UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FIRST DECLARATION OF GREGORY MELLO
IN SUPPORT OF PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT

I, Gregory Mello, hereby declare as follows this 6th day of April, 1998:

1.  My education and experience have been presented to this Court in previous declarations in this case.  In brief, I am an engineer and environmental scientist with regulatory and cleanup experience in both industry and government.  Considering the subject matter touched upon in this declaration, it is relevant to restate that as a graduate assistant, I helped teach a graduate course in environmental geology and geography at Harvard University in 1974 and 1975.  It may also be relevant to mention again that I led hazardous waste enforcement activities at Los Alamos National Laboratory (LANL) in 1984, and performed detailed hydrogeological analyses of portions of the LANL site in 1985.  Since 1992, I have been the Executive Director of the Los Alamos Study Group, a nonprofit citizens' watchdog organization and plaintiff in this case.  In 1996, 1997, and 1998 I attempted to review all available public information regarding geologic hazards at LANL.

2.  This declaration addresses important new factual admissions by the Department of Energy (DOE) regarding the potential environmental impacts of plutonium "pit" production at Los Alamos National Laboratory (LANL) and other sites.  These new admissions are contained in DOE's "Supplement Analysis: Enhancement of Pit Manufacturing at Los Alamos National Laboratory, Stockpile Stewardship and Management Programmatic Environmental Impact Statement" (hereafter, "Supplement Analysis," or SA), dated March 1998 (AR VII.B-51) and related materials recently supplied by DOE in Section VII of the Administrative Record (AR).  (Since some of the important internal memoranda DOE recently supplied dates from 1996, it is not clear why it was not placed in the AR before now.)

3.  This declaration also reviews selected, critically important new environmental and safety information bearing on pit production at LANL.  This new information has, according to DOE, already caused the agency to substantially change its pit production strategy.  Late last year, DOE indefinitely postponed acquisition of a 50 pit/year production capacity (see AR VII.B-50), the chief distinguishing characteristic between its "Preferred Alternative" and its "No Action Alternative."  This new environmental and safety information is the result of recent scientific research, as well as of oversight activities by the Defense Nuclear Facilities Safety Board (DNFSB).  This new hazard information was not analyzed in DOE's Stockpile Stewardship and Management Programmatic Environmental Impact Statement (SSM PEIS), is not reflected in DOE's SSM PEIS Record of Decision (SSM ROD), and previously has not been available to DOE, congressional decisionmakers, or plaintiffs.

4.  By way of background, the production of plutonium pits (the fission "triggers" of thermonuclear bombs) was the mission of the former Rocky Flats Plant near Denver.  At this site hundreds of fires, spills, and releases of plutonium and other toxic materials occurred over a period of more than three decades, contaminating wide areas of land, public water supplies, and, to a controversial degree, workers and the public.  Since 1989, a continuous working population of thousands of workers has been trying to clean up and, since 1992, finally close the site.

5.  In FY 1995, DOE estimated that the cleanup of Rocky Flats would cost $18 billion and take until 2030; DOE now believes -- many think optimistically -- that the job can be done by FY 2006 at a cost of "only" $6 billion (Statement of James Owendorff, Acting Assistant Secretary of Energy, before the Strategic Forces Subcommittee, Armed Services Committee, U.S. Senate, March, 12, 1998, Attachment 1).  In this recent testimony, Acting Assistant Secretary Owendorff said that the Rocky Flats cleanup, which constitutes two-thirds of DOE's FY 1999 Defense Facility Closure budget request, poses significant challenges because of the large amounts of plutonium and other compounds remaining in tank and production lines in facilities, the significant volumes of hazardous and radioactive wastes stored throughout the site, and widespread contamination of soils, sediment, and groundwater. (Attachment 1)

Mr. Owendorff also stated that DOE understands that ways must be found to accelerate the cleanup of Rocky Flats because "commercial and residential development along the Denver-Boulder corridor has reached nearly to the fence line of Rocky Flats" (Attachment 1).

6.  The United States now possesses roughly 24,000 intact, functional plutonium pits.  About half of these are in its deployed, spare, reserve, and "hedge" nuclear weapons; the other half will be kept in "strategic reserve" indefinitely.  Many, although not all, of these strategic reserve pits are certifiably interchangeable with those in stockpile weapons, based on actual underground nuclear tests (see ¶27).  No near-term pit degradation mechanisms have been identified.

A.  The Supplement Analysis admits that the SSM PEIS analyzed only siting decisions; the LANL site was chosen because it appeared to be cheaper, environmentally preferable, and have less technical risk; new information supplied or acknowledged by DOE now suggests some or all of these judgments may be in error.

7.  The DOE admits that the SSM PEIS analyzed only siting alternatives for pit manufacturing activities, omitting any analysis of the prior questions of whether, how soon, or at what capacity to undertake this dangerous and expensive task.

The SSM PEIS analyzed how DOE might carry out its nuclear weapons mission assignments, at a programmatic level, including alternative locations... The [only] programmatic question addressed in the SSM PEIS and ROD related to pit fabrication was which DOE site should receive this mission assignment. (SA, p. 2, emphasis added)

8.  The SSM PEIS and related analyses (namely, AR I-1381 and AR I-1506) performed by DOE in 1996 are the stated basis for DOE's choice of LANL over the Savannah River Site (SRS) for pit production (SA, p. 3).  The LANL site was chosen for four reasons:  lower capital and operating costs, lower risk, and lower environmental impacts.

a) Since no new construction would be required at LANL, the capital and start-up cost required at LANL, estimated to be $310 million in 1995 dollars, was less than the estimated capital cost at SRS ($490 million).  "Both estimates include the costs of planned refurbishment of the LANL plutonium facility..." (SSM ROD, section 3.A.2);

b) The operating cost at LANL was also thought to be less than SRS ($30 million versus $60 million) (SSM ROD, section 3.A.2);

c) "The technical risk at LANL would be less [than SRS], due to the existing experience base..." (SSM ROD, section 3.A.2); and

d) "Although overall environmental impacts are projected to be similar between the two sites, LANL was judged to be preferable [with respect to] radiological risks to workers..." (SSM ROD, section 3.A.2) 

