Washington State v. Bodman et al

Filing 223

AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF ENERGY AND STATE OF OREGON. Signed by Judge Rosanna Malouf Peterson. (PL, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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STATE OF WASHINGTON,
NO: 2:08-CV-5085-RMP
Plaintiff,

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and

AMENDED CONSENT DECREE
BETWEEN DEPARTMENT OF
ENERGY AND STATE OF OREGON

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STATE OF OREGON,
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Plaintiff-Intervenor,
v.

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ERNEST MONIZ, Secretary of the
United States Department of Energy,
and the UNITED STATES
DEPARTMENT OF ENERGY,

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Defendants.
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BEFORE THE COURT are the Department of Energy’s and the State of

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Oregon’s Motions to Amend Consent Decree, ECF Nos. 76 and 99. For the

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reasons set forth in the corresponding Opinion, the Court hereby orders that the

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Consent Decree between the Department of Energy and the State of Oregon, ECF

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No. 60, be modified as follows:

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//
AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF ENERGY
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I.

Paragraph 3 of the Consent Decree, ECF No. 60 at 2–3, is hereby

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Paragraph 3

VACATED and is SUPERSEDED by the following:

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3. DOE shall, on a quarterly basis, submit to Oregon, on the same day that it

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submits to Ecology, 1 a written report documenting waste treatment plant

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(WTP) construction and startup activities and tank retrieval activities at

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Hanford that occurred during the period covered by the report. This written

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report shall provide the status of progress made during the reporting period

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and shall include:

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a. A brief description of project accomplishments and project issues

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encountered during the reporting period and/or expected in the next

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three (3) months;

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b. A definitive statement describing whether or not DOE has complied

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with milestones that have already come due as of the date of the

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Washington State Department of Ecology, throughout the following Consent

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Decree modifications. The Court refers to the State of Washington as “Ecology” in

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order for the modifications to remain consistent with the remaining, unmodified

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Consent Decree sections. See ECF No. 60. This footnote is for explanatory

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purposes only, and does not constitute part of the modified Consent Decree.

The State of Washington is also referred to as “Ecology,” shorthand for the

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AND STATE OF OREGON ~ 2

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report, and how any missed milestones may affect compliance with

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other milestones;

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c. Where applicable, a description of actions initiated or otherwise
taken to address any schedule slippage;

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d. Budget/cost status;

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e. Copies of written directives given by DOE to the contractors for

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work required by the Decree entered in this case between DOE and

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Ecology, if requested by Oregon.

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f. A description of progress made towards resolving the five
outstanding WTP technical issues; and

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g. An accounting of total labor hours expended on SST retrieval,

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specifying the total percentage of hours worked utilizing self-

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contained breathing apparatus.

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h. The Consent Decree entered between DOE and Ecology permits

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Ecology to request a hearing should Ecology demonstrate good

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cause that DOE has not been forthcoming as pertains to the quarterly

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reports. Ecology will serve Oregon with any request for a hearing,

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and Oregon representatives may attend and participate in such a

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hearing. Such permission to attend shall not vest Oregon with any

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rights as a party to those proceedings. Oregon’s unavailability after

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reasonable notice shall not require the delay or rescheduling of such
AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF ENERGY
AND STATE OF OREGON ~ 3

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hearings.
II.

Paragraph 5
Paragraph 5 of the Consent Decree, ECF No. 60 at 3, is hereby VACATED

and is SUPERSEDED by the following:

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5. In the event DOE determines that a serious risk has arisen that DOE may

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be unable to meet a schedule as required in Section IV of the Consent

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Decree entered in this case between DOE and Ecology, DOE shall notify

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Oregon, on the same day that it notifies Ecology.

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a. The Consent Decree entered between DOE and Ecology permits

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Ecology to request a meeting and/or a hearing should Ecology

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demonstrate good cause that DOE has not been forthcoming as

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pertains to the “serious risk.” Ecology will serve Oregon with any

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request for a meeting or hearing, and Oregon representatives may

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attend and participate in such a meeting or hearing. Such permission

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to attend shall not vest Oregon with any rights as a party to those

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proceedings. Oregon’s unavailability after reasonable notice shall

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not require the delay or rescheduling of such meetings or hearings.

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III.

Paragraph 5A

A new Paragraph 5A is added to the Consent Decree as follows:

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5A. Applicability of Federal Rule of Evidence 408. Federal Rule of

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Evidence 408 does not apply to the above reporting requirements as the
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AND STATE OF OREGON ~ 4

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reports are not an offer of compromise but comprise a mandatory

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element of an agreed-to and concluded compromise in the form of this

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Consent Decree.

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a. The Consent Decree entered between DOE and Ecology permits

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Ecology to request a hearing should Ecology find that DOE has

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asserted Rule 408. Ecology will serve Oregon with any request for

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a hearing, and Oregon representatives may attend and participate in

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such a hearing. Such permission to attend shall not vest Oregon with

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any rights as a party to those proceedings. Oregon’s unavailability

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after reasonable notice shall not require the delay or rescheduling of

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such hearings.

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IT IS SO ORDERED.

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The District Court Clerk is directed to enter this Order and provide copies to

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counsel.
DATED this 11th day of March 2016.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

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AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF ENERGY
AND STATE OF OREGON ~ 5