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Federal judge: Decision to produce pits at LANL, S.C. site violates environmental law

Oct 3, 2024
(article begins below comments)

Published comments by Greg Mello:

This was a good decision. We at the Los Alamos Study Group have followed this case fairly closely, having been a plaintiff in multiple similar cases. We simply could not afford to litigate this issue, eager though we were (and are).

Most of this case was rightly set aside once defendants spoke to the facts in their replies, but this one count of failure to prepare an adequate programmatic environmental impact statement (PEIS) was the core of the case and was in our opinion rightly decided by the judge.

As we also argued, although not court, NNSA did truly change its mind without adequate environmental analysis, and has no adequate nationwide ("programmatic") environmental analysis that compares the environmental impacts of alternative strategies for making plutonium pits.

At a minimum, NNSA will now be compelled to prepare one. Will NNSA agree to "pause" either of its pit production programs? What exactly did plaintiffs request to enjoin, actually? (I did not see that in the original filings and am remiss in not knowing this now.) In any case it is extremely unlikely that NNSA would ever agree to halt pit preparations at either LANL or the Savannah River Site (SRS). Why? At SRS, a) pit production is at least 11 years away, b) it is a "brownfield" project mostly (though not exclusively) focused on renovating an existing building and is in the early stages of physical work, c) there is no nuclear waste being generated and won't be for another decade, so there are no direct national impacts being incurred, and d) NNSA DID prepare a full Environmental Impact Statement for the work at SRS. Pausing the SRS work during the pendency of a new or supplemented PEIS would only trivially affect the environment, but would cripple the SRS project. I think any judge would see it that way too.

At LANL, pit production has begun. The first pit has been made, and many "practice" pits have been and are being made. Contaminated equipment is being removed; nuclear waste is being generated in increasing amounts. LANL pit production lacks any project-specific, site-specific, OR any adequate national EIS, as this judge has ruled. Will plaintiffs seek to halt all preparations for pit production at LANL, then? We hope so. The case for halting work at LANL is stronger.

Comparative environmental analysis is only one of the two key comparative analyses that are lacking. The other is a business case comparison, which DOE (and NNSA, which is part of DOE) and DoD call an "analysis of alternatives" (AoA). There is no AoA supporting the decision to use LANL's PF-4 for pit production. There is one that supports the SRS project. In its 2017 AoA, NNSA and DOE made a formal, Secretarial-level decision in June 2017 AGAINST using PF-4 as an enduring pit production facility, and AGAINST splitting production between two sites. NNSA did so for reasons that are still valid today and in fact underscored by this court decision, but reversed itself the following year. Building TWO pit facilities was simply never a good idea, for environmental reasons, for very strong fiscal reasons, and as NNSA has found out, because the two projects compete with each other for scarce specialized talent.

It will cost more than $22 billion to acquire reliable pit production capability at EACH site, i.e. more than $44 billion to start up both facilities. This too is something NNSA did not know when, under previous management, it made its stupid decision to build two factories. (Year-by-year cost estimates, NNSA's and ours, can be found in Plutonium Modernization Spending, Actual, Proposed, and Estimated by Site and Fiscal Year, LASG, Sep 24, 2024. A one-page summary cost analysis is here: Currently-estimated pit production costs at Los Alamos National Laboratory and the Savannah River Site, LASG, Sep 19, 2024.

The U.S. will not be able to afford two pit factories. LANL pits will cost 4-6x what pits from SRS will cost. This decision hastens the inevitable "battle royale" set up by NNSA's folly.

We have been discussing this decision and there are one or two further points worth mentioning. The judge wants a joint proposal between plaintiffs and defendants as to how to proceed with a remedy. In a way, the judge punted. "You guys work it out and come back to me with a common proposal." So when Jay Coghlan says the Order gives plaintiffs “quite a bit of power” we need to understand that power extends only insofar as NNSA agrees, and NNSA will not agree to pause any significant part of this program. They can give money to the plaintiffs, of course, and perhaps some other useful things along the way.