9.  Since the SSM ROD, each of these judgments has greatly changed, as will be discussed in greater detail below.  In brief, the best available new information is that:

a) the estimated capital and start-up cost of establishing pit production at LANL has ballooned to approximately $1.1 billion (AR VII.B-37, cost table; see also "LANL plutonium pit project plagued by cost overruns," Santa Fe New Mexican, December 5, 1997, AR VII.B-44); further cost increases are possible, since a new major nuclear facility might have to be built at LANL after all; (see section H)

b) the operating cost is highly likely to increase at LANL in order to deal with the chronic infrastructure and management problems discussed in section B below;

c) the overall technical risk at LANL has greatly increased as a key facility required for pit production -- the Chemistry and Metallurgy Research (CMR) Building -- has endured multiple and prolonged shutdowns, management changes, and interim de-funding by Congress of capital upgrades, pending investigations (sections B and J); and, last but hardly least,

d) the expert, legally-required external assessment of environmental risk by the DNFSB of pit-production-related activities in the CMR Building has become acute (section B).

As shown below, DOE acknowledges the severity of these newly-appreciated problems in its Supplement Analysis.

B.  The DNFSB and Congress have raised serious safety and management questions which affect the fitness of key LANL facilities to perform nuclear materials functions related to pit production.

10.  The Defense Nuclear Facilities Safety Board (DNFSB) was organized in 1989 under congressional mandate to oversee the health and safety performance of DOE's nuclear weapons complex.  On August 15, 1997, the Chairman of the DNFSB, John Conway, wrote Assistant DOE Secretary Victor Reis a letter, saying in relevant part that

...the Board's staff observes that the ability of the management of the Chemistry and Metallurgy Research (CMR) facility [the largest building at LANL] to adequately support the safety upgrades that are part of the CMIP is problematic. (Attachment 2)

More than this, CMR management "had limited knowledge of the current [work] authorization basis," and were (here Conway quotes DOE) "approving USQ [unresolved safety question] determinations without any formal training" (Attachment 2).
 
11.  The Capability Maintenance and Improvement Project (CMIP) referred to by Conway is (or was) the integrated capital project designed to implement pit production at LANL.  It involves (or involved) the use of anywhere from one to five wings of the CMR Building for direct pit-production-related work, or else for other nuclear materials activities related to, or displaced from other buildings by, pit-production-related work.  (AR VII.B-32, pp. 7 and 36).  In April of 1997, prior to the seismic, safety, and management revelations that have derailed DOE's original pit production plans, LANL could still write that "[t]he CMR Upgrades Project is intimately linked with the CMIP" (AR VII.B-32, p. 7).

12.  The CMR Building, at 550,000 sq. ft. the largest building at LANL, was built in the early 1950s and is the site of an extensive and prolonged upgrade project expected to cost at least $224 million.  That upgrade project is 

...currently on hold awaiting DOE and LANL assessment of project management deficiencies and Phase I cost overruns.  Impact of [the project suspension] to current preliminary [cost and schedule] baselines have not yet been determined.  (DOE FY 1999 Congressional Budget Request, Attachment 3, pp. 511-513).  Project management problems, which were acknowledged by DOE, were sufficiently severe that Congress slashed project funding by more than two-thirds in FY1998 pending further investigation (Attachment 3, p. 513).  The expected "Construction End Date" has been delayed two full years to the end of 2004 as a result, and even DOE's FY1999 budget request has been reduced in acknowledgement of the project's ongoing problems (Attachment 3, p. 511).

13.  As a result of DNFSB's strong August 15, 1997 letter -- probably together with LANL and DOE's own heightened knowledge of chronic safety problems at the CMR building, which have been in the limelight since a serious explosion took place there in November of 1996 -- LANL immediately changed the management team at the CMR Building.  The new facility manager promptly shut the building down.  As the DOE puts it:

On September 2, 1997, in response to safety considerations, LANL temporarily suspended operations within the CMR Building pending an in-depth review of all operations and procedures being implemented within the building to support on-going LANL missions. (SA, p. 19)

Restart of operations within the building has been a gradual process, one project at a time, and is not yet complete.  The process has been punctuated by the periodic discovery of new infrastructure deficiencies within the building.

14.  Despite these drastic steps, the ability of the CMR building to support the CMIP and therefore pit production was apparently not improved.  On December 5, 1997, DNFSB Chairman Conway again wrote DOE Assistant Secretary Reis.  This time his letter was even stronger and more urgent than before, and addressed not just the CMR Building but LANL's approach to the CMIP as a whole.  I quote at length:

Several deficiencies in safety engineering attributable to ineffective [CMIP] project management have been identified.  An example is the lack of adequate safety design criteria, including standards...DOE Order 430.1, "Life Cycle Asset Management" (LCAM), including its project management guidance, has not been adopted.  (Letter from Conway to Reis, Attachment 4, p. 1)

Conway reminds Reis that this is hardly the first time the DNFSB has admonished LANL for its failure to make its nuclear operations safe.

In addition, in a letter dated November 25, 1994, the Board highlighted the need to clarify the processes LANL follows in design, construction, and preparation for operation of new and upgraded defense nuclear facilities. (Attachment 4, p. 1)

The DNFSB is not impressed by the steps LANL took between August and December.

LANL is forming an advisory board...this step in itself will not add project management experience...it is not clear that the decisions being taken adequately consider safety or that improved project management will result. (Attachment 4, pp. 2-3)

Conway's letter includes an attachment prepared by nine named DNFSB staff and expert consultants, which provides greater detail -- and evinces even greater concern about the possible risks of increased nuclear materials manufacturing-related activities at the CMR building.

