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LANL: Request to halt work on nuke facility denied

By Roger Snodgrass | For The New Mexican

5/24/2011

U.S. District Judge Judith C. Herrera on Monday denied the Los Alamos Study Group's plea to halt work on a major nuclear facility at Los Alamos National Laboratory.

She delivered her decision a few hours before the start of a series of related public hearings to gather input on an environmental impact statement for the proposed plutonium-pit storage and processing complex, called the Chemistry and Metallurgy Research Replacement Project.

"We are disappointed," said Los Alamos Study Group Executive Director Gregg Mello, who initiated the legal process July 1, 2010. "It's too early to tell whether we will appeal or not."

Herrera's decision was based on a finding by Magistrate Alan C. Torgerson on Jan. 6, in which Torgerson recommended that the court dismiss the suit based on the principle of "prudential mootness."

The government's attorney, Andrew Smith, added this explanation in a courtroom declaration: "It's geared towards deference towards the federal agency when the federal agency is making changes to its policy, which it plainly has here."

Smith also invited the plaintiffs to return to court when there is a formal record of a decision on this process, saying the matter was still premature but would be ripe for a challenge at that point.

The final conclusions of the ongoing environmental review are not yet known, Herrera noted in her opinion, and may eventually answer some or all of the plaintiffs' objections.

If that doesn't turn out to be the case, she said, the plaintiffs will have the opportunity to file a new complaint.

"The court agrees with the Magistrate Judge that it would be imprudent to halt all work, including design analysis," Herrera wrote.

Herrera rejected the plaintiffs' objections to Torgerson's findings and therefore denied an injunction, which sought to stop the project until a new environmental review was complete.

The new review process might have delayed the project for a couple of years or longer.

One of the factors that Herrera cited in her decision was that the nuclear facility was not under construction, pending completion of the current environmental review process.

"But the project is expected to take at least 10 years after the start of construction to become operational," she noted. "Thus the danger of rendering an otherwise valid case moot through project completion is much reduced in this case."

She also dismissed the group's contention that the National Nuclear Security Administration has violated the National Environmental Policy Act by picking its preferred alternative before having completed the analysis.

"We're pleased with the decision," Los Alamos Site Office spokeswoman Toni Chiri said.

"We weren't sure when it was gong to come, but it was good to have the news to start the week."

There was some question about whether the hearings would have continued if the decision had been in favor of an injunction. Chiri said, "We were wondering, too, but we would have continued either way."

The Los Alamos Study Group called for a boycott of the hearings scheduled this week for public comment on a Draft Supplemental Environmental Impact Statement, calling the procedure a "worthless exercise."

The study group maintains that the government's National Environmental Policy Act process has been flawed from the beginning.

"They got in trouble because of a faulty analysis, which did not uncover the bad seismicity or geology of the site and could have saved a lot of time and money if they had not chosen that site," Mello said. "Regardless of what happens in the meetings or what happens after that, NNSA's plans may not be feasible."

Public hearings

NNSA will hold four public hearings on the draft Chemistry and Metallurgy Research Replacement Project-Nuclear Facility Supplemental Environmental Impact Statement at the following dates, times, and locations:
  • 5-9 p.m. today, Holiday Inn Express, 60 Entrada Drive, Los Alamos
  • 5-9 p.m. Wednesday, Santa Claran Hotel, 464 N. Riverside Drive, Espanola
  • 5-9 p.m. Thursday, Santa Fe Community College, Jemez Rooms, 6401 Richards Ave.

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