Washington State v. Bodman et al

Filing 232

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

1
2
3
4
5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

6
7

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

8
and

SECOND AMENDED CONSENT
DECREE BETWEEN DEPARTMENT
OF ENERGY AND STATE OF
WASHINGTON

9
STATE OF OREGON,
10
Plaintiff-Intervenor,
11
12
13

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

14
Defendants.
15
16

WHEREAS, the Court on March 11, 2016, amended portions of the Consent

17

Decree between the State of Washington (“Washington”) and the U.S. Department

18

of Energy (“DOE”), ECF No. 222 (Amended Consent Decree Between

19

Department of Energy and State of Washington);

20
21
SECOND AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF
ENERGY AND STATE OF WASHINGTON ~ 1

1

WHEREAS, the Court ordered that “DOE and Washington have thirty days

2

in which to file any joint stipulation to modify the Court’s Amended Consent

3

Decree,” ECF No. 221 at 102;

4

WHEREAS, DOE and Washington have conferred regarding potential

5

modifications related to the Court’s requirement that DOE “must purchase and

6

have available by December 31, 2016, a spare A-E-1 reboiler for the 242-A

7

Evaporator,” see ECF No. 222 at 5 (Amended Consent Decree Part IV.B.5);

8
9

WHEREAS, DOE and Washington agree that the below-specified
modification to Part IV.B.5 of the Amended Consent Decree, retaining the

10

obligation for DOE to purchase the reboiler by December 31, 2016, but changing

11

the deadline by which DOE must have the reboiler available from December 31,

12

2016, to December 31, 2018, is appropriate;

13

WHEREAS, DOE and Washington agree that the below-specified

14

modifications to Part IV.C.1-2 of the Amended Consent Decree to add monthly

15

and quarterly reporting requirements regarding activity and progress made toward

16

purchasing and having available the spare reboiler are appropriate to ensure that

17

Washington is kept apprised of DOE’s progress on this issue; and

18

WHEREAS, submission of this Stipulation pursuant to the Court’s March

19

11, 2016 order is without prejudice to any rights of either Washington or DOE to

20

appeal that order or previous orders;

21
SECOND AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF
ENERGY AND STATE OF WASHINGTON ~ 2

1

THEREFORE, IT IS HEREBY STIPULATED AND ORDERED, that:

2

The Amended Consent Decree between the U.S. Department of Energy and

3

the State of Washington, ECF No. 222, be modified as follows:

4

I.

5

Part IV.B.5 of the Amended Consent Decree, ECF No. 222 at 5, is hereby

6

Part IV.B.5

AMENDED to read as follows:

7

5. To safeguard against a hypothetical two-year outage of the 242-A

8

Evaporator, which would result in a minimum of a two-year delay in retrieval of

9

remaining SSTs, DOE must purchase by December 31, 2016, a spare A-E-1

10

reboiler for the 242-A Evaporator, and have it available by December 31, 2018.

11

II.

12

Part IV.C.1-2 of the Amended Consent Decree, ECF No. 222 at 7–10, is

Part IV.C.1-2

13

hereby AMENDED by renumbering Part IV.C.1.h as Part IV.C.1.i, by adding a

14

new Part IV.C.1.h, and by adding Part IV.C.2.(d), so that it reads as follows:

15

C. Reporting.

16

1. Quarterly Reports. DOE shall, on a quarterly basis, submit to Ecology a written

17

report documenting WTP construction and startup activities and tank retrieval

18

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

19

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

20

include:

21

a.

A brief description of project accomplishments and project

SECOND AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF
ENERGY AND STATE OF WASHINGTON ~ 3

1

issues encountered during the reporting period and/or expected

2

in the next three (3) months;

3

b.

A definitive statement describing whether or not DOE has

4

complied with milestones that have already come due as of the

5

date of the report, and how any missed milestones may affect

6

compliance with other milestones;

7

c.

8

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

9

d.

Budget/cost status;

10

e.

Copies of written directives given by DOE to the contractors

11
12

for work required by this Decree, if requested by Ecology;
f.

13
14

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

g.

An accounting of total labor hours expended on SST retrieval,

15

specifying the total percentage of hours worked utilizing self-

16

contained breathing apparatus; and

17

h.

A description of activity and progress made toward purchasing

18

and having available a spare A-E-1 reboiler for the 242-A

19

Evaporator, including a description of cost and schedule

20

performance.

21
SECOND AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF
ENERGY AND STATE OF WASHINGTON ~ 4

1

i.

If Ecology can demonstrate good cause for concluding that

2

DOE has not been forthcoming in a Section IV-C-1 quarterly

3

report, Ecology may petition the Court for an immediate

4

hearing.

5

a.

If the Court finds that good cause exists for Ecology’s

6

request for a hearing under Section IV-C-1-h, the Court

7

will schedule a hearing within thirty days of ruling on

8

Ecology’s request.

9

i.

10
11

Ecology will serve Oregon with any request for a
hearing under Section IV-C-1-h.

b.

During the IV-C-1-h hearing, DOE will be subject to

12

examination by Ecology and the Court in open court with

13

a public record, on any issues raised by Ecology

14

concerning the sufficiency of DOE’s progress and the

15

adequacy of the quarterly report.

16

2. Monthly reports. DOE shall, on a monthly basis, submit to Ecology a written

17

summary report (e.g., approximately 10 to 15 pages in length) documenting WTP

18

construction and startup activities and tank retrieval activities covered by this

19

Decree. This report may be combined with the reports already provided by DOE to

20

Ecology pursuant to Section 4 of the HFFACO Action Plan. The monthly report

21

shall address: (a) cost and schedule performance (earned value management
SECOND AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF
ENERGY AND STATE OF WASHINGTON ~ 5

1

system graphs) for each major activity; (b) significant accomplishments during the

2

prior month; (c) significant planned activities for the next month; and (d) a

3

description of activity and progress made toward purchasing and having available a

4

spare A-E-1 reboiler for the 242-A Evaporator, including a description of cost and

5

schedule performance.

6

IT IS SO ORDERED.

7

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

8
9

counsel.
DATED this 12th day of April 2016.

10
11
12

s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge

13
14
15
16
17
18
19
20
21
SECOND AMENDED CONSENT DECREE BETWEEN DEPARTMENT OF
ENERGY AND STATE OF WASHINGTON ~ 6