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"Forget the Rest" blog

For Immediate Release October 21, 2011
Nuclear Weapons Policy Group Files Second Lawsuit to Halt Proposed $6 Billion Los Alamos Plutonium Building
NEPA lawsuit seeks review of simpler, cheaper alternatives

Contact: Greg Mello, 505-265-1200 (office) or 505-577-8563 (cell)
Thomas Hnasko, 505-982-4554 (office) or 505-660-3397 (cell)
Lindsay Lovejoy, 505-983-1800 (office) or 505-231-3738 (cell)

New Mexico – This morning the Los Alamos Study Group (Study Group) filed a second lawsuit under the National Environmental Policy Act (NEPA) seeking accurate, up-to-date analyses of the feasibility and impacts of alternatives to a proposed $6 billion plutonium building at Los Alamos National Laboratory (LANL). 

The building, the “Chemistry and Metallurgy Research Replacement” (CMRR) Nuclear Facility (CMRR-NF), was first proposed in 1999, when it had with an estimated price tag of $375 million (M).  That CMRR was relatively modest – “not a Taj Mahal,” as Senator Bingaman’s office put it at the time – and was to handle small samples of plutonium only, in aggregate no more than 900 grams. 

Since then the CMRR project has evolved in stages into a sprawling $4.5 to $6.5 billion endeavor involving two new main buildings, demolition of an existing one, and many sub-projects spread across 14 technical areas at LANL.  Today’s CMRR-NF (by far the largest structure in the CMRR project) would store up to six metric tons of plutonium – enough to rebuild the entire U.S. strategic arsenal – and would have up to 300 kilograms of this difficult material in process.  Estimated CMRR costs have ballooned by a factor of ten since Congress first approved the project as a line item in 2004. 

Even now, after appropriations of more than $458 M for the CMRR-NF building alone there is no firm cost estimate for it, no completed design, and no clear explanation of its missions. 

Last August the Study Group filed a lawsuit in the New Mexico federal district court seeking a fresh environmental review of the much-changed CMRR project.  In response, the National Nuclear Security Administration (NNSA) promised to prepare a Supplemental Environmental Impact Statement (SEIS) and to hold back initial construction until the SEIS was completed. 

After extensive briefing in the case, Judge Judith Herrera dismissed the case in May in anticipation of the final SEIS, which she thought might resolve the NEPA compliance issues.  In her opinion, Judge Herrera suggested the Study Group file a second lawsuit after the SEIS process was completed, should a controversy remain.  Today’s filing is that lawsuit. 

The Study Group is also diligently pursuing review of Judge Herrera’s decision in the Tenth Circuit Court of Appeals in Denver.  

NNSA issued its final SEIS on August 25 and published a formal record of its decision (ROD) to build CMRR-NF on October 1.   Today’s action challenges that SEIS in several ways, briefly outlined below. 

A full copy of today’s Complaint will be posted at the Study Group’s CMRR litigation web site shortly. 

Background

The main CMRR building – the Nuclear Facility or CMRR-NF – would be a massive bunker-like storage, processing, and experimental center, mostly built underground, that would anchor the proposed dramatic expansion of the plutonium processing, storage, and experimental facilities at LANL.  A smaller support facility containing analytical laboratories, offices, chemical tanks, a utility hub for both buildings and an office and command center has already been built and is currently being outfitted.  

The CMRR-NF, not even counting the rest of the project or its related new waste management facilities and long-distance electrical supply upgrades, would be by far the most expensive single construction project ever conceived in New Mexico, outstripping major projects like Cochiti Dam, the Railrunner, and the Big I freeway interchange by a factor of ten or more in constant dollars.  CMRR-NF would about cost as much in constant dollars as all spending at Los Alamos from 1943 to 1957, including all Manhattan Project expenses and the development of the first deployable hydrogen bombs. 

Construction would employ an average of 420 workers over an expected 9 years, many of whom would be nuclear construction specialists brought in from out of state.  NNSA expects CMRR to create no permanent jobs.