As discussed below, only the LANL pit project has any significant environment impacts over the time period necessary to do a new programmatic environmental impact statement. LANL is already making and shipping transuranic waste from its pit production program, for example. Will the plaintiffs ask LANL to stop? That would be the easier one to stop, but the lawsuit was designed to stop the South Carolina project, not the LANL project (look at the venue chosen, the plaintiffs chosen, the lawyers, the filings). But NNSA won't stop, will they? This case is now closed pending a consensus final outcome that the judge can then bless.

(end of comments)

U.S. District Judge Mary Geiger Lewis says in her Monday ruling the agency didn’t appropriately consider alternatives to the two-site plan. Those alternatives could have included producing pits — the explosive cores of nuclear weapons — at other locations or just one site.

Between the two locations, the goal is to produce 80 plutonium pits per year, 30 at the Los Alamos lab. Earlier this week, the pit production program passed a significant milestone when the first LANL-manufactured pit was diamond-stamped by the nuclear security agency.

The lawsuit against the National Nuclear Security Administration was brought by several anti-nuclear groups around the nation, including Nuclear Watch New Mexico and Savannah River Site Watch. Four additional claims were dismissed due to a lack of standing from the plaintiffs.

The order mandates that within 14 days, both parties need to agree on drafted remedies, including the request for injunctive relief pursued by Nuclear Watch and other groups.

Resuming pit production is part of a national nuclear weapons modernization program. In an introductory letter with the newly released Stockpile Stewardship and Management Plan for fiscal year 2025, NNSA administrator Jill Hruby highlighted “aging weapons and infrastructure” as an obstacle to the continued efficacy of nuclear deterrence.

In deciding on an approach including LANL and the Savannah River Site in South Carolina, the National Nuclear Security Administration and the Department of Energy “neglected to properly consider the combined effects of their two-site strategy and have failed to convince the Court they gave thought to how those effects would affect the environment,” Lewis wrote.

The agencies didn’t produce a study of potential alternatives, Lewis wrote, which is required under the National Environmental Policy Act if an agency “makes substantial changes in the proposed action that are relevant to environmental concerns.”

Dylan Spaulding, a senior scientist with the Union of Concerned Scientists, called the ruling a “victory for transparency.”

“Whether this will slow down the program is yet to be seen,” Spaulding said in a statement. “There are still a lot of environmental hazards and questions that need to be addressed. We should be pausing and thinking about that before this hugely expensive project goes forward.”

Lewis’ ruling shows the National Nuclear Security Administration maintains it did look at alternatives and that an analysis was not required. Spokeswoman Franchesca Ramirez said the agency was reviewing the ruling and consulting with the Department of Justice but declined to comment further as the “matter is ongoing.”

“At this point in the judicial process work on the program continues,” Ramirez wrote in an email.

In a supplemental declaration, Brian Schepens, the National Nuclear Security Administration’s deputy director of the Savannah River Acquisition and Project Management Office, cautioned a program pause at the Savannah River Site could cause hundreds of job losses and could lead to additional costs, including millions in litigation fees, because some subcontracts already have been awarded.

“The impact of suspending the design at this point is extreme with the resultant loss of the people, expertise, experience, and momentum that is in place,” Schepens wrote.

Lewis seemed unmoved by the prospect, writing in her ruling the defendants “presented a parade of horribles” that would occur if their decision was thrown out. She wrote that vacating the decision would make certain any NEPA analyses are done in “good faith.”

According to court documents, there were significant changes in the pit production plan between 2008 and 2019. In 2008, an environmental impact statement said the nuclear security agency wanted to eliminate redundancy and limit nuclear materials to a few locations to reduce cost and risk.

A new program analysis in 2019 said the goals and needs had not changed since 2008, but also said a two-site plan would increase “resiliency, flexibility and redundancy” for the nuclear program.

Jay Coghlan, executive director of Nuclear Watch New Mexico, said the order gives plaintiffs “quite a bit of power.”

Coghlan said his organization and others have been trying to draw attention to this issue years before the lawsuit was filed.

“NNSA has a problem now of its own making,” he said.
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