...a decision to use a portion of the Chemistry and Metallurgy Research (CMR) facility in a critical manner for CMIP was not based on a sound systems engineering approach and appears to be inappropriate...It would be useful for DOE and LANL to...reconsider, as soon as possible, the decision to use part of the CMR building before its selection becomes irrevocable... (Attachment 4, enclosure, p.1, emphasis added)

These experts assail the extremely complex "nontraditional" matrix management structure LANL has given its pit production capital project.  They issue a clarion call for better staff, better management, and better design.  They also note that, with DOE concurrence, LANL has substituted self-regulating "Work Smart Standards" in the place of existing DOE standards; DNFSB flatly says the LANL standards are inadequate.  DNFSB further notes that

Worker safety control requirements were not considered adequately ...as-low-as-reasonably-achievable [ALARA, a fundamental tenet of safe design and operation at all nuclear facilities] principles for radiation protection have not been directly addressed.  (Attachment 4, enclosure, p. 2)

Recall that the siting decision for pit production was in part predicated on lower "radiological risks to workers..." at LANL (SSM ROD, section 3.A.2, quoted above in ¶8).  Finally, and most importantly, 

...the [recent and ongoing seismic] study points to the fact that the Rendija Canyon fault splays to the southwest toward TA-3, where the CMR building is located.  DOE subsequently requested that LANL review the implications of the results of the study for the use of CMR for CMIP....the potential for surface rupture in the Chemistry and Metallurgy Research area needs to be evaluated as a result of recent field investigations.  (Attachment 4, enclosure, pp. 3 and 4, emphasis added

The letter concludes with a list of examples of very fundamental design criteria that DOE and LANL have, to date, neglected in their management of the CMIP project. 

15.  The DNFSB again repeated its concerns about the LANL CMIP, LANL geologic and seismic hazards, and CMR management and operations in its recent "Eight Annual Report to Congress" (February, 1998, Attachment 5).  They note that geologic studies related to earthquake potential are "ongoing," and the safety implications of these studies are still under "review." (Attachment 5, pp. 3-22 and 23)

16.  DOE acknowledges the far-reaching significance of the new seismic hazard information in its Supplement Analysis. 

The results to date indicate a possible connection between the three faults, which would increase the likelihood of geologic rupture should a seismic event occur.  This could indicate that many buildings in TA-3 [the main LANL technical area, site of the CMR Building and the Sigma Complex, another major facility required for pit production] would be vulnerable to damage if a seismic event occurred. (SA, p. 19, emphasis added)

DOE goes further and says that DOE, LANL, and unnamed "safety agencies" (i.e. the DNFSB) have not yet "come into agreement on the amount of seismic protection needed for new and retrofitted buildings at LANL" (SA, p. 15).  Despite this apparent disagreement, DOE admits that these seismic revelations "indicate a need to consider revising building engineering standards at LANL," (SA, pp. 15 and 20, emphasis added).

17.  In this regard, DOE admits that, in regard to this seismic protection at LANL, it has not completed either a) the ten-year seismic review required by its own Order 420.1 ("Natural Phenomena Hazards Mitigation") or b) the agency-wide review of seismic safety required by December 1, 1998 under Executive Order (EO) 12941 (SA, p. 19, citing AR VII.B-16). 

18.  The impact of the new seismic hazard studies now underway at LANL is potentially enormous.  According to DOE, these studies--which, upon information and belief, are more extensive than can be concluded during this calendar year -- will inform the reviews being done a) for the Federal Emergency Management Agency (FEMA) under EO 12941, b) under DOE's own Order 420.1, and c) by the DNFSB.  The studies are necessary to find out which buildings must be upgraded, to what degree they must be upgraded, whether each building even can be upgraded to the required degree, and what this will cost.  All this information is extremely significant for programmatic decisions regarding pit production, including the decision to site pit production at LANL.  Recall that not just the CMR but several other key buildings at LANL, including some needed for pit production, are decades old.  None of these buildings, whether new or old, were designed on the basis of this new seismic hazard information.

19.  DOE admits, as noted above, that the seismic hazard at LANL is significantly greater than it believed at the time of the SSM ROD.  Yet the SA attempts to obscure the issue by stating that "these new studies do not indicate that there would be a greater frequency of seismic events" (SA, p. 20).  It is not the apparent frequency of all "seismic events," but the frequency of damaging seismic events, and the expected degree of that damage, that has increased.  Otherwise the potentially very expensive steps DOE outlines in the SA to deal with the problem would hardly be necessary. 

20.  DOE bravely asserts that its SSM PEIS analysis of radiological accidents that might result from seismic events would not be affected by this new information, even though the information was not known at the time the SSM PEIS was written.  In fact, the relevant SSM PEIS accident analysis is extremely sketchy -- and implausible even prior to this new information.  It consists only of four paragraphs, summarized in two lines of a table (SSM PEIS, pp. F-20, 21, and 22).  It has already been pointed out to the Court that the source term shown there for the fallout cloud that would result from a breach of building containment following a catastrophic earthquake and fire is calculated to be an absurdly low 630 milligrams -- less than 1 gram -- of plutonium.  Upon information and belief, this small source term reflects the more modern construction of the TA-55 PF-4 facility, at which actual pit fabrication would take place, and not the much older and weaker CMR structure, which may lie directly atop a fault.
 
21.  Beyond the estimated amount of plutonium that might be released, what the new information has certainly changed is the estimated frequency of the hypothetical breach-of-building accident.  The SSM PEIS gives this accident frequency as 10^-7 to 10^-6 per year, i.e. one such accident every one to ten million years of production.  But DOE now acknowledges that a) faults active in the last 10,000 years (see Attachment 4, enclosure, p. 3) may lie directly beneath one or more nuclear materials facilities critical to pit production, and b) that these faults are capable of causing not just large building accelerations -- the usual mode of building failure -- but actual ground rupture.  It is simply not clear that any amount of building retrofitting can reliably prevent failure of concrete-block in-fill structures like the CMR Building, in the event of ground rupture.  Significantly, the SSM PEIS is completely silent on the possibility of ground rupture at LANL (SSM PEIS, pp. 4- 256 through 258).  It is thus no longer clear, if it ever was, what accident frequency is appropriate for this analysis, and it will not be even partially clear until further site- and building-specific geologic and engineering studies are done.  The interval that has elapsed since the last major earthquakes on these faults -- an interval that is unknown, but admittedly less than 10,000 years -- suggests to me that DOE's frequency estimate of plutonium release from earthquake-induced building failures (SSM PEIS, p. 256, "Scenario 6"), which appears to have been based on a much stronger building than the CMR building, may be in error by roughly two orders of magnitude (i.e. by a factor of 100).

22.  It would be difficult to find more pertinent new information bearing on the siting question -- the one programmatic question with which DOE concerned itself in the SSM PEIS.  The seismic hazard estimates for the SRS site remain unchanged, while the DNFSB insists and the DOE belatedly acknowledges, that the perceived seismic hazard has dramatically changed at LANL. 

23.  To summarize so far, DOE's bases for assigning the pit production mission to LANL -- cost, technical competence, and environmental preference -- have all substantially eroded, if not in some cases vanished, since the SSM ROD.  The increases in cost, the continued serious questions about management competence, and the revelations of possible ground rupture are not claims made by plaintiffs, but facts generated or admitted by DOE.  For these reasons it is appropriate that DOE revisit its pit production siting decision, and include as well in its new programmatic analysis the more fundamental questions of whether pit production is necessary at all, and if so, when it is necessary and at what scale it is necessary.  As we see in the next section (C), DOE has already changed its decision, proving that more than one alternative has in fact been reasonable all along.  Then, in the following section (D), internal DOE documents made available since the SSM ROD show that DOE itself knows that planned increases in pit production capacity are not necessary for decades to come.

C.  The new revelations about hazards at LANL have already caused DOE to substantially modify its pit production strategy.

24.  After making the claim that no reasonable alternatives to its pit production strategy existed, the DOE admits it has now in fact substantially changed its pit production strategy.  DOE's new strategy bears a close resemblance to one of the alternatives proposed by the plaintiffs in this lawsuit, namely continuation of the pit rebuild program and indefinite delay of the acquisition of a 50-pit/year capacity at LANL or anywhere else.  The reason for this delay is admittedly the lack of expansion space at LANL, which as we have seen has been occasioned by new information regarding safety problems at the CMR Building.

In September 1997, I [Gene Ives, Deputy Assistant Secretary for Military Affairs] requested your staff [Bruce Twining's staff, Manager, DOE/AL], together with Los Alamos National Laboratory (LANL), to evaluate the potential for placing a pit production capability and establishing a capacity within existing facilities without moving missions out of the LANL plutonium facility (TA-55).  (AR VII.B-50, emphasis added).

The SA summarizes the three objectives of the new strategy:  develop pit production capability at TA-55 without CMIP; achieve 20 pits/year by FY 2007; delay CMIP and instead to immediately fund "urgent maintenance and equipment replacement" (SA, p. 17).

25.  What, then, of DOE's pit production decision is actually left? At this point, DOE seeks to establish "by 2007" (AR VII.B-50) roughly the pit production capacity that the agency in its 1996 SSM PEIS said it already had, and therefore at that time included in its "No Action" alternative, namely the capacity to produce pits in the range of 10-20 pits/year. ⁽¹⁾

...current [as of February 29, 1996] pit production capacity is limited to that at the LANL TA-55 development facility--10 to 20 pits per year. (AR 1612, p. VII-11, emphasis added)

The 50 pit/year preferred alternative that was approved in the SSM ROD has been deferred indefinitely "without prejudice." (AR VII.B-50, p. 1).  If the mission of DOE's preferred alternative was actually just to "maintain capability" and enable DOE "to replace pits lost during weapons surveillance" (SA, p. 12), this goal could be satisfied with LANL's current capacity.  It is an alternative DOE rejected as unreasonable in the SSM PEIS and in its submittals in this case, but which the plaintiffs have long felt was quite practical, reasonable, and attractive.  Now it appears that the DOE is also capable of embracing this alternative.  It therefore merits real programmatic analysis -- before it is subsumed in a far more dangerous option (see section E).

D.  Information provided by DOE in this litigation shows that DOE not only has changed its pit production strategy, but knew all along that it could do so without danger to its mission.

26.  Perhaps another reason DOE could abandon its pit production plans so quickly is that the agency knew it never needed them.  For, concurrent with the February, 1996 Draft SSM PEIS, DOE wrote that its pit requirements could be met for the next few decades without the acquisition of new pit production capacity.  DOE's February 19, 1996 "Stockpile Stewardship and Management Plan" (the so-called "Green Book," AR 1612), which was made public in the course of this litigation, reveals quite a different picture of DOE's pit production current capabilities and mission requirements than the one given in the SSM PEIS. 

It is expected that in the next few decades, most plutonium pit requirements can be satisfied through the requalification and reuse of existing, older pits. (AR 1612, p. V-16)

This operation will be carried out, not at LANL, but at DOE's weapons assembly site, the Pantex Plant in Amarillo, Texas. DOE is able to do this because the agency does not need a "nuclear facility" (in the sense that the agency uses the term) to do this work because the pits are not opened.  Requalification and reuse will result in pits that have usable lifetimes "comparable to the original weapon life" (AR 1612, p. V-18).  DOE also states it would have a modest capability operating at LANL to provide new pits, an activity it characterizes as a "technology development and demonstration," by 1998, prior to the construction of new facilities at LANL that was discussed in the SSM PEIS.  (DOE's phrase, "technology development and demonstration" will be seen to have further meaning in section E.) DOE further stated that acquisition of this capability at LANL was begun in 1992, well before the SSM PEIS ROD. To quote at greater length:

DOE closed its plutonium component (pit) manufacturing capability at the Rocky Flats Plant without immediately establishing a replacement capability.  It is expected that in the next few decades, most plutonium pit requirements can be satisfied through the requalification and reuse of existing, older pits.  Therefore, alternatives that provided a full capability, but limited capacity, for pit manufacturing were considered [in the SSM PEIS] (AR 1612, p. V-16).

In 1992, actions were begun to build on the plutonium research and development capability at LANL to establish a limited pit fabrication capability.  Technology development and demonstration to provide this capability at LANL will be completed in 1998.  Pending completion of the Stockpile Stewardship and Management Programmatic Environmental Impact Statement (SSM PEIS) and Record of Decision (ROD) in 1996 and the Los Alamos Sitewide Environmental Impact Statement (EIS) in 1997 [sic], it will be possible to manufacture replacement pits for those destroyed in component surveillance.  Replacement pits for the W88 and W87 [specific warheads] will be provided by the end of the decade [long before completion of the CMIP project].  Replacement pits for other weapon programs will be required during the following decade.

Pit requirements during weapon refurbishment are expected to be satisfied primarily through the requalification and reuse of existing stockpile pits.  Capabilities will be established at the weapons assembly site [Pantex] to perform necessary pit requalification and reuse operations. (AR 1612, pp. V-16 and 17, emphasis added). 

Production capacity for nuclear components (pits and secondaries) is the most expensive to establish and maintain, and the most difficult to retain without ongoing production work.  These are also the components that have the smallest near-term production demand.  To meet refurbishment needs for the foreseeable future, methods are being developed to allow pits and secondaries to be requalified and placed back into the stockpile.  These requalified components are expected to have design life comparable to the original weapon life.  Facilities will be established at the weapon assembly site [Pantex, near Amarillo] by the end of the decade to accomplish this work. (AR 1612, p. V-18, emphasis added.)

27.  DOE hedges the above language slightly.  On p. V-16 of AR 1612, cited above, DOE states that "most" plutonium pit requirements can be satisfied by the requalification and reuse of existing, older pits.  On p. V-17 of AR 1612, DOE states that its pit requirements are expected to be satisfied "primarily" through the reuse of existing pits.  The only exception to the prospect of pit reuse fulfilling all stockpile maintenance needs that can be found in AR 1612 (the "Green Book"), lies in a new pit design being developed for the Navy's submarine-launched ballistic missiles. This proposed new pit design is, however, just one of two workable approaches, the other being a new design involving reuse of an existing class of pits.  DOE states that it need not choose the new-design pit option.

Two candidate replacement nuclear designs have been identified in this [SSM] program.  One design would require new pit fabrication, thereby maintaining expertise in new pit technologies.  The other would incorporate a reused pit from a retired warhead, providing design and development experience in pit reuse technologies.  Reuse of pits in new primaries has been demonstrated with successful nuclear tests of several designs that also incorporated fire resistant shells and insensitive high explosive.  Pit reuse offers the possibility of manufacturing new primaries at a reduced cost without requiring an expansion of currently planned Pu fabrication facilities...Both of the replacement design options will be prototyped and flight tested, but no final development activities will be initiated until a decision is made to proceed. (AR 1612, p. V-10, emphasis added.) 28.  As stated in ¶6, there is no shortage of pits.  DOE states that it has, by now, approximately 12,000 excess pits in storage at DOE's weapons assembly facility, the Pantex Plant near Amarillo.  DOE has limited the pit storage capacity at Pantex to 12,000.  Based on current dismantlement rates, this limit could be reached in FY 1998. (AR 1612, p. V-26.)

29.  To sum up this section, DOE admits that all the weapons in the stockpile can be maintained for the next few decades without further acquisition of pit production capacity, an alternative not analyzed in the SSM PEIS.

E.  Information recently provided in this litigation shows that DOE has a near-term requirement to design, construct, and partially operate a much larger-scale pit fabrication facility than the one analyzed in the SSM PEIS; alternative sites and production concepts are to be effectively chosen outside the NEPA process.

30.  DOE's apparent change of field and acceptance of delay in acquiring a 50 pit/year production capacity is not what it seems to be.  DOE has another alternative waiting in the wings, one it considers not only reasonable but imperative, one in which DOE's new strategy of December 16, 1997 (see AR VII.B-50), discussed in section C above, namely to delay indefinitely the acquisition of larger pit manufacturing capability at LANL, is but a small part.  In this alternative, DOE's current and evolving pit production capability is to be a technology "development and demonstration" project for a much larger pit production capacity.  Obviously, this alternative was not analyzed in the SSM PEIS.
 
31.  The SSM ROD gave a hint of this plan.

DOE will perform development and demonstration work at its operating plutonium facilities over the next several years to study alternative facility concepts for larger [pit production] capacity.  (SSM ROD, 3.A.4, emphasis added)

The SA characterizes DOE's proposal for this larger capacity as a "preliminary contingency plan" (p. 13).  But it is characterized elsewhere as a necessity "at some point in the future."

Pit production capacity of several hundred pits per year will be required at some point in the future when aging effects begin to affect weapon performance.  Because added pit production capacity is extremely expensive and difficult to maintain without ongoing production demand, DOE will not establish this added capacity until it is needed...In the interim, DOE will develop and demonstrate the ways to provide this additional capacity... (AR 1612, p. V-18, emphasis added)

32.  This additional capacity may, as it turns out, be up to ten times larger than the one analyzed in the SSM PEIS, i.e. up to 500 pits/year (AR VII.B-37, p. 2).  DOE has described this "rapid reconstitution" plan for pits to Congress as an integral part of its "baseline" pit production strategy.

The baseline plan for restoration of the capability to produce and remanufacture plutonium pits consists of three parts:

Demonstrate that enduring stockpile war-reserve (WR) pits can successfully be built at Los Alamos National Laboratory...;

Install a limited production "capacity" of up to 50 certifiable WR plutonium pits per year at LANL (one work shift basis); and

Develop a contingency plan that could support activities to establish a larger capacity production, if such a decision was [sic] made in the future...for up to 500 pits per year [at] the Savannah River Site (Aiken, South Carolina); the Y-12 Plant (Oak Ridge, Tennessee); the Pantex Plant (Amarillo, Texas); and the Nevada Test Site. (AR VII.B-37, p. 2) 

This "preliminary plan" is not a fantasy generated solely by DOE but has been required by Congress (SA, p. 13).  It is temporarily on hold pending "development and evaluation" of the pit rebuild program at LANL (SA, p. 13).

33.  DOE further admits that this "Rapid Reconstitution Plan" is not meant to be merely a paper plan but an actual program requiring "initial investment, maintenance costs," and, "following establishment of the strategy, it will be demonstrated [at the selected location] to prove its viability" prior to actual need (AR VII.B-21, pp. 1 and 3, emphasis added).

These [rapid reconstitution of pit production] requirements address a strategy to establish a project by the end of Fiscal Year (FY) 2000 which, when required to be implemented, would be able to produce new pits at a capacity that exceeds currently-planned [i.e. those discussed in the SSM PEIS and ROD] capacities.

Following the establishment of this strategy, it will be required to be demonstrated to prove its viability.  Such a demonstration would be more than just a "paper study" but would stop short of actually producing a pit to avoid introducing plutonium contamination into clean equipment or a clean facility.  (February 21, 1996 memorandum from A.E Whiteman, DOE/AL, an affiant in this case, AR VII.B-22, emphasis added).

