group director Greg Mello: “The National Environmental Policy Act [NEPA] indisputably requires an EIS before the federal government commits to a major action that has significant environmental impacts, as this one does. The purpose of this important law, which NNSA still seeks to evade, is better decisions, not just after-the-fact paperwork. NNSA desperately does need better decisions about its nuclear weapons programs, the costs of which are skyrocketing while confidence that the agency can complete its key projects is falling.”

Previous NEPA litigation led by the Study Group in 1994 halted construction of the Dual-Axis Radiographic Hydrotest (DARHT) Facility at LANL while an EIS was prepared. Then as now, DOE offered to prepare an EIS (while continuing the project) in order to end the litigation.

On September 15, two days before the DOJ wrote its 9/17 letter promising a SEIS, Vice President Biden wrote to Senate Foreign Relations Committee promising the Administration’s full commitment to the Nuclear Facility and other NNSA projects, while acknowledging that their estimated costs have increased, and promising to seek additional funding to cover those costs.

Since the New Strategic Arms Reduction Treaty (New START) was submitted to the Senate for advice and consent, questions posed during committee hearings on the Treaty have highlighted, among other things, the Administration's plans to modernize the U.S. nuclear weapons complex, in particular the President's budget request for FY 2011 and projected out-year requests to accomplish the missions of the Stockpile Stewardship and Management Programs. I write to assure the Committee of the Administration's strong support for this program...

Our budgets seek to reverse five years of declining support for nuclear stockpile management...The FY 2011-2015 President's Budget was based on the best estimates available at that time, and reflected our assessment of necessary investments and the capacities to absorb increased funding.

Earlier this spring, the Administration provided reports to Congress describing our 10 and 20-year plans, respectively, to sustain and modernize nuclear delivery systems, and the nuclear stockpile and the associated infrastructure...

...NNSA has used the time since the spring - when the NPR and New START were concluded - to work on updating initial assumptions. We now have a more complete understanding of stockpile requirements, including the life extension program needs. Similarly, the designs of key facilities such as the Uranium Processing Facility and the Chemical and Metallurgy Research Replacement Facility have progressed. Based on information learned since the submission of the President's FY 2011 budget and the report under section 1251 of the National Defense Authorization Act for FY 2010, we expect that funding requirements will increase in future budget years.

Later this fall, the Administration will provide the Congress with information that updates the Section 1251 report. At that time, and in our future budgets, we will address any deficiencies in the Future Years Nuclear Security Program. We are also prepared to brief the oversight committees and interested Senators as these programs progress, so that Congress can have full visibility into the program and confidence in our processes...

This Administration has expressed its unequivocal commitment to recapitalizing and modernizing the nuclear enterprise, and seeks to work with Congress on building a bipartisan consensus in support of this vital project. I look forward to continued work with Congress to ensure that we accomplish our shared objective to maintain and strengthen U.S. nuclear security.¹

These proposed increases would come on top of the big increases proposed earlier this year. They appear to be a capitulation to Republican demands for additional nuclear weapons spending in return for possible votes in favor of New START ratification. (Regarding the earlier increase, see Obama Requests Nuclear Weapons Spending Surge, Study Group press release, Feb 1, 2010.)

(These proposed additional increases were first reported last week by Todd Jacobsen, writing for the Nuclear Weapons and Materials Monitor.)

The Study Group, through no merit of our own, has also obtained a White House request (pdf) for immediate (October 1) implementation of its proposed nuclear weapons budget increase, linking the prompt increase with the New START treaty.

Language [in the expected Continuing Resolution] is needed to provide a rate for operations of $7,009 million to support the recommendations of the Nuclear Posture Review (NPR) and support full funding for the weapons complex modernization. The President's FY 2011 Budget request of $7,009 million for Weapons Activities reflected an increase of $624 million (9.8 percent) over the FY 2010 enacted level to support the recommendations of the NPR.

Constraining the Weapons Activities account to the FY 2010 level during the CR will delay implementation of the programs supporting the NPR, including their connection with the New START treaty. An increase above the FY 2010 level in a CR is required to meet the time-sensitive NPR requirements, and without this anomaly the tightly knit set of schedules planned to support the Administration’s and Congress' goals would be imperiled.

Republicans on the House Appropriations Committee oppose this emergency nuclear weapons funding increase.

It also appears that the Administration is attempting an end-run around the traditional appropriations process by requesting that the CR adopt selected policy changes and funding increases included in the President’s fiscal year 2011 budget request for favored programs.  For example, the Administration has proposed that the CR provide significant increased spending over the current level for the following:  Pell Grants for next year, a $1.9 billion increase for new Race to the Top grants, $250 million increase for new and expanded programs to implement the health care bill, $624 million increase for programs related to the unratified START Treaty, and over a $100 million increase for new staff and programs related to the Wall Street Reform bill.  Irrespective of the relative merits of these programs, none of these increases are necessary to maintain the current level of government operations during the period of the CR, and therefore simply do not belong in a CR.  Instead, decisions on increases for programs should be decided through the regular process where such increases can be weighed against reductions in other programs. [emphasis added]

Mello: “NEPA requires that agencies take a ‘hard look’ at the environmental consequences of the full range of reasonable alternatives prior to commitment to any specific alternative. The Department of Justice now admits that the NEPA analysis justifying its decision to proceed with this project as currently designed is defective. This is a golden opportunity for NNSA and Congress to fundamentally rethink this project, starting with purpose and need, an opportunity they should seize.”

***ENDS***