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"Forget the Rest" blog


  Volume 15 No. 19                                                                                      May 7, 2011


Lawyers for the federal government and an anti-nuclear activist group seeking to halt construction on Los Alamos
National Laboratory’s Chemistry and Metallurgy Research Replacement-Nuclear Facility continued to trade jabs
during a second day of arguments this week in an Albuquerque federal courtroom, but the arguments ended
without a true conclusion. Likewise, there remains no clear timetable for a decision from federal Judge Judith C.
Herrera. Herrera ended the May 2 hearing by saying she would “take the matter under advisement” after Justice
Department lawyer Andrew Smith and Tom Hnasko, a lawyer for the Los Alamos Study Group, completed their

Herrera may decide to grant a motion by the Study Group for a temporary injunction under the National Environmental Policy Act. The Study Group has argued that the agency hasn’t seriously considered options other than
building the multi-billion-dollar facility in the Supplemental Environmental Impact Statement it is currently performing
as an update to a 2003 analysis. The group’s push for an injunction would halt construction and design work on the project and quash related projects that might prejudice the choice of locations and alternatives for the final piece of the project. The facility, with its estimated price tag between $3.7 and $5.8 billion, has a $300 million budget in Fiscal Year 2011 for work on the final design. The preliminary construction phase is expected to start later in 2011 but the building would not be ready for occupancy until 2022.

Gov’t: SEIS Should Suffice

Alternatively, Herrera can find for the defendants, the National Nuclear Security Administration and the Department of Energy.  Smith has called for a summary dismissal of the lawsuit. Citing a new draft analysis that was released
last week, Smith argued that a supplemental environmental evaluation is underway. The draft SEIS is intended to
validate the project, and it incorporates new seismic and safety information that has altered the scope and scale of
the nuclear facility, according to the officials, but not the purpose for which facility was originally authorized in
2004. The statute of limitations has expired for appealing that decision, Smith argued, and the time is not “ripe” to
challenge the process while a new Record of Decision has yet to be finalized.

Hnasko argued in his opening declaration that the laboratory has made “irretrievable commitments” to the nuclear facility, which is why they are unable to consider alternatives that might serve the purpose more efficiently. In his concluding rebuttal, he said some kind of NEPA process was indeed going on. But he said it was “irrelevant,” because no credible alternatives had been analyzed, and even the alternative of renovating the old Chemistry and Metallurgy Research facility with major upgrades was barely examined. “They are going forward with one project and they’re going to paper it over with a Supplemental Environmental Impact Statement,” he said. “We have no Record of Decision for this project, and until we get that ROD you have to stop.”

Group Blasts Lack of Choice

Smith suggested that once a new ROD is issued, it could be subject to litigation. “When the new ROD comes out, the plaintiffs can challenge it then,” Smith said. “All of that will be ripe for judicial review.” He dismissed the plaintiff’s complaints about large changes in the scale and cost of the nuclear facility proposed for storing, handling and processing weapons-related plutonium. Smith likened the process to if someone had found an error on his draft tax form. “But I haven’t filed my tax return yet, so I haven’t violated anything,” he said, citing legal precedents to insist that the injuries had to be substantial and the burden of proof for questioning the government’s intentions in a NEPA case was stringent.

Smith also noted that progressive changes and input from the Defense Nuclear Facilities Safety Board on the seismic requirements for the facility had forced some changes, and he said the NNSA was currently exploring deep or shallow option for excavation of the facility. However, Hnasko called NNSA’s latest draft Supplemental Environmental Impact Statement a choice between “digging a hole or digging a deeper hole,” and he cautioned that the NEPA process required more than proposing “design variations to your chosen alternative.” Herrera may have hinted at a compromise when she asked Hnasko if there was not a remedy short of the court’s involvement. But Hnasko said, “They cannot go back without the court’s intervention.” Court watchers said a written decision could come within another week or two.

— From staff reports (reprinted by permission)

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