34.  DOE admits that this "extremely expensive" plan (description from AR 1612, p. V-18) "will identify reasonable alternatives, lay out the preferred concept, specify required funding profiles, and present schedules and milestones" (AR VII.B-21, p. 1) subsequent to and independent of the SSM PEIS and ROD, but prior to any need for actual surge production (AR VII.B-21, pp. 2-3).  Any NEPA analysis will be, "as much as...practicable," completed by the end of FY 2000, together with other environmental and authorization-basis procedures, in order to avoid delays when the order to commence surge production is given (AR VII.B-21, pp. 2-3).

35.  While both the SSM PEIS and the SSM ROD provided some mention of a possible larger manufacturing scenario, the information recently provided in the Administrative Record is entirely new to the Court.  Nowhere in the record, of course, does DOE actually analyze, or even commit to analyze, the programmatic decisions involved in the Rapid Reconstitution Plan, although DOE, in the passages cited above, admits that some sort of NEPA analysis is necessary.

36.  How, exactly, will the site for this huge project be selected?  Privately, on the basis of admittedly "rough" cost estimates from a single site (the site that is by far the most likely to obtain the work), with the intimate involvement of the site contractor from that site, and "quickly:"

Cost estimates for the options selected for detailed consideration will not be full bottoms up project cost estimates. These rough estimates will be take offs from the detailed estimate developed from the SRS [Savannah River Site] SSM PEIS Pit Manufacturing Proposal.  This approach will allow us [i.e. Westinghouse Savannah River] to consider a broad range of options, quickly downselect to two options,...evaluate different concepts, and focus on the special challenges [presumably requiring special experience, facilities, and captive public support, such as are available at SRS] inherent in a Rapid Reconstitution Project.  (Memo from Westinghouse Savannah River Company to A. E. Whiteman, February 29, 1996, AR VII.B-23, p. 1, emphasis added)

The "regulatory and environmental issues" related to the project are to be the responsibility of LANL:

LANL will coordinate the development of a plan to effectively deal [in advance] with regulatory and environmental issues for a project which will be designed, partially built for cold demonstration, but not completed and started up until needed. (AR VII.B-23, emphasis added)

The Chair of the Rapid Reconstitution of Pit Manufacturing Capability Committee is John Veldman of the Westinghouse Savannah River Company.  In a subsequent letter he notes that current non-plutonium sites (i.e. all sites nominally under consideration save SRS and LANL) would, if selected for the job, "incur additional costs associated with the safety, environmental, and regulatory processes necessary to establish an authorization basis for this plutonium mission." (AR VII.B-24).  These costs would, as a practical matter, eliminate these non-plutonium sites (Pantex, NTS, and Y-12) from consideration, apparently by the end of FY 2000. No mention is made of further programmatic NEPA analysis.

37.  If a rapid reconstitution capability is required, as DOE has stated, then DOE is apparently preparing to create two plutonium manufacturing facilities, with attendant doubling of overall environmental impact.  This is the only interpretation of the facts that is consistent with all the documents DOE has provided in its administrative record. DOE has already chosen, or will choose soon, both LANL and SRS for pit production activities, in addition to the plutonium pit research and development work that continues at Lawrence Livermore National Laboratory (LLNL).  The facilities at LANL are simply not large enough for the larger capacity DOE says is "required," and LANL does not appear in the list of candidate sites submitted to Congress and analyzed in the administrative record.

38.  It is likely that further salient information about the "rapid reconstitution" of pit manufacturing capacity can be found in AR VII.B-36, "Rapid Reconstitution of Pit Production Capacity:  Systems Studies Assessment and Recommendations, UCRL-ID-128655 UCNI.  This document has been classed as Unclassified Controlled Nuclear Information (UCNI) and is currently unavailable, even in redacted form, to this declarant.

F.  DOE's stated pit production plans contain a significant number of inconsistencies; how these are resolved will have large environmental and fiscal ramifications.

39.  Despite the SSM PEIS, the subsequent SSM ROD, years of research by plaintiff groups, and the recent admissions of DOE that are cited and analyzed in this declaration, a number of significant questions and inconsistencies remain.  These beg further openness, clarity, and analysis with respect to mission, cost, and environmental impact.  The ideal way to answer them would be in a genuine and substantive PEIS for pit production, which DOE has not provided.  A few of these questions include:

a) If, as the SSM PEIS says (p. 3-4), the capability to make a single war reserve (WR) pit implies the capacity to make 50 in a year, why has DOE sought a NEPA ROD, and large appropriations, for pit production at LANL?

b) If LANL already has, as the "Green Book" says (AR 1612, p. VII-11), the capacity to make "10-20" pits/year, why does DOE still seek to create that capacity by FY 2007? (AR VII.B-50).

c) The Supplement Analysis says:

Under the No Action alternative...LANL could continue to fabricate pits at the existing capability level (approximately a pit per month)... (SA, p. 7, emphasis added)

Is this not enough "to maintain capability and to replace pits lost during weapons surveillance" -- the newly-stated goals of the program (SA, p. 12)?

d) If the Pit Rebuild program now uses 11,400 sq. ft. of the approximately 60,000 useable square feet of the PF-4 facility at TA-55, and if a 50 pit/year capacity would require 15,300 sq. ft. of space in PF-4 -- just 3,900 sq. ft. more (just 6.5% of the building) (see AR VII.B-30, pp. 8 and 9) -- why did DOE tell Congress it needed the enormous sum of $1.1 billion in capital funding to establish pit production at LANL? (AR VII.B-37). 

e) Why can't DOE establish a 50 pit/year capacity now, if indeed it does not already in principal have it?

f) What exactly is the capacity of LANL to make plutonium pits now, and what will it be next year, and each year after that, during funding and implementation of DOE's current strategy?  Does the nation need more such capacity, and if so why?

g) Can the CMR Building be repaired, or is the "upgrade" project in essence a huge line-item operating subsidy for a failing -- or failed -- facility?

h) Will LANL and DOE, as newspaper accounts suggest (AR VII.B-44), seek to construct a major new plutonium facility to replace some of the space that may never become available in the CMR Building and/or the Sigma Complex, driving up the cost of "pit production" still further?

i) Has "pit production" effectively become an unexamined way to access the federal purse -- a way to build buildings, fund programs, transfer funds to new projects, and maintain a site? 

The SSM PEIS provided no answers to these questions because it did not consider anything but the narrow and secondary question of which site would be chosen for an activity that DOE said at the time was essential.  Now, DOE says that it has, for the time being, abandoned this activity, apparently in favor of a larger proposal it is developing in secret.  In fact, DOE's siting decision was foreordained.

G.  The one analysis that DOE claims to have made in its SSM PEIS and ROD -- siting -- was foreordained, as the Supplement Analysis and other new information makes clear.

40.  DOE reminds readers of its SA that at least two large pit-production-related activities were moved to LANL or begun there prior to the SSM PEIS and ROD. The first of these is the manufacture of so-called "nonnuclear pit components."

Nonnuclear [sic] weapons components such as those made from beryllium are an integral part of a pit; fabricating beryllium and other [pit] components was reassigned to LANL in 1993 prior to and independently of the pit fabrication mission assignment...The then-proposed action included a proposal to enhance existing beryllium technology at LANL; "Beryllium Technology and Pit Support -- the existing technology base and prototyping capability at LANL would be enhanced to provide limited manufacturing capacity for beryllium technology and pit support now done at RFP [Rocky Flats Plant]" (SA, p. 9, emphasis added)

This work, assigned "independently" of pit manufacturing, was originally budgeted at $14.2 million (DOE FY1995 Congressional Budget Request, Attachment 6, p. 96).  After the SSM PEIS ROD, however, the DOE submitted a report to Congress showing that continued establishment of manufacturing capability for precisely these same "nonnuclear" pit components, now called an integral part of the pit production mission, will cost a smart $118 million for the fiscal years 1996 through 2003 (AR VII.B-37, pp. 3 and Table, "Baseline Plan"). 
 
41.  The "nonnuclear" components and processes actually include, as new information shows, most of the parts in a pit, and the final assembly of the pit is done in these "nonnuclear" facilities.

A typical pit consists of about 25 parts.  Sigma [like the CMR Building, in LANL's TA-3, and the site of "nonnuclear" pit manufacturing at LANL] makes 22 of the parts and assembles the components into the final product. (interview with LANL's Rich Mah, May 2, 1996, "Nuclear Facilities Master Plan for Stockpile Stewardship and Management Support," unpaginated appendix, Attachment 7) 

The claim that this "nonnuclear" consolidation could have been "independent" of the subsequent SSM PEIS analysis and ROD is obviously a sham.

42.  The second pit-production-related program began at LANL prior to the SSM PEIS is the "pit-rebuild" program, begun in 1992 (AR 1612 p. V-16), which admittedly already has a capacity of 12 pits per year (SA, p. 7, quoted in ¶39 above).

43.  Both the "pit rebuild" program and so-called "nonnuclear" manufacture commitment to LANL were steps that confidently anticipated the "decision" that was, inevitably, to follow the SSM PEIS. If anything was "independent," it was the relationship between the SSM PEIS analysis and the subsequent SSM ROD.

H.  DOE, contrary to the criteria it used to select LANL for pit production, may seek a new plutonium facility at LANL after all, and its "existing" Nuclear Materials Storage Facility (NMSF) is far from complete.

44.  DOE states that the decision to conduct pit production activities at LANL was based in substantial part on the fact that no new buildings were needed at LANL to accomplish this mission.

...construction of new buildings was not anticipated to be needed in order to assign the pit fabrication mission to LANL...[at] SRS, some new construction would have been needed. (SA, p. 2)

Yet DOE now admits that this assumption may no longer be valid.

Alternatives to moving activities from TA-55 to CMR are anticipated to be addressed in the LANL SWEIS, including the potential for expanding TA-55. (SA, p. 10, emphasis added)  If it turns out we can't use (just existing buildings) it will cost us more money. (T.J. Trapp, LANL manager of the pit production project, AR VII.B-44)

45.  The Nuclear Materials Storage Facility (NMSF), mentioned (but not analyzed) in the SSM PEIS "No Action" alternative, is another "existing facility" that DOE is counting upon in its siting decision.  But the NMSF has never been, and in fact cannot be, used for its intended purpose, and hence must completely rebuilt.  This is a project of such uncertain outcome that DOE can no longer at this time offer Congress a cost estimate or even a conceptual design for the work, despite several years of work and tens of millions of dollars (DOE FY1999 Congressional Budget Request, Attachment 8, p. 492).  DOE is aware of the problem, although its explanation is hardly satisfactory.

The operation of the NMSF for intended purpose was considered in the SSM PEIS as part of the No Action baseline and as a facility that could be used to support pit fabrication at LANL...[however] the introduction of nuclear materials into the NMSF was...not possible because it could not used for its intended function and because health and safety operating parameters could not be met. (SA, p. 11)

46.  Based on DOE's misplaced confidence that no new buildings would be needed at LANL to implement the pit production mission, the environmental impacts that the agency analyzed in the SSM PEIS were admittedly "primarily limited to those from operations" (SA, p. 2), i.e. the analysis did not include new construction and upgrades, and the associated decommissioning and demolition of very large contaminated structures.  This is a very significant omission to admit, and because of it the SSM PEIS now appears more inadequate than ever -- even as a siting tool.

I.  DOE excuses its failure to consider the host of relevant new hazard information with which it is now confronted by admitting that its SSM analysis was a broad-brush effort; DOE promises to consider these "details" in future site-specific NEPA analyses but is already asking Congress for appropriations without such analyses.

47.  The DOE informs readers of the SA that its approach to the SSM PEIS served to avoid actual analysis of the connected impacts at, and relevant programmatic considerations concerning, many particular facilities at each site.

The SSM PEIS provided a programmatic review of the factors needed for the decisionmaker to discriminate between locating the pit fabrication activities at LANL or SRS....[further site-specific] detail would have been unnecessary, hence inappropriate, for a programmatic siting decision. (SA, p. 8)

For example, DOE now characterizes its SSM PEIS analysis of waste and emissions impacts from pit-production-related activities at several LANL facilities as mere "discussions" that "made reference to" the facilities. It cites, as demonstration of its level of "analysis," the mere inclusion of facility names in "lists," and, incredibly, its use of the plural form of the noun "facilities" (SA, p. 6).  Obviously, this is a far cry from actual analysis of the most serious environmental impacts of pit production, and ensures that serious problems, like the seismic issue the DNFSB has raised, will escape serious impact analysis.

48.  The "details" now DOE admits it did not really analyze include, in addition to operations, some hundreds of millions of dollars of construction, upgrades, demolition, all with associated waste generation and disposal.  In some cases this analysis was relegated to past environmental assessments (EAs, e.g. for "non-nuclear" consolidation, the Nuclear Materials Storage Facility, and the CMR Upgrade Project) -- which were incorporated by reference into the SSM PEIS even though each of these EAs denied or omitted, at the time they were written, any connection to, or impact from, the pit production mission.

49.  In other cases, the "details" have been postponed to hypothetical future NEPA reviews, which are almost certain to occur after federal decisions are made.  DOE is now seeking $66.6 million for pit production at LANL for FY 1999 without any further project-specific or site-specific NEPA review (DOE FY1999 Congressional Budget Request, pp. 126, Attachment 9). ⁽²⁾

In its post-SSM ROD revised pit production strategy, DOE has delayed the creation of a new line item, which would trigger NEPA review, and instead requires that LANL sequester as many of the required upgrades within existing programs and line items as possible:

However, the most immediate need is to determine which [pit production] work activities have the programmatic and/or safety justification and can be accomplished with the current program, project, and operational safety constraints at TA-3 and TA-55, and thus should be included in [the new non-construction line item, non-NEPA-ed funding package called the] TMSE ["Transition Manufacturing and Safety Equipment"]...(AR VII.B-50, p. 2).

50.  After admitting to limiting its so-called "programmatic" review to the single, secondary issue of which site is to receive the pre-ordained mission, and then having eliminated the relevant impact analysis at most of the actual facilities that would do the work, the DOE now uses the "programmatic" nature of its review to eliminate from further consideration any and all new information bearing on the environmental, safety, and health impacts of conducting the pit fabrication mission at LANL.  Four examples follow:

The SSM PEIS addressed the programmatic issues related to whether to site pit fabrication activities at LANL or SRS...[a mile-long special roadway for transporting nuclear materials is] a minor site-specific infrastructure feature...and does not bear on the programmatic decision to locate the pit fabrication mission at LANL. (SA, pp. 9-10, emphasis added)

[All projects needed to address the recently-intensified seismic concerns at LANL] would be project-specific NEPA reviews...and are not germane to programmatic decisions regarding locating the pit fabrication mission. (SA, p. 15, emphasis added)

As has been noted above, if serious seismic concerns, possibly requiring extensive building upgrades, retrofits, or even entire new nuclear facilities, are not relevant to site selection under NEPA, what is?

[Any and all changed environmental impacts resulting from DOE's changed preferred alternative action for pit production] would be details of site-specific implementation that would not be germane to a programmatic decision to locate this mission. (SA, p. 18, emphasis added)

[Serious new safety problems at a key pit production-related facility at LANL, the CMR Building] would be a site-specific detail of implementing programmatic mission assignments from the SSM ROD.  (SA, p. 19, emphasis added) 

As DOE, its predecessor agencies, and thousands of residents downwind and downstream from its problem-plagued facilities have found, the devil is indeed in the details.

J.  DOE's assumption that pit production at LANL entails a relatively low "technical risk" has been based on a definition of "risk" that focuses too narrowly on manufacturing skills, to the exclusion of management skills and skills in the stewardship of the environment and of worker and public safety.
 
51.   DOE states that the choice of LANL as the pit production site was based in part on an assumption of "less technical risk" at LANL.  The new information now available to DOE, summarized in the SA and in the sections above, strongly suggests that the risks to the environment, to safety, and to human health from pit production activities in LANL's existing facilities, and under LANL's management, are greater than previously estimated.  "Technical risk" is not limited just to manufacturing risks, but to issues of health, safety, and the environment, which seem to have taken a back seat in DOE's calculus. 

52.  Having relied on LANL's technical skills in making its siting decision, DOE now avers, remarkably, that "analysis of environmental impacts is not dependent upon [facility] design and engineering costs, schedules, and skill" (SA, p. 18).  Perhaps DOE's analysis of impacts is not dependent upon these factors, but the actual impacts will definitely be dependent on them.  Else why would Congress establish and fund outside agencies like the DNFSB? DOE's analysis of alternate sites, now admitted to have been done independently of many of the factors it should have included, needs complete revision, beginning with the inclusion of the new information DOE already has, but has excluded.

K.  In its Supplement Analysis, as in its SSM PEIS, DOE has simply assumed its conclusions and worked from there.

53.  On p. 1 of the SA, DOE alleges that the "SSM PEIS was prepared in accordance with the National Environmental Policy Act (NEPA)."  This is the unifying assumption that underpins the logical twists and turns of the SA.  It is disturbing, although sadly characteristic, to see DOE assuming its final conclusion prior to its analysis; this is exactly what the agency did in its SSM PEIS, as the record shows (section G, DOE's foreordained SSM PEIS analysis).  The new information DOE has recently brought forward should now inform a real environmental impact analysis of real pit production alternatives, an analysis the law requires and the nation deserves.

I declare under penalty of perjury that the foregoing is true and correct. Executed this 6th day of April, 1998 at Santa Fe, New Mexico.

____________________________

Gregory Mello

1.  In the SSM PEIS (p. 3-4, note "a"), DOE states that a pit-making capacity of "up to 50 per year" is "inherent with the facilities and equipment required to manufacture one component for any stockpile system" (emphasis added).  The discrepancy between this and the "10-20" pits/year of the Green Book (AR 1612, p. V-11) and the "12" pits/year of the SA (p.7) is unimportant in this context.  It reappears in section F.

2.  This does not include an unknown portion of the $265.5 million requested by DOE for infrastructure and maintenance upgrades at LANL in FY1999, a substantial portion of which should properly be billed to the requirements of pit production.  (DOE FY1999 Congressional Budget Request, pp. 121, 126, and 137, Attachment 9)