Commentary

Study Group Director Greg Mello: “Despite spending millions on what turns out to be fourteen pounds of after-the-fact NEPA paperwork, NNSA still has not analyzed the impacts of even one reasonable alternative.  For NNSA, it’s their way or the highway.  Yet analysis of the environmental impacts of reasonable alternatives to a project is the very heart of NEPA. 

“NEPA’s integrative perspective has never been more important, given the converging crises we face in our environment, economy, and society.  We desperately need infrastructure projects that help us save the environment, not destroy it.  Building those projects – to save energy, decrease reliance on oil, and produce renewable energy – is now an economic and ecological imperative. Such projects, on an ambitious scale, are absolutely central to our national security.  CMRR-NF competes directly with the policies and the politics to do that.  It is truly a bunker to nowhere.  

“At first NNSA told Congress this project would be relatively simple, cheap, and fast, just as Senator Bingaman said.  For five years the House of Representatives in particular had doubts about the project and tried to stop it.  But the Senate, led in this matter by Senator Domenici, kept the project going.  Meanwhile Senator Bingaman has been missing in action, ducking responsibility again and again for what has become a major fiasco. 

“In its 2003 EIS, NNSA misrepresented the seismic hazard, the engineering qualities of the site, the scale of construction, the time, the cost, the operational resources in electricity and water, and pretty much everything else.  It is now a behemoth of a building. Yet NNSA still relies on what its own subsequent analyses and actions show to be a false and obsolete 2003 analysis as the legal basis for spending billions on a project whose original mission – helping make replacement warhead cores (“pits”) – is in serious question, to say the least.    

“The Administration’s big proposed nuclear weapons modernization program is hitting the fiscal rocks.  Both House and Senate appropriators have proposed warhead budgets significantly lower than requested.  There is huge discomfort about NNSA’s plan to build CMRR-NF at the same time as a higher-priority facility for manufacturing uranium warhead components in Tennessee.  We hope our lawsuit will help all branches of government come to grips with some of these realities.  NEPA is a valuable tool, or it could be if it were used as such. 

More about the Study Group

The Study Group is a nonprofit organization based in Albuquerque New Mexico focusing on nuclear weapons and related policy issues.  The active core of the Study Group is composed of accomplished scholar-activists with decades of experience residing in New Mexico, California, New York, and elsewhere.  We have been deeply involved in domestic and international nuclear weapons policy issues since shortly after the fall of the Berlin Wall in 1989.  For two decades the Study Group has worked closely with government, contractor, and academic policy experts at senior levels as well as with the public. For the past few years the Study Group has focused most of its efforts on appropriately downsizing warhead programs within the larger human and environmental security context defined by our converging economic, financial, energy, and climate crises. 

Study Group Director Greg Mello and president Peter Neils will be in Washington next week to discuss the issues raised in their research and in this lawsuit with congressional staff, other experts in the arms control community, and officials in government. 

More about CMRR

For further information about the CMRR-NF project and its practical alternatives, please see http://www.lasg.org/CMRR/open_page.htm, especially:

From today’s Complaint (check against filed version)

This action challenges Defendants’ reliance on a 2011 Supplemental Environmental Impact Statement (“2011 SEIS”) and subsequent amended record of decision as a purported justification for Defendants’ continuing and unabated implementation of the 2010-11 Chemistry and Metallurgy Research Replacement (“2010-11 CMRR”) project at Los Alamos National Laboratory (“LANL”).  

The purpose of the CMRR project is to increase LANL’s capability to conduct experimental and industrial processes involving large quantities of plutonium, primarily in support of nuclear warhead core (“pit”) manufacturing.    Since 2004 the CMRR project has consisted of two main buildings, the CMRR Nuclear Facility (“CMRR-NF”) and a support facility called the CMRR Radiological Laboratory, Utility, and Office Building (“CMRR-RLUOB”) , together with ancillary buildings, facilities, and utilities.  The CMRR-NF would include a storage vault for up to six metric tons of plutonium. CMRR-NF would function in tandem with LANL’s existing main plutonium facility, PF-4, which is being substantially upgraded.  All three facilities (CMRR-NF, CMRR-RLUOB, and PF-4) would be adjacent to one another in LANL’s Technical Area 55 (TA-55), connected by tunnels. 

The CMRR project has been conceived, designed, funded by Congress, and analyzed under NEPA as a single project.  Defendants initially prepared an environmental impact statement (“EIS”) under NEPA in 2003 for a CMRR (the “2003 CMRR EIS”) that would have been much simpler and less environmentally impactful than the current version.  A Record of Decision (the “2004 CMRR ROD”) was issued in early 2004, containing Defendants’ decision to proceed with that 2003 project. 

Between 2004 and 2010 the scale and scope of the CMRR-NF project increased dramatically.  There are several reasons for these changes: DOE/NNSA’s original environmental analyses and assumptions in the 2003 CMRR EIS were critically deficient.  Their estimates of material requirements were grossly in error.  New design requirements were also discovered or imposed.  For example, DOE/NNSA determined that their estimate of seismic hazard was significantly too optimistic.  DOE/NNSA discovered that the thick stratum of loose volcanic ash beneath the proposed site created seismic vulnerabilities.  Safety standards, such as the requirement for a “safety class” ventilation system, posed new challenges.  New mission flexibility requirements were added.  The electricity and water requirements of the new building had been greatly underestimated.  A new transmission line to Los Alamos may be needed, a major project in itself. 

Because of the imperatives arising from these and other factors, all alternatives presented in the 2003 CMRR EIS have now been rejected by Defendants.  The CMRR EIS of 2003 has been overtaken by events and is, in all of its substance, obsolete and irrelevant. 

Since 2004, DOE/NNSA have greatly expanded the scale, scope, cost, and geographic footprint of the CMRR-NF, adding new buildings, construction yards, parking, and other project elements.  Cost estimates have increased by a factor of ten or more.  These enlarged plans have also greatly lengthened the design and construction schedule, moving the projected completion date from 2009 to 2023. 

At the same time, nuclear weapons policy has significantly changed since 2003, requiring DOE/NNSA to reconsider the purpose and need for CMRR-NF.  The Reliable Replacement Warhead (“RRW”), once a core justification for CMRR-NF, has been canceled.  By the early 2020’s when CMRR-NF might be completed, nearly the whole weapons stockpile will have been upgraded by existing means, without CMRR-NF.  There is a scientific consensus that existing pits will last far longer than previously expected and that stockpile maintenance methods, which do not use new pits, will be effective indefinitely.  The Administration’s 2010 Nuclear Posture Review declares the policy, in general, not to manufacture plutonium pits. 

Cost estimates for the 2010-11 CMRR-NF have reached $6 billion and are widely expected to rise further.  Public officials now acknowledge the need to reassess whether CMRR-NF is truly needed, and if so, when.  Defendants, at the request of congressional committees and other authorities, are conducting studies of the proposed timing and cost of the CMRR-NF and alternative means of constructing it.  The House of Representatives has voted to delay construction until a later fiscal year.  The Government Accountability Office is currently reviewing the CMRR-NF project.

The massive scale, cost, and impacts of the 2010-11 CMRR-NF make it an entirely different proposal from that of 2003.  Defendants have never analyzed the full range of reasonable alternatives to the 2010-11 CMRR-NF, with the impacts of those alternatives weighed against the contemporary calculation of the need for such a facility. 

NEPA demands such an analysis.  The fundamental purpose of NEPA is to require federal agencies to analyze the reasonable alternatives fully, and to choose from among those alternatives, before the agency commits to a specific project.  NEPA analysis properly takes place early in the design process.  (40 C.F.R. § 1501.2).  NEPA requires the agency to make an informed decision about fundamentally different approaches to serving the agency’s need, based on an analysis of “all reasonable alternatives” (40 C.F.R. § 1502.14(a)), even alternatives outside the agency’s current mandate.  (Council on Environmental Quality, “NEPA’s Forty Most Asked Questions, at 2b).  NEPA also requires Defendants to refrain from taking action that has an adverse environmental impact or limits their choice of alternatives until they have completed NEPA compliance. 

Plaintiff previously sued Defendants in 2010 in Civil Action No. 1:10-CV-0760-JH-ACT in this Court, asserting NEPA claims based upon Defendants’ implementation of the 2010-11 CMRR-NF project without any NEPA analysis of that project and its reasonable alternatives.  Defendants then announced that they would supplement the 2003 CMRR EIS with a 2011 SEIS.  The Final SEIS was issued on August 30, 2011, and on October 1, 2011 Defendants issued an amended ROD, announcing their decision to construct the 2010-11 CMRR-NF.

The SEIS contains neither any reasonable alternatives, nor a no action alternative, nor a contemporary discussion of purpose and need.  The supposed “no action” alternative in the SEIS is construction of the 2003 CMRR-NF, the alternative chosen in the 2004 CMRR ROD but long since abandoned as unworkable.  Defendants state in the SEIS that none of the alternatives in the 2003 CMRR EIS is reasonable, but they fail to analyze any current-day realistic alternatives.  They also state, contradictorily, that they rely upon the analysis in the 2003 CMRR EIS in choosing to construct the current, and very different, 2010-11 CMRR-NF.  Crucially, the SEIS followed, rather than preceded, Defendants’ decision to construct the 2010-11CMRR-NF, contrary to the purpose of NEPA.   

Thus, the agencies’ work called for by NEPA remains to be done.  DOE/NNSA must objectively evaluate the 2010-11 CMRR-NF and all reasonable alternatives before making a further irrevocable commitment of resources and further prejudicing the objective analysis that NEPA requires.  The EIS must “[r]igorously explore[s] and objectively evaluate[s] all reasonable alternatives” (40 C.F.R. § 1502.14) to the 2010-11 CMRR-NF.  That EIS has not been written; clearly, the SEIS does not provide the required NEPA analysis.  

Nevertheless, Defendants have shown an unrelenting determination to build the CMRR-NF, despite the ballooning costs and widening environmental impacts.  They have made irrevocable commitments of resources to this massive program, before, during, and after the 2011 SEIS, disregarding the lack of current and applicable NEPA analysis. 

Defendants have built the CMRR-RLUOB, comprising approximately 6-9% of the total CMRR project cost, and are outfitting it for use.  Defendants plan to proceed with the 2010-11 CMRR-NF, which is expected to ultimately comprise 91-94% of the total CMRR project cost, of which roughly 10% has been spent so far.  CMRR-NF construction is currently expected to begin in late 2011 or early 2012 and conclude in the early 2020’s. 

When Defendants announced that they were preparing a SEIS, this Court dismissed the Plaintiff’s previous case based upon doctrines of prudential mootness and ripeness, stating that, should the SEIS prove unsatisfactory, Plaintiff could sue again.  (Memorandum, May 23, 2011, at 15, 22). 

The SEIS is totally unsatisfactory as supposed NEPA compliance.  The SEIS contains no analysis of reasonable alternatives to the 2010-11 CMRR-NF.  In the SEIS, that 2010-11 CMRR-NF is the only alternative that Defendants consider reasonable.  This is clearly not NEPA compliance.  The SEIS fails to satisfy basic NEPA requirements in numerous other ways, detailed herein. 

The Study Group has never had the opportunity to challenge the lack of NEPA analysis of the 2010-11 CMRR-NF.  Defendants have never made a NEPA analysis of that project and its reasonable alternatives.  Their course of conduct falls far short of the public environmental review that NEPA requires of federal decisionmakers before they can commit significant federal resources.  Consequently, Plaintiff commences this new action to seek enforcement of NEPA and NEPA regulations.

This Complaint seeks a declaratory judgment and mandatory injunction, requiring Defendants to comply with NEPA by preparing an EIS that compares environmental impacts of the 2010-11 CMRR-NF and reasonable alternatives to it, including the alternative of no action, before, and not after, the decision whether to construct one of the alternatives. This Complaint also seeks an injunction, directing Defendants to rescind their prior decision to construct CMRR-NF and prohibiting all further investment in the CMRR and its support facilities, including all detailed design, construction, and obligation of funds, until an EIS based on development of reasonable alternatives is prepared and an alternative is validly selected.

***ENDS